TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-26-00161-CV
Francine Lee Lankford, Appellant
v.
Tracy Ortiz; Noe Reyes; and McCreary, Veselka, Bragg & Allen, P.C., Appellees
FROM THE 423RD DISTRICT COURT OF BASTROP COUNTY, NO. 423-6129,
THE HONORABLE CHRISTOPHER DARROW DUGGAN, JUDGE PRESIDING
MEMORAN D U M OPI N I ON
Francine Lee Lankford sued Tracy Ortiz, Noe Reyes, and McCreary, Veselka,
Bragg & Allen, P.C. (“the Firm”), based on various legal theories, seeking to overturn a foreclosure
sale of property in Bastrop County that Lankford owned. Ortiz filed a motion for summary
judgment on her own behalf, while Reyes and the Firm filed their own motion for summary
judgment. The trial court granted both motions. We affirm the judgment favoring Reyes and the
Firm; we reverse and remand the judgment favoring Ortiz.
FACTUAL AND PROCEDURAL BACKGROUND
In a prior related appeal, this Court’s opinion set forth a general description of the
factual background of these parties’ dispute. See Lankford v. Abreo, No. 03-22-00303-CV,
2023 WL 4473391, at *1–2 (Tex. App.—Austin July 12, 2023, pet. denied) (mem. op.).
Accordingly, only a summary of the facts relevant to the present appeal is set forth below.
Lankford owned a tract of real property at 418 Taylor Road, Elgin, Bastrop County.
In 2017, a small-claims judgment was entered against Lankford in Lee County in an unrelated
dispute. That judgment was not for purchase money or taxes on the Bastrop County property. In
satisfaction of that judgment, a foreclosure sale of the subject property was conducted in Bastrop
County on September 4, 2018, at which Ortiz was the prevailing bidder.
The summary judgment evidence reflects that during the foreclosure sale the
Bastrop County Constable, Salvador Abreo, requested that Reyes conduct—or “call out the bids”
at—the auction, which he did. It is undisputed, however, that Constable Abreo was present at the
sale at all times.
Lankford sued to recover possession of and title to the property. Lankford’s
argument as to Reyes and the Firm is that the sale was not conducted by Constable Abreo but rather
was conducted by Reyes, which she argues was a fatal defect in the foreclosure proceedings. Her
primary argument as to Ortiz is that the sheriff’s sale was void because the subject property was
her homestead. The trial court granted summary judgment for both defendants, and Lankford
perfected this appeal. 1
1 We pause to mention a quirk in this appeal. A motion for summary judgment was filed jointly by Reyes and the Firm. The trial court’s Order granting that motion, however, referred only to granting “Defendant Noe Reyes’s Motion for Summary Judgment,” without mentioning the Firm. (Presumably as a result of this, the Appellee’s Brief filed in this Court on behalf of Reyes did not indicate that it was also being filed on behalf of the Firm.) Nonetheless, the trial court’s Order granting “Reyes’s motion” contained language indicating that the court intended it to be a final judgment. In addition, because Lankford apparently included the Firm as a defendant only because the Firm is Reyes’s employer, Reyes and the Firm are inextricably linked in this litigation. We conclude, therefore, that the Order granting summary judgment for Reyes should be treated as granting summary judgment for both Reyes and the Firm, and we treat Reyes’s Appellee’s Brief as also constituting a brief for the Firm.
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DISCUSSION
The legal standards for reviewing a summary judgment in Texas are
well established:
We review summary judgments de novo. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005). In a traditional motion for summary judgment,
the movant bears the burden of showing that no genuine issue of material fact exists
and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c) [now
renumbered as Rule 166a(h)(2)]. A movant who conclusively negates at least one
of the essential elements of a cause of action or conclusively establishes an
affirmative defense is entitled to summary judgment. Frost Nat’l Bank
v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). Once a movant establishes a right
to summary judgment as a matter of law, the burden shifts to the nonmovant to
present evidence raising a genuine issue of material fact. See Walker v. Harris,
924 S.W.2d 375, 377 (Tex. 1996); Williams v. Bell, 402 S.W.3d 28, 35 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied). Summary judgment evidence raises a
genuine issue of fact if, in light of the evidence, reasonable and fair-minded jurors
could differ in their conclusions. See Goodyear Tire & Rubber Co. v. Mayes,
236 S.W.3d 754, 755 (Tex. 2007) (per curiam).
Donnan v. Estes, No. 03-24-00420-CV, 2026 WL 1593780, at *2 (Tex. App.—Austin June 4, 2026,
pet. denied) (mem. op.) (quoting McMurphy v. Moran, No. 14-23-00543-CV, 2025 WL 1833386,
at *3 (Tex. App.—Houston [14th Dist.] July 3, 2025, no pet.) (mem. op.)).
