### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-18-00102- CV

Harold Alm on, App ellant

v. Skyl ine Terrac e Apart m ents, Appellee

F ROM CO UNTY COURT AT LAW NO . 1 O F TRAVIS CO UNTY NO. C-1 -CV- 17- 0107 61, H ONO RAB LE TO DD T. WO NG, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Har old Almon appea ls from the trial court’s final judgme nt in a forc ibledetainer suit awa

rding possession of cer

tain residential rea l proper ty to Sky line Terr ace Apar tments. See Tex. Prop. Code §§ 24.001-.011. Be cause Almon no longe r possesses the proper ty and h as failed to asser

t a potentially meritorious claim for curr ent, actua l possession, we dismiss this appea l
as moot.

BACK GR OUND

Sky line Terr ace is a multi-family housing complex that rec eiv es go v ernme ntal subsidies to provide housing to low-income individuals at reduc ed rate s. Almo n , who rec eives Social Security disability income, rente d a unit at Sky line Terr ace pursuant to a lease with an initial
term beg inning on J une 1, 2016 and ending on May 31, 2017 (the “L ease ”). The L ease provided that Almon’s tenanc y woul d automatically rene w on a month-to-month basis at the expiration of itsinitial term until terminated in acc ordanc e with the L ease . The L ease also stated that Sky line Terr ace

could not terminate Almon’s tenanc y or ref use to rene w the lease except for: (1) “ser ious or repe ated

v i o l at i o n s of t he terms and conditions of t he lease”; (2) “violation of applicable Feder al, S tate, o r local law”; (3) “ completion of tena ncy period for

transitional housing” ; or (4) “other g ood cause .” Simi larly , the L ea se prohibited Almon from eng ag ing in specific activities, including “cr iminal conduct” and “disturbing or threa tening the rig hts, comfort, health, safe ty , or convenie nce of others (including [S ky line Terr ace ] age nts and employ ees) in or nea r the a partment c ommunity .”
On J uly 25, 2017, Sky line Terr ace delivere d written notice to Almon that it was terminating his L ease at the end of the monthly rene wal period and on September 6, delivere d notice
to Almon that he was occupy ing as a holdover and demande d that he vacate t h e p roper ty within four day s. After Almon failed to vacate, Sky line Terr ace filed a forc ible-deta iner suit in the justice
court ag ainst Almon and all occupa nts. See Tex. Gov’ t Code § 24.004 (justice court has orig inal jurisdiction over case s of forc ible entry and detainer ). The justice court rende red judgme nt in favor of Sky line Terr ace , awa

rding it possession of the proper ty , and Almon appea led the judgme nt to the county court at law. See Tex. R. Civ. P. 510.10. On Fe bruar y 7, 2018, following a de novo bench trial, the county court signe d a final judgme nt awa rding Sky line Terr ace possession of the proper ty and holdover

rent in the a mount of $3,150 and setting bond at $7,350. Almon filed a notice of appea l but did not file a superse deas bond. See Tex. P rop. Code § 24.007 (“A judgme nt of a county court in an eviction suit may not under any circ umstances be stay ed pending appea l unless, within 10 day s of the signing of the judg ment, the appe llant files

a superse deas bond in an amount set by the county court. ”) ; T ex . R

. C i v . P. 510.13 (same)

. On

2Fe bruar

y 14, the trial court issued writ of possession, and s ev en day s later, the writ was executed by a dep u t y with Travis County Constable’s Offic e. See Tex. Prop. Code § 24.0061(b) (writ of possession may not be issued befor e six th day afte r date judgme nt of possession is rende red)

. Upon execution of the writ, Sky line Terr ace obtained possession of the pr operty

.

DISCUSSIO N
I n two issues, Almon challeng es that portion of the cou n ty c o u r t’ s judgme nt awa

rding possession of the proper

ty to Sky line Terr ace . I n response , Sky line Terr ace arg ues, in part, that 1
beca use Almon failed to post the superse deas bond set by the trial court, execut ion of the writ of possession ha s rende red this a ppeal moot. Be cause it implicates our jurisdiction, we first consider the ef fec t of the execution of the wr it of possession on this appeal.

