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 $10,000.
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.
II. Basic Law and Procedure
Evictions are governed by TEX. PROP. CODE § 24.01. 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.
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”).
Protecting Tenants at Foreclosure Act
The Act went into effect May 20, 2009 and expires December 31, 2014. 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. 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:
1. the day given in the notice for termination; or
2. one month after the day on which the notice is given.
If the rent-paying period is less than a month, the tenancy terminates on whichever of the following days is the later:
1. the day given in the notice for termination; or
2. the day following the expiration of the period beginning on the day on which notice is given and extending for a number of days equal to the number of days in the rent-paying period.
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. 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.
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 738, Texas Rules of Civil Procedure (“TEX. R. CIV. P.”). As of September 1, 2007, the jurisdiction of the Justice Court was increased to claims up to $10,000, exclusive of interest. See TEX. GOV. CODE § 27.031. A landlord cannot avoid jurisdictional limits by artificially lowering the amount claimed to $10,000.
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 TEX. R. CIV. P. § 739. 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 TEX. R. CIV. P. § 741.
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
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: $31, Service Fee for the eviction suit: $70 = Total $101
Abstract of Judgment: $5
Writ of Execution: $5, Service Fee: $125 = Total $130
Writ of Possession: $5, Service Fee: $125 = Total $130
Request for Tow Hearing: $20
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 TEX. R. CIV. P. § 739. The citation will include a notice to the defendant, printed in English and Spanish in conspicuous bold print, regarding immediate deadlines, people who are serving on active military duty, and about retaining an attorney. See TEX. R. CIV. P. § 739.
Delivery of the Citation
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. See TEX. R. CIV. P. § 742.
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 TEX. R. CIV. P. § 742a. This is also known as a “Rule 106 Service.”
Once served, the tenant is required to appear for a trial scheduled not more than 10 days nor less than 6 days from the date of service of the citation.
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. See TEX. R. CIV. P. § 743.
In eviction cases, the only issue that the court will determine is the right to possession. See TEX. R. CIV. P. § 746.
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 5 days from the date the defendant is served with the citation, and by paying a jury fee of $5.00. See TEX. R. CIV. P. § 744.
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 6 days. See TEX. R. CIV. P. § 745.
Who May Represent the Parties
In eviction suits regarding non-payment of rent, holding over or a default judgment, the parties may represent themselves or be represented by their authorized agents, who need not be attorneys. See TEX. PROP. CODE § 24.011 and TEX. R. CIV. P. § 747a.
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. See TEX. R. CIV. P. § 748.
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.
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.
Either party (with or without the requirement of “good reason”) may appeal from a final judgment to the County Civil Courts at Law by filing a bond, making a cash deposit, or filing with the Justice Court a Sworn Statement of Inability to Pay. 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. 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.
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 of the party to file a written answer in the County Civil Courts at Law will result in the entry of a judgment by default. If the Justice Court enters judgment for the landlord in a residential eviction case based on nonpayment of rent, the Justice Court shall determine the amount of rent to be paid each rental pay period during the pendency of the appeal and note that amount in the judgment.
An appeal is initiated by filing an Appeal Bond with the Justice of the Peace Court, within five (5) days after the judgment is signed. The bond is in favor of the adverse party, conditioned that the appeal will be diligently prosecuted, or the party appealing will pay all costs and damages which may be adjudged against that party. TEX. R. CIV. P. § 750 sets out a form for an Appeal Bond, the substantial compliance with which satisfies the requisites for appealing the judgment in an eviction proceeding. The Justice of the Peace sets the amount of the bond, and may take into consideration loss of rentals during the time of the appeal. See TEX. R. CIV. P. § 749.
In computing the period of time within which an appeal bond is to be filed, the day of the signing of the judgment is not included, but the last day of the period is included. For purposes of counting time limits for filing this appeal bond, Saturdays, Sundays and legal holidays are counted. If the last day of the period is a Saturday, Sunday, or legal holiday, the next day which is not a Saturday, Sunday, or legal holiday becomes the last day of the period. See 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:
1. the tenant’s identity;
2. the nature and amount of the tenant’s employment income;
3. the income of the tenant’s spouse, if applicable and available to the tenant;
4. the nature and amount of any governmental entitlement income of the tenant;
5. all other income of the tenant;
6. the amount of available cash and funds available in savings or checking accounts of the tenant;
7. real and personal property owned by the tenant, other than household furnishings, clothes, tools of a trade, or personal effects;
8. the tenant’s debts and monthly expenses; and
9. the number and age of the tenant’s dependents and where those dependents reside.
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
If a tenant timely files a Pauper’s Affidavit to appeal an eviction for nonpayment of rent, the court will give the tenant a written notice at the time the Pauper’s Affidavit is filed that notifies the tenant: (1) of the amount of the initial deposit of rent that the tenant must pay into the justice court registry; (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 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 court issuing a writ of possession without hearing. The date by which the initial deposit must be paid into the justice court registry must be within five (5) days of the date the tenant files the Pauper’s Affidavit. The tenant must continue to pay the rent into the County Court registry as it becomes due during the pendency of the appeal. See TEX. PROP. CODE § 24.0053.
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. Effective January 1, 2012, during an appeal by Pauper’s Affidavit of an eviction case for nonpayment of rent, the Justice Court, on request, without hearing, must immediately issue a writ of possession if: (1) the tenant fails to pay the initial rent deposit into the justice court registry within 5 days of the date the tenant filed a Pauper’s Affidavit; (2) the court gave the tenant the written notice containing the amount of the initial deposit, the form of payment of the deposit, the date and time within 5 days of the date of filing the Pauper’s Affidavit by which the initial rent was to be paid, and the warning that a failure to pay the initial deposit might result in the issuance of a writ of possession without hearing; and, (3) the court has not yet forwarded the transcript to the County Court. 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.
If during the appeal, the tenant fails to pay rent as the rent becomes due into the County Court’s registry, the County Court will immediately issue a writ of possession unless on or before the day of the hearing the tenant pays into the court registry all of the unpaid rent due during the appeal, and the landlord’s reasonable attorney’s fees. 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.
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. 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. 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:
1. post a written warning 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 of possession 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.
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.
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.
Patel Hammond, PLLC Disclaimer: This news entry 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. This news entry is intentionally brief to provide a quick list of priority items. It is not intended to replace the advice of competent legal counsel or to address a particular situation. The information in this document and this blog is for informational purposes only and should not be relied on. Patel Hammond PLLC disclaims any warranty as to accuracy or completeness. Nothing herein creates an attorney-client relationship.