Court of Appeals of Texas, Fourth District, San Antonio
the County Court at Law No. 3, Bexar County, Texas Trial
Court No. 2016CV04897 Honorable David J. Rodriguez, Judge
Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C.
Martinez, Justice, Irene Rios, Justice.
Bryan Marion, Chief Justice.
appellant received an unfavorable judgment in the justice of
the peace court and after that court ruled his appeal
"not timely perfected-no bond posted within [twenty-one]
days, " appellant filed a petition for writ of
certiorari in the county court. The county court denied the
petition, and appellant now appeals. We affirm.
appeal, appellant raises several complaints about actions
taken by the justice of the peace court: (1) the court erred
by denying his motion for discovery; (2) the court denied him
his due process rights by conducting an improper ex parte
meeting in chambers with appellee's attorney; (3) the
court erred by excluding and failing to consider evidence
presented by appellant at trial; and (4) the court erred by
ruling his appeal was not timely perfected. Assuming any of
these issues may be raised in this appeal from the county
court's ruling, we note the clerk's record on appeal
contains a copy of the justice of the peace court's
docket sheet, which indicates the court denied
"permission to conduct discovery by plaintiff, "
and "appeal not timely perfected - no bond posted w/i 21
days." Other than this docket sheet, there is nothing in
the clerk's record on appeal that supports any of
appellant's complaints regarding actions taken by or in
the justice of the peace court, and there is no
reporter's record from any hearing conducted before the
justice of the peace court.
do not consider factual assertions that appear solely in
briefs and are not supported by the record." Unifund
CCR Partners v. Weaver, 262 S.W.3d 796, 797 (Tex. 2008)
(per curiam) (quoting Marshall v. Hous. Auth. of San
Antonio, 198 S.W.3d 782, 789 (Tex. 2006)); see
Tex. R. App. P. 38.1(g), (i) (requiring the statement of
facts and argument be supported by citations to the record).
Therefore, again assuming we may address complaints directed
towards the justice of the peace court in this appeal, we
must conclude the complaints lack merit because the record
does not support appellant's complaints regarding that
complaints regarding the county court are difficult to
discern and are somewhat multifarious. However, liberally
construing his brief, appellant appears to complain the
county court (1) erred by denying his petition for writ of
certiorari; (2) conducted an improper ex parte meeting with
appellee's attorney; and (3) failed to take appropriate
action upon learning of the alleged improprieties of the
justice of the peace court.
in eviction cases, after final judgment in a case tried in
justice court, a party may apply to the county court for a
writ of certiorari." Tex.R.Civ.P. 506.4(a). "An
application must be granted only if it contains a sworn
statement setting forth facts showing that either: (1) the
justice court did not have jurisdiction; or (2) the final
determination of the suit worked an injustice to the
applicant that was not caused by the applicant's own
inexcusable neglect." Tex.R.Civ.P. 506.4(b). In his
petition, appellant does not contend the justice of the peace
court lacked jurisdiction. Instead, he asserted he suffered a
substantial injustice by rendition of a judgment by the
justice of the peace court that (1) followed a meeting
between the judge and the defendant's attorney, and (2)
erroneously denied his timely filed and perfected appeal. In
his petition, appellant also alleged the justice of the peace
court ignored his evidence and the justice of the peace court
should have granted his motion for discovery.
is not necessary in every case to set out the entire
testimony on the trial in the justice court, in order to
obtain a writ of certiorari." Gould v. Sanders,
60 Tex.Civ.App. 410, 411, 127 S.W. 899, 900 (1910, no writ).
"But the petition must either state all the evidence, or
show that a material and vital error occurred in the
proceedings, or that the applicant has not been able to avail
himself of a legitimate prosecution or defense, by no fault
or neglect of his own." Id. "One or all of
these causes must be set forth, not by a general allegation
of the wrong, but with sufficient detail to show a prima
facie case entitling the petitioner to another hearing."
petition for a writ of certiorari contains only general
allegations, and nothing in the record supports any of the
allegations regarding ex parte meetings or denied discovery.
As to his assertion he was harmed by the justice of the peace
court's ruling that his appeal was not timely perfected,
appellant does not explain how the inability to appeal from
the justice of the peace court resulted in a substantial
injustice. Following an adverse decision by a justice of the
peace court, an appellant has two distinct and cumulative
remedies to redress the alleged injustice suffered by him,
one by a direct appeal and the other by writ of certiorari.
Huebsch Mfg. Co. v. Coleman, 113 S.W.2d 639, 641
(Tex. Civ. App.-Amarillo 1938, no writ). Here,
appellant's inability to appeal to the county court did
not preclude him from seeking relief via the writ of
certiorari that he filed in the county court. The slim
appellate record provided by appellant, however, does not
support any of his complaints regarding actions taken by or
in the county court. Therefore, we cannot say, on this
record, the county court erred by denying appellant's
petition for a writ of certiorari.
reasons stated above, we affirm the trial court's denial