EVICTIONS
ATTENTION:
NEITHER THE COURT NOR ITS PERSONNEL CAN GIVE LEGAL ADVICE.
The information contained in this packet is not offered as legal advice. The information is not exhaustive.
There may be other remedies and procedures not contained in these packets.
You should seek professional, licensed, legal counsel for advice.
FREQUENTLY ASKED QUESTIONS
WHERE CAN I LOOK UP THE LAWS OF TEXAS ?
The Texas Statutes are available on-line at http://www.capitol.state.tx.us/statutes/statutes.html. Most laws about eviction and landlord-tenant matters are contained in the Texas Property Code (Chapters 24, 91 and 94) as well as the Texas Rules of Court.
WHY DO I HAVE TO FILE FOR EVICTION? – IT’S MY PROPERTY!
Private property rights are serious matters for both property owners and those who have rights of occupancy granted to them by property owners in exchange for rent, or by other agreement. The rights to private property, the right to privacy and the right to be secure in one’s own home are issues for Constitutional dimension, and also involve issues of contract law. These cases are ordinarily quite simple because there is only one issue—the right to actual possession of the premises—but can become quite complicated by the terms of a contract (or the lack of a clear agreement).
WHO CAN FILE FOR EVICTION?
Suits for eviction are usually filed by a property owner, a property manager (on behalf of the property owner), or a licensed attorney representing the property owner.
DO I HAVE TO FILE AN EVICTION TO EVICT MY KIDS/ROOMMATE/BOYFRIEND/GIRLFRIEND?
The need for eviction presumes a landlord-tenant relationship; or involves property owned by one person that is used as a dwelling by another person. There are many different types of arrangements that do not necessarily include payment of cash rentals, and they may be considered “tenancies at will or by sufferance” of the property owner.
It is not necessary to evict a houseguest or other temporary visitor, or someone who is trespassing on private property (such as someone who was invited in and has merely overstayed their welcome).
If you are unsure if you should use a suit for eviction to remove someone from property you own, a short consultation with a lawyer—often for less than $100—would be money well-spent. If you wrongfully or illegally evict someone, you could become liable for damage to their property, their attorney’s fees, their living expenses, and possibly additional penalties imposed as sanctions for wrongful eviction.
DO I HAVE TO HIRE A LAWYER TO FILE AN EVICTION?
A person owning a property as an individual may represent himself in Court. A person managing a property on behalf of an owner may represent the owner’s interests in Court ONLY in evictions involving non-payment of rent or holding over after the expiration of the lease term. In suits for eviction where the breach of the lease is something OTHER than non-payment of rent or holding over after the expiration of the lease, the owner must represent him/herself, or hire an attorney to represent the owner. If the owner is a corporation, and the breach of the lease is for something OTHER than non-payment of rent or holding over, the corporation must be represented by an attorney in Justice Court.
WHAT DO I HAVE TO DO BEFORE FILING THE EVICTION?
A demand for possession of the premised “notice to vacate” must be provided according to the times prescribed by the Property Code or the lease. See “Notice to Vacate” information in Chapters 24, 91 and 94 of the Property Code.
THE PROPERTY IS A MOBILE HOME
Section 94.002 of the Property Code provides:
APPLICABILITY:
(a) This chapter applies only to the relationship between a landlord who leases property in a manufactured home community and a tenant leasing property in the manufactured home community for the purpose of situating a manufactured home or a recreational vehicle on the property.
(b) This chapter does not apply to the relationship between:
(1) a landlord who owns a manufactured home and a tenant who leases the manufactured home from the landlord;
(2) a landlord who leases property in a manufactured home community and a tenant leasing property in the manufactured home community for the placement of personal property to be used for human habitation, excluding a manufactured home or a recreational vehicle; or
(3) a landlord and an employee or an agent of the landlord.
In addition to the laws referred to in “Where can I look up the laws of Texas?” above, Chapter 94 of the Texas Property Code governs some evictions in “mobile home communities”. A mobile home community is defined as: “Manufactured home community” means “a parcel of land on which four or more lots are offered for lease for installing and occupying manufactured homes.” 94.001(4), Property Code. Chapter 94 should be read in its entirety.
