1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-13-00284-CV

____________________

KELLY McCLANE, Appellant

V.

NEW CANEY OAKS APARTMENTS, Appellee

_________________________________________________ ______________

On Appeal from the County Court at Law No. 2

Montgomery County, Texas

Trial Cause No. 13-27046-CV 

___________________________________________________ _____________

OPINION

Kelly McClane appeals a judgment in favor of New Caney Oaks Apartments 

in a forcible detainer suit. McClane is a tenant at New Caney Oaks, a federallysubsidized apartment complex, where she lives with her two children. She signed a 

one-year lease. McClane received a “7 Day Vacate Lease Termination Notice for 

Non-Payment of Rent.”

New Caney Oaks filed its petition for eviction in the Montgomery County 

Justice Court, and requested $866 in rent and “all rents accruing through date of 
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judgment.” The justice of the peace signed a default judgment against McClane for 

past rent. The judgment stated that she had five days to vacate the apartment or 

appeal the judgment. McClane filed her appeal the next day.

When an appeal from a justice court to a county court is perfected in a 

forcible detainer suit for nonpayment of rent, the county clerk dockets the cause, 

“and the trial shall be de novo.” Tex. R. Civ. P. 751.1 The justice court files the 

papers and the transcript of justice court proceedings, and any money in the justice 

court registry, with the clerk of the county court. See id. The county clerk then 

notifies the parties of the “date of receipt of the transcript and the docket number of 

the cause[,]” and notifies the defendant of the “necessity for filing a written answer 

in the county court when the defendant has pleaded orally in the justice court.” Id.

The trial in county court at law was set for May 20, 2013, and then reset for 

May 21. A visiting judge called the case. The property manager identified herself 

as the person representing New Caney Oaks. McClane did not appear. Based on 

McClane’s failure to appear, the court orally “dismiss[ed] the case for 

nonappearance.”

 1 The former rules governed this case. The Texas Supreme Court 

subsequently adopted new Rules of Civil Procedure governing practice in justice 

courts. 
3

According to McClane, she had called the court and explained that she could 

not be at court on May 21 because she had a medical appointment. McClane claims 

the person she spoke to informed her that a new notice with a different trial date 

would be mailed. McClane received a notice that trial would be held on June 14, 

2013.

On that date, the case was again called for trial. McClane did not appear. No

attorney appeared on behalf of New Caney Oaks. The property manager 

announced her presence, and stated on the record the amount of unpaid rent. That 

day the court signed a judgment granting possession of the property to New Caney 

Oaks. McClane was ordered to vacate the property within ten days, and to pay the 

rent the court calculated based on the property manager’s presentation.

McClane asserts that on June 14 she searched for a parking space as she 

drove around the courthouse. Her health made it difficult for her to get to the 

courtroom, and she arrived after the trial had ended. With the assistance of counsel, 

she filed a motion for new trial, and later an amended motion. She argued that her 

failure to appear was not intentional but was an accident. She alleged that New 

Caney Oaks failed to comply with the lease terms, with section 24.005 of the 

Texas Property Code, and with federal housing regulations. Denying her motion, 

the trial court noted on the order that McClane had missed two trial settings.
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McClane filed a second motion for new trial, which the trial court denied by 

written order. Included in the order are the following findings:

1. This Court finds that at the time of the first trial in this matter the 

judge did not have an order of appointment to sit for [the] County 

Court at Law Number Two;

2. This Court finds that the judge sitting at the time of the first trial 

dismissed the Defendant’s appeal in favor of the original JP 

Court’s judgment; and 

3. This Court finds that new trial was granted on its own motion in 

the interest of justice to correct the situations detailed above.

McClane’s motions for new trial were supported by exhibits and an affidavit.

MOOTNESS RESPONSE

New Caney Oaks argues the appeal is moot because McClane’s lease term 

has expired. See Marshall v. Hous. Auth. of the City of San Antonio, 198 S.W.3d 

782, 787 (Tex. 2006) (issue of possession in forcible detainer action). The lease 

has a hold-over provision, and McClane claims the notice to vacate was 

inadequate. See Barnes v. Stone Way Ltd. P’ship, 330 S.W.3d 925, 927-28 (Tex. 

