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Thanks for your question and good morning.
Here iy give notice of appeal and perfect your appeal you get a second trial in county court with a new judge.
Here is reference to that--the law here is the same state wide.
A writ of mandamus here is a new proceeding filed in a higher court to only have the court review the order that was reviewed.It is considered a new proceeding.The difference is where you only want a particular order reviewed.
Reference to that..
You would want to see if yous situation meets the requirements for a writ of mandamus.There are strict guidelines and if your case falls under these you may choose to proceed to seek one.
If it does not a regular appeal is possible and the advantage to that is you get in essence a retrial in county court and the lower court action is stayed.
It has been my pleasure to assist you today.Please let me know if you have more follow up.Thanks again.
Summary of the appeal process.
You are entitled to an appeal from a final JP judgment to the county court. Tex. R. Civ. P. 749. Since judges of justice courts are not required to be lawyers, and the justice courts are not courts of record, an appeal to the county court is heard de novo (an entirely new trial, with no weight being given to the decision below). Tex. R. Civ. P. 547b. Texas Rules of Civil Procedure 749 through 755 govern the appeal of forcible detainer actions to county court. A tenant may appeal either by filing an appeal bond or cash deposit in lieu (Rules 749 and 750), or by filing a pauper's affidavit (Rules 749a) before the expiration of five days from the signing of the judgment. Once this has been completed the appeal has been perfected (749c), and all action on the judgment must be stayed
Here are the rules referenced above.
Your chances in appeal may be greater than seeking a writ of mandamus here but thats your judgment call.
Here are the Texas Rules of Procedure referenced in the summary above.
Thanks again for letting me help you today and good luck here moving forward.
Sorry it took so long to get back. I have 2 cases here. The first is the forcible detainer which was appealed to c**ty court. Before the end of time, it was remanded back to JP court. At that time, it seemed that neither clerk knew what court had jurisdiction, so i file motions to
Take your time here be glad to respond..
vacate remand with both courts. The JP court ruled against stating lack of jusrisdiction. The motion has never been set for hearing in the county court. Will I still have the right and time (6 months) to file a writ of mandamus for what I see as a judicial error because the remand was out of time ?
If you are wanting to file mandamus here to argue the judicial error-- the order itself was legally wrong you would file application for writ of mandamus now.Again many are filed here few are granted so keep that in mind.
As far as an appeal here in county court you will have to file a bond or claim indigency and then you get a second hearing in county court as an appeal from jp court.The County Court is a court of record with a transcript and will likely have a lawyer for a judge so your arguments can be understood better.
I can only provide you with information here about your options.I cannot see the documents that are involved.You have to decide what your best options are to prevail given your facts.
The small claims case for the 'counterclaim' to the forcible detainer was ruled 'res judicata' and dismissed for lack of jurisdiction also. Will that 'res judicata' finding count in another suit that has been filed in district court since the ruling was a dismissal. Will any findings of this case be moot if the original judgement is vacated?
If you have an appeal timely made and granted to county court it is a complete new hearing.None of the jp rulings are in effect.It is a new trial with a new judge.It is a second hearing here on the merits nothing carries over.
Trial de novo here means entirely new trial.You may have better chances here in county court.
The appeal in the forcible detainer case was done, bond posted, but when I went to pay fees, case had already been remanded. After discussions between the County clerk and the JP
Judge, I was allowed to pay the fees in county court. I proceeded to file the motions to vacate remand. In the JP court, it was denied and the bond proceeds were dispersed. In county court, the docket shows the motion and proposed order, but no date has been set for a hearing. Does this qualify for appeal to 3rd coa at this time or should there be a hearing on the motion first?
Again without seeing all the paper it appears that you would need the County Court to issue an Order which you could then make an application for writ of mandamus.This would be considered an interlocutory appeal of that order.
You might also want to see if legal aid here locally would help you with such an appeal or application for writ of mandamus.It can be complicated for sure.
I do hope you are able to prevail in all of this.
I appreciate the chance to help you.
thanks. one last question (maybe). If I don't file a timely appeal
do I still have the 180 days for filing a writ of mandamus?
You would still be able to file for a writ of mandamus.The appeal rules here from JP to County have strict and short timelines.
Thanks for letting me help I hope it works out.
If you can leave a positive rating it is always appreciated.Take care.
At this point, the judgements of the court are a dismissal of the 'counterclaim' breach of contract in Small Claims court and the Forcible Detainer. My option is to file the appeals and pay fees now or request a hearing on my motion in County Court, then file either an appeal of that Order or the writ of mandamus. I am missing anything?
No I think those are the options here for you in this matter.
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