In re State Bd. for Educator Certification

• Decision Date: 03 July 2013
• Docket Number: No. 03–13–00376–CV.,03–13–00376–CV.
• Citation: 411 S.W.3d 576
• Parties: In re STATE BOARD FOR EDUCATOR CERTIFICATION.
• Court: Texas Court of Appeals

411 S.W.3d 576

In re STATE BOARD FOR EDUCATOR CERTIFICATION.

No. 03–13–00376–CV.

Court of Appeals of Texas,

Austin.

July 3, 2013.

Original Proceeding from Travis County.

Douglas D. Geyser, for Relator.

Mark W. Robinett, Austin, for Real Party in Interest.

Before Chief Justice JONES, Justices GOODWIN and FIELD.

OPINION

MELISSA GOODWIN, Justice.

The State Board for Educator Certification has filed a petition for writ of mandamus and motion for temporary relief, challenging the trial court's order refusing to allow the Board to supersede the trial court's judgment. In the underlying proceeding, real party in interest Erasmo Montalvo sought judicial review of the Board's decision to revoke his educator certificate. In its judgment, the trial court ruled in favor of Montalvo, reversed the Board's decision, permanently enjoined the Board from treating as revoked or revoking his certificate, and ordered that any appeal by the Board would not supersede the judgment pending appeal. SeeTex.R.App. P. 24.2(a)(3).

Bound by authority from the supreme court and this Court on an issue of law that has not been fully resolved by the supreme court, we cannot conclude in this original proceeding that the trial court lacked discretion under rule 24.2(a)(3) to deny the Board supersedeas. See id.; In re Bass, –––S.W.3d ––––, 2012 WL 259328, 2012 Tex. LEXIS 114 (Tex.2012) (per curiam order remanding case to trial court for findings of fact and conclusions of law pertaining to its decision to allow the state agency to supersede the judgment); In re Dallas Area Rapid Transit, 967 S.W.2d 358, 359–60 (Tex.1998) (noting former rule to TRAP 24.2(a)(3) “affords the trial court a measure of discretion”); State ex rel. State Highway & Pub. Transp. Comm'n v. Schless, 815 S.W.2d 373, 375–76 (Tex.App.-Austin 1991, orig. proceeding) (applying former rule to conclude that trial court had discretion to deny State's motion to supersede adverse judgment); but see Cascos v. Cameron Cnty. Attorney, 319 S.W.3d 205, 217 (Tex.App.-Corpus Christi 2010, no pet.) (“[B]ecause the case law is clear that a governmental entity, such as a County, has the absolute right to supersede a judgment of the trial court by merely filing a notice of appeal, and because this absolute right extends to governmental officials, we conclude that the trial court did not have discretion to deny supersedeas of the judgment against appellants.”).

Thus, we deny the Board's petition for writ of mandamus and motion for temporary relief. SeeTex.R.App. P. 52.8(a); Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (mandamus available for “clear failure by the trial court to analyze or apply the law correctly”).

Concurring Opinion by Chief Justice JONES.

J. WOODFIN JONES, Chief Justice, concurring.

I join Justice Goodwin's opinion. I write separately to explore this important issue more deeply.

Since at least as far back as 1897, the State and its subdivisions have been exempt from filing a bond related to an appeal. See Act approved Mar. 20, 1897, 25th Leg., R.S., ch. 29, § 1, 1897 Tex. Gen. Laws 27, reprinted in 10 H.P.N. Gammel, The Laws of Texas 1822–1897, at 1081, 1081 (Austin, Gammel Book Co., 1898) (current statute found at Tex. Civ. Prac. & Rem.Code § 6.001(a), (b)).

Before 1984 the State's right to suspend a final judgment during appeal was close to absolute. See Ammex Warehouse Co. v. Archer, 381 S.W.2d 478, 480–81 (Tex.1964). That was because the law in effect before 1984 had only one prerequisite for suspending any final judgment: filing a supersedeas bond. Id. at 481. This single prerequisite applied not only to judgments for the recovery of money or property, but also to “other judgments.” Since the State was exempt from having to file a supersedeas bond, the filing of a notice of appeal was sufficient to automatically suspend any judgment. Id. From 1941, when the rules of civil procedure were adopted, until 1984, this law was embodied in Rule 364 of the Texas Rules of Civil Procedure.

