Hughes v. Morgan, 2-91-056-CV
| Citation | 816 S.W.2d 557 |
| Decision Date | 25 September 1991 |
| Docket Number | No. 2-91-056-CV,2-91-056-CV |
| Court | Texas Court of Appeals |
| Parties | Thomas P. HUGHES, District Clerk, Tarrant County, and Don Carpenter, Sheriff of Tarrant County, Appellants, v. Glenda MORGAN, Appellee. |
Tim Curry, Crim. Dist. Atty., Barrie Howard, and Dana M. Womack, Asst. Dist. Attys., Fort Worth, for appellants.
Law Offices of Lane & Lane and Jim Lane, Fort Worth, for appellee.
Before JOE SPURLOCK II, HILL and DAY, JJ.
This appeal is brought by the district clerk and sheriff of Tarrant County, Texas, appellants, from a temporary injunction entered against them by the 17th District Court. The substance of the injunction is that appellants are commanded to cease and refrain from denying Glenda Morgan, appellee, the right to be a surety on criminal bail bonds written in Tarrant County, Texas, while a certain case is being appealed from the Criminal District Court No. 1 of Tarrant County, Texas to this court. That appeal is still pending.
Appellants made a motion to dismiss the request for relief based upon the provisions of Texas Civil Practice and Remedies Code section 65.023 which provides a writ of injunction granted to stay proceedings in a suit or execution on a judgment must be tried in a court in which the suit is pending or the judgment was rendered. They alleged the court lacked jurisdiction to enter the injunction against them. Appellants had listed appellee in default as a bail bond surety based upon a judgment in Criminal District Court No. 1. Appellee sought her injunction in a different court. The motion to dismiss was effectively overruled when the court granted the order for temporary injunction.
Appellants bring us six points of error. We will only address point of error number one as it is dispositive. As the point of error is good, the temporary injunction should be dismissed.
This matter arose because of a default judgment taken against appellee in a bond forfeiture proceeding in Criminal District Court No. 1 of Tarrant County, Texas. That case is presently pending on appeal in this court. Notwithstanding that the matter is on appeal, the district clerk notified the sheriff that appellee was in default on the bail bond signed by her as surety in the underlying cause on appeal, and pursuant to TEX.CODE CRIM.PROC.ANN. art. 17.11 (Vernon 1977), was disqualified to sign as a surety on any bail bond as long as she was in default. Appellee filed a supersedeas bond in the amount of $10,000 pending the appeal of the underlying case.
However, fearful that the effect of the letter from the clerk to the sheriff would be to deny her the right to make other bonds, appellee filed an Original Petition For Mandamus, Temporary Restraining Order, Temporary Injunction And Permanent Injunction in the 17th District Court of Tarrant County, Texas. There is nothing in the record showing that the judge of the 17th Judicial District Court of Tarrant County, Texas was sitting in or acting for in any capacity the judge of Criminal District Court No. 1 of Tarrant County, Texas when the temporary injunction was entered.
In her motion appellee asserted that by virtue of TEX.R.APP.P. 47, the execution of the judgment entered by Criminal District Court No. 1 was suspended. Because of the appeal of that judgment, it could not be final and therefore she should not be suspended from making bonds. A decision upon these contentions is not the question before us, although obviously is what the trial court considered in entering its temporary injunction.
Returning to the heart of the controversy, we note that the question of a second court's entering an injunction in a matter like this has arisen before in Texas. Specifically at issue then was the question of validity of an injunction entered by a court which did not have jurisdiction over the subject matter of a default judgment rendered in a bail bond proceeding. This court affirmed the subsequent trial court's action in entering the injunction. In Evans, we said:
The Sheriff has advanced the contention that the action for injunction was in the wrong court. This contention is without merit because interest only could have been involved, the total amount of the bond having been paid; and even if the judgment had provided for accrual of interest (it did not) it would have been a void judgment in such respect. A void judgment can be attacked in any court.
Evans v. Pringle, 634 S.W.2d 774, 775 (Tex.App.--Fort Worth 1982) (emphasis
added). We were reversed, per curiam, by the supreme court, Evans...
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In re Graybar Electric Company, Inc., No. 13-08-00073-CV (Tex. App. 8/26/2008), 13-08-00073-CV.
...4656 of the Texas Revised Civil Statutes and article 4653 of the "Revised Civil Statutes of Texas 1911." Hughes v. Morgan, 816 S.W.2d 557, 559 (Tex. App.-Fort Worth 1991, writ denied); see Tex. Civ. Prac. & Rem. Code Ann. § 65.023 (Vernon 13. Graybar also relies on Gardner v. Stewart, 223 S......
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Wilder v. Campbell
...collection efforts. Id. at 118. Appellees attempt to distinguish Evans and point to our later decision in Hughes v. Morgan, 816 S.W.2d 557 (Tex.App.-Fort Worth 1991, writ denied), to support their argument that section 65.023(b) does not apply once a judgment is final for appellate purposes......
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