Evictions in Texas

Introduction

Eviction is a judicial process by which an owner recovers possession of real property and, if appropriate, a judgment for unpaid rent, attorney’s fees, and court costs against a defaulting tenant or occupant. This article focuses on residential eviction proceedings that are are conducted in various justice court precincts spread around Texas’ 254 counties. Justice courts are busy places nowdays. When a landlord arrives ready to do his first eviction, he may be told that there are dozens of cases ahead of him on the “forcible docket.” The quantity of these cases post-pandemic is so great that each case averages only a few minutes.

Eviction Terminology

A note on legal terminology: forcible detainer applies when an owner seeks to evict a person lawfully in possession (a tenant) while forcible entry and detainer (FED) occurs when a person without legal authority (a trespasser) enters the premises and refuses to leave. One often hears these terms used interchangeably but there is a conceptual difference.

“Though the terms forcible detainer and forcible entry and detainer are sometimes used interchangeably, they are distinct legal actions governed by separate statutory provisions. See Tex. Prop. Code §§ 24.001 (forcible entry and detainer), 24.002 (forcible detainer). Generally, forcible entry and detainer occurs when a person enters the property of another “without legal authority or by force and refuses to surrender possession on demand.” Id. § 24.001(a). Forcible detainer occurs when a person whose initial entry was lawful “refuses to surrender possession on demand.” Id. § 24.002(a). . . . Both are types of eviction suits filed in justice court, see Tex. Prop. Code § 24.004(a).” Westwood Motorcars, LLC v. Virtuolotry, LLC, No. 22-0846 (Tex. 2024)

There is also a difference between the two causes of action in terms of procedural and evidentiary requirements. Yarto v. Gilliland, 287 S.W.3d 88 (Tex.App.—Corpus Christi 2009, no pet.).

Tenants in Default

A tenant who remains in possession after expiration of a lease is a holdover tenant. However, tenants under a lease do not comprise the entire universe of tenancies. There are also tenants at will and tenants at sufferance. These terms refer to persons who were originally on the premises with the landlord’s permission or acquiescence but without a lease. If a tenant under a lease holds over without consent from the landlord, he is a tenant at sufferance. If holding over occurs with landlord consent, that person is a tenant at will.

LAW APPLICABLE TO EVICTIONS

Evictions are defined in the Property Code as follows:

Prop. Code Sec. 24.002. Forcible Detainer

(a) A person who refuses to surrender possession of real property on demand commits a forcible detainer if the person: (1) is a tenant or a subtenant willfully and without force holding over after the termination of the tenant’s right of possession; (2) is a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant’s lease; or (3) is a tenant of a person who acquired possession by forcible entry.

(b) The demand for possession must be made in writing by a person entitled to possession of the property and must comply with the requirements for notice to vacate under Section 24.005.

Law and Procedure in Justice Courts

Eviction cases are governed substantively by Chapter 24 of the Property Code and procedurally by Rules 500-507 and 510 which are a subset of Part V of the Texas Rules of Civil Procedure. The entirety of Part V is entitled “Rules of Practice in Justice Courts” and these other rules may at times apply as well. If the case is appealed from justice to county court the rules change.

The Government Code is also involved (Gov’t Code Sec. 37.031) in that it states that justice courts are not empowered to rule on issues of title to land.

There is also much case law relevant to evictions, particularly when it comes to suits for possession versus suits that require a determination of title.

Justice Court Jurisdiction

Justice courts have original jurisdiction in eviction cases (Tex. R. Civ. P. 510.3(b) and Prop. Code Sec. 24.004). “Jurisdiction to hear a forcible detainer action is expressly given to the justice court of the precinct where the property is located. A justice court has exclusive jurisdiction to decide the issue of immediate possession which may not be infringed upon as long as the justice court determines only possession. . . . But when a forcible detainer [eviction] action presents a genuine issue of title so intertwined with the issue of possession that a trial court would be required to determine title before awarding possession, than a justice court lacks jurisdiction to resolve the matter. Thus a justice court is not deprived of jurisdiction merely by the existence of a title dispute; it is deprived of jurisdiction only if resolution of a title dispute is a prerequisite to determination of the right to immediate possession.” Jelinis, LLC v. Hiran, 557 S.W.3d 159 (Tex.App.—Houston [14th Dist.] 2018, pet. denied).

