An eviction in Texas, referred to as “forcible entry and detainer,” is a judicial process by which an owner recovers possession of real property and, if appropriate, a judgment for unpaid rent, attorney’s fees (if any), and court costs against a tenant or occupant. Evictions are governed by Section 24.01 of the Texas Property Code. They are appropriate if there exists a landlord-tenant relationship (with or without a written lease) or if a person is occupying real property without authority to do so.
Evictions are conducted in Justice Courts that are located in various precincts around Texas counties. J.P. Courts have exclusive, original jurisdiction over possession of real property and the authority to decide cases involving damages up to $20,000 (or $10,000 if the case was filed prior to September 1, 2020).
A landlord’s objective is usually to gain a writ of possession and a judgment. However, because collecting judgments against residential tenants can be quite difficult in Texas (because of the extensive list of property exempt from execution under the “homestead laws”), the residential landlord may occasionally choose to be content with a judgment for possession only. Further, because the process can be lengthy (upwards of 2+ months in certain circumstances), a landlord and tenant may choose to negotiate a resolution while during the eviction proceedings.
This CLE is intended to provide a general overview of the current eviction process in Texas. It is not all encompassing.
II. Basic Law and Procedure
Texas Property Code, Chapters 24, 91, 92, 93, and 94, govern the relationship between landlord and tenant, tenancies, and eviction proceedings. Eviction Cases are governed by Rules 500 – 507, and Rules 510.1 0 510.13, Texas Rules of Practice in Justice Courts (the “Rules”).
An eviction can be sought when: 1) a there exists a landlord-tenant relationship (with or without a written lease) and the tenant’s lease expires; 2) a tenant breaches the lease and fails to cure the breach; or, 3) a person is occupying real property without authority to do so. TEX. PROP. CODE § 24.01.
III. Notice To Vacate Prior to Filing Eviction Suit
Default or Holdover
Under TEX. PROP. CODE § 24.005, if the occupant is a tenant under a written lease or oral rental agreement, the landlord must give a tenant who defaults or holds over beyond the end of the rental term or renewal period at least 3 days’ written notice to vacate the premises before the landlord files an eviction, unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. Notice under certain other tenancies must comply with TEX. PROP. CODE § 91.001.
Tenant at Sufferance
If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least 3 days’ written notice to vacate before the landlord files a forcible detainer suit unless the parties have contracted for a shorter or longer notice period in a written lease or agreement.
If a building is purchased at a tax foreclosure sale or a trustee’s foreclosure sale under a lien superior to the tenant’s lease, and the tenant timely pays rent and is not otherwise in default under the tenant’s lease after foreclosure, the purchaser must give a residential tenant of the building at least 30 days’ written notice to vacate if the purchaser chooses not to continue the lease. The tenant is considered to timely pay the rent if, during the month of the foreclosure sale, the tenant pays the rent for that month to the landlord before receiving any notice that a foreclosure sale is scheduled during the month or pays the rent for that month to the foreclosing lienholder or the purchaser at foreclosure not later than the 5th day after the date of receipt of a written notice of the name and address of the purchaser that requests payment. Before a foreclosure sale, a foreclosing lienholder may give written notice to a tenant stating that a foreclosure notice has been given to the landlord or owner of the property and specifying the date of the foreclosure.
The remedy of foreclosure is available to lenders if the borrower defaults. Specified notice and other requirements must be followed if for the foreclosure to be valid (See TEX. PROP. CODE § 51.002 et seq.). Foreclosures are held in Texas on the first Tuesday of each month. The successful bidder (which may be the lender) gets a trustee’s deed that serves to cut off all junior liens including purchase money liens. This action gives the new owner title; the next step is to obtain possession of the property. The occupant will be a “tenant at will or by sufferance.” TEX. PROP. CODE § 24.005(b) has been amended to provide that new owners who purchased foreclosed property must give a residential tenant in good standing at least 90 days notice to vacate so long as the tenant continues to pay rent to the new owner. The intent here is to bring state law more into line with the federal law Protecting Tenants at Foreclosure Act of 2009 (“the Act” or “PTFA”).
