DAVID J. WILLIS ATTORNEY
Copyright © 2014. All rights reserved worldwide.
Residential Evictions in Texas
by David J. Willis, J.D., LL.M.
Eviction (generally referred to as "forcible entry and detainer" or "FED" for short) 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 defaulting tenant or occupant. Evictions are conducted in justice courts which are located in various neighborhood precincts around Texas counties. Justice courts have original jurisdiction in eviction cases. (Tex. R. Civ. P. 510.3(b) and Tex. Prop. Code § 24.004) and may award damages up to $10,000.
The 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 (there is an extensive list of assets that are exempt from execution) the residential landlord may occasionally choose to be content with a judgment for possession only.
Basic Law and Procedure
Evictions are governed by Property Code chapter 24 and Civil Procedure Rule 500 et seq., the latter having been extensively revised by the Texas Supreme Court effective August 31, 2013 (The old Rules 523-591 and 737-755 were repealed).
An eviction is appropriate if there exists a landlord-tenant relationship (with or without a written lease) or if a person is occupying real property without legal authority to do so. To be more specific, a "forcible entry" occurs when a person takes possession of real property without authority or permission of the owner; a "forcible detainer" occurs when a person continues to occupy property after a lease has expired.
The only issue to be decided in an eviction case is which party has the superior right to immediate possession. Cuellar v. Martinez, 625 S.W.2d 3, 5 (Tex. Civ. App.–San Antonio 1981, no writ).
In the case of month-to-month tenancy (e.g., after a lease is expired) with no tenant default, the landlord may give a month’s written notice that the landlord desires possession. No more than that need be said – no allegation of default is necessary. If the tenant does not leave, then an FED can be filed. In the case of default on an existing lease – failure to pay rent, for example – then a written 3-day notice to vacate should be given, after which the landlord may file an FED (Tex. Prop. Code § 24.005).
The eviction should be filed with the justice of the peace in whose precinct the property is located. At the hearing, the judge will determine which party has the superior right to possession and what damages (e.g., back rent, 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 in an FED. Such tenant suits must be brought by separate action in any court (including that same justice court) where venue and jurisdiction are allowed (Tex. Rule Civ. P. 510.3(e)). It is also inappropriate to raise issues of title, since justice courts do not have authority over suits "for trial of title to land. . . ." (Tex. Gov. Code § 37.031). Title issues are generally reserved to the district courts.
Appeals: Cash Bonds versus Pauper’s Affidavit
Motions for new trial are not allowed. However, within five calendar days of judgment, the losing party may (with or without good reason) appeal the justice court’s judgment to the local county court at law. Tex. R. Civ. P. 510.9. The appeal results in the file being packed up and sent to the main county courthouse where it will be heard de novo (as a new case). Why is this so? It results from an interesting historical quirk: the justice court is not a court of record. No transcript is kept of the proceedings or testimony.
The justice of the peace will set a cash appeal bond which may be three times the monthly rent. However, the cash bond may be waived if the tenant files an affidavit stating that he or she cannot afford it. The content of the "pauper’s bond" or "pauper’s affidavit" is prescribed by statute (Tex. Prop. Code §24.0052) and is considerably more complex than it used to be.
Once a pauper’s affidavit is filed, the landlord has the right to request a hearing and contest the affidavit, alleging that the tenant does in fact have sufficient resources for the bond. The tenant can be questioned on the subject of his or her assets and income. It is generally pointless to go through this exercise, however, since pauper’s bonds are almost always approved by justices of the peace, and the file is then turned over to county court (Tex. R. Civ. P. 510.9(c)).
If the tenant does not appeal within five days, the judgment of the justice court becomes final and the landlord may proceed to the enforcement phase by obtaining and serving a writ of possession. This requires going to the county clerk’s office and paying a nominal fee. The constable then serves the writ, but first usually posts a notice on the tenant's door allowing 48 hours to move out. After that, the constable may show up with a truck, forcibly evict the tenant, and put the tenant’s possessions in storage where charges accrue at the tenant’s expense.