More will be said on the intertwining of possession and title issues below.

Superior Right to Immediate Possession

“The sole issue adjudicated in a justice-court eviction suit is immediate possession, and a judgment adjudicating immediate possession does not bar or have any preclusive effect on a suit in district court for damages arising out of the same landlord–tenant relationship” (Westwood Motorcars, cited above).

“Justice courts cannot go beyond matters relating to possession and also adjudicate title to the property. “An action for forcible detainer is a summary, speedy, and inexpensive remedy for the determination of who is entitled to the possession of premises. . . . The only issue to be resolved in a forcible detainer action is the right to immediate possession of the property; the merits of title are not adjudicated.” Yarbrough v. Household Finance Corporation III, 455 S.W.3d 277 (Tex.App.—Houston [14th Dist.] 2015, no pet.).

In order for a landlord to “establish a superior right to immediate possession, [landlord must] prove (1) [landlord] owns the property, (2) [tenant] is either a tenant at will, tenant at sufferance, or a tenant or subtenant willfully holding over after the termination of the tenant’s right of possession, (3) [landlord] gave proper notice to [tenant] to vacate the premises, and (4) [tenant] refused to vacate the premises. . . . The only dispute is whether the record conclusively establishes that [tenant’s] right of possession terminated.” Shields L.P. v. Bradberry, 526 S.W.3d 471 (Tex. 2017).

Must the landlord produce a deed?

According to Shields, the landlord must prove ownership. Does this require that the landlord produce an actual deed as a prerequisite to pursuing an eviction? No. “The plaintiff in a forcible detainer action is . . . only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession.” Anderson v. Chandler, No. 12-16-00299-CV (Tex. App.—Tyler 2017, no pet.).

In spite of the foregoing, in cases where title is likely to be disputed, it is prudent for landlord’s counsel to arrive at the hearing with a certified copy of his client’s deed to be introduced into evidence.

Concurrent Cases

An eviction suit in justice court “may run concurrently with another action in another court without issue—even if the two proceedings overlap and the other action adjudicates matters that could result in a different determination of possession. . . . That is because the justice court’s judgment is a determination only of the right to immediate possession and does not determine the ultimate rights of the parties to any other issue in controversy relating to the realty in question” (Westwood Motorcars, cited above).

NOTICES TO THE TENANT

Notice to Vacate

The forcible process begins with a proper notice to vacate. In the case of a tenant’s 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 eviction (Prop. Code Sec. 24.005). Note, however, that the lease may provide for either a shorter or longer period.

The 3-day notice requirement also applies in cases of tenants at will and tenants at sufferance.

In the case of a month-to-month tenancy (for instance, after a longer lease has expired) with no tenant default, the landlord may give a month’s written notice stating only that the landlord desires possession. No more need be said and no allegation of default is necessary. If the tenant does not leave then an eviction can be filed.

In a foreclosure situation, the new owner of a foreclosed property may demand that a tenant under existing an existing lease vacate the property after at least 30 days’ written notice (Prop. Code Sec. 24.005(a)).

If a landlord wishes to recover attorney’s fees pursuant to Property Code Section 24.006, the notice to vacate must include additional verbiage. The notice “must state that if the tenant does not vacate the premises before the 11th day after the date of the receipt of the notice and if the landlord files suit, the landlord may recover attorney’s fees.”

The best practice is to send the notice to vacate by both certified and first-class mail. It may also be posted on the door of the dwelling. As with all legal notice requirements, it is best not to cut the prescribed time period too close. Doing so may unwittingly provide the tenant with a defense.

Post-Foreclosure Eviction

Foreclosure gives the new owner title; the next step is to obtain possession.