WHERE DO I FILE FOR EVICTION?
The Justice Court in the precinct in which the real property is located has jurisdiction in eviction suits. See Section of the Boundary Maps.
HOW MUCH WILL IT COST TO FILE?
The initial filing fee is $46.00 plus the cost of service of the citation of the Defendant. Only the Constable is authorized to serve citations in these matters (private process services are prohibited), and the charge for service is $65.00 per named Defendant.
HOW LONG WILL IT TAKE TO COME TO COURT?
Ordinarily, notice to vacate must be given in writing at least three days prior to filing the eviction. NOTE: Some leases require a longer or allow a shorter period of time, and certain tenancies have different notice requirements under Section 24.005 of the Property Code:
Once suit is filed, the citation will be issued by the Court Clerk and delivered to the Constable’s Office.
Once the Defendant is served, the Defendant must file an answer within six days. The trial will be held within 6 – 10 days from Defendant’s answer date.
Once a judgment is rendered, either party has five days to file an appeal with the Justice Court. If the case is appealed, the schedule of the County Court will take over.
WILL I HAVE A TRIAL?
A trial will be scheduled 6 – 10 days (or more than 10 days if Court is not in session, or there is a continuance for good cause), after the date the citation is served on the Defendant. At that time, a landlord, property manager, property owner or licensed counsel (as required), must make a personal appearance in Court, along with the Defendant. If the Defendant fails to file an answer with the Court or fails to show for Court, the Judge may conduct a hearing. If the Defendant does file an answer the trial will proceed as set.
DO I HAVE TO HAVE A LAWYER IN COURT?
The Rules of Evidence and the Texas Rules of Court and Rules of Discovery apply in a Justice Court eviction. If you don’t have a lawyer, you may be at a disadvantage. There are certain circumstances where a licensed attorney is required. See also the representation provisions contained in the question and answer, “Do I have to hire a lawyer to file an eviction?”
WHAT DOES THE JUDGE NEED TO KNOW?
The ONLY ISSUE in an eviction suit is the right to ACTUAL POSSESSION of the premises. A suit for back rent may be joined to a suit for possession. If there is no judgment of possession, there can be no recovery for back rent (and the landlord must seek back rent and other amounts through a separate lawsuit or other avenues).
Most uncontested suits for eviction are quite short—5 minutes or less—and a tool is available to help organize your presentation. The landlord or property owner must prove:
Their ownership of the property
The basic terms of any written or oral agreement,
How the agreement was breached,
That PROPER notice to vacate was provided to the tenant before suit was filed;
The amount of any delinquent rent owed
Past due amounts only
NO late fees or other charges included
Pro-rated through the date of the judgment (not to the end of the month)
That the tenant is not in the armed forces on active duty (See SCRA below)
In contested matters, the landlord/Plaintiff must prove their case with a “preponderance of the evidence” - the “greater weight” of the evidence in order to prevail when the Tenant/Defendant disputes the landlord’s right to regain possession of the premised occupied by the Tenant.
SERVICE MEMBER’S CIVIL RELIEF ACT (SCRA)
If the Defendant does not file an answer to the lawsuit, or does not appear in Court, the Plaintiff will NOT be able to receive a “default judgment” unless the Plaintiff first files with the Court a Service members’ Civil Relief Act Affidavit stating, under oath, that the Defendant is not in the military service on active duty status. A false statement in this affidavit is a violation of Federal Law. If a Plaintiff does not have personal knowledge of the Defendant’s military status, the Department of Defense has a procedure for obtaining a status record. You may call DefenseManpowerDataCenter at (703) 696-6762.
THE TENANT IS DELINQUENT IN BACK RENT EXCEEDING $10,000
Any Justice Court Suit is a civil suit for money damages, possession of real property, and enforcement of liens on personal property. The amount of controversy must total $10,000 or less, interest excluded. Justice Courts have exclusive jurisdiction of suits for eviction. If the amount of back rent exceeds $10,000, a judgment for possession of the premises can be awarded, but the claim for back rent must be brought in a Court of competent jurisdiction (usually a District Court).
