Motion to Stay Execution in Texas

What Is a Motion to Stay Execution?

Background

A motion for a stay of execution of judgment may be filed by judgment debtors to stop collection of a judgment during the appeals process. (See, Huff Energy Fund, L.P. v. Longview Energy Co. (2014) 510 S.W.3d 479, 481.)

Tex. Civ. Prac. & Rem. Code § 52.001 requires the court, in to fix an amount that the of security required to suspend or stay a judgment. (Id.) When “a judgment is for money, the amount of security must equal the sum of:

the amount of compensatory damages awarded in the judgment;
interest for the estimated duration of the appeal; and
costs awarded in the judgment.”

(Huff Energy Fund, supra, citing § 52.006(a).)

Further, for the statutory calculation of the amount of security required to suspend a judgment, notwithstanding any other law or rule of court, when a judgment is for money, the amount of security must not exceed the lesser of:

50 percent of the judgment debtor's net worth; or
$25 million.”

(Id., citing § 52.006(b).)

How to Structure the Motion

A motion requesting a stay of enforcement of a judgment requires movant to post a supersedeas bond in the amount fixed by the court. (Thomas v. DM Arbor Court (2019) No. 14-19-00048-CV, at *2 ordering “that enforcement of the trial court's supersedeas order and final judgment is stayed in trial court .... Enforcement of the order and judgment stayed for thirty days from the date of this order to allow the trial court to give appellant the required ten day period to file her supersedeas bond.]; citing also to Tex. Prop. Code Ann. § 24.007; Tex. R. Civ. P. 510.13.”; see also, Tidwell v. Roberson (2016) No. 14-16-00170-CV, at *1.)

Texas Rule of Appellate Procedure 24.4(c) provides that in a review from the trial court's supersedeas determination, an appellate court may “issue any temporary orders necessary to preserve the parties' rights.” Tex. R. App. P. 24.4(c).” (Tidwell supra, id.)

Enforcement of a judgment must be suspended if the judgment is superseded. (Midani, Hinkle & Cole, LLP v. Smith (2018) No. 09-18-00009-CV, at *2 citing Tex. R. App. P. 24.1(f).) A party may seek appellate review of the trial court's determination whether to permit suspension of enforcement by filing a motion with the appellate court. Id., citing Tex. R. App. P. 24.4(a)(1).)

However, under section 24.007 of the Texas Property Code, “[a] judgment of a county court may not under any circumstances be stayed pending appeal unless, within 10 days of the signing of the judgment, the appellant files a supersedeas bond in an amount set by the county court." (Pearson v. Cortez (2016) No. 04-16-00686-CV, at *1 citing Tex. Prop. Code § 24.007 [West Supp. 2015.])

Supersedeas and Forcible Detainer Action

The code also provides that judgment 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. (Marshall v. Housing Auth. City San Antonio (2006) 198 S.W.3d 782, 786 citing Tex. Prop. Code § 24.007.) Thus, if a proper supersedeas bond is not filed, the judgment may be enforced, including issuance of a writ of possession evicting the tenant from the premises. (Id.)

Determining Amount of Supersedeas Bond

“Rule 24.2(c)(3) requires that, after hearing a contest to an affidavit of net worth, ‘[t]he trial court must issue an order that states the debtor's net worth and states with particularity the factual basis for that determination.’” (Enviropower v. Bear (2008) 265 S.W.3d 1, 5 citing Tex. R. App. P. 24.2(a)(c)(3).)

[Texas courts] have defined “net worth” for purposes of setting a supersedeas bond as “the difference between total assets and total liabilities as determined by generally accepted accounting principles.” Enviropower, 265 S.W.3d at 5-6 citing LMC Complete Automotive, Inc. v. Burke (2007) 229 S.W.3d 469, 482, quoting G.M. Houser, Inc. v.Rodgers (2006) 204 S.W.3d 836, 840.)

“[C]ourts of appeals that [have] previously construed the term ‘current net worth’ for purposes of reducing a supersedeas bond under section 52.006 of the Civil Practice and Remedies Code and Rule of Appellate Procedure 24.2 have determined that ‘net worth is calculated by total assets minus total liabilities as determined by generally accepted accounting principles,’ or GAAP.” G.M. Houser, Inc. v. Rodgers (2006) 204 S.W.3d 836 840; Ramco Oil v. Anglo Dutch (2005) 171 S.W.3d 905, 915.)

The Court’s Decision

It is well settled that “[t]he goal in setting a supersedeas bond is to require an amount that will adequately protect the judgment-creditor against any loss or damage occasioned by the appeal.” (Whitmire v. Greenridge Apts. (2010) 333 S.W.3d 255, 262.)

It is well established that to the extent the order does not conflict with Civil Practice and Remedies Code Chapter 52, Texas Rule of Appellate Procedure 24.1 specifically allows a trial court to “make any order necessary to adequately protect the judgment creditor against loss or damage that the appeal might cause.” (Huff Energy Fund, L.P. v. Longview Energy Co. (2014) 510 S.W.3d 479, 487 citing Tex. R. App. P. 24(e); see also Miller v. Kennedy & Minshew, Prof'l Corp. (2002) 80 S.W.3d 161, 166 [concluding supersedeas bond was insufficient to protect judgment creditors and, citing Rule 24.1(e), holding “the trial court is required to order the specific action it deems necessary to adequately protect the judgment creditor.”])