A trustee’s deed cuts off all junior liens including purchase-money liens and mechanics liens. A valid foreclosure usually terminates existing leases as well. Coinmach Corp. v. Aspenwood Apartment Corp. 417 S.W.3d 909 (Tex. 2013). Even so, the new owner may not simply lock out a residential tenant (Prop. Code Sec. 92.0081).

Property Code Section 24.005(b) provides that new owners of 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.”

Eviction Notices in Executory Contract Cases

Eviction of a buyer-tenant under an executory contract (e.g., a contract for deed) is a special case. Texas law views buyers under contracts for deed as more than mere tenants, and so more care must be taken (and more requirements met) in the eviction process. Property Code Section 5.063 outlines requirements that must be followed exactly if the notice and eviction are to be valid.

Note that the delinquent amount under the executory contract must be broken down into principal and interest. If the buyer-tenant has paid less than 40% of the amount due or made less than 48 monthly payments, the seller-landlord must provide a 30-day notice and opportunity to cure before seeking to regain possession of the property. If the default is not cured, a 3-day notice to vacate may be given and an eviction may proceed normally from that point forward.

If the buyer-tenant under an executory contract has paid more than 40% of the amount due or made 48 or more monthly payments, eviction is not available as a primary remedy. Pursuant to equity-protection provisions of Property Code Section 5.066, the seller-landlord must afford a 60-day notice and cure period which is then followed by appointment of a trustee and a non-judicial foreclosure. Depending on the circumstances an eviction may thereafter be required to regain possession.

What if the property is abandoned?

If a tenant has abandoned and vacated a leased property, the question arises as to whether notices and a formal eviction proceeding are required at all.

If true abandonment has occurred, the owner may peaceably re-enter without notice or judicial process and take possession and change the locks. However, gray areas occur when some of the tenant’s possessions remain on the premises, raising the question of whether the property has actually been abandoned or not.

Abandonment has occurred when a property is “empty, that is, without contents of substantial value . . . the term ‘substantial value’ does not mean merely substantial monetary value, but the term includes value attributable to the utility of the furniture. It is well known that furniture, because of age and condition, may have little monetary value, but to the owner or user has substantial utility, and retention in the house would evidence the absence of complete abandonment. From the evidence recited we are of the view that the reasonable mind could conclude there was furniture of substantial value in the house and therefore it was not vacant.” Knoff v. U.S. Fidelity, 447 S.W.2d 497 (Tex.App.—Houston, 1969, no writ).

If a substantial amount of personal property remains, the safer legal course for a landlord is to give notice and pursue a formal eviction, even if the tenant is nowhere to be found.

JUSTICE COURT PROCEEDINGS

Filing and Pleading in Justice Court

A landlord’s eviction petition is filed with the justice of the peace in whose precinct the property is located:

Tex. R. Civ. P. 510.3. Eviction Petition

(a) Contents. In addition to the requirements of Rule 502.2, a petition in an eviction case must be sworn to by the plaintiff and must contain: (1) a description, including the address, if any, of the premises that the plaintiff seeks possession of; (2) a description of the facts and the grounds for eviction; (3) a description of when and how notice to vacate was delivered; (4) the total amount of rent due and unpaid at the time of filing, if any; and (5) a statement that attorney fees are being sought, if applicable.

(b) Where Filed. The petition must be filed in the precinct where the premises is located. If it is filed elsewhere, the judge must dismiss the case. The plaintiff will not be entitled to a refund of the filing fee, but will be refunded any service fees paid if the case is dismissed before service is attempted.

(c) Defendants Named. If the eviction is based on a written residential lease, the plaintiff must name as defendants all tenants obligated under the lease residing at the premises whom plaintiff seeks to evict. No judgment or writ of possession may issue or be executed against a tenant obligated under a lease and residing at the premises who is not named in the petition and served with citation.

At the hearing (held not less than 21 days after the petition is filed) the justice of the peace will determine which party has the superior right to immediate possession and what monetary damages (back rent, attorney’s fees, and court costs), if any, will be awarded to a prevailing landlord. These are the only issues to be considered.

