The 10-Day Trap: Strict Eviction Deadlines Apply to Family Law Property Crossovers

Memorandum Opinion by Justice Fonseca, 13-26-00115-CV, January 30, 2026.

On appeal from Unknown

Synopsis

The Thirteenth Court of Appeals denied mandamus relief, affirming that the ten-day deadline to file a supersedeas bond under Texas Property Code § 24.007 is absolute. Even where the trial court delays signing an order setting the bond amount, the failure to file the bond within ten days of the judgment’s signing renders it untimely and permits the immediate issuance of a writ of possession.

Relevance to Family Law

Family law practitioners frequently navigate the intersection of domestic relations and property rights, particularly when a final decree awards a residence to one spouse and requires the other to vacate. When a former spouse refuses to move, an eviction proceeding in a county court at law—rather than a standard enforcement action in the family court—may be the chosen vehicle for removal. This case serves as a stark warning: the standard appellate timelines and supersedeas procedures we rely on in the Texas Rules of Appellate Procedure are superseded by the Property Code’s draconian ten-day window. Missing this window in a property crossover dispute means your client loses possession of the asset before the appeal can even be briefed.

Case Summary

Fact Summary

The underlying dispute involves an eviction proceeding where the trial court signed a final judgment on December 11, 2025. Following the entry of judgment, the Relator, Constance Benavides, sought to stay the enforcement of the eviction pending appeal. However, the trial court did not sign an order setting the required supersedeas bond amount until January 15, 2026—over a month after the final judgment. Benavides filed her bond on January 26, 2026. On the same day, the trial court issued an order declaring the bond untimely and authorized the issuance of a writ of possession. Benavides sought mandamus relief and an emergency stay from the Court of Appeals, arguing that the delay in setting the bond amount should not prejudice her right to stay the judgment.

Issues Decided

The Court considered whether a trial court abuses its discretion by declaring a supersedeas bond untimely and authorizing a writ of possession when the bond is filed more than ten days after the final judgment, notwithstanding delays in the trial court’s setting of the bond amount.

Rules Applied

The Court relied primarily on Texas Property Code § 24.007, which mandates that a judgment of a county court may not, “under any circumstances,” be stayed pending appeal unless a supersedeas bond is filed within ten days of the signing of the judgment. The Court also cited Hernandez v. U.S. Bank Tr. N.A., 527 S.W.3d 307 (Tex. App.—El Paso 2017, no pet.), which held that even if a motion to set the bond is filed within the ten-day period, the actual filing of the bond itself must occur within that same window to be effective.

Application

The court’s analysis was strictly textual and chronological. It noted that the final judgment was signed on December 11, 2025, yet the bond was not filed until January 26, 2026. By comparing these dates, the court found the bond was filed more than a month late. The Relator’s argument—that the trial court’s delay in setting the bond amount (which occurred on January 15) should toll or excuse the deadline—was rejected. The court emphasized that the statute provides no exceptions for administrative or judicial delays. Furthermore, the court noted that the record did not indicate the premises were used for residential purposes only in a manner that would trigger the narrow exceptions to the prohibition against certain appeals under § 24.007.

Holding

The Court of Appeals held that the trial court did not abuse its discretion in determining the supersedeas bond was untimely. Because the bond was not filed within the strict ten-day statutory window, the judgment could not be stayed.

The Court further held that mandamus is an extraordinary remedy and the Relator failed to meet the burden of showing either an abuse of discretion or the lack of an adequate remedy on appeal, particularly given the explicit statutory prohibition against stays under these circumstances.

Practical Application

For family litigators, this case highlights a dangerous procedural gap. If you are representing a party being evicted from a marital residence following a partition or a post-divorce property dispute, you cannot wait for the trial court to “get around” to setting a bond amount. You must aggressively move to have the bond set and filed within 240 hours of the judgment signature. If the trial court is unavailable, you must consider seeking emergency relief from the court of appeals before the ten-day clock expires, rather than waiting until after the writ of possession has been authorized.

Checklists

Securing the Stay in Crossover Evictions

• Immediate Motion: File a motion to set the supersedeas bond amount the same day the judgment is signed.
• Request an Expedited Hearing: Specifically cite § 24.007 to the court coordinator to emphasize the jurisdictional nature of the 10-day deadline.
• Proposed Orders: Hand-carry a proposed order setting the bond amount to the judge’s chambers.
• Cash in Lieu of Bond: If the court has not yet set an amount by day eight or nine, consider depositing a significant sum as a cash bond in lieu of a surety bond to argue substantial compliance or to force the issue.

Defensive Strategy for the Prevailing Party

• Monitor the Calendar: On day 11, if no bond is filed, immediately move for the writ of possession.
• Object to Late Bonds: If the court attempts to set a bond amount after the 10-day window, object based on the “under any circumstances” language of § 24.007.
• Writ of Possession: Ensure the clerk issues the writ immediately upon the expiration of the deadline to prevent the appellant from seeking a belated stay.

Citation

In re Benavides, No. 13-26-00115-CV, 2026 WL ______ (Tex. App.—Corpus Christi-Edinburg Jan. 30, 2026, orig. proceeding) (mem. op.).

Full Opinion

The full opinion can be found here: View Opinion

Family Law Crossover

This ruling is a potent weapon in high-conflict property divisions. When a final decree is entered and a party is awarded “exclusive possession” of a residence, but the other party refuses to vacate, the winning party may choose to file an eviction in justice court (and subsequently county court) rather than a motion for enforcement/contempt in the family court.

By shifting the forum to an eviction proceeding, the prevailing party gains the benefit of the Property Code’s accelerated timelines. If the “squatting” ex-spouse fails to post a bond within 10 days of the county court’s judgment, they can be physically removed by a constable regardless of their intent to appeal the underlying property division. This effectively bypasses the more sluggish enforcement mechanisms of the Family Code and forces a “clean break” before the appellate process can provide any relief. For the appellate attorney, it means the client might be out of the house long before the record is even filed.

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