Lankford’s claim against Reyes and the Firm
To prevail on a claim of wrongful foreclosure, a plaintiff must prove that there was
(1) a defect in the foreclosure sale proceedings; (2) a grossly inadequate selling price; and (3) a
causal connection between the defect and the grossly inadequate selling price. McMillan v. Little
City Invs., LLC, No. 03-19-00430-CV, 2020 WL 5884291, at *4 (Tex. App.—Austin Sept. 30,
2020, pet. denied) (mem. op.) (citing and quoting Great N. Energy, Inc. v. Circle Ridge Prod., Inc.,
528 S.W.3d 644, 674 n.34 (Tex. App.—Texarkana 2017, pet. denied)).
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Lankford argues that a defect existed in the foreclosure sale proceedings. Relying
on Rules 622 and 629 of the Texas Rules of Civil Procedure, she asserts that a foreclosure sale
must be conducted by the sheriff or constable charged with executing the writ of execution. She
next asserts that the foreclosure sale in question was fatally defective because it was conducted by
Reyes rather than Constable Abreo. We disagree.
Rule 622 states:
An execution is a process of the court from which it is issued. The clerk of the
district or county court or the justice of the peace, as the case may be, shall tax the
costs in every case in which a final judgment has been rendered and shall issue
execution to enforce such judgment and collect such costs. The execution and
subsequent executions shall not be addressed to a particular county, but shall be
addressed to any sheriff or any constable within the State of Texas.
Tex. R. Civ. P. 622. Rule 629 states:
The style of the execution shall be “The State of Texas.” It shall be directed to any
sheriff or any constable within the State of Texas. It shall be signed by the clerk or
justice officially, and bear the seal of the court, if issued out of the district or county
court, and shall require the officer to execute it according to its terms, and to make
the costs which have been adjudged against the defendant in execution and the
further costs of executing the writ. It shall describe the judgment, stating the court
in which, and the time when, rendered, and the names of the parties in whose favor
and against whom the judgment was rendered. A correct copy of the bill of costs
taxed against the defendant in execution shall be attached to the writ. It shall require
the officer to return it within thirty, sixty, or ninety days, as directed by the plaintiff
or his attorney.
Tex. R. Civ. P. 629.
We note first that Rule 622 requires only that an execution “shall be addressed to
any sheriff or any constable within the State of Texas.” The rule says nothing about who may
conduct the auction itself. Nor does Rule 629, which requires only that an execution “shall require
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the officer to execute it according to its terms.” The execution here, which is part of the summary
judgment record, does not specify who may conduct the auction.
The sole evidence on which Lankford relies for her argument that the foreclosure
sale was defective comes from a casual exchange between Lankford’s attorney and Reyes during
the oral hearing on defendants’ motions for summary judgment:
Mr. Gammon (Lankford’s attorney): [You do] the tax foreclosures in Bastrop
County and that particular day . . . [you were] doing tax foreclosures and the
constable gave you the sheriff’s sale on this one and asked to conduct that sale: is
that right?
Mr. Reyes: The actual auction, yes.
Thus, Reyes did not concede in that exchange that he had conducted “the sale,” but only that he
had conducted “the actual auction.” For his part, Reyes testified as follows by affidavit:
On the morning of September 4, 2018, . . . Constable Abreo requested that
I call out the bids at the Constable’s public auction of the property at issue in this
lawsuit. The address of the property at issue in this lawsuit is 418 Taylor Road,
Elgin, Texas 78621 (hereinafter, the “Subject Property”). It is my understanding
that Constable Abreo requested that I call out the bids during the public auction of
the Subject Property because he was somewhat unfamiliar with the bidding process
and because of the fact that I regularly called out bids for Bastrop County. I agreed
to call out bids during the public auction of the Subject Property as MVBA
represents Bastrop County on an ongoing basis.