Protecting Tenants at Foreclosure Act
The Act, 12 U.S.C. § 5201, went into effect May 20, 2009, expired December 31, 2014 and was restored on May 24, 2018 (effective June 23, 2018). The tenant protection provisions apply in the case of any foreclosure on a “federally related mortgage loan” or on any dwelling or residential real property. The Act provides protections to bona fide tenants who have a lease as well as those who don’t, like month-to-month renters. Under the Act, “any immediate successor in interest in the property assumes such interest subject to providing to a bona fide tenant a notice to vacate at least 90 days before the effective date of such notice.” Tenants under a bona fide lease or tenancy are permitted to stay in the residence until the end of their leases, with two exceptions: (1) When the property is sold after foreclosure to a purchaser who will occupy the property as a primary residence; or, (2) When there is no lease or the lease is terminable at will under state law.
Delivery of Notice to Vacate
The notice to vacate shall be given in person or by mail at the premises in question. Notice in person may be by personal delivery to the tenant or any person residing at the premises who is 16 years of age or older or personal delivery to the premises and affixing the notice to the inside of the main entry door. Notice by mail may be by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question. If the dwelling has no mailbox and has a keyless bolting device, alarm system, or dangerous animal that prevents the landlord from entering the premises to leave the notice to vacate on the inside of the main entry door, the landlord may securely affix the notice on the outside of the main entry door.
If before the notice to vacate is given and the landlord has given a written notice or reminder to the tenant that rent is due and unpaid, the landlord may include in the required notice to vacate a demand that the tenant pay the delinquent rent or vacate the premises by the date and time stated in the notice.
The notice period is calculated from the day on which the notice is delivered.
Notice for Terminating Certain Tenancies
Unless the landlord and tenant have otherwise agreed in a written instrument, or there has been a breach of contract, TEX. PROP. CODE § 91.001 provides that (a) a monthly tenancy or a tenancy from month-to-month may be terminated by the tenant or the landlord giving notice of termination to the other. If the rent-paying period is at least one month, the tenancy terminates on whichever of the following days is the later:
If the rent-paying period is less than a month, the tenancy terminates on whichever of the following days is the later:
If a tenancy terminates on a day that does not correspond to the beginning or end of a rent-paying period, the tenant is liable for rent only up to the date of termination.
Opportunity to Respond to Notice
If the lease or applicable law requires the landlord to give a tenant an opportunity to respond to a notice of proposed eviction, a Notice to Vacate may not be given until the period provided for the tenant to respond to the eviction notice has expired.
IV. Suit to Evict and to Recover Unpaid Rent
As the Justice Courts (and only these courts) have exclusive, original jurisdiction on forcible detainer actions; therefore, eviction cases must be filed in the Justice Court in the Justice of the Peace Precinct in the county in which the real property is located. See TEX. PROP. CODE § 24.004.
The only issue in an eviction case is the right to actual possession of the premises. No counterclaims or joinder of suits against third parties are allowed in an eviction case, but may be brought in a separate suit in a court of proper jurisdiction. Rule 510.3.
At an eviction hearing, the judge determines which party has the superior right to possession and what damages (i.e., back rent, other damages, attorney’s fees, and court costs), if any, will be awarded to the landlord. These are the only issues to be considered by the court. A counterclaim by the tenant, regardless of subject matter or merit, is not permitted. Legal actions by tenants may be brought by separate suit in Justice, County or District Court.
A suit for rent may be joined with an eviction wherever the suit for rent is within the jurisdiction of the Justice Court. In such cases, the court, at the same time it renders judgment for possession, may render judgment for any rent due the landlord by the tenant; provided the amount thereof is within the jurisdiction of the Justice of the Peace Court. Rule 510.3(d). As of September 1, 2020, the jurisdiction of the Justice Court was increased to claims up to $20,000, exclusive of interest. See TEX. GOV. CODE § 27.031. A landlord cannot avoid jurisdictional limits by artificially lowering the amount claimed to $20,000.
Filing a Suit for Eviction
Complaint Must Be Made Under Oath. To begin an eviction proceeding, the landlord must file a written and sworn Petition for Eviction. See Rule 510.3. The complaint must describe the premises of which the landlord is claiming possession with sufficient certainty to identify the premises, and state the facts that entitle the landlord to possession. See Rules 502.2 and 510.3.
Each tenant who has signed a lease must be joined in the eviction proceeding. The complaint should list all home and work addresses of each tenant and state that the landlord knows of no other home or work addresses of the tenant in the county where the premises are located.