Mootness
A tenant who is holding over “will fu l l y and without forc e” afte r the termination of his rig ht of possession to rea l proper ty commits a forc ible detainer if he ref uses to surre nder possession of the proper

ty on demand. Id. § 24.002(a) (1). The forc ible-deta iner action was cre ated by the leg islature as a speedy , simple, and inexpensive proce dure for obtaining im me d ia te p ossession of proper ty when there is no unlawful entry , W illiams v. Bank of

N.Y

. Mellon , 315 S.W .3d 925, 926

I n his fi rst issue on appea l, Almon arg ues that the evidenc e is fac tually insufficient to 1 support the trial court’s co n clus ion that Sky line Terr ace is entitled to possession of the proper ty beca use, in Almon’s view, Sky line Terr ace failed to comply with cer tain “heig htened” proce dural require ments for terminating a “sec tion 8” lease

. I n his second issue on appea l, Almon asser ts that the trial court err ed in issuing a writ of possession beca use Almon had alre ady perf ecte d this appea l. As previously noted, a forc ible-deta iner judgme nt may not be stay ed pending appea l unless appellant files a superse deas bond, see Tex. Prop. Code § 24.007, and Almon did not file a superse deas bond. 3(Tex. App.—Dallas 2010, no pet.), and the only issue in the action is the rig ht to actua l possession

of the proper

ty , Marshall v. Housing Authority of San Antonio , 198 S.W .3d 782, 787-88 (Tex. 2006). The forc ible-deta iner judgme nt is “not a final deter mination of whether th e ev i ct ion is wrong ful”

o r w h e th e r th e te n a

n t’ s c o n ti n u e d p o s s e s s io n is a tr e s p a s s . Co in m a c h Co r p
. v
. A s p e n wo o d A

p t. Co r p
. , 417 S.W .3d 909, 919 (Tex. 2013).

Appellate courts lack jurisdiction to decide moot controve rsies and rende r advisory

o p in io n s . B r io n e

s v
. B r a z o s B e n d V

il la A p ts

. , 4 3 8 S. W. 3 d 8 0 8 , 8 1 2 ( T e x. A p p . — H o u s to n [1 4 th D is t. ]
2 0 1 4 , no pet.) (citing National Collegiate Athletic Ass’n v. Jones , 1 S.W .3d 83, 86 (Tex. 1 9 9 9 ))

. A case become s moot if, during any stag e of the proce eding s, a controve rsy cea ses to exis t betwee n th e p a r ti e s . S e e W il li a m s v
. La r

a , 5 2 S. W. 3 d 1 7 1 , 1 8 4 ( T e x. 2 0 0 1 )

. A lt h o u g h th e f

a il u r e to s u p e r s e d e

a forc ible-deta iner judgme nt does not divest an appellant of the rig ht to appea l the judgme nt, it does subject the judgme nt to enfor ceme nt, including the issuance and execution of a writ of possession. Marsh a l l , 1 9 8 S.W .3d at 786-87. The issue of possession become s moot in an appea l from a forc ible-deta iner judgme nt when the appellant ceas es t o have actua l possession of the proper ty ,

u n l es s t he appellant holds and asser ts “a potentially meritorious claim of rig ht to curr ent, actu al possession.” Id. at 787.

The issue of whether an appellant who has vacated the proper ty can demons t ra t e

a “rig ht to curr ent, actua l possession” often turns on whether the lease term has expired befor e

or during t h e ap p eal. See id. (explaining that lease term had expired and appellant prese nted “no b asis for claiming a rig ht to possession afte r that date” ); see also Allen-Me rcer v. Ros co e P r o p s
. , No. 03-15-00674- CV, 2016 Tex. App. L EXI S 9247 , at * 5 (Tex. App.—Austin Aug

. 25, 2016,

4no pet.) (mem. op.) (conc luding that lease had expired by its own terms and tenan t m ad e “no

argume nt, that even if meritorious could form the basis of a claim to possession afte r this date”). Almon’s L ease with Sky light Terra ce, h o weve r, di d not expire but instead automatically rene wed

on a month-to-month basis at the end of the initial one-y ear term. Under the L ease , Almon’s tenanc y would end only when either Almon g ave proper notice of his intent to move out or Sky light Terr ace
g ave notice to Almon of its intent to terminate his tenanc y for “g ood cause .” Consequently , pursuant
to the automatic-r enew al provision, Almon’s claim o f ri gh t to curr ent, actua l possession turns on whether the L ease was proper ly terminated by Sky light Terr ace . See Geters v. Baytown Hous. Auth. , 430 S

. W

. 3d 578, 582 (Tex. App.—Houston [14t h Dist.] 2014, no pet.) (conc luding that tenant

asser ted arg uable basis for rig ht to possession even though initial one-y ear term in lease had expired beca use HUD reg ulations require d automatic rene wal and there was no g ood cause for termination);

see also Heinert v. W

ichita Falls Hous. Auth. , 441 S.W .3d 810, 817 n.3 (Tex. App.— Am ar i llo 2014, no pet.) (f

ollowing Geters ). On appeal, Almon challeng es the trial c ourt’s implied findings
suppo rt i ng the conclusion that Sky light Terr ace ’s termination of the L ease was proper . We will 2
revie w Almon’s issues on appe al to the extent they inform our jurisdictional ana ly sis.