Landlord’s Suit for Possession Plus Damages

A suit for possession may be combined with a claim for unpaid rent and other monetary damages:

Tex. R. Civ. P. 500.3.(d) Eviction Case . . . A claim for rent may be joined with an eviction case if the amount of rent due and unpaid is not more than $20,000, excluding statutory interest and court costs but including attorney fees, if any.

A forcible detainer action seeking possession “is not exclusive, but cumulative, of any other remedy that a party may have in the courts of this state. If all matters between the parties cannot be adjudicated in the justice court in which the forcible entry and detainer proceedings are pending due to the justice court’s limited subject matter jurisdiction, then either party may maintain an action in a court of competent jurisdiction for proper relief.” McGlothlin v. Kliebert, 672 S.W.2d 231, 233 (Tex. 1984).

The $20,000 monetary limit applies not just to evictions but to all suits for money damages that are brought in justice court (e.g., small claims cases).

Either party may request a jury trial at least 3 days prior to the hearing (Tex. R. Civ. P. 510.7(b)).

Judgment in a forcible case can be for both possession and damages or for possession only. Because collecting judgments against residential tenants is difficult in Texas, a residential landlord may occasionally choose to be content with a judgment for possession only.

Tenant Answers

A tenant may but is not required to file a written response to the landlord’s eviction petition:

Tex. R. Civ. P. 510.6: Trial Date; Answer; Default Judgment

(a) 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.

(b) Default Judgment. If the defendant fails to appear at trial and fails to file an answer before the case is called for trial, and proof of service has been filed in accordance with Rule 510.4, the allegations of the petition 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. . . .

Tenant Defenses

Tenant defenses in an eviction case (such as they may be) are not permitted to extend beyond a narrow boundary—namely (1) arguments that pertain to the superior right of possession and (2) any rights or defenses granted by statute (i.e., Chapter 92 of the Property Code).

As to who has the superior right to possession, note the rule stated in the Pham case: “A forcible detainer action is a special proceeding designed to be a speedy, simple, and inexpensive means to obtain immediate possession of property. . . . Consistent with this purpose, our courts have repeatedly recognized that a [justice court] judgment of possession in a forcible detainer action is a determination only of the right to immediate possession and does not determine the ultimate rights of the parties to any other issue in controversy relating to the property at issue.” Federal Home Loan Mortgage Corporation v. Pham, 449 S.W.3d 230 (Tex.App.—Houston [14th Dist.] 2014, no pet.).

Statutory defenses are extremely limited. They include unlawful retaliation by a landlord against a tenant who “in good faith exercises or attempt to exercise against a landlord a right or remedy granted to the tenant by lease, municipal ordinance, or federal or state statute. . . ” (Prop. Code Sec. 92.331(a)):

Prop. Code Sec. 92.335. Eviction Suits

In an eviction suit, retaliation by the landlord under Section 92.331 (Retaliation by Landlord) is a defense and a rent deduction lawfully made by the tenant under this chapter is a defense for nonpayment of the rent to the extent allowed by this chapter. Other judicial actions under this chapter may not be joined with an eviction suit or asserted as a defense or crossclaim in an eviction suit.

Except as provided above, there is no defense to the non-payment of rent.

Title-Related Defenses

As mentioned elsewhere, it is inappropriate for a tenant to raise defenses relating to title since justice courts only have jurisdiction over possession. They do not have authority over suits “for trial of title to land. . . .” (Gov’t Code Sec. 37.031). Jurisdiction over title issues resides with district courts and suits relating to title must be commenced and conducted there. In the next section of this article we will discuss possession versus title issues in more detail.

Tenant Counterclaims

Counterclaims by the tenant, regardless of subject matter or merit, are not permitted in an eviction case. Tenant suits must be brought separately in any court where venue and jurisdiction allow—including the same justice court where the eviction is pending but under a different case number (Tex. R. Civ. P. 510.3(e)).

POSSESSION VERSUS TITLE

Possession and Title Issues in the Same Case

More discussion is warranted as to the distinction between disputes concerning possession and disputes concerning title—although both may arise within the same case. The legal standard is whether or not these issues are so inextricably intertwined or integrally linked that the title question must be answered first—or if these issues are instead only tangentially related and therefore severable.