A landlord may recover unpaid rent regardless of whether the tenant vacated the premises after the date the landlord filed the sworn statement and before the date the court renders judgment.
Recovery of Attorney’s Fees and Costs
Unless otherwise outlined in a written lease, under the Texas Property Code, in order to recover attorney’s fees in an eviction suit, a landlord must give a tenant who is unlawfully retaining possession of the landlord’s premises a written demand to vacate the premises. The demand must state that if the tenant does not vacate the premises before the 11th day after the date of receipt of the notice and if the landlord files suit, the landlord may recover attorney’s fees. The demand must be sent by registered mail or by certified mail, return receipt requested, at least 10 days before the date the suit is filed.
If the landlord gives this notice, or if a written lease entitles the landlord to recover attorney’s fees, a prevailing landlord is entitled to recover reasonable attorney’s fees from the tenant. If the landlord gives this notice, or if a written lease entitles the landlord or the tenant to recover attorney’s fees, the prevailing tenant is entitled to recover reasonable attorney’s fees from the landlord. A prevailing tenant is not required to give notice in order to recover attorney’s fees if the landlord would be entitled to recover attorney’s fees. The prevailing party is entitled to recover all costs of court. See TEX. PROP. CODE § 24.006.
Fees in Harris County for Eviction Matters
Filing Fee for the eviction suit (Harris County as of 8/24/22): Local Consolidated Civil Fee of $33, State Consolidated Civil Fee of $21, and Service Fee for the eviction suit: $75 = Total $129
Abstract of Judgment: $5
Writ of Execution: $5, Service Fee: $150 = Total $155
Writ of Possession: $5, Service Fee: $125 = Total $130
When the landlord files the sworn complaint, the Justice of the Peace will immediately issue a citation directed to each tenant commanding the tenant to appear before the Justice of the Peace at a time specified in the citation. See Rule 509.3. The citation will include a notice to the defendant, printed in English in conspicuous bold print, regarding immediate deadlines, people who are serving on active military duty, information about filing for a request for a jury, contain the warnings outlined in Chapter 24 of the Texas Property Code, and about retaining an attorney. See Rule 510.4(a).
Delivery of the Citation
Unless otherwise authorized by written court order, citation must be served by a sheriff or constable. The officer receiving the citation will deliver a copy of the citation to the tenant, or leave a copy with some person over the age of 16 years at the tenant’s usual place of abode, at least 6 days before the return date of the citation. Rule 510.4(b)(2).
If the officer is unsuccessful in serving the citation, the officer will file a sworn statement chronicling the times and places of at least 2 attempts to serve the tenant at all addresses shown in the complaint. The Justice of the Peace, after considering the officer’s statement, may authorize service of the citation by allowing the officer to place the citation inside the premises by placing it through a door mail chute or by slipping it under the front door; and if neither method is possible or practical, by securely affixing the citation to the front door or main entry to the premises. See Rule 510.4(c). This is also known as a “Rule 106 Service.”
At least one day before the day set for trial, the constable, sheriff, or other person authorized by written court order must complete and file a return of service in accordance with Rule 501.3 with the court that issued the citation. See Rule 510.4
Trial Date and Answer. The defendant must appear for trial on the day set for trial in the citation. The defendant may, but is not required to, file a written answer with the court on or before the day set for trial in the citation. Rule 510.6(a).
Default Judgment. If the defendant fails to appear at trial and fails to file an answer before the case is called for trial, the allegations of the complaint must be taken as admitted and judgment by default rendered accordingly. If a defendant who has answered fails to appear for trial, the court may proceed to hear evidence and render judgment accordingly. Rule 510.6(b).
Notice of Default. When a default judgment is signed, the clerk must immediately mail written notice of the judgment by first class mail to the defendant at the address of the premises. Rule 510.6(c).
Trial By Jury
Either the landlord or the tenant shall have the right to a trial by jury by making a request for a jury trial on or before 3 days from the trial date, and by paying a jury fee ($22.00). Rule 510.7.
An individual may represent himself or herself in Justice Court, or may be represented by an attorney. In an Eviction Case, an individual may be represented by an authorized agent. Rule 500.4.
