COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

J OHN MI CHAEL

DUNCAN, Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-10-00309- CV

Appea l from 126th District Court of Tra vis County , Texas (TC # D-1- GV-10- 000555)

MEMORAN DUM OP INION ON MOTION This matter is befor e the Court on “Appe llant’s Motion for Review of Adequa cy of Security
to Stay Ex ecution, for Tempora ry Orde rs, and I njunctive R elief.” For the reasons that follow, the motion will be denie d. F ACTUAL SUMMA RY I n J une 2009, in trial court cause number D-1-G V-07-000716, J ohn Michae l Dunca n and the State of Texas enter ed into an ag ree d judgme nt, which require d Dunca n to pay over $170,000 to the State. At the same time, the parties enter ed into a judgme nt pay ment ag ree ment throug h which the State would forgive all but $76,172.72 of the judgme nt amount if Dunca n would make monthly pay ments of $1,500 until the reduc ed amount was paid in full. There is a dispute betwee n the parties

as to whether Dunca

n complied with this ag ree ment. The State attempted to execute on the ag ree d judgme nt by obtaining a writ of execution to sell the two condominiums owned by Dunca n. After

rec eiving a par

tial pay ment from Dunc an, the State did not g o forwa rd with the sale. I n May 2010, in trial court cause number D-1-G V-10-000555, the State filed an application for wr it of g arnishment, see king to r ecove r on the agr eed judgment by g arnishing Dunca n’s fundson deposit with J P Morg an C hase Bank. As require d by the gar n i s h m ent s tatutes, the application

was supported by an assistant attorney g ener al’s aff idavit stating, “Within the Plaintiff’s knowledg e, debtor doe s not possess property within this state t hat i s subject t o execution and that is sufficie nt to satisfy the judgme nt.” S ee T E X .C I V .P R A C .&R E M .C O D E A

N N . § 63.001(2)( B) (West 2008). Dunca n asser ted counter claims for wrong ful g arnishment, decla ratory judgme nt, and brea ch of
contra ct. The trial court g rante d a judgme nt of g arnishment, order ing that the deposited funds be paid to the State once the judgme nt be comes final. This judgme nt of g arnishment is the subject of this appeal. Dunca n filed an appellate brief raising sever al issues. Among other things, he challeng es the trial court’s finding that the S tate did not have know ledg e of assets that wer e subj ect to execution and that would be sufficie nt to satisfy the ag ree d judgme nt. After Dunca n’s brief was filed, the State once ag ain obt ained a writ of ex ecution for the t wo condomini ums. They are curr ently schedule d to be sold on May 3, 2011. The trial court de nied Dunca n’s motion to st ay

the execution sale a

nd to determine tha t the g arnished f unds opera te as a

superse deas bond f

or the a ppeal. Dunca n no w s ee k s relief from this Court. I n his motion, Dunca n asks us to revie w the adequa cy of the g arnished f

unds to serve as secur ity and to issue a writ of supersedea s stay ing the execution sale. He arg ues that the judgme nt is adequately secur ed by the g arnished funds on deposit with the bank. He contends that the execution sale will interfe re with the jurisdiction of this Court and render the p ending appeal m oot. Dunca n also arg ues t hat t he S tate is attempting to achie ve a double rec over y by selling the condominiums and g arnishing the deposited funds. Finally , he 1 believes that it is unfair for the State to le vy on the condominiums after obta ining the g arnishment

T h e S t a t e c o n c e d e s t h a t i t i s o n l y e n t i t l e d t o o n e r e c o v e r y . B u t a t t h i s p o i n t , i t h a s n o t a c t u a l l y a t t a i n e d t h e 1 f u n d s o n d e p o s i t o r t h e p r o c e e d s f r o m t h e c o n d o m i n i u m s . H o w i t o b t a i n s i t s r e c o v e r y w i l l d e p e n d o n t h e r e s u l t s o f t h e p e n d i n g a p p e a l a n d t h e e x e c u t i o n s a l e .judgme nt on the g round that he did not have assets subject to execution that would satisfy his debt. RULE 24 Dunca n bring s his motion pursuant to Rule 24.4 of the Texas Rules of Appellate Procedur e. Rule 24 sets out the proce dures for superse ding a judgme nt when that judgme nt is being appea led. Gene rally , enfor ceme nt of the j u d gm en t will be suspended pending appea l only if the judgme nt debtor provides adequate secur i t y o r t h e j udg ment cre ditor ag ree s to suspend enfor ceme nt. See T E X .R.A P P .P. 24.1. The rule allows an appellate court to revie w a trial court’s ruling reg arding the adequa cy of secur ity and to issue any temporar y order s nece ssary to prese rve the parties’ rig hts while underta king the revie w. See T E X .R.A P P .P. 24.4(a), ( c). Rule 24 has no application here