In 1984, however, the “Other Judgments” section of Rule 364 (which in 1986 became Rule 47(f) of the newly adopted Texas Rules of Appellate Procedure (“TRAP”) and in 1997 became TRAP rule 24.2(a)(3)) was amended to add the following language: “[T]he [trial] court may decline to permit the judgment to be suspended on filing by the plaintiff of a bond or deposit to be fixed by the court in such an amount as will secure the defendant in any loss or damage occasioned by any relief granted if it is determined on final disposition that such relief was improper.” The Texas Supreme Court quickly held that this amendment “grants the trial court discretion whether or not to allow a supersedeas bond when the judgment does not involve money, property or foreclosure.” Hill v. Fourteenth Ct. of Appeals, 695 S.W.2d 554, 555 (Tex.1985). In Hill, the supreme court rejected the court of appeals' holding that the appellant was entitled to supersede an “other judgment” as a matter of right: “We are aware of those cases which hold that a judgment in an election contest may be superseded as a matter of right. These cases, however, were decided prior to the amendment to Rule 364(f), effective April 1, 1984.” Id. (citations omitted). In another case, the supreme court specifically held that this discretion applied to permanent injunctions. See Klein Indep. Sch. Dist. v. Fourteenth Ct. of Appeals, 720 S.W.2d 87, 88 (Tex.1986); see also Kanan v. Plantation Homeowner's Ass'n, No. 13–11–00282–CV, 2012 WL 593067, at *4 (Tex.App.-Corpus Christi Feb. 21, 2012, no pet.) (mem. op.) (“To the extent that the judgment is injunctivein nature, ... the trial court had discretion to decline to permit the judgment to be superseded because appellees posted security against loss or damage.”); Pena v. Zardenetta, 714 S.W.2d 72, 73 (Tex.App.-San Antonio 1986, orig. proceeding); see generally Robert B. Gilbreath & Curtis L. Cukjati, Superseding the “Other Judgment,” 12 App. Advoc. 11 (Nov.1998).

The appellants in Hill and Klein were not governmental entities, so those cases did not involve the interplay between the amended supersedeas rule and the statute exempting the State from filing a bond. In In re Dallas Area Rapid Transit, 967 S.W.2d 358 (Tex.1998), however, the appellant, DART, was an exempt governmental entity. There, the supreme court again acknowledged that the amended supersedeas rule “affords the trial court a measure of discretion” regarding denial of supersedeas, although that discretion “does not extend to denying a party any appeal whatsoever.” Id. at 359–60. The court went on to state:

DART is exempt from posting security for supersedeas. Tex. Transp. Code § 452.054(b). Thus, the trial court had no discretion to require DART to post security to supersede the judgment. However, Rule 47 would have allowed the district court to determine whether the [appellee] could avoid supersedeas by posting security protecting DART from the loss or damage caused by an erroneous ruling. The [appellee] did not file, or offer to file, security as a judgment creditor under Rule 47. Whether it would be an abuse of discretion for a trial court to deny supersedeas to a governmental body in such a case upon the posting of a bond by the judgment creditor is not an issue before us.

Id. at 360. There are several important elements of this holding. First, the court strongly implied that, if it had been asked, the trial court could, under appropriate circumstances, have declined to allow DART to suspend the judgment. The court left open, however, the question of whether such a denial could be an abuse of discretion. In addition, the court made it clear that the burden was on the appellee to request that the trial court deny suspension of the judgment or offer to post a bond. In the absence of such a request or offer, the governmental entity's notice of appeal effectively suspended the judgment. In other words, the supreme court held that although DART's notice of appeal had the effect of automatically superseding the judgment, the trial court had the discretion to “undo” the suspension upon the appellee's request and offer to post a bond. Since no such request or offer was made in that case, the automatic suspension remained in place.

In In re Long, 984 S.W.2d 623 (Tex.1999), the supreme court again recognized the trial court's discretion to deny suspension of a final “other judgment” and again placed the burden on the appellee to request that the trial court deny suspension of the judgment or to offer to post a bond. In that case, the court first noted the appellant's exempt status:

As a county official sued in his or her official capacity, a district clerk's notice of appeal operates as a supersedeas bond. As a general rule, a district clerk's appeal, when perfected, automatically supersedes the trial court's judgment, and that suspension remains in effect until all appellate rights are exhausted. These rules apply to a district clerk's appeal of injunctions.

Id. at 625 (citations omitted). As in Dallas Area Rapid Transit, however, the court in Long went on to emphasize that the appellee could have invoked the trial court's discretion to deny suspension of the judgment but had not done so:

[The appellee] had possible mechanisms for seeking enforcement of the injunction before February 13, 1995 [the date the mandate had issued]. [The appellee] could have sought denial of suspension of the injunction. See former Tex.R.App. P. 47(f) (allowing trial court to decline to permit other judgments to be suspended) (currently Tex.R.App. P. 24.2(a)(3)); City of Robstown v. Westergren, 774 S.W.2d 739, 740–41 (Tex.App.-Corpus Christi 1989, no writ) (holding that district court has discretionary authority under former Rule 47(f) to deny a city suspension of an injunction pending appeal). But cf. Public Util. Comm'n v. Coalition of Cities for Affordable Util. Rates, 776 S.W.2d 221, 222 (Tex.App.-Austin 1989, no writ) (holding that, when a state...