On the surface, the law is clear enough. Justice courts have original jurisdiction over possession (Prop. Code Sec. 24.004) and district courts have original jurisdiction over title (Tex. Const. Art. V, Sec. 8; Gov’t Code Sec. 26.043). Civil procedure rule 510.3(e) states “The court must adjudicate the right to actual possession and not title.” While justice courts have jurisdiction over cases of forcible detainer, “[a] justice court does not have jurisdiction of . . . a suit for trial of title to land” (Gov’t Code Sec. 27.031(b)(4)).

The world, however, is not so black and white. Possession and title questions can and do appear together. When that happens, “justice courts may adjudicate possession when issues related to the title of real property are [only] tangentially or collaterally related to possession. If, however, the question of title is so integrally linked to the issue of possession that the right to possession cannot be determined without first determining title, then the justice courts and, on appeal, the county courts, lack jurisdiction over the matter.” Gibson v. Dynegy Midstream Services, L.P. 138 S.W.3d 518, 522 (Tex.App.—Fort Worth 2004, no pet.).

A Houston appeals court elaborates: “Although a justice court has subject-matter jurisdiction over a forcible detainer action, the justice court, and a county court on appeal, lack jurisdiction to resolve any questions of title beyond the immediate right to possession. . . . On the other hand, a justice court is not deprived of jurisdiction merely by the existence of a title dispute; rather, it is only deprived of jurisdiction if the right to immediate possession necessarily requires the resolution of a title dispute.” Black v. Washington Mutual Bank, 318 S.W.3d 414 (Tex.App.—Houston [1st Dist.] 2010, pet. dism’d w.o.j.).

The order of resolution is therefore critical. A justice court (or county court on appeal) loses jurisdiction over an eviction case only if the right to immediate possession of the property first requires that title be adjudicated. In re. American Homes for Rent Properties Eight, LLC, 498 S.W.3d 153 (Tex.App.—Dallas 2016, no pet.). A justice court is deprived of jurisdiction only if resolution of a title dispute must occur before a determination of the right to immediate possession can be made. Jelinis, LLC v. Hiran, 557 S.W.3d 159 (Tex.App.—Houston [14th Dist.] 2018, pet. denied).

The practical result? Cases with title and possession issues that are inextricably intertwined or integrally linked usually wind up in district court. This places a burden on a tenant who believes for whatever reason that he or she has a title claim, since a different remedy in a different court must now be pursued. Burdensome as this might be, it has been ruled that this is not a denial of due process. Reynoso v. Dibs US, Inc., 541 S.W. 3d 331 (Tex.App.—Houston [14th Dist.] 2017, no pet.).

Tenants and their attorneys should know that “merely raising the issue of title is not enough to defeat the justice court’s original jurisdiction. The Property Code provides for parallel, separate title and possession suits in the justice court and the county courts at law unless resolution of possession necessarily requires the resolution of a title dispute.” Gonzalez v. Wells Fargo Bank, 441 S.W.3d 709, 713 (Tex.App.—El Paso 2014, no pet.).

Raising Chain of Title Issues

A question as to whether or not there are defects in the chain of title (and therefore the landlord’s ownership) does not deprive a justice court of jurisdiction, since the only issue for adjudication at the justice court level is the superior right to possession. This does not require that the plaintiff landlord prove title, only the existence of a landlord-tenant relationship. Isaac v. CitiMortgage, Inc., 563 S.W.3d 305 (Tex.App.—Houston [1st Dist.] 2018, pet. denied).

There is an interesting case in which the plaintiff claimed that the eviction arose from a wrongful foreclosure that was based on a fraudulent deed of trust. This was determined to be a title issue, so the case belonged in neither justice court nor county court but in district court. “Justice courts do not have jurisdiction to determine or adjudicate title to land, and neither does a county court exercising appellate jurisdiction in a forcible detainer action.” Yarbrough v. Household Finance Corporation III, 455 S.W.3d 277 (Tex.App.—Houston [14th Dist.] 2015, no pet.).