I then proceeded to call out bids at the public auction of the Subject
Property. Besides myself, two other people were present and involved in the public
auction of the Subject Property—Constable Abreo and a bidder. A bid of
$20,000.00 was made by the sole bidder at the public auction of the Subject
Property. I received this bid and, hearing no other bids, concluded the public
auction of the Subject Property. I did not accept payment for the Subject Property
nor was I involved in any other aspect of the sale of the Subject Property before or
after the public auction. My sole role in the sale of the Subject Property was to call
out bids at the public auction as requested by Constable Abreo. Constable Abreo
was present and in control of the sale of the Subject Property at all times.
Lankford did not attempt to controvert the Reyes affidavit.
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Prior Texas cases, while not precisely on point, are persuasive that a foreclosure
sale auction may be conducted by a third person as long as the person having the legal authority
to conduct the sale is present at and in control of the foreclosure proceedings. In Allar Co.
v. Snodgrass, 252 S.W.2d 730 (Tex. App.—El Paso 1952, writ ref’d n.r.e.), for example, the court
held a foreclosure sale not to be void merely because the deputy sheriff’s husband had called out
the bids during the sale:
It is elementary, we think, that if the Deputy Sheriff, Mrs. Mimi Clayton, did not
make and conduct this sale it would be invalid, and the deed of the Sheriff annulled.
Under the findings of fact and testimony she was present at the time of the sale,
held in her possession and under her control the process issuing on the judgment
authorizing the sale. All W. D. Clayton, her husband, did was to cry out the property
that bids might be made therefor. Mrs. Clayton as Deputy Sheriff had the
proceedings under her control . . . .
Snodgrass, 252 S.W.2d at 733; see also Am. Sav. & Loan Ass’n of Houston v. Musick, 531 S.W.2d
581, 587 (Tex. 1975) (“It is true that the powers conferred upon a trustee in a deed of trust must
be strictly followed, . . . but a trustee may delegate certain ministerial duties to his employees and
persons under his supervision.”) (citing Wilson v. Armstrong, 236 S.W. 755 (Tex. App.—Beaumont
1921, no writ)).
We hold that Reyes’s off-the-cuff statement during the summary judgment hearing
that he had “conducted the auction” does not constitute more than a scintilla of evidence that
Constable Abreo was not present at and in control of the sale, and Reyes’s uncontroverted affidavit
testimony is conclusive evidence of the contrary. Accordingly, Lankford has not shown a defect
in the foreclosure proceedings, and the trial court did not err in granting summary judgment for
Reyes and the Firm.
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Lankford’s claim against Ortiz
As to Lankford’s claim against Ortiz, Lankford’s primary argument in this Court
remains—as it was in the trial court—that the sheriff’s sale was void because the subject property
was her homestead. Because that issue is dispositive of this appeal, we will not address her other
arguments. See Tex. R. App. P. 47.1.
A forced sale of homestead property is prohibited by the Texas Constitution except
for specific circumstances not present here: “The homestead of a family, or of a single adult
person, shall be, and is hereby protected from forced sale, for the payment of all debts except for
[purchase money due thereon, taxes due thereon, and other exceptional circumstances].” Tex.
Const. art. XVI, § 50. The State of Texas has maintained a “strong, historic protection of the
homestead.” Sims v. Carrington Mortg. Servs., L.L.C., 440 S.W.3d 10, 13 (Tex. 2014).
As to the homestead issue, Ortiz first argues that she was entitled to retain
possession of and title to the property after the foreclosure sale because she was a bona-fide
purchaser, citing Thompson v. Apollo Paint & Body Shop, 768 S.W.2d 373, 377 (Tex. App.—
Houston [14th Dist.] 1989, writ denied) (“A bona fide purchaser is one who buys property in good
faith for valuable consideration and without knowledge, actual or imputed, of outstanding claims
in a third party or parties.”). Ortiz’s reliance on Thompson is misplaced, however, because that
case did not involve a foreclosure on real property but rather dealt with the foreclosure of a
mechanic’s lien on an automobile. The court’s decision was based on its interpretation of a specific
statute pertaining to possessory liens on vehicles. Thompson has no application to the present case.