In an Eviction Case, a corporation or other entity may be represented by an attorney, or by an employee, owner, officer, or partner who is not an attorney, and may be represented by a property manager or other authorized agent in an Eviction Case. Rule 500.4.
In an Eviction Case in Justice Court based on nonpayment of rent or holding over beyond a rental term, the parties may represent themselves or be represented by their authorized agents, who need not be attorneys. In any Eviction Case in Justice Court, an authorized agent requesting or obtaining a default judgment need not be an attorney. See TEX. PROP. CODE § 24.011.
An eviction case will be docketed and tried as other cases. No eviction trial may be held less than 6 days after service under Rule 510.4 has been obtained. 510.7(a).
Once served, the tenant is required to appear for a trial scheduled not less than 10 nor more than more than 21 days from the date the petition is filed. Rule 510.4(a)(10). If the tenant fails to enter an appearance or file an answer before the case is called for trial, the statements made in the complaint will be taken as true and the landlord will be awarded a judgment by default. Rule 510.6(b).
In eviction cases, the only issue that the court will determine is the right to possession. Rule 510.3(e). However, a claim for rent within the justice court’s jurisdiction may be asserted in an eviction case. Rule 510.3(d).
At the court hearing, both sides will have the right to present their side of the case, including witnesses, receipts, canceled checks, photographs, and all other evidence.
Parties will need to bring with them all evidence pertaining to the case. The burden of proof lies with the plaintiff. The Plaintiff must show the Court good and sufficient evidence proving his/her/its right to regain possession of the property. The Plaintiff must still prove your case, even if the defendant fails to appear.
Postponement of Trial
Either the landlord or the tenant may request that the trial be delayed by filing an affidavit with the court stating good cause for the delay. The court may postpone the trial for no longer than 7 days. Rule 510.7.
If the landlord prevails, the court will enter judgment for the landlord for possession of the premises, and will award a writ of possession. The writ of possession cannot issue until the expiration of 5 days from the time the judgment is signed (e.g. not until the 6th day). Rule 510.8.
If a judgment is entered for the landlord in a residential eviction case based on non-payment of rent, the Court will determine the amount of rent to be paid each rental pay period during the pendency of any appeal and the amount will be noted in the judgment. If a portion of the rent is payable by a government agency, the court will determine and note in the judgment the portion of the rent to be paid by the government agency and the portion to be paid by the tenant. See TEX. PROP. CODE § 24.0053. If the tenant prevails, the court will give judgment for the tenant against the landlord for costs.
Request a bond be set by the court. Usually, it is 1.5x the amount of the claimed damages sought.
The court shall notify a tenant in writing of a default judgment for possession by sending a copy of the judgment to the premises by first class mail not later than 48 hours after the entry of the judgment. See TEX. PROP. CODE § 24.0061.
V. Appeal of Eviction Suit
There is no motion for new trial in an eviction proceeding. Rule 510.8.
Either party (with or without the requirement of “good reason”) may appeal from a final judgment in an eviction case in the Justice Court to the County Civil Courts at Law within 5 days after the judgment is signed by filing a bond, making a cash deposit, or filing with the Justice Court a Sworn Statement of Inability to Pay. The Justice Court will set the amount of the bond or cash deposit based on damages, if any, for withholding or defending possession of the premises during the appeal, loss of rentals during the appeal, and attorney fees, if any. Rule 510.11.
The bond or cash deposit must be payable to the appellee and must be conditioned on the appellant’s prosecution of the appeal to effect and the payment of any judgment and all costs rendered against the appellee on appeal. A party filing a bond or making a cash deposit must serve written notice of the appeal on all other parties within 5 days of filing the bond or making the cash deposit.
The appeal results in the file being packed up and sent to the County Civil Courts at Law courthouse where it will be heard de novo –e.g. as a new case. An eviction case appealed to the County Civil Courts at Law will be tried at any time after the expiration of 8 days after the transcript is filed. If the defendant did not file a written answer in the Justice Court, the defendant must file a written answer in the County Civil Courts at Law within eight (8) days after the transcript is filed in the County Civil Courts at Law. Failure to file a written answer in the County Civil Courts at Law will result in the entry of a judgment by default. Rule 510.12.