District Court Pre-Emption

Since district courts have original jurisdiction over title matters, the possibility exists that a district court may pre-empt the jurisdiction of a justice court. Pre-emption may occur when questions of title and possession are so 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 by the district court. Bynum v. Lewis, 393 S.W.3d 916 (Tex.App—Tyler 2013, no pet.).

If the concepts of possession and title are legally distinct, is it then possible to pursue a judgment for possession in justice court while also seeking the declaratory judgment of a district court regarding title? Yes. Moreover, the judgment rendered in the justice court as to possession is not determinative of the outcome of the district court proceeding. AAA Free Move Ministorage, LLC v. OIS Investments, Inc., 419 S.W.3d 522 (Tex.App.—San Antonio 2013, pet. denied).

What if there is a wrongful foreclosure case pending in district court—can the district court enjoin (stop) an eviction taking place in justice court? No. 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.).

APPEALS FROM JUSTICE COURT

Appeals to County Court

Motions for new trial are not allowed in justice court eviction cases. 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 sent to the county courthouse where it will be heard de novo (as a completely new case). This process arises from an interesting historical quirk: the justice court is not a court of record in Texas. No transcript is kept of the proceedings or testimony so the appeal to county court automatically vacates and annuls the justice court judgment and everything starts over at the county court level.

Appeal Bonds and Pauper’s Affidavits

The justice of the peace will set a cash appeal bond which may be three times the monthly rent. Property Code Sections 24.00511 and 24.00512 require that the judgment expressly set the amount of the bond. Either party may then contest the bond amount within five days. 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 (Prop. Code Sec. 24.0052) and is more complicated 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 by alleging that the tenant does in fact have sufficient resources for the bond. The tenant can be questioned on the subject of personal 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. The file is then turned over to the county court to be heard as a new case (Tex. R. Civ. P. 510.9(c)).

Pauper’s Bond Appellants

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, the Code provides:

Prop. Code Sec. 24.0054(a). During an appeal of an eviction case for non-payment 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 as required by Rule 749b(1), Texas Rules of Civil Procedure, and Section 24.0053; (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).

A tenant who cannot post a month’s rent within five days of judgment automatically loses (Sanchez v. Retreat at Mesa Hills, 657 S.W.3d 64 (Tex.App.—El Paso 2022, no pet.). The requirement that a Tenant pay in a months’ rent gives prevailing landlords an effective pre-appeal remedy while the file still resides at the justice court level. This remedy is available immediately and without having to wait until the entire eviction file is transferred to the county clerk’s office and set up as a new case.

Once the month’s rent is posted with the court, the landlord has access to these funds by filing a sworn motion with the court (Prop. Code Sec. 24.0053). Payment of funds to the landlord is not automatic; the motion process must be followed (Glaston v. Ellison, 651 S.W.3d 637 (Tex.App.—Houston [14th Dist.] 2022, no pet.).

Jurisdictional Scope of Appeal

Note that although a justice court’s judgment may be appealed to county court, a “county court has no greater jurisdiction than the justice court had.” Tellez v. Rodriguez, 612 S.W.3d 707 (Tex. App.—Houston [14th Dist.] 2020, no pet.).

Courts above the justice court level are not in any way bound by what happened in justice court. “A judgment or a determination of fact or law in a proceeding in a lower trial court is not res judicata and is not a basis for estoppel by judgment in a proceeding in a district court” (Civ. Prac. & Rem. Code Sec. 31.004(a)).

What happens if there is no appeal?

If the tenant does not appeal from justice to county court within five days, the judgment of the justice court becomes final and the landlord may obtain and serve a writ of possession. This requires going to the county clerk’s office and paying a nominal fee. The constable or sheriff then serves the writ but first posts a notice on the tenant’s door allowing 48 hours to move out. After that, the officers 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.