App.—Beaumont 2011, no pet.). Unlike the tenant in Marshall, McClane has not 

vacated the apartment, and she has superseded the judgment. See Tex. Prop. Code 

Ann. § 24.007 (West Supp. 2012); Tex. R. App. P. 24.1; see also Marshall, 198 

S.W.3d at 784. She claims a continuing right to possession. The issue of proper 

termination of the lease is disputed. The trial court ordered McClane to pay money 

damages, and McClane challenges the judgment. See Barnes, 330 S.W.3d at 926-
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29; see also Cavazos v. San Antonio Hous. Auth., No. 04-09-00659-CV, 2010 Tex. 

App. LEXIS 5453, at **5-7 (Tex. App.—San Antonio July 14, 2010, no pet.) 

(mem. op.) (Trial court ordered tenant to pay unpaid rent.). Because the parties’ 

controversy continues and the case is not moot, we will address appellant’s issues.

THE FINAL JUDGMENT

McClane argues that the June 14 final judgment is a nullity, because a 

judgment dismissing the case was orally rendered on May 21 and no order 

reinstating the case was signed prior to June 14. The date an order or judgment is 

signed determines the beginning of the court’s plenary power to grant a new trial 

or to vacate an order of dismissal. See Tex. R. Civ. P. 306a(1). The county court at 

law had jurisdiction over the matter until thirty days after a final written order 

disposed of the case. See id.; Tex. R. Civ. P. 329b(d). No written order of dismissal 

was signed after the first trial setting. No final order or judgment was signed until 

June 14. The trial court had jurisdiction over the matter at that time. See Tex. R. 

Civ. P. 306a, 329b. Issue one is overruled.

THE AUTHORIZED REPRESENTATIVE

McClane maintains that the trial court erred in allowing New Caney Oaks, a 

corporation, to be represented by a non-attorney at trial. She argues that “[w]hen a 

non-attorney purports to represent a corporation in a legal proceeding, the non-
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attorney’s acts have no effect and are void.” We understand this issue as including 

a challenge to the legal sufficiency of the proof at trial, because McClane argues 

we should treat the non-attorney’s acts in this context as having no effect. See Tex. 

R. App. P. 33.1(d).

A forcible detainer action is governed by discrete provisions in the Texas 

Property Code and Rules of Civil Procedure. See Tex. Prop. Code Ann. §§ 24.001-

.011 (West 2000 & Supp. 2012); Tex. R. Civ. P. 738-55. The action is intended to 

be a summary, speedy, and inexpensive remedy for resolving a dispute over “who 

is entitled to possession of the premises.” See McGlothlin v. Kliebert, 672 S.W.2d 

231, 232 (Tex. 1984). The only issue to be determined is the right to actual 

possession. Tex. R. Civ. P. 746. But a claim for rent may be brought with the

action. Tex. R. Civ. P. 738.

Under the Rules and the Property Code, a party may be represented by an 

“authorized agent” in justice court in a forcible detainer suit “for non-payment of 

rent or holding over beyond the rental terms[.]” See Tex. R. Civ. P. 747a

(“authorized agents”); see also Tex. R. Civ. P. 739 (“authorized agent”); Tex. 

Prop. Code Ann. § 24.011 (West 2000) (“authorized agents, who need not be 

attorneys”). The written sworn complaint must be filed by “the party aggrieved or 

his authorized agent[.]” See Tex. R. Civ. P. 739. The authorized agent must be an 
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individual, not a business entity. See Tex. Att’y Gen. Op. No. JM-451 (1986). The 

law anticipates that the business’s authorized agent, if not a licensed attorney, will 

be a property manager or someone similarly involved with the property, so that the 

individual has knowledge sufficient to sign an oath that the allegations in the 

complaint are true. See id.; Tex. R. Civ. P. 739, 741. No written answer was filed 

in the justice court before the judgment, and the authority of the property manager 

to represent New Caney Oaks was not attacked by McClane in the justice court. 

See generally Holloway v. Paul O. Simms Co., 32 S.W.2d 672, 673-74 (Tex. Civ. 

App.—Austin 1930, no writ) (affidavit sufficient “where no attack is made upon 

the authority of the agent” in justice court). We conclude the property manager was 

an authorized agent for the purpose of signing the sworn complaint.

In a forcible detainer action, Rule 753 provides that when no answer is filed 

in the justice court and no answer is filed within eight days after the transcript is 

filed in the county court at law, the allegations of the sworn complaint “may be 

taken as admitted[,]” and a default judgment may be signed. See Tex. R. Civ. P. 

753. No trial is necessary unless the allegations are insufficient to support a 

judgment. See Cunningham v. Anglin, No. 05-10-01023-CV, 2011 Tex. App. 