The appeal will be tried by the County Civil Courts at Law at any time after the expiration of eight (8) days after the transcript is filed with the County Court at Law. If there is a delay with the County Court setting the hearing on its own, a party may request that the matter be set to be heard on the court’s trial docket.
In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. Saturdays, Sundays, and legal holidays shall not be counted for any purpose in any time period of five days or less in these rules, except that Saturdays, Sundays, and legal holidays shall be counted for purpose of the three-day periods in Rules 21 and 21a, extending other periods by three days when service is made by mail. TEX. R. CIV. P. § 4.
Cash or Surety Bonds
The Justice of the Peace will set a cash appeal bond that is usually in the amount of 2 to 3 times the monthly rent. If an appeal bond (cash or surety) is posted, there is no requirement that the tenant pay rent while the appeal is pending. Even so, it is good practice for the landlord to file a motion requesting payment of rent into the court registry based on the theory that “no one should live for free.” Judges are generally receptive to this argument. A preferential setting should also be requested if the County Court in question does not already automatically provide such a setting in eviction cases.
In order to perfect the appeal, the party must provide the full cash bond into the registry of the court. Failure to do so will result in the appeal not being perfected and the Judgment issued by the Justice Court to be finalized. Thereafter, the landlord may move forward with a writ of possession and collection on the other amounts outlined in the Judgment.
Tenant Affidavit of Inability to Pay Costs of Appeal
If a tenant in a residential eviction suit is not able to pay the costs of appeal or to file an appeal bond, the tenant may appeal the judgment by filing with the Justice Court, a Tenant Affidavit of Inability to Pay Costs of Appeal (also known as a “Pauper’s Affidavit”) sworn to before the Clerk of the Justice of the Peace Court or a notary public. The Pauper’s Affidavit must be filed not later than the 5th day after the date the judgment is signed. The affidavit must contain the following information:
If a Statement of Inability to Afford Payment of Court Costs is filed, the court must provide notice to all other parties that the Statement was filed no later than the next business day. Within 5 days of filing a bond or making a cash deposit, an appellant must serve written notice of the appeal on all other parties using a method approved under Rule 501.4.
Landlord’s Contest of Tenant Affidavit of Inability to Pay Costs of Appeal
When a Pauper’s Affidavit is filed, the court will notify the landlord. The landlord may contest a pauper’s affidavit on or before the 5th day after the date the affidavit is filed. The court will hold a hearing on the contest not later than the 5th day after the date the landlord notifies the court clerk of the contest. It is the tenant’s burden to prove by competent evidence that the tenant is unable to pay the costs of appeal or file an appeal bond. The tenant may make this proof by documents or credible testimony of the tenant or others. If the court approves the Pauper’s Affidavit of a tenant, the tenant is not required to pay the filing fee charged by the County Civil Courts at Law. See TEX. PROP. CODE § 24.0052.
Payment of Rent During Appeal (for nonpayment of rent appeals)
If a defendant appeals an eviction for nonpayment of rent by filing a Sworn Statement of Inability to Pay, the Justice Court will give the tenant a written notice at the time the Sworn Statement of Inability to Pay is filed that notifies the tenant (1) of the amount of the initial deposit of rent that the tenant must pay into the registry of the Justice Court; (2) whether the initial deposit of rent must be paid in cash, cashier’s check, or money order, and to whom the cashier’s check or money order must be made payable; (3) the calendar date within 5 days of the date the Sworn Statement of Inability to Pay is filed, and if applicable, the time, by which the initial deposit must be paid; and (4) a statement that failure to pay the required amount into the Justice Court registry by the date and time specified may result in the issuance of a writ of possession without hearing. Rule 510.9(c)(5).
The defendant appealing by Sworn Statement of Inability to Pay may remain in possession of the premises during the pendency of the appeal by (1) making the initial deposit of rent into the Justice Court registry within 5 days of the date the defendant files the Sworn Statement of Inability to Pay, and (2) paying the rent within 5 days of the rental due date under the rental agreement into the registry of the County Civil Courts at Law as it becomes due during the pendency of the appeal. See Rule 510.8, and TEX. PROP. CODE §§ 24.0053 & 24.0054.
Tenant’s Failure to Pay Rent During Appeal of Eviction Case Based on Non-Payment of Rent
This appellate system may appear unfair to the landlord; however, if the Pauper’s Affidavit is permitted, the tenant is then obliged to begin making monthly rental payments to the County Court and continue to do so during the pendency of the case.
