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" in Texas 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. J.P. Courts have exclusive, original jurisdiction over possession of real property and the 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 (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.
Basic Law and Procedure
Evictions are governed by Sec. 24.01 of the Texas Property Code and Texas 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.
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. If the tenant does not leave, then eviction can be filed. If there is a default such as failure to pay rent, then 3 days written "notice to vacate" should be given, after which the landlord may file an FED.
The eviction must be filed with the Justice of the Peace in whose precinct the property is located. This Justice Court (and only this court) has original jurisdiction over possession of the property. At an eviction hearing, the judge determines which party has the superior right to possession and what damages (i.e., 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. Legal actions by tenants may be brought by separate suit in Justice, County, or District Court.
Appeals – Cash bonds vs. Pauper´s Affidavit
Within 5 calendar days of judgment, the tenant may (with or without good reason) appeal to county court. The appeal results in the file being packed up and sent to the downtown courthouse where it will be heard de novo – as a new case. The Justice of the Peace will set a cash appeal bond which is usually in the amount of 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 (see attached sample).
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 indeed 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 a pauper´s bond is almost always granted by the J.P., and the file is then turned over to county court.
This appellate system may appear unfair to the landlord; note, however, that if the pauper´s bond 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 the tenant fails to do this, then the landlord may seek immediate possession from the county court based on Rule 749b, T.R.C.P., which permits a tenant to remain in possession only so long as:
Also relevant to this issue is Texas Property Code Sec. 24.0054(a) which was amended effective Sept. 1, 2011 to read:
(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.
(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.
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 with five days of the date the tenant filed a paper´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, automatic-style remedy at the Justice Court level – i.e., without having to wait until the entire eviction file is transferred downtown to the county clerk's office and set up as a new case.
Cash or Surety Bond Appeals
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." 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.
Here´s 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 several months.
If the tenant does not appeal within 5 days, the judgment of the Justice Court is final and the landlord may proceed to enforce the judgment by obtaining and serving a writ of possession. This requires going to the county clerk´s office and paying a nominal fee. The constable 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 one or more trucks, forcibly evict the tenant, and put the tenant´s possessions in storage where charges accrue at the tenant´s expense.
Post-Foreclosure Eviction – Texas State Law
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 (See Sec. 51.002 et seq. of the Texas Property Code). Foreclosures are held in Texas on the first Tuesday of each month between 10:00 a.m. and 4:00 p.m. The successful bidder (which may be 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 3 day notice to vacate, file a forcible detainer petition in justice court, get it served, get it heard by the Justice of the Peace, and then wait 5 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? Three to four weeks at best, and even then the former borrower may appeal, gaining additional "free rent" time in the property.
Sec. 24.005(b) has been amended (eff. Sept. 1, 2011) 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 – Federal Law
This important 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 the expiration of a 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.
More information on foreclosures is available in our companion article on our website, Foreclosures in Texas.
What if the client has a wrongful foreclosure case pending in District Court? Can the District Court enjoin the eviction?
Not anymore. A recent Texas case disallowed this remedy.
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 almost never collected. Texas has long been a haven for debtors, and both the Texas Constitution and the Property Code exempt a long list of items from execution upon 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, collection is unlikely. See our companion article on our website, Texas Homestead Protections for Individuals.
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. 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 web site, 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