Landlord’s Motion for Immediate Possession

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 file a motion seeking immediate possession since the rules permit a tenant to remain in possession only so long as the following requirements are met:

Texas Rule of Civil Procedure 510.9(c)(5)(B). A defendant who appeals an eviction for nonpayment of rent by filing a Statement of Inability to Afford Payment of Court Costs is entitled to stay in possession of the premises during the pendency of the appeal by complying with the following procedure:

(i) Within 5 days of the date that the defendant [tenant] files a sworn statement of inability to pay [the appeal bond], 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 [landlord] 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.

(ii) During the appeal process as rent becomes due under the rental agreement, the defendant [tenant] 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.

(iv) If the defendant [tenant] fails to pay the designated amount into the court registry within the time limits prescribed by these rules, the plaintiff [landlord] may file a sworn motion that the defendant is in default in county court. The plaintiff must notify the defendant of the motion and the hearing date. Upon a showing that the defendant is in default, the court must issue a writ of possession.

(v) The plaintiff [landlord] may 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.

Rent Payments During Appeal

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 can be tied up for months.

Appeals from County to District Court

There is also the possibility of a second appeal from the judgment of a county court:

Property Code Sec. 24.007. APPEAL. 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 10 days of the signing of the judgment, the appellant files a supersedeas bond in an amount set by the county court. 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.

WRIT OF POSSESSION

If the landlord is successful in justice court and there is no appeal by the tenant, the landlord may obtain a writ of possession to be executed by the local constable or sheriff who may use force, if necessary, to remove the tenant:

Prop. Code Sec. 24.0061. Writ of Possession

(a) A landlord who prevails in an eviction suit is entitled to a judgment for possession of the premises and a writ of possession. In this chapter, “premises” means 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.

(b) A writ of possession may not be issued before the sixth day after the date on which the judgment for possession is rendered unless a possession bond has been filed and approved under the Texas Rules of Civil Procedure and judgment for possession is thereafter granted by default.

(c) 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.

(d) The writ of possession shall order the officer executing the write to: (1) post a written warning of at least 8-1/2 by 11 inches on the exterior of the front door of the rental unit notifying the tenant that the writ has been issued and that the writ will be executed on or after a specific date and time stated in the warning not sooner than 24 hours after the warning is posted; and (2) when the writ is executed: (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, except as provided by Subsection (d-1).

(h) A sheriff or constable may use reasonable force in executing a writ under this section.

Storage of Tenant Property

Instead of placing the tenant’s possessions at the curb, the sheriff may elect to put them into storage and give the tenant notice of their location:

Prop. Code Sec. 24.0062(b). If [a tenant’s] property is to be removed and stored in a public warehouse under a writ of possession, the officer executing the writ shall, at the time of execution, deliver in person to the tenant, or by first class mail to the tenant’s last known address not later than 72 hours after execution of the writ if the tenant is not present, a written notice stating the complete address and telephone number of the location at which the property may be redeemed….

The storage company has a lien on the tenant’s possessions (a warehouseman’s lien) for reasonable storage and moving charges incurred (Prop. Code Sec. 24.0062(a)).

CONCLUSION

The Process Summarized

In a typical eviction, a landlord must give a three-day notice to vacate, file an eviction petition in justice court, get it served, have it heard in court by a justice of the peace, and then wait five days for a final judgment and a writ of possession. The landlord must then wait until the constable posts a 48-hour notice on the door and then removes the tenant who is otherwise unwilling to leave. Elapsed time? Often three to four weeks but that assumes there is no appeal. If the tenant appeals, it is possible that the tenant will gain additional free-rent time in the property.

Judgments Against Individual Tenants

Obtaining a judgment for monetary damages against an individual residential tenant can be an empty formality since such judgments are seldom collected. Texas has long been a safe haven 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 may be problematic.

Often the best strategy is to record an abstract of judgment against the tenant in the real property records in the hopes that in the next ten years the tenant will become affluent enough to own and sell property. If such a transaction occurs through a title company, the title company should collect and escrow funds to pay the judgement.

What does the attorney need from the client?

When a landlord asks an attorney to initiate an eviction process, the first step should be a thorough review of the landlords’ file. 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 summary of the specific items of monetary and technical default.