If during an appeal concerning a Pauper’s Affidavit of an eviction case for nonpayment of rent, within 5 days of the date that the defendant files a Statement of Inability to Afford Payment of Court Costs, it must pay into the Justice Court registry the amount set forth in the notice provided at the time the defendant filed the Statement. If the defendant was provided with notice and fails to pay the designated amount into the Justice Court registry within 5 days, and the transcript has not been transmitted to the county clerk, the plaintiff is entitled, upon request and payment of the applicable fee, to a writ of possession, which the justice court must issue immediately and without hearing. Rule 510.9(c)(5)(B)(i). This provision gives landlords an effective, “automatic-style remedy” at the Justice Court level without having to wait until the entire eviction file is transferred to the county clerk’s office and a new case is set up.
During the appeal of an eviction case for nonpayment of rent, if a tenant fails to pay rent into the registry of the County Civil Courts at Law as the rent becomes due under the rental agreement, the landlord may file a sworn motion with the County Civil Courts at Law stating that the tenant failed to pay rent as required. The plaintiff must notify the defendant of the motion and the hearing date. Upon a showing that the defendant is in default at a hearing, if the County Civil Courts at Law finds that the tenant has not paid the delinquent rent together with the landlord’s attorney fees, if any, the County Civil Courts at Law must issue a writ of possession to be executed after the expiration of 5 days. The plaintiff may also withdraw any or all rent in the County Court registry upon sworn motion and hearing, prior to final determination of the case, showing just cause; dismissal of the appeal; or Order of the Court after final hearing. See TEX. PROP. CODE § 24.0054 and Rule 510.9(c)(5)(B). If the tenant has failed timely to pay rent into the County Court registry on more than one occasion, the tenant is not entitled to stay the issuance of the writ of possession by paying the rent and attorney’s fees, and the County Court will immediately issue the writ of possession. See TEX. PROP. CODE § 24.0054.
Trial conducted by the County Civil Courts at Law
On the trial of the case in the County Court the appellant or appellee will be permitted to plead, prove and recover his/her/its damages, if any, suffered for withholding or defending possession of the premises during the pendency of the appeal. Damages may include but are not limited to loss of rentals during the pendency of the appeal and attorney fees in the justice and county courts provided, as to attorney fees, that the requirements of Section 24.006 of the Texas Property Code have been met. Only the party prevailing in the County Court will be entitled to recover damages against the adverse party. The prevailing party will also be entitled to recover court costs and to recover against the sureties on the appeal bond in cases where the adverse party has executed an appeal bond. Rule 510.11.
Unlike in the Justice Court, trials in the County Court are governed by the Texas Rules of Civil Procedure as well as local rules of court, if available. In general, the parties can expect to encounter a markedly different level of conduct and candor in the County Court than encountered in the Justice Court, since it is a court of evidentiary record and may be set aside in a higher level appeal if challenged further.
The same evidence used in the Justice Court (papers, witnesses, photographs) can be presented again. If a party has new evidence, they can also present it. The judge will listen first to the plaintiff’s side and then to the defendant’s side, and make a decision about whether to evict. Parties have the right to ask questions of the other in court.
Representation during trial at County Court.
A tenant or landlord, who is a natural person and a tenant or owner of the occupied premises (by lease or otherwise) can represent themselves in County Civil Court. However, if a corporation owns the premises/rental unit, the corporation must be represented by an attorney in County Court. Even if a person owns all the stock in the corporation, the owner of such stock may not appear for the corporation in County Court, as such would be considered the unauthorized practice of law.
Can an employee appear in court on a company’s behalf? Someone who is not a lawyer may not appear on your behalf in County Court. There are two exceptions: 1) a non-lawyer may appear on your behalf to present a motion for writ of possession because rent has not been deposited with the court as required by Texas Property Code 24.0054; and, 2) a non-lawyer may appear on your behalf to present a motion to dismiss the appeal.