LEXIS 6385, at **5-6 (Tex. App.—Dallas Aug. 12, 2011, no pet.) (mem. op.). 
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Essentially, Rule 753 treats the sworn complaint filed in the justice court as the 

initial pleading in the county court at law. 

New Caney Oaks argues that McClane was in default because she failed to 

file a written answer in the county court at law. The record does not include a

notice from the clerk to McClane of the necessity for filing a written answer in the 

county court at law. See Tex. R. Civ. P. 751. McClane filed an affidavit of inability 

to pay costs and a request to appeal in the justice court. The Supreme Court has 

held that a “pauper’s affidavit” in a forcible detainer case suffices as a pro se 

answer entitling a defendant to notice of a hearing. See Hughes v. Habitat 

Apartments, 860 S.W.2d 872, 872-73 (Tex. 1993); see also Brown v. Apex Realty, 

349 S.W.3d 162 (Tex. App.—Dallas 2011, pet. denied) (“Both an appeal bond 

filed pursuant to rule 749 and a pauper’s affidavit filed pursuant to rule 749a 

operate as an answer.”). McClane’s affidavit of inability to pay costs included a 

hand-written note explaining her medical difficulties, and also stating: “However I 

had the money that was owed. She told me to hold on to everything and not to 

bother coming to court, that it would end up costing me an extra fee if I came to 

court.” We conclude the affidavit suffices as a written answer. See Hughes, 860 

S.W.2d at 872-73. 
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Despite notice of the trial setting, McClane failed to appear at trial. But a 

post-answer “default” is not an abandonment of the answer, nor is it an admission 

of any of the issues controverted by the answer. Stoner v. Thompson, 578 S.W.2d 

679, 682 (Tex. 1979). New Caney Oaks was required to offer evidence to prove the 

case as in a judgment upon a trial. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 

922, 930 (Tex. 2009); Bradley Motors, Inc. v. Mackey, 878 S.W.2d 140, 141 (Tex. 

1994). 

The property manager could not represent the corporation at the trial in the 

county court at law. See L’Arte de la Mode, Inc. v. Nieman Marcus Grp., 395 

S.W.3d 291, 295 (Tex. App.—Dallas 2013, no pet.) (“The representative could not 

have . . . presented a case[.]”); Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 

655, 659 (Tex. App.—San Antonio 2002, no pet.). A corporation is not authorized 

to practice law. Unauthorized Practice of Law Comm. v. Am. Home Assurance Co., 

261 S.W.3d 24, 33 (Tex. 2008). The Supreme Court explained: 

[T]he Court has exclusive authority to adopt rules governing 

admission to the practice of law in Texas. Those rules permit only 

individuals meeting specified qualifications to practice law. Entities . . .

are excluded.

Id. (footnotes omitted). And although Texas Rule of Civil Procedure 7 provides

that “[a]ny party to a suit may appear and prosecute or defend his rights therein, 

either in person or by an attorney of the court[,]” the Rule does not permit a 
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corporation to appear through an agent who is not a licensed attorney. See Dell 

Dev. Corp. v. Best Indus. Unif. Supply Co., 743 S.W.2d 302, 303 (Tex. App.—

Houston [14th Dist.] 1987, writ denied); see also Elec. Data Sys. Corp. v. Tyson, 

862 S.W.2d 728, 737 (Tex. App.—Dallas 1993) (orig. proceeding) (“[O]nly a 

licensed attorney can appear and represent a corporation.”).

The Property Code includes a provision permitting, under certain 

circumstances, a party to “be represented by their authorized agents, who need not 

be attorneys[,]” in a county court hearing based on a sworn motion that a tenant 

failed to pay rent ordered by the justice court to be paid during the appeal of the 

eviction. See Tex. Prop. Code Ann. § 24.0054(a-4),(e) (West Supp. 2012); see also 

Tex. Prop. Code Ann. § 24.0053 (West Supp. 2012). But the justice court’s 

judgment in this case did not provide for a monthly amount of rent to be paid 

during the pendency of the appeal, a requirement of section 24.0053(a). And even 

had the justice court’s judgment contained the required payment information, New 

Caney Oaks did not file a sworn motion in the county court at law “that the tenant 

failed to pay rent as required.” See Tex. Prop. Code Ann. § 24.0054(a-4). New 

Caney Oaks did not follow the procedures outlined in sections 24.0053 and 

24.0054 of the Texas Property Code. See also Tex. R. Civ. P. 749b(3) (writ of 

restitution). Instead, New Caney Oaks sought and obtained a judgment against 
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McClane that was based on the sworn complaint filed in justice court by the 

property manager and on the presentation of the case by the property manager at 

trial in the county court at law.