When, as in this case , no finding s of fac t or conclusions of law are filed or reque sted 2 following a bench trial, it is implied that the trial court made all the nece ssary finding s to support the judgme nt. Holt Atherton Indus., Inc. v. Heine , 835 S.W .2d 80, 83 (Tex. 1992). When the appellate rec ord i ncludes the repor

ter’s recor d and clerk’s recor d, as i n t h i s case , these im plied finding s are not conclusive and may be challeng ed on appea l for lega l and factual sufficie ncy . BMC Software Belgium, N.V. v. Marc hand , 83 S.W .3d 789, 795 (Tex. 2002). 5Good cause for term inati on I n his first issue on appea l, Almon arg ues that the e vidence is factua lly insufficient
to support the trial court’s implied fi n d ing that “g ood cause ” exis ted for Sky light Terr ace to terminate the L ease . 3

At trial, Sky light Terr ace introduced evi d en ce t hat on April 5, 2017, an incident in v o lv in g A lm o n w a s r e p o r

te d to Sk y li g h t T e r r a c e ma n a g e me n t a

n d to th e A

u s ti n Po li c e D e p a

r tm e n t. Acc ording to the incident repor t prepa red by Sky light Terr ace staff, contra cted janitorial s t aff at Sky light Terr ace wer e “tra umatized” afte r seeing Almon “expose[] himself” by “wa lking outside of his apar tment at 11:0 8 P M [on April 5] completely nude.” On April 6, 2017, Almon rec eived a notice of violation, stating that S k y line Terr ace manag ement had rec eived a repor t that Almon had exposed himself to the “c leaning cre w last nig ht” and that manag ement had “foota g e of [him]

wea ring a towel in the hall and taunting them.” Sky light Terr ace also informed Almon, “This is not only ag ains t the law, it is ag ainst our policies.” On J uly 11, 2017, Sky light Terr ace manag ement
g ave an o t her written notice to Almon stating that he had “ten day s in which to cure ” cer tain

enumer ated ty

pes of conduct, including “[i] ntimid at i on and hara ssment of our clea ning vendors; specific ally , standing out in the hall in a t o we l , s t ar i n g at them ag g ressively and making them uncomforta

ble.” I n his testimony at trial, Amon denied that he had ever exposed himself and pointed

I n revie wing implied fi n d i ng s for fac tual sufficie ncy , we consider all the evidenc e in a 3 neutra l light and will set aside the judgme nt only if it is so contra ry to the overw helming weig ht of the evidenc e as to be clea

rly wrong and unjust. Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986). We may not substitut e our judgme nt fo r that of the trier of fac t or pass upon the cre dibilit y of the witnesses. Maritime Ove rseas Corp. v. Ellis , 971 S.W .2d 402, 406-07 (Te x . 1998). 6out that the videotape of him, ref err ed to in the April 6 notice and made an exhibi t at trial, shows him

wea ring a towel in the ha llway

.

I n this appea l, Al m o n d o es not dispute that Sky light Terr ace ’s claim that he “intimidat[ ed] and harr ass[ed] our clea ning vendors” would, under cer tain circ umstances, constitute “g ood cause ” for

terminating his L ease . I nstead, Almon ar g ues that this claim does not constitute “good cause ” in this case beca use it ref ers to the April 5 incident with the janitorial staff, he was entitled to an opportunity to cure this conduct, and the evidenc e shows that he eff ectively cure d this conduct by not eng ag ing i n i t aga i n afte r rec eiving notice on April 6. I n making this arg ument, Almon relies on the f

ollowing L ease provision:
Opportunity to cure . Prior to serving the thirty -day s notice to terminate or ref usal to rene w the tenanc y on the Tena nt, Owner must provide Tena nt with at least a ten-da

y opportunity to cure any alleg ed lease violation with the exception of lease violations based o n d ru g activit y ; serious, violent criminal activity ; or other serious criminal activity

.

