IN THE

TENTH COURT OF APPEALS

No. 10-10-00009-CV

CHARLES MCELROY,

Appellant

v.

TEAGUE HOUSING AUTHORITY,

Appellee

From the County Court

Freestone County, Texas

Trial Court No. CV-09-5125

MEMORANDUM OPINION

The Teague Housing Authority, as landlord, brought an eviction (forcible 

detainer) action against Charles McElroy in justice court in Freestone County.1 A jury 

found for the Authority, and the justice court entered judgment for possession of the 

apartment at issue to the Authority and attorney’s fees of $1,600.50. McElroy appealed 

to the county court, and after a trial de novo, the county court ruled for the Authority. 

A judgment awarding the Authority possession and attorney’s fees of $4,273.50 was 

 

1 The grounds were unauthorized pets, feeding of strays, condition of pets, housekeeping, non-reporting 

of maintenance issues, interfering with management of property, and refusing pest control.
McElroy v. Teague Housing Authority Page 2

entered on January 21, 2010. The judgment set a supersedeas bond in the amount of 

$4,500, to be filed within ten days, but McElroy did not file one. See TEX. PROP. CODE 

ANN. § 24.007 (West Supp. 2011). Asserting eight issues, McElroy, who is pro se and 

proceeding as an indigent, appeals.

Possession

The Authority sent McElroy a notice of termination for material noncompliance 

on August 31, 2009. His lease was set to expire on January 31, 2010. At some point after 

the county court’s January 21, 2010 judgment awarding the Authority possession, but 

before a writ of possession was issued, McElroy vacated the apartment.

In Texas, the procedure to determine the right of possession of real 

property, if there was no unlawful entry, is the action of forcible detainer.

TEX. PROP. CODE ANN. § 24.002 (Vernon 2000). A forcible detainer action is 

intended to be a speedy, simple, and inexpensive means to obtain 

immediate possession of property. Marshall v. Hous. Auth., 198 S.W.3d 

782, 787 (Tex. 2006); see TEX. PROP. CODE ANN. §§ 24.001-24.011 (Vernon 

2000 & Supp. 2009). Judgment of possession in a forcible detainer action is 

not intended to be a final determination of whether the eviction is 

wrongful; rather, it is a determination of the right to immediate 

possession. Marshall, 198 S.W.3d at 787; see TEX. PROP. CODE ANN. § 24.008 

(Vernon 2000) (providing that a suit for forcible detainer “does not bar a 

suit for trespass, damages, waste, rent, or mesne profit”).

...

Pursuant to section 24.007 of the Texas Property Code, a judgment 

of possession in a forcible detainer action may not be stayed pending 

appeal unless the appellant timely files a supersedeas bond in the amount 

set by the trial court. TEX. PROP. CODE ANN. § 24.007 (Vernon 2000). Thus, 

if a proper supersedeas bond is not filed, the judgment of possession may 

be enforced, including issuance of a writ of possession evicting the tenant 

from the premises. Marshall, 198 S.W.3d at 786. However, an appellant’s 

failure to supersede the judgment of possession does not divest the 

appellant of her right to appeal. Id. at 786-87. But, it may cause her appeal 

to be moot. See id. at 787.
McElroy v. Teague Housing Authority Page 3

We are prohibited from deciding moot controversies. Nat’l 

Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). A justiciable 

controversy between the parties must exist at every stage of the legal 

proceedings, including the appeal, or the case is moot. Williams v. Lara, 52 

S.W.3d 171, 184 (Tex. 2001). The Texas Supreme Court has held that even 

if an appellant gives up possession of the premises after the trial court 

signs a judgment of possession, the appeal may not be moot so long as (1) 

the appellant timely and clearly expresses her intent to appeal and (2) the 

appellate relief requested is “not futile; that is, so long as she held and 

asserted a potentially meritorious claim of right to current, actual 

possession of the [premises].” Marshall, 198 S.W.3d at 787.

Cavazos v. San Antonio Hous. Auth., No. 04-09-00659-CV, 2010 WL 2772450, at *1-2 (Tex. 

App.—San Antonio July 14, 2010, no pet.).

McElroy’s brief does not present any basis for claiming a right to current, actual 

possession of the premises; he does not even request possession.

2 Thus, the issue of 

possession is moot. See id. at *2 (citing Marshall, 198 S.W.3d at 787).

McElroy does request that we set aside the eviction judgment. Regardless of his 

request or appellate issues, because the issue of possession is moot, we must vacate the 

county court’s judgment of possession. Id. (citing and quoting Marshall, 198 S.W.3d at 

785 (“We conclude that Marshall’s case is moot and that the court of appeals erred in 

dismissing only the appeal and leaving the trial court’s judgment in place.”); see Pierson,

 