. By its terms, the rule allows the enfor ceme nt of a judgme nt to be suspended “pending appea l.” T E X .R.A P P .P. 24. There is no pending appea l from the orig inal ag ree d judgme nt. I n fac t, t h at j u d gm en t has never been appea led. Since the orig inal ag ree d judgme nt is final, Duncan cannot superse de it now by posting security , and the State may enfor ce i t by any means allowed by law. The State is attempting to enfor ce it both by levy in g o n t h e condominiums and by

g arnishing the funds deposited w ith the bank. Rule 24 also does not apply to the g arnishment judgme nt. Although there is a pending appea l from that judgme nt, there is no dispute about the adequa cy of secur i t y to superse de it. The g arnishment jud gm en t is in eff ect being secur ed by the funds that are still being held by the bank pending appea l. The State has forswor n executing on the g arnishment judgme nt. I t is not attempting
to execute on the g arnishment judgme nt by levy ing on the condominiums. I nstead, as noted above, the State has levie d on the condominiums to enforc e the or igina l ag ree d judgme nt. 2 INJUNCTIVE RELIEF

T h e N o t i c e o f C o n s t a b l e ’ s S a l e s p e c i f i c a l l y r e f e r e n c e s c a u s e n u m b e r D

- 1

- G V

- 0 7

- 0 0 0 7 1 6

. 2Dunca n asks us to stay the execution sale. We may issue an injunction only if it is nece ssary to enfor ce our jurisdiction, to prese rve the subject matter of an appea l, or to preve nt an appea l from becoming moot. Mathis v. Barnes , 316 S.W .3d 795, 808-09 (Tex.App.--Ty ler 2010, pet. filed); see also T E X .G O V ’ T C O D E AN N . § 22.221(a) (West 2004). We cannot issue an injunction to prese rve the
status quo, for equitable rea sons, or mere ly to protec t a party from damag e pending appea l. Mathis , 316 S.W .3d at 809; Gibson v. W aco Indep. Sch. Dist. , 971 S.W .2d 199, 204 (Tex.App.--Waco 1998),

vacate d on other grounds , 22 S.W .3d 849 (Tex. 2000); EMW Mfg. Co. v. Lemons , 724 S.W .2d 425, 426 (Tex.App.--F ort Worth 1987, no writ). The execution sa le will not interfe re with this Court’s jurisdiction over the appea l from the g arnishment judgme nt. I t does not aff ect the subject matter of the appea l, which is whether the trial
court e rre d in de ny ing D uncan’ s counterc laims and g ranting the applica tion for g arnishment. Our decision reg arding Dunca n’s counter claims will aff ect whether he rec overs damag es from the State. Our mandate on these issues can be car ried into eff

ect reg ardle ss of the sale of the condominiums. As for the g arnished funds, it is pos s i b le t hat t he parties will ag ree not to pursue this appea l if the sale satisfies all of Dunca

n’s debt to the State. But that does not mean that the sale itself will rende r the appea l moot. Cf. Riner v. Briargrove Park Property Owners, Inc. , 858 S.W .2d 370, 370 (Tex. 1993)(holding that the involuntary pay ment of a judgme nt, as throug h execution, does not moot an appea l). A s o m ewha t simil ar factua l scena rio was presented in W

est Flour Mill, Inc. v. Vance , 45 6 S.W .2d 481 (Tex.Civ.App.--Waco 1970, no writ). There , Vanc e obtained a final judgme nt ag ainst West Mill. W

est Flour Mill , 456 S.W .2d at 481. After Vanc e beg an executing on the judgme nt and

a notice of sheriff

’s sale issued for West Mill’s proper ty , West Mill filed a petition for bill of revie w to reinstate the e arlier

case for pur

poses of perf

ecting an appea l f

rom the judgme nt. Id. When thetrial court de nied West Mill ’s request for a temporar y injunction, W est Mill appealed a nd filed an orig inal proce eding for writ of injunction. Id. I n the original proceeding , the appellate court held that it ha d “no jurisdiction to enjoin the Sheriff from levy ing execution on a judg ment that has not been supe rsede d, is not on appea l, and has become final.” Id

. at 481-82; see also EMW Mfg. Co. , 724 S.W .2d at 426-27 (re fusing t o gra n t an inj unction under simi lar circumstance s). The same is true he re. Dunca n expresses conce rn about the State’s chang ing positions conce rning the condominiums, but this conce rn i s not p ro p erly befor e us at t his juncture. Having conclude d that Rule 24 is not implicated and that our jurisdiction is not threa tened, we have no authority to enjoin execution on the orig inal ag ree d judgme nt. There fore , this opinion should not be construed to express any

view, fa vorable or unfa

vorable , reg arding the proprie ty of the e x ecution sale

. Dunca n’s “Moti on for Review o f Ad eq uacy of S ecur ity to Stay Ex ecution, for Tempora ry Orde rs, and I njunctive Relief” is denied. April 20, 2011 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.