A lm o n a ls o a

r g u e s th a t a n o p p o r tu n it y to c u r e h is “ in ti mi d a ti o n a n d h a r a s s me n t o f [S k

y li g h t T e r r a c e ’ s ] cl eaning vendors” was require d by HUD reg ulations. Specifica lly , Almon relies on section 247.3(a) 4

Fe dera l housing benef

its are protec ted by the Due Process Clause. See U.S. Const. amend. 4 XI V; Caulder v. Durham Hous. Auth. , 433 F.2d 998, 1003 ( 4th Cir. 1970) ; Moon v . Spring Creek Apts ., 11 S.W .3d 427, 433 (Tex. App.—Texarkana 2000, no pet.) (summarizing fede ral authority ). I n addition, landlords participa ting in the HUD subsidiz ed housing prog ram are obliga ted to comply with fede ral rules and reg ulations reg arding lease s and evictions. See Nealy v. So u t h l a w n P a l ms Apts ., 196 S.W .3d 386, 390 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Despite evidenc e in the rec ord indicating that Sky light Terr ace rec eives g overnme ntal subsidies to provide housing to lowincome tenants, Sky light T er race arg ues that the HUD reg ulations cited by Almon do not apply beca use there is no evidenc e that “[Almon] is a section 8 tenant and rec eives section 8 benef its via a housing ch o i ce v o ucher .” We will assume without deciding that the HUD reg ulations cited by Almon are applicable to this di spute. 7of th e re levant HUD reg ulations, which states that a landlord may not terminate any tenanc y in a

subsidi zed projec t except upon cer tain enumer ated g rounds: (1) “[m] ater ial noncompliance with the renta l ag ree m en t ”; (2 ) “[m] ater ial failure to car ry out obliga tions under [st ate landlord-tena nt law]”; (3) “ [c] riminal activity ”; and ( 4) “[o]t her g ood cause .” 24 C.F.R. § 247.3(a) (1)- (4) ( 2018). Subsection (b) s t at es t h at “[t] he conduct of the tenant cannot be deeme d other good cause under
section 247.3(

a) ( 4) unless the landlord has g iven the tenant prior notice that [ go i n g forward this conduct sha ll] constitute a basis for termination of occ upancy .” Id. § 247.3(b) ( emphasis adde d).
Ba sed on the rec ord befor e us, we disag ree that Sky light T er ra ce was require d to gi ve Almon an opportunity to cure his conduct toward the janitorial staff befor e it could proper ly terminate his lease

. Under the Texas Penal Code, a person commits the criminal offe nse of indece nt
exposure if he exposes his anus or any part of his g enitals with intent to arouse or g ratify the sexual desire of any person, and he is rec kless about whether another i s p re sent who will be offe nded or alar med by this act. Tex. Penal Code § 21.08. The requisite intent for this offe nse may be inferr ed from circ umstantial evidenc e, including the acc u s ed ’s conduct, his rema rks, and all surrounding circ umstances. See McKenzie v. State , 617 S.W .2d 211, 216 (Tex. Crim. App. 1981). Having revie wed the evidenc e under the appl ic a b le s ta n d a r d o f r e v ie w, including the incident repor t admitted without objection, we conclude that the evidenc e is sufficie nt to support the trial court’s implied finding s that Almon committed a criminal offe nse, i.e. indece nt exposure, and that co n s eq uently , Almon’s violation of the L ease was based on “ser ious criminal activity ,” such that Sky light Terr ace

was not require d to g ive Almon an opportunity to cure the conduct. Simi larly , the trial court, as the trier of fac t, could h av e reasonably deter mined that Almon’s conduct toward the janitorial staff

8constituted both “mater ial noncompliance ” and “cr iminal activity ” under section 247.3(a) (1) and (3)

of the rele vant HUD reg ulations. See 24 C.F.R. § 247.3(a)

. As a result, the prior-notice require ment under section 247.3(b) does not apply t o Al mon’s conduct toward the clea ning vendors. See id. § 247.3(b). Almon’ s conduct toward the janitorial staff could proper ly serve as “g ood cause ” for termination of his L ease , despite the fac t that Almon may not have committed this specific conduct
ag ain af ter re ceiving notice that Sky light Te rra ce c onsidered it to be a L ease violation.
Notice of Termi nation Next, Almon asser

ts t h at t h e evidenc e is fac tually insufficient to support the trial
court’s implied finding that Sky light Terr ace ’s J uly 25 advanc ed notice of termination of the L ease complied with the applicable reg ulatory notice require ments. Section 247.4 of the HUD reg ulations d i ctates the time and manner in which a landlord eff ectua tes notice of its decision to terminate a HUD- subsidiz ed tenanc y . See id. § 247.4 (2018) (“Te rmination notice”)