Although, as the Supreme Court has explained, “[g]enerally a corporation 

may be represented only by a licensed attorney[,]” whether a non-lawyer’s act for 

the corporation nevertheless may be given effect depends on whether the act is like 

“the specific ministerial task of depositing cash with a clerk in lieu of a cost bond”

that the Supreme Court gave effect in Kunstoplast. See Kunstoplast of Am., Inc. v. 

Formosa Plastics Corp., 937 S.W.2d 455, 456 (Tex. 1996); compare L’Arte de la 

Mode, Inc., 395 S.W.3d at 295 (The non-attorney corporate representative could 

not have objected to evidence, cross-examined witnesses, presented a case, or 

presented argument to the trier of fact.); Kelly v. Hinson, 387 S.W.3d 906, 912 

(Tex. App.—Fort Worth 2012, pet. denied); Computize, Inc. v. NHS Commc’ns 

Grp., Inc., 992 S.W.2d 608, 612-13 (Tex. App.—Texarkana 1999, no pet.). The 

presentation of a claim at trial is not, however, a mere ministerial act. See L’Arte 

de la Mode, Inc., 395 S.W.3d at 295; Computize, Inc., 992 S.W.2d at 612 (“[A] 

response to a motion for summary judgment is not a ministerial act.”). If a court 

gives any effect to the property manager’s presentation, the unlicensed practice of 

law would be permitted. And evidence is legally insufficient when the court is 
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barred by rules of law from giving weight to the only evidence offered to prove a 

vital fact. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex. 

2004). We hold that the property manager’s presentation of the claim in the county 

court of law had no legal effect. That is, her testimony under the circumstances is 

legally insufficient evidence to support the judgment. On this record, therefore, the 

county court at law’s judgment cannot be sustained. 

Normally, an appellate court renders judgment when the evidence is legally 

insufficient to support the trial court’s judgment following a trial on the merits. See 

Guevara v. Ferrer, 247 S.W.3d 662, 670 (Tex. 2007). In this case though, the trial 

court entered a judgment on the pleadings when neither party properly appeared. 

See Custom-Crete, Inc., 82 S.W.3d at 659 (The non-attorney representative’s 

presence does not amount to an appearance at trial by the corporation.). The case 

has not been fully developed. See Dolgencorp, 288 S.W.3d at 930. In Dolgencorp, 

the Supreme Court explained that the appropriate remedy is a new trial when there 

is legally insufficient evidence to support a post-answer default judgment. Id. A

new trial is required here. Appellant’s issue two is sustained.

CRADDOCK

McClane argues she is entitled to a new trial under the standard in Craddock 

v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939); see also Ivy v. 
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Carrell, 407 S.W.2d 212, 213-14 (Tex. 1966). She argues her failure to appear at 

trial was not intentional or the result of conscious indifference, but was the result 

of an accident or mistake. McClane provided an affidavit explaining her physical 

condition and why she was eight minutes late for the trial setting. She was 

impaired by the side-effects of chemotherapy. New Caney Oaks did not controvert 

her proof. See Barnes, 330 S.W.3d at 928. McClane also argues that she did not 

receive adequate notice of termination, and that New Caney Oaks failed to comply 

with the lease requirements to terminate the tenancy. See Kennedy v. Andover 

Place Apartments, 203 S.W.3d 495, 498 (Tex. App—Houston [14th Dist.] 2006, 

no pet.) (Section 24.005 provides that if a lease contains a provision granting an 

opportunity to respond, a notice to vacate may not be given until that period has 

expired.). Finally, she notes that New Caney Oaks did not contest the assertion in 

her motion for new trial that a new trial would not injure New Caney Oaks. See 

Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987). Because her argument under 

Craddock would not result in greater relief than the new trial afforded by our 

resolution of issue two, however, we need not address appellant’s issue three.

The trial court’s judgment is reversed. The cause is remanded for a new trial.
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REVERSED AND REMANDED.

____________________________

 DAVID GAULTNEY

 Justice

Submitted on September 13, 2013

Delivered on October 31, 2013

Before Gaultney, Kreger, and Horton, JJ.