An Eviction Case is a lawsuit brought to recover possession of real property, usually by a landlord against a tenant. A claim for rent may be joined with an Eviction Case if the amount of rent due and unpaid is not more than $10,000, including attorney fees, if any, but excluding statutory interest and costs. The Texas Property Code, Chapters 24, 91, 92, 93, and 94, govern the relationship between landlord and tenant, tenancies, and eviction proceedings.
Eviction Cases are governed by Rules 500 – 507, and Rules 510.1 0 510.13, Texas Rules of Practice in Justice Courts. 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 Section 24.004, Texas Property Code.
Notice To Vacate Prior to Filing Eviction Suit
Default or Holdover. 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 three (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.
A landlord who files an eviction on grounds that the tenant is holding over beyond the end of the rental term or renewal period must also comply with the tenancy termination requirements of Section 91.001 of the Texas Property Code.
Tenant at Sufferance. If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three (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.
Tax Foreclosure. 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 under this subsection 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 fifth (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.
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.
The notice period is calculated from the day on which the notice is delivered.
If before the notice to vacate is given as required by this section the landlord has given a written notice or reminder to the tenant that rent is due and unpaid, the landlord may include in the notice to vacate required by this section a demand that the tenant pay the delinquent rent or vacate the premises by the date and time stated in the notice. Section 24.005, Texas Property Code.
Right to Possession
The only issue in an eviction case is the right to actual possession of the premises. No counterclaims or joinder of suits against third parties are allowed in an eviction case, but may be brought in a separate suit in a court of proper jurisdiction. Rule 510.3
An individual may represent himself or herself in Justice Court, or may be represented by an attorney. In an Eviction Case, an individual may be represented by an authorized agent. Rule 500.4.
In an Eviction Case, a corporation or other entity may be represented by an attorney, or by an employee, owner, officer, or partner who is not an attorney, and may be represented by a property manager or other authorized agent in an Eviction Case. Rule 500.4.
In an Eviction Case in Justice Court based on nonpayment of rent or holding over beyond a rental term, the parties may represent themselves or be represented by their authorized agents, who need not be attorneys.
In any Eviction Case in Justice Court, an authorized agent requesting or obtaining a default judgment need not be an attorney. See Section 24.011, Texas Property Code.
Filing Eviction Cases
Computation of Time for Eviction Cases
While the timely filing of a document by depositing the document in the United States mail on or before the date it is due is allowed in an Eviction Case, parties to the Eviction Case are warned that if a document filed by mail is not received by the Court by the due date, the Court may take any action authorized by the Rules, including issuing a writ of possession requiring a tenant to leave the property. Rule 510.2.
A petition seeking an eviction must be filed in the Justice of the Peace Precinct in which the premises are located. To begin an eviction action, the plaintiff, usually the landlord, must file a petition in writing stating the following:
(1) the name of the plaintiff;
(2) the name, address, telephone number, and fax number, if any, of the plaintiff’s attorney, if applicable, or the address, telephone number, and fax number, if any, of the plaintiff;
(3) the name, address, and telephone number, if known, of the defendant; and
(4) if the plaintiff consents to email service of the answer and any other motions or pleadings, a statement consenting to email service and email contact information.
In addition, the petition must contain the following information:
(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.
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.
Each tenant who has signed a lease must be joined in the eviction proceeding.
The Justice of the Peace must collect fees for the filing of a petition in the Justice Court. Section 118.121, Texas Local Government Code governs the filing fee, and additional fees for basic civil legal services to indigents (Section 51.941, Texas Government Code) are applicable.
Service of Citation
The citation in an Eviction Case must be served by a sheriff or constable, unless otherwise authorized by written order of the Court.
Citations may be served by personal delivery to the defendant, or by leaving a copy of the citation with the petition attached with a person over the age of 16 years at the defendant’s usual place of residence.
Service must be made at least 6 days before the day set for trial. The Return must be filed at least one day before trial.
If attempts to serve the defendant are unsuccessful, and the petition lists all home and work addresses of the defendant that are known to the plaintiff, and the sheriff or constable files a sworn statement that diligent efforts were made to serve the citation on at least two occasions, including locations and times, at all addresses of the defendant in the county, the Court may allow service by delivery to the premises. Delivery of the citation to the premises must be completed at least 6 days before the trial date, by placing the citation with a copy of the petition attached through a door mail chute, slipping it under the front door, or if not possible, by securely affixing the citation to the front door or main entry to the premises. Rule 510.4.
Once served, the defendant may file a written answer, but whether or not an answer is filed, the defendant is required to appear for trial on the date specified in the citation.
If the defendant fails to enter an appearance or file an answer before the case is called for trial, and proof of service has been properly filed, judgment by default may be rendered. The clerk will immediately mail written notice of the default judgment to the defendant at the address of the premises. Rule 501.6.
Either the plaintiff or the defendant has the right to a trial by jury by making a written demand for a jury trial no later than 3 days before the trial date, and by paying a jury fee of $22.00. Rule 510.7.
If the plaintiff prevails, the court will enter judgment for the plaintiff for possession of the premises, and on request of the plaintiff and payment of required fees, will award a writ of possession. The writ of possession cannot issue before the 6th day after the date the judgment for possession is signed. If the tenant prevails, the court will give judgment for the tenant against the landlord for costs. Rule 510.8.
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.
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 Section 24.0053, Texas Property Code.
A writ of possession cannot be issued more than 60 days after a judgment for possession is signed, and a writ of possession cannot be