DAVID J. WILLIS ATTORNEY
Copyright © 2013. All rights reserved worldwide.
Evictions in Texas
by David J. Willis, J.D., LL.M.
Eviction (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 tenant or occupant. Evictions are conducted in justice courts which are located in various neighborhood precincts around Texas counties. Justice courts have original jurisdiction over possession of real property and authority to decide cases involving 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 section 24.01 and Rules of Civil Procedure 738 through 755. 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 authority to do so. 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. If the tenant does not leave, then eviction can be filed. If there is a default such as failure to pay rent, then a written "3-day notice to vacate" should be given, after which the landlord may file an FED.
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 appropriate.
Appeals: Cash Bonds versus Pauper’s Affidavit
Within five calendar days of judgment, the tenant may (with or without good reason) appeal to the local county court at law. The appeal results in the file being packed up and sent to the county courthouse where it will be heard de novo (as a new case). 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 now prescribed by statute 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.
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 pay a month’s rent to the justice court pursuant to Property Code section 24.0054(a) and do so before the file is shipped to county court:
During an appeal of an eviction case for nonpayment of rent, if a tenant fails to pay one rental period’s rent into the justice court registry within five days of the date the tenant filed a pauper’s affidavit in accordance with Rule 749b(1), Texas Rules of Civil Procedure, and section 24.0053, the justice court shall issue a writ of possession, without hearing, in the filing of a notice of default by the appellee. A writ of possession under this subsection may be executed immediately, and the sheriff or constable shall execute the writ as soon as practicable.
This provision gives landlords 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.
Rule 749b Motion in County Court
The eviction appellate system may 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 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 749b, which permits a tenant to remain in possession only so long as the following requirements are met:
(1) Within five days of the date that the tenant/appellant files his pauper’s affidavit, he must pay into the justice court registry one rental period’s rent under the terms of the rental agreement.
Cash or Surety Bond Appeals
(2) During the appeal process as rent becomes due under the rental agreement, then tenant/appellant shall pay the rent into the county court registry within five days of the due date under the terms of the rental agreement.
(3) If the tenant/appellant fails to pay the rent into the court registry within the time limit prescribed by these rules, the appellee may file a notice of default in county court. Upon sworn motion by the appellee and a showing of default to the judge, the court shall issue a writ of restitution.
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) has been amended to provide that new owners who have 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 federal law (see below).
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?
Not usually. 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 746 also provides that the "merits of the title shall not be adjudicated" in justice court.
However, the jurisdiction of the district court pre-empts 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). 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 © 2013 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