Right to Request Appointment of Attorney in County Civil Courts at Law after Approval of Pauper’s Affidavit
A tenant who appeals a Judgment of the Justice Court by filing a Pauper’s Affidavit has the right to request the appointment of an attorney to represent him in the proceedings in the County Civil Courts at Law. The tenant may exercise this right after the Pauper’s Affidavit has been approved and the appeal perfected. The request for the appointment of an attorney must be made in writing to the County Civil Court at Law in which the appeal is filed. An appointed attorney’s representation is in the trial de novo in County Civil Court at Law if the tenant was in possession of the residence at the time the eviction suit was filed in the Justice Court. The County Civil Court at Law may terminate the representation for cause. See Section 25.0020, Texas Government Code.
Appeal from the County Court at Law
A final judgment of a County Court in an eviction suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only. A judgment of a County Court may not under any circumstances be stayed pending appeal unless, within ten (10) days of the signing of the judgment, the appellant files a supersedeas bond in an amount set by the County Court (usually 2x the judgment amount). In setting the supersedeas bond the County Court shall provide protection for the appellee to the same extent as in any other appeal, taking into consideration the value of rents likely to accrue during appeal, damages which may occur as a result of the stay during appeal, and other damages or amounts as the court may deem appropriate. See TEX. PROP. CODE § 24.007.
VI. Landlord’s Duty To Mitigate Damages.
A landlord has a duty to mitigate damages if a tenant abandons the leased premises in violation of the lease. TEX. PROP. CODE § 91.006(a). A provision of a lease that purports to waive a right or to exempt a landlord from a liability or duty under this section is void. TEX. PROP. CODE § 91.006(b).
VII. Enforcing the Judgment / Collection / Possession
Writ of Possession
A landlord who prevails in an eviction suit is entitled to a judgment for possession of the premises and a writ of possession. “Premises” includes the unit that is occupied or rented and any outside area or facility that the tenant is entitled to use under a written lease or oral rental agreement, or that is held out for the use of tenants generally.
A sheriff or constable may use reasonable force in executing a writ. See TEX. PROP. CODE § 24.0061. Further, under Section 7.003 of the Civil Practice and Remedies Code, the officer is not liable for damages resulting from the execution of the writ if the officer executes the writ in good faith and with reasonable diligence. The writ of possession shall order the officer executing the writ to:
(A) deliver possession of the premises to the landlord;
(B) instruct the tenant and all persons claiming under the tenant to leave the premises immediately, and, if the persons fail to comply, physically remove them;
(C) instruct the tenant to remove or to allow the landlord, the landlord’s representatives, or other persons acting under the officer’s supervision to remove all personal property from the rental unit other than personal property claimed to be owned by the landlord; and
(D) place, or have an authorized person place, the removed personal property outside the rental unit at a nearby location, but not blocking a public sidewalk, passageway, or street and not while it is raining, sleeting, or snowing.
The writ of possession authorizes the officer, at the officer’s discretion, to engage the services of a bonded or insured warehouseman to remove and store, subject to applicable law, part or all of the property at no cost to the landlord or the officer executing the writ. Note that the moving company will come into the property and may take general notes or video the property being removed. The moving companies move quickly to pack all possessions in the property and generally do not take the same care as the tenant in packing the items.
The officer may not require the landlord to store the property.
A writ of possession cannot be issued more than 60 days after a judgment for possession is signed, and a writ of possession cannot be executed after the 90th day after a judgment for possession is signed. Rule 510.8.
Collecting Judgments from Tenants
The key objective for the owner is to gain a writ of possession. Although obtaining a judgment for monetary damages against a residential tenant can be an important formality; such judgments are almost never collected. Texas has long been a haven for debtors where both the Texas Property Code and Texas Constitution allow exemptions for a long list of items from execution upon a judgment. Constables will generally not enter a residence to collect on a judgment. The fact is that the average residential tenant has very little that a landlord will be allowed to take and, since garnishment of wages is unconstitutional in Texas, collection is unlikely.
VIII. UPDATE ON EVICTION CASES (as of April 20, 2022 and obtained from information provided by the Harris County Justice Court website at http://jp.hctx.net/default.htm#gsc.tab=0)
Supreme Court’s Fiftieth Emergency Order: While the Texas Eviction Diversion Program, a component of the Texas Rent Relief program (www.texasrentrelief.com), stopped taking new applications on November 3, 2021, many of the former protections under the Texas Eviction Diversion Program remain in place under the latest Supreme Court Emergency Order.