Pauper’s Bond Appellants
Important: A tenant who files a pauper’s affidavit must, after notice, pay a month’s rent to the justice court pursuant to Property Code section 24.0053 – and do so before the file is shipped to county court. If the tenant fails to do so, section 24.0054 provides:
(a) During an appeal of an eviction case for nonpayment of rent, the justice court on request shall immediately issue a writ of possession, without hearing if:
(1) A tenant fails to pay the initial rent deposit into the justice court registry within five days of the date the tenant filed a pauper’s affidavit. . . .;
(2) The justice court has provided the written notice required by Section 24.0053(a-1); and
(3) The justice court has not yet forwarded the transcript and original papers to the county court as provided by Subsection (a-2).
This provision gives landlords who prevail an effective remedy at the justice court level, without having to wait until the entire eviction file is transferred to the county clerk’s office and set up as a new case.
The use of pauper’s affidavits in appeals may in some respects appear unfair, but it can be turned to the landlord’s advantage: If the pauper’s bond is approved, and the county court takes over the case, the tenant is then obliged to begin making monthly rental payments to the court and continue to do so during the pendency of the appeal. If the tenant fails to do this (and most do) the landlord may seek immediate possession from the county court based on motion pursuant to Texas Rule of Civil Procedure 510.9(c)(5)(B), which permits a tenant to remain in possession only so long as the following requirements are met:
(i) Within 5 days of the date that the defendant files a sworn statement of inability to pay, 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.
Cash or Surety Bond Appeals
(ii) During the appeal process as rent becomes due under the rental agreement, the defendant must pay the designated amount into the county court registry within 5 days of the rental due date under the terms of the rental agreement.
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’s attorney to file a motion requesting payment of rent into the court registry based on the theory that no one should live for free, an argument to which judges are generally receptive. A preferential setting should also be requested if the county court in question does not already automatically provide such a setting in eviction cases.
The bad news for landlords? If the tenant is a professional deadbeat who has played this game before, the property may be tied up for months.
The remedy of foreclosure is available to lenders if the borrower defaults. Specified notice and other requirements must be followed if the foreclosure is to be valid. Tex. Prop. Code §§ 51.002 et seq. Foreclosures are held in Texas on the first Tuesday of each month between 10 a.m. and 4 p.m. The successful bidder (likely the lender) gets a trustee’s deed which cuts off all junior liens including purchase money liens and mechanics liens. This gives the new owner title; the next step is to obtain possession.
If the occupant of residential property is "a tenant at will or by sufferance" then the new owner under the trustee’s deed must give the usual three-day notice to vacate, file an FED petition in justice court, get it served, have it heard by the justice of the peace, and then wait five days for a final judgment and a writ of possession. The new owner must then wait until the constable posts a 48-hour notice on the door and then forcibly removes a former borrower who is otherwise unwilling to leave. Elapsed time? Often three to four weeks, and even then the former borrower may appeal, possibly gaining additional free-rent time in the property.
Section 24.005(b) provides that new owners who have purchased foreclosed property must give a residential tenant in good standing "at least 30 days’ written notice if the purchaser [at foreclosure] chooses not to continue the lease," but this statute would appear to be overridden by federal law described in the next section.
Protecting Tenants at Foreclosure Act of 2009
This important federal legislation modifies the usual eviction process for tenants who remain in possession following a foreclosure sale. The statute actually speaks of a "bona fide lease or tenancy" at a monthly rate which must not be substantially less than market rent. If the tenant has such a lease or tenancy, then the tenant may stay until the lease expires or until expiration of the 90-day notice which must be given by the new owner, whichever is longer. If the tenant does not have a lease (i.e., is residing in the property month-to-month) or has a lease that is terminable at will, then the Act permits the tenant to remain in the property for up to 90 days after notice, after which time the tenant may be evicted in the customary manner. Section 8 tenants may have additional rights.
Tenants with a written lease should be prepared to show this document to the lender’s foreclosure attorneys or, if an eviction has been filed, to the justice of the peace in order to confirm their right to stay in the property.
