Eviction (called “forcible detainer” in Texas) is a 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 tenant or occupant. Evictions are conducted in Justice Courts, which are located in various neighborhood precincts around the county. J.P. courts have exclusive, original jurisdiction over possession of real property and the authority to decide cases up to $10,000. The landlord’s objective is to gain a judgment and a writ of possession.
Basic Law and Procedure
Evictions are governed by Sec. 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.
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.
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.
Within 5 calendar days of judgment, the tenant can appeal to county court, with or without good reason, which results in the file being sent to the county courthouse where it will be heard as a new case. The Justice of the Peace will set an appeal bond, which may be waived if the tenant files an affidavit stating that he or she cannot afford the bond (also known as a “pauper’s oath” or “pauper’s bond”). Once an affidavit of this kind if filed, the landlord has the right to request a hearing and contest it, 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, and the file is then turned over to the 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 make monthly rental payments to the county court. If the tenant fails to do so, then the landlord may seek immediate possession based on Rule 749b, T.R.C.P., which permits tenant to remain in possession only so long as:
- 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.
- 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.
- 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.” 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.
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 former borrower continues to occupy the property, the holder of 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 lender 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.
Protecting Tenants at Foreclosure Act of 2009
This important legislation modifies the usual eviction process for tenants who remain in possession following a foreclosure sale. If the tenant has a lease, then the tenant may stay until the expiration of 90 days after the sale or until the lease expires, 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 which time the tenant may be evicted in the customary manner. Section 8 tenants may have additional rights.
Tenants with a 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.
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 nothing 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 informational and educational purposes only and is not offered as legal advice upon which anyone may rely. 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 expressly retained in writing to do so.
Copyright © 2010 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.