Judges in residential eviction cases based in whole or part on nonpayment of rent must confirm whether or not the plaintiff-landlord has any pending applications for rental assistance, including applications for assistance through the TEDP, or has provided any information or documentation directly to a rental assistance provider for the purpose of receiving rental assistance, and if other rental assistance programs are available, discuss the available programs and procedures with the parties and ask the parties individually whether they are interested in participating in an available rental assistance program. If the landlord does have any pending applications, or if both the landlord and tenant express a desire to participate in an available rental assistance program, the case will be abated for 60 days. All records of the case, if abated, will be made confidential.
If during the 60 days the landlord files a motion to reinstate the case with the court, along with showing that the application for rental assistance has been denied, canceled, or withdrawn, the eviction case will be placed back on a docket within the next 21 days (and the records will no longer be confidential). If the landlord does not file a motion to reinstate the case within the abatement period, the case will be dismissed with prejudice at the expiration of the 60 days (and the records will remain confidential). The landlord can also request to extend the 60-day abatement period to allow additional time for funding to come through, and if granted, the case will automatically be abated for up to an additional 60 days.
If either party declines to participate in the program, the case can and will proceed.
However, if the parties later inform the court of their interest in participating in an available rental assistance program or of their actual participation in a rental assistance program, so long as a writ of possession has not issued, the court will set aside the judgment, if any, and make all court records confidential. The court will then provide the procedures that would apply to reinstate the judgment or dismiss the eviction case.
Note on the CDC Eviction Moratorium: The CDC’s Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, first issued in September 2020 and subsequently continued by CDC action was set to expire on July 31, 2021. However, on May 5, 2021, the U.S. District Court for the District of Columbia granted plaintiff realtor associations and rental property managers summary judgment, holding that the CDC lacked the statutory authority to impose the order and ordering that the nationwide eviction moratorium be vacated. The court stayed its order while the case was appealed, and on June 29, 2021, the Supreme Court of the United States ruled that while the CDC lacked such authority, the moratorium could expire on July 31, 2021 to allow the remaining time for the orderly distribution of emergency rental assistance funds.
On August 3, 2021, the CDC issued a more targeted Temporary Halt in Residential Evictions in Communities with Substantial or High Levels of Community Transmission of COVID-19 to Prevent the Further Spread of COVID-19, set to expire on October 3, 2021. However, on August 26, 2021, the Supreme Court vacated the stay previously imposed by the DC District Court, thereby ending the CDC eviction moratorium effective immediately. Click here to view the Supreme Court’s opinion.
What types of evictions are on hold? (Information as of June 21,2022)
Eviction Ban for Landlords in Federal Forbearance: The federal government has prohibited evictions from any multi-family apartment complex that takes part in certain federal housing programs, and which has also paused mortgage payments. This means that if a tenant lives on a property with more than four units and the FHA, FHFA, USDA, or VA gives a landlord a forbearance on their mortgage, a landlord cannot evict a tenant for unpaid rent so long as the forbearance is in place. However, such does not excuse a tenant’s requirement to continue to pay rent.
What types of evictions can still take place? (Information as of June 21,2022)
Texas courts can now hear eviction cases unless banned by local or federal rules. There is no statewide eviction ban.
Even if an eviction ban would apply to a tenant, a landlord can still ask a court to evict a tenant if a tenant, someone in tenant’s household, or tenant’s guests:
Also, a victim of domestic violence can still enforce a protective order that removes their abuser from a shared home.
The Zak K. Patel Law, PLLC Legal Disclaimer: This CLE is intended to highlight selected laws regarding forcible detainer actions in Texas. It is not comprehensive. Not laws that may impact landlords, tenants or occupants are included, and for brevity, identified laws, most exceptions and many details are omitted. The information in this CLE is intentionally brief to provide a quick list of priority items, for informational purposes only, and should not be relied upon. Attached hereto are sample documents for which you may find helpful in pursuing an eviction; however, such are provided as an example only. Permission is not granted to use The Zak K. Patel Law Firm, PLLC’s name, or claim or imply that the law firm has endorsed any action, or represents any particular party, for which you may use the supplied examples. This CLE and attachments are not intended to replace the advice of competent legal counsel or to address a particular situation. The Zak K. Patel Law, PLLC disclaims any warranty as to accuracy or completeness.
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