What if there is a wrongful foreclosure case pending in district court? Can the district court enjoin the eviction?
District courts have no jurisdiction to issue an injunction stopping an eviction. McGlothin v. Kliebert, 672 S.W.2d 231, 232 (Tex.1984); TMC Medical, Ltd. v. The Lasaters French Quarter Partnership, 880 S,W,2d 789 (Tex. App.–Tyler 1994, writ dism’d, w.o.j.). The reasoning involves a distinction between disputes concerning possession and disputes concerning title. Generally, justice courts have original jurisdiction over possession issues (Tex. Prop. Code § 24.004) and district courts have original jurisdiction over title issues (Tex. Const. art. V, § 8; Tex. Gov’t Code § 26.043). Rule 510.3(e) provides that the justice "court must adjudicate the right to actual possession and not title."
However, the jurisdiction of the district court may pre-empt the justice court on issues of possession when questions of title and possession are so integrally linked or intertwined that possession may not be determined without first determining title. In such cases, and only in such cases, may the justice court be deprived of jurisdiction. Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171 (Tex. App.–Houston [1st Dist.] 1995, writ denied); Merit Management Partners I, L.P. v. Noelke, 266 S.W.3d 637,650 (Tex. App. Austin 2008, no pet.). Note that in Harris County, the county courts at law have the benefit of an exception under the Government Code and may hear title issues.
Collecting Judgments from Tenants
The key objective for the owner is to gain a writ of possession. Obtaining a judgment for monetary damages against a residential tenant in Texas is usually an empty formality since such judgments are seldom collected. Texas has long been a safe harbor for debtors, and both the Texas Constitution and the Property Code exempt a long list of real and personal property from execution upon a judgment. The average residential tenant has very little that a landlord will be allowed to take and, since garnishment of wages is unconstitutional, collection is problematic.
What does the attorney need from the client?
When asking that an attorney initiate the eviction process, the client should be prepared to supply (1) a copy of the lease agreement; (2) copies of any correspondence or demand letters; and (3) a brief summary of the specific items of monetary and technical default.
Information in this article is proved for general educational purposes only and is not offered as legal advice upon which anyone may rely. The law changes. Legal counsel relating to your individual needs and circumstances is advisable before taking any action that has legal consequences. Consult your tax advisor as well. This firm does not represent you unless and until it is retained and expressly retained in writing to do so.
Copyright © 2014 by David J. Willis. All rights reserved worldwide. David J. Willis is board certified in both residential and commercial real estate law by the Texas Board of Legal Specialization. More information is available at his website, http://www.LoneStarLandLaw.com.
||IN THE JUSTICE COURT OF
||____________ COUNTY, TEXAS
||PRECINCT ___, POSITION ___
BEFORE ME, the undersigned authority, on this date personally appeared ______________ ("Affiant") who, being by me duly sworn, on his or her oath deposed and said:
"My name is ___________. I am competent to make this affidavit and do so based on my own personal knowledge. All facts stated herein are true and correct.
"It is my desire to appeal the court’s ruling to the County Civil Court at Law, but I am unable to afford to pay the appeal bond amount or provide security therefor. I therefore request that pursuant to Prop. Code Sec. 24.0052 and Rule 749a, T.R.C.P. this court accept this Affidavit in lieu of bond and that my appeal be allowed to proceed. In support of this request, I supply the following information:
1. Nature and amount of employment income:
2. Income of spouse:
3. Nature and amount of any governmental entitlement income:
4. All other available income:
5. The amount of available cash and funds available in savings or checking accounts: These amounts are as follows as of this date:
6. Real and personal property owned other than household furnishing, clothes, tools of a trade, and personal effects:
7. Debts and monthly expenses:
Credit cards: __________________________
8. Number and age of tenants’s dependents and where those dependents reside: ___."
Further Affiant sayeth not.
SIGNATURE OF AFFIANT
SUBSCRIBED AND SWORN TO before me by __________________ on __________________, 201___.
NOTARY PUBLIC, STATE OF TEXAS