Court of Appeals of Texas, Eighth District, El Paso
ALEJANDRO HERNANDEZ AND THE FREEDOM INDEED FOUNDATION, INC., Appellants,
CONSTABLE R.A. SOMMERS PRECINCT #7, Appellee.
from the County Court at Law No. 7 of El Paso County, Texas
McClure, C.J., Rodriguez, and Palafox, JJ.
T. RODRIGUEZ, JUSTICE
Hernandez and The Freedom Indeed Foundation, Inc. are
appealing from an order granting Constable R.A. Sommers'
plea to the jurisdiction and dismissing their suit against
AND PROCEDURAL SUMMARY
the fourth appeal related to or arising out of an eviction
proceeding against Alejandro Hernandez and all occupants of
certain real property located in El Paso, Texas. To put the
instant appeal in its proper context, we will briefly set
forth the underlying facts and procedural history. As will be
addressed in more detail below, the plea to the jurisdiction
will be reviewed based on the pleadings and jurisdictional
evidence properly before the trial court.
Eviction Proceeding Justice Court Cause No. 715-00214-FED
County Count at Law Cause No. 2016-CCV00265 Appeal Cause Nos.
08-16-00218-CV and 08-16-00290-CV
2014, U.S. Bank Trust purchased certain real property at a
non-judicial foreclosure sale, and it sent notice to vacate
to Hernandez, a tenant pursuant to an alleged oral lease with
the former owners. When Hernandez failed to vacate, U.S. Bank
Trust filed a forcible detainer suit in the justice court
(cause number 715-00214-FED). A jury awarded possession to
U.S. Bank Trust, and the justice court entered judgment in
U.S. Bank Trust's favor. Hernandez appealed to the county
court at law. The case was styled U.S. Bank Trust N.A. as
Trustee for LSF8 Master Participation Trust and numbered
2016-CCV00265. We dismissed Hernandez's attempted appeal
from an interlocutory order granting U.S. Bank Trust's
motion for Hernandez to pay monthly rental payments into the
court's registry during the pendency of the case. See
Alex Hernandez v. U.S. Bank Trust N.A. as Trustee for LSF8
Master Participation Trust, No. 08-16-00218-CV, 2016 WL
4801601 (Tex.App.-El Paso September 14, 2016, no
pet.)(Hernandez I). The county court at law granted
U.S. Bank Trust's motion for summary judgment, and
Hernandez brought a second appeal which was docketed under
cause number 08-16-00290-CV.
Hernandez and U.S. Bank Trust filed motions pursuant to
Tex.R.App.P. 24.4 for review of the supersedeas order entered
by the county court at law. See Hernandez v. U.S. Bank
Trust N.A. for LSF8 Master Participation Trust, 527
S.W.3d 307 (Tex.App.-El Paso 2017, no pet.)(op. on
motion)(Hernandez II). In an opinion issued on
February 17, 2017, we concluded that Hernandez failed to
timely supersede the judgment and U.S. Bank Trust had the
right to enforce the judgment awarding it possession of the
subject property. See Hernandez II, 527 S.W.3d at
310. U.S. Bank Trust subsequently obtained a writ of
possession. Constable Sommers executed the writ of possession
on March 13, 2017 and U.S. Bank Trust took possession of the
subject property. See Hernandez v. U.S. Bank Trust, N.A.,
for LSF8 Master Participation Trust, No. 08-16-00290-CV,
2017 WL 1953291, at *1 (Tex.App.-El Paso May 11, 2017, no
pet.)(Hernandez III). Consequently, we dismissed
Hernandez's appeal as moot. Id., at *2.
for Writ of Reentry Justice Court No. 717-0030-CV County
Court at Law No. 2017-CCV00661 Appeal Cause No.
the appeal in cause number 08-16-00290-CV was pending,
Alberto Enrique Hernandez and Reynaldo Aaron Morales
(hereinafter referred to as "the Purchasers")
placed a winning bid via an online auction on February 2,
2017 to purchase the subject property, and they executed a
real estate Purchase Agreement for the property the following
day. See Hernandez v. Hernandez, 547 S.W.3d 898, 899
(Tex.App.-El Paso 2018, pet. denied)(Hernandez IV).
U.S. Bank Trust signed a Special Warranty Deed for the
property on February 27, 2017, and the deed was delivered to
U.S. Bank Trust's attorney. See Hernandez IV,
547 S.W.3d at 899. On March 16, 2017, three days after the
writ of possession was executed, the real estate transaction
closed. Id. The Purchasers satisfied the closing
requirements by depositing the balance of the purchase
proceeds with the title company and the title company
released the executed Special Warranty Deed for recording and
delivery to the Purchasers. Id. at 899-900. The deed
was recorded on March 21, 2017. Id. at 900.
April 13, 2017, Appellants filed an application for writ of
reentry in the justice court alleging that the Purchasers had
unlawfully evicted them and locked them out of the property.
Id. at 900. They also sought damages. Id.
The justice court denied the application, and Appellants
appealed to the county court at law. Id. That case
was styled Alejandro Hernandez and the Freedom
Indeed Foundation, Inc. v. Alberto Enrique Hernandez and
Reynaldo Aaron Morales and numbered 2017-CCV00661.
Finding that title to the property did not convey until the
closing on March 16, 2017, the county court at law denied the
application for writ of reentry on June 1, 2017 and dismissed
the cause with prejudice. Id. Appellants appealed,
and we docketed the appeal under cause number 08-17-00141-CV.
Rejecting Appellants' argument that the Purchasers
effectively became the "landlord" on February 27,
2017 when U.S. Bank Trust signed the Special Warranty Deed,
we affirmed the county court at law's order denying the
application for writ of reentry. See Hernandez IV,
547 S.W.3d at 901. We also held that the Purchasers did not
have any obligation under the Property Code to file a new FED
action, to file a new notice to vacate, or to provide any
other notice to Appellants prior to the execution of the writ
of possession on March 13, 2017. Id.
for Damages in District Court Trial Court No. 2017DCV0816
Appeal No. 08-18-00045-CV
March 13, 2017, FIF filed suit in cause number 2017DCV0816
against Constable Sommers seeking injunctive relief to
prevent her from executing the writ of possession. FIF
asserted that it had not been served with notice to vacate,
named in a forcible detainer action, or given an opportunity
to be heard. After the writ of possession was executed, both
FIF and Hernandez filed an amended petition against Constable
Sommers and U.S. Bank Trust seeking injunctive relief to
allow them to reenter the property. They also sought damages
based on their allegation that their right to due process had
been violated. Constable Sommers filed an answer and plea to
the jurisdiction seeking dismissal of the suit because: (1)
she is immune from both suit and liability in her capacity as
an elected Constable in El Paso County, Texas; (2) she is
protected by judicial immunity and, (3) Appellants failed to
state any claim against her.
filed a second amended petition against Constable Sommers,
U.S. Bank Trust, Alberto Enrique Hernandez, Reynaldo Aaron
Morales, and Victor Vasquez seeking damages on their claims
for violation of due process, abuse of process, and civil
conspiracy. Appellants alleged that Constable Sommers
knew or reasonably should have known that the writ of
possession was facially invalid and that its execution would
be unlawful because she knew or reasonably should have known
that U.S. Bank Trust was no longer the owner of the subject
property and title had been transferred to the Purchasers on
February 27, 2017.
hearing on the plea to the jurisdiction, Constable Sommers
introduced into evidence a certified copy of the writ of
possession, which included the constable's return showing
it was delivered to her on March 7, 2017 and executed ...