Moreover, the Texas Supreme Court has held that a transfer of real property that is
void forecloses a bona-fide-purchaser defense:
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Typically, a void deed in the chain of title would foreclose the bona-fide purchaser
defense. See, e.g., Bellaire Kirkpatrick Joint Venture v. Loots, 826 S.W.2d 205, 210
(Tex. App.—Fort Worth 1992, writ denied) (“A void instrument passes no title, and
the mere fact that the grantee–mortgagee is an innocent purchaser makes no
difference.”); Wall v. Lubbock, 52 Tex. Civ. App. 405, 118 S.W. 886, 888 (1909,
writ ref’d) (“One holding under a void title cannot claim protection as an innocent
purchaser.”); Henderson v. Lindley, 75 Tex. 185, 12 S.W. 979, 980 (1889) (noting
that a purchaser “could not be an innocent purchaser under a void sale”).
Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542, 549–50 (Tex. 2016); see also Slaughter v. Qualls,
162 S.W.2d 671, 674 (Tex. 1942) (“That which is void is without vitality or legal effect.”);
LendingHome Funding Corp. v. Tuesday Real Est., LLC, No. 05-20-00071-CV, 2021 WL 6124319,
at *9 (Tex. App.—Dallas Dec. 28, 2021, no pet.) (mem. op.).
If it is ultimately found that the subject property was still Lankford’s homestead at
the time of the foreclosure sale, that sale would be void: “The forced sale of a homestead property
for a debt not specifically allowed by the constitution is void, and it confers upon the purchaser no
rights in the property.” Salomon v. Lesay, 369 S.W.3d 540, 554–55 (Tex. App.—Houston [1st
Dist.] 2012, no pet.); see also Heggen v. Pemelton, 836 S.W.2d 145, 148 (Tex. 1992); Inge v. Cain,
65 Tex. 75, 79 (1885). As stated by the First Court of Appeals:
One who bids on property at a foreclosure sale does so “at his peril.” Purchasers
assume that the trustee has power to make the sale at their peril, and where he is
without power, or there is other defect or irregularity that would render the
foreclosure sale void, then the purchaser cannot acquire title to the property.
Diversified, Inc. v. Walker, 702 S.W.2d 717, 723–24 (Tex. App.—Houston [1st Dist.] 1985, writ
ref’d n.r.e.) (citations omitted).
Ortiz argues, however, that the summary-judgment evidence shows conclusively
that the property was not Lankford’s homestead at the time of the sale. While admitting that the
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subject property had formerly been Lankford’s homestead, Ortiz points to various summaryjudgment evidence purporting to show that Lankford had effectively abandoned her homestead
claim to the subject property by taking up residence at an address in Lee County. “Once a property
has been dedicated as a homestead, it can lose such designation only by abandonment, alienation,
or death.” Salomon, 369 S.W.3d at 554–55.
The summary-judgment evidence, however, also included Lankford’s own
affidavit, in which she averred:
I am the owner of the real property located at 418 Taylor Road, Elgin,
Bastrop County, Texas (“the Property”). The Property has been my home and
residence since the mid-1990s.
I have continuously occupied, maintained, and used the Property as my
principal residence for over twenty years. I have never designated any other
property as my homestead.
At all relevant times, I lived at 418 Taylor Road with my Partner, Frank
Vickers, and we used the Property as our home. We paid utilities, maintained the
house, and received mail there.
I was never notified that any execution or sheriff’s sale had been scheduled
for my Property. I did not consent to any sale . . . .
The Property at 418 Taylor Road has always been my homestead and
remains my homestead to this day. I have never abandoned it, leased it as an
investment, or intended to make any other property my home.
The foregoing constitutes more than a scintilla of evidence that at the time of the foreclosure sale
Lankford had not in fact abandoned her homestead designation for the subject property. See In re
Mireles-Poulat, No. 09-21-00333-CV, 2022 WL 709871, at *4 (Tex. App.—Beaumont Mar. 10,
2022, no pet.) (mem. op.) (“In order to establish homestead rights, the proof must show a
combination of both overt acts of homestead usage and the intention on the part of the owner to
claim the land as a homestead.”) (quoting Lifemark Corp. v. Merritt, 655 S.W.2d 310, 314 (Tex.
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App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.)); see also In re Niland, 825 F.2d 801, 806–07
(5th Cir. 1987) (quoting and following Lifemark).