WRIT OF POSSESSION
IF you are awarded a judgment for possession of the premises and IF the Defendant does not make a Motion to Set Aside a Default Judgment within 5 days from the date the judgment is signed OR appeal the case within 5 days from the date the judgment is signed, your remedy to gain possession of the premises is a WRIT OF POSSESSION.
On the 6th day after judgment for possession is awarded you, as Plaintiff, may request a Writ of Possession. A Writ of Possession allows the Constable to oversee the move-out of the Defendant(s) out o the leased premises, and sees that no breach of peace is violated. The fee for filing a Writ of Possession is $205.00. The Court’s filing fee is $5.00 and the Constable’s service fee is $200.00. You may call Constable Darrell Ayres at (512) 847-5532, for his procedures on executing the Writ.
I LOST THE CASE—CAN I APPEAL?
Either party can appeal the case to the Justice Court within five days after the judgment is entered, by:
- Filing an appeal bond, approved by the Judge
- In an amount set by the Court that includes
- The damage judgment, plus
- Loss of rentals during the pendency of the appeal, plus
- Reasonable attorney’s fees (if represented by a lawyer), plus
- Court Costs
If the appealing part is unable to pay costs of appeal or file a bond, he must prove such inability within five days after the signing of the judgment by filing an affidavit.
- The Court Clerk will provide notice to the opposing party within one working day by regular mail
- If the Pauper’s Affidavit is not contested by the opposing party within five days after notice and filing of the affidavit, the Pauper’s Affidavit will be approved.
- If the opposing party contests the Affidavit, a hearing will be held within five days, and the appealing party will have to prove his ability to pay costs of appeal with additional evidence.
- Within five days of the filing of the Pauper’s Affidavit, a Tenant/Appellant must pay one month’s rent into the registry of the Justice Court under the terms of the rental agreement.
- During the appeal process, as rent becomes due, the Tenant shall pay rent into the County Court at Law registry within five days of the due date under the terms of the rental agreement.
- If the Tenant fails to pay rent into the registry, the landlord may file a sworn notice of default in County Court.
- Landlord may withdraw any or all of the rent in the County Court registry under circumstances specified by the Texas Rules of Civil Procedure Rule 749(b).
Basic Information Necessary for Non-Payment of Rent Evictions
- Identify yourself as the owner or the property manager of
- Property address
- Which is located in JP Precinct ______
- The Defendant, as Tenant, entered into a lease agreement with ______________________ (owner or property management company) on _______________________ (lease start date) which lease is still in its original term OR which lease has been extended on a month-to-month basis
- The term of the lease is for ________ months at $___________ per month which is due on the ____________ and late on the ________________
- Past months’ rental (no late fees)----------------------------------------------$ ____________
Plus
This month’s rent divided by 30 X number of days through court date------$ ____________
Totals pro-rated rent due------------------------------------------------------------$ ____________
The amount of pure, lived-up, back rent, pro-rated through today’s date, is $ ____________
- The Defendant is in violation of the lease paragraph(s) ___________________. The lease states that the Tenant loses the right to possess the premises if any terms of the lease contract are breached.
- Proper written Notice to Vacate was hand delivered and/or posted to the inside/outside of the door and/or mailed to the Defendant on __________________.
- Plaintiff has provided an affidavit that the Defendant is in the military service on active duty; OR
Plaintiff has been unable to determine whether or not Defendant is in the military service on active duty; OR
Defendant is in the military service on active duty.
(Note: This testimony is only required if Defendant is not present in Court. If Defendant is not present, there can be no award of possession of the premises without this sworn information)
- Plaintiff is requesting possession of the property plus back rent in the amount of $ _____ plus court costs of $ ______ for a total of $ ______ OR
- Plaintiff is requesting possession only of the property, and is not seeking an award for any of the back rent that might be due.
THIS IS NOT A SCRIPT!
IT IS A TOOL TO ASSIST A NON-LAWYER IN MAKING
AN ORDERLY PRESENTATION