2 His first seven issues concern: (1) his unpleaded defense of res judicata; (2) his unpleaded defense of 

retaliation, see TEX. PROP. CODE ANN. § 92.335 (West 2007); (3) evidence objections, only one of which was 

made in the county court (a hearsay objection to a document that was proved up and admitted as a 

business record); (4) the Authority’s refusal to accept McElroy’s second cat as an “assistance animal;” (5) 

the county court’s alleged failure to issue and have served McElroy’s requested subpoenas on the eve of 

trial; (6) the Authority’s use of “color of law” (a police officer) to assist in a welfare check of McElroy’s 

apartment while he was hospitalized, and the Authority’s request to have a police officer present on the 

day McElroy was to vacate the apartment; and (7) unpleaded complaints about the Authority’s treatment 

of McElroy’s security deposit and pet deposit, see TEX. PROP. CODE ANN. § 92.109 (West 2007), which 

occurred after the trial and after McElroy had vacated the apartment. None of these complaints has any 

bearing on McElroy’s right to actual possession of the apartment. See, e.g., Pierson v. Reynolds, No. 14-06-

01023-CV, 2007 WL 2447550, at *2 (Tex. App.—Houston [14th Dist.] Aug. 30, 2007, no pet.) (holding that 

appellant’s issues had no bearing on appellant’s right to actual possession).
McElroy v. Teague Housing Authority Page 4

2007 WL 2447550, at *2 (citing Marshall, 198 S.W.3d at 787 and vacating trial court’s 

judgment).

Attorney’s Fees

Although the issue of possession is moot, we may still review issues independent 

of possession. Cavazos, 2010 WL 2772450, at *2 (citing Rice v. Pinney, 51 S.W.3d 705, 707 

(Tex. App.—Dallas 2001, no pet.)). In issue eight, McElroy complains about the 

excessiveness of the attorney’s fee award. We (as apparently does the Authority) 

construe this argument as a sufficiency issue. See, e.g., id. at *3 (construing pro se 

appellant’s complaint as sufficiency issue).

The Authority, tacitly conceding that there is no evidence supporting the 

attorney’s fee award, asserts that the county court could take judicial notice of the usual 

and customary attorney’s fees and of the contents of the case file. See TEX. CIV. PRAC. &

REM. CODE ANN. § 38.004 (West 2008) (“court may take judicial notice of the usual and 

customary attorney’s fees and of the contents of the case file without receiving further 

evidence”). But, section 38.004 only applies when a party seeks attorney’s fees under 

section 38.001 of the Civil Practice and Remedies Code. Hasty Inc. v. Inwood Buckhorn 

Joint Venture, 908 S.W.2d 494, 503 (Tex. App.—Dallas 1995, writ denied) (“When a claim 

for fees does not fall under section 38.001, the trial court may not take judicial notice of 

attorney’s fees.”) (citing Coward v. Gateway Nat’l Bank, 525 S.W.2d 857, 859 (Tex. 1975) 

(construing predecessor statute to only apply to claims described in statute)); see also 

Charette v. Fitzgerald, 213 S.W.3d 505, 514-15 (Tex. App.—Houston [14th Dist.] 2006, no 

pet.); TEX. CIV. PRAC. & REM. CODE ANN. § 38.003 (West 2008) (providing that 
McElroy v. Teague Housing Authority Page 5

presumption of reasonableness of usual and customary attorney’s fees applies only “for 

a claim of the type described in Section 38.001”).

Here, attorney’s fees were recoverable in this forcible detainer action under 

section 24.006 of the Property Code, see TEX. PROP. CODE ANN. § 24.006 (West 2000), and 

a forcible detainer action is not one of the claims included in section 38.001. See TEX.

CIV. PRAC. & REM. CODE ANN. § 38.001 (West 2008); Rodriguez v. Citimortgage, Inc., No. 

03-10-00093-CV, 2011 WL 182122, at *6 (Tex. App.—Austin Jan. 6, 2011, no pet.). 

Therefore, section 38.004’s provision for judicial notice of attorney’s fees is not 

applicable and the county court could not have taken judicial notice. See Rodriguez, 2011 

WL 182122, at *6 (holding that chapter 38 and section 38.004 did not apply to forcible 

detainer action). Because there is no evidence in support of the attorney’s fee award, we 

sustain issue eight.

In conclusion, we vacate as moot the county court’s judgment of eviction. We 

reverse the county court judgment’s award of attorney’s fees and render judgment that 

the Authority take nothing on its claim for attorney’s fees. Costs are assessed against 

McElroy.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and 

Justice Scoggins

(Chief Justice Gray concurs. A separate opinion will not issue. He notes, 

however, that while the issues 1-7 are properly dismissed, he would dismiss 

them for want of jurisdiction in an appeal of an FED proceeding and not because 

they are moot. As to the issue of attorney’s fees, he notes that issue keeps the 
McElroy v. Teague Housing Authority Page 6

appeal from being moot, and would hold there is no evidence to support the 

award and would reverse the award of attorney’s fees but otherwise affirm the 

judgment. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642-643 and 645 (Tex.

2005) (After determining the merits of the case were moot but that the remaining 

issue of “... obtaining attorney fees ‘breathes life’ into this appeal and prevents it 

from being moot,” the Supreme Court proceeded to determine the issue and 

render a judgment on the merits rather than a dismissal of the case as moot.) 

However, because the functional equivalent of the court’s judgment is the same 

as the judgment he would render, he concurs therein.)

Vacated in part, reversed and rendered in part

Opinion delivered and filed January 18, 2012

[CV06]