The records and evidence on which Ortiz relies, which purport to show that
Lankford abandoned the subject property as her homestead, arguably create an inconsistency in
the summary-judgment evidence or even within Lankford’s own testimony itself. But an
inconsistency in the evidence or within a single witness’s testimony merely creates a fact issue for
the jury to resolve. Randall v. Dallas Power & Light Co., 752 S.W.2d 4, 5 (Tex. 1988); McGalliard
v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); see also Aspenwood Apartments Partners, LP
v. Harris Cnty. Appraisal Dist., No. 01-20-00335-CV, 2022 WL 1249956, at *9 (Tex. App.—
Houston [1st Dist.] Apr. 28, 2022, no pet.) (mem. op.) (“Jurors ‘are entitled to resolve
inconsistencies in witness testimony, whether those inconsistencies result from contradictory
accounts of multiple witnesses or from internal contradictions in the testimony of a single
witness.’”) (quoting Guimaraes v. Brann, 562 S.W.3d 521, 549 (Tex. App.—Houston [1st Dist.]
2018, pet. denied)).
Accordingly, irrespective of the validity or strength of the evidence on which Ortiz
relies, Lankford’s affidavit testimony quoted above is sufficient to create a fact issue regarding the
homestead status of the subject property. Summary judgment is proper only in the absence of a
genuine issue of material fact. See Tex. R. Civ. P. 166a(h)(2).
Ortiz advances two arguments why we should affirm the trial court’s judgment
notwithstanding the summary-judgment evidence that the subject property was Lankford’s
homestead. First, she argues that Lankford cannot recover the property because the sale had
already taken place. She relies on Section 34.021 of the Texas Civil Practice & Remedies Code,
which provides that “[a] person is entitled to recover his property that has been seized through
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execution of a writ issued by a court if the judgment on which execution is issued is reversed or
set aside and the property has not been sold at execution.” Tex. Civ. Prac. & Rem. Code § 34.021
(emphasis added).
We reject this argument. Section 34.021 does not authorize a forced sale of property
if the basis of the foreclosure is void. See In re Discount Rental, Inc., 216 S.W.3d 831, 832 (Tex.
2007) (orig. proceeding). As stated above, the forced sale of homestead property for a debt not
specifically allowed by the Texas Constitution is void, and a void sale is never effective. Salomon,
369 S.W.3d at 555. Such a void sale cannot be made retroactively effective merely because it has
already taken place. If the law were otherwise, an owner’s homestead could be sold out from
under them without the owner’s ever being given notice of the public sale.
Second, Ortiz argues that her motion for summary judgment asserted several
grounds for summary judgment, that the trial court’s judgment did not specify a particular ground
for the judgment, and that on appeal Lankford did not challenge every independent ground that
could support the judgment. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).
In the present case, the only ground raised in Ortiz’s motion for summary judgment that is arguably
not addressed in the Appellant’s Brief was the bona-fide-purchaser issue. We conclude, however,
that the bona-fide-purchaser issue is sufficiently entwined with the homestead issue to make the
holding in Malooly Brothers inapplicable. See St. John Missionary Baptist Church v. Flakes,
595 S.W.3d 211, 214 (Tex. 2020). Moreover, because the forced sale of a homestead property for
a debt not specifically allowed by the Texas Constitution is void and confers on a purchaser no
rights in the property, Ortiz’s argument that she was a bona-fide purchaser does not provide a
stand-alone basis for affirming the trial court’s judgment. See id.
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CONCLUSION
Having concluded that the summary judgment evidence shows conclusively that
Lankford’s claims against Reyes and the Firm are without merit, and likewise that the record
contains no evidence of a defect in the September 4, 2018 foreclosure sale of the property in
question, we affirm the trial court’s judgment in favor of Reyes and the Firm. Having concluded
that the summary-judgment evidence did not show the absence of a genuine issue of material fact
as to Lankford’s claims against Ortiz and did not show that Ortiz was entitled to judgment as a
matter of law, we reverse the trial court’s judgment in favor of Ortiz and remand that portion of
the case to the trial court for further proceedings.
J. Woodfin Jones, Justice
Before Chief Justice Byrne, Justices Crump and Jones*
Affirmed in Part; Reversed and Remanded in Part
Filed: October 21, 2026
*Before J. Woodfin Jones, Chief Justice (Ret.), Third Court of Appeals, sitting by assignment. See Tex. Gov’t Code § 74.003(b).
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