. I n rele vant part, section 247.4(b) state s that termination notice shall be a ccomplished by :
(1) Sending a letter by first class mail, proper ly stamped and addre ssed, to the tenant at his or her addre ss at the projec t, with a proper return address, and (2) serving a copy of the notice on any adult person answe ring the door at the lease d dwelling unit, or if no adult responds, by placing the notice under or throug h the door, if possible, or else by aff

ix ing the notice to the door. Service shall not be deeme d eff ective until both notices provided f

or her ein have been a ccomplished. . . .

Id. § 247.4(b). Sky light Terra ce’ s J uly 25 wri t ten not ice of termination, introduced into evidenc e without objec tion a t trial, states that it wa s hand delivere d to A lmon a nd that it wa s “posted on the inside of the dwelling ’s main entry door.” Although Al mon does not dispute that he persona lly

9rec eiv ed t his notice of termination, he arg ues that Sky light Terr ace ’s notice of termination was

i neff ective beca

use there is no evidenc e that it was also delivere d by mail, as require d by sectio n 247.4(b). Under almost identical cir cu m s tance s, our sister court in Houston previously consi dere d the effec t of a landlord’s failure to satisfy the m ailing require ment of secti o n 2 4 7

. 4 (b )

on the t ermination of a lease. W ashington v. Related Arbor Court, LL C , 357 S.W .3d 676, 678-81 ( T e x. A p p . — H o u s to n [1 4 th D is t. ] 2 0 1 1 , n o p e t. )

. Re je c ti n g a p p e ll a n t’ s a r g u me n t th a t th e te r mi n a ti o n

was ineffe ctive, the court explained that the evidenc e est ab lished that the tenant had rec eived hand-de l i v ered notice of termination and there fore was not harme d by the landlord’s failure , if
any , to mail her notice. Id. at 680. For example, the court pointed out, there was no “ar g ument that mailed notice would have contained information the persona lly delivere d notice did not” or that “fa ilure t o rec eive notice by mail impeded her defe nse before the justice court or the county court
at law.” Id. at 680. We ag ree that section 247.4(b)’ s require ments for service of termination notice

ar e s u bject to a harm analy sis, and there is no arg ument nor any evidenc e that would support a finding that Almon was harme d by any failure of Sky light Terr ace to mail him a copy of the J uly 25 notice of termination. Id. at 681 (conc luding that require ments for manner of service under section 247.4(b) wer e subject to harm analy sis); see also Nealy v. Southlawn Palms Apts ., 196 S.W .3d 386,
390 (Tex. App.—Houston [1st Di s t .] 2006, no pet.) (conc luding that require ment under section 247.4(a) that termination notice state specific rea sons for decision to terminate was subject to harm analy sis); cf. Mo o n v. Spring Creek Apts ., 11 S.W .3d 427, 434-35 (Tex. App.—Texarkana 2000,

no pet.) (noting fede ral authority holding that tenant must show harm from inadequa te notice under

10section 247.4(a) to o b t ain reve rsal and concluding that, even if showing of harm wer e require d,

tenant wa s harmed by

defic ient notice).
Ba sed on the re cord be fore us, we conclude that the evidenc e is fac tually sufficie nt
to support the trial court’s implied finding s that (1) there was “g ood cause ” to terminate the L ease ; and (2) Almon rec eived eff ective notice of termination. Consequ en t l y , the L ease was proper ly terminated by

Sky light Te rra ce.

CONCLUSION
A writ of possession was executed on the trial court’s fo rc ible-deta iner judgme nt afte r Almon failed to superse de enfor ceme nt of the judgme nt by filing a bond. As a result, Almon no longe r occ upies the prope rty , and he has failed to demonstrate “ a potentially meritorious claim of rig ht to curr ent, actua l possession.” Marshall , 198 S.W .3d at 787. Acc ording ly , there is no live
controve rsy

conce rning possession for this Court to decide, a nd we dismiss this appeal as moot.

__________________________________________ Scott K. Field, Just ice
Be fore Chief J ustice Rose, Jus tices F ield and Toth Dismissed as Moot Filed: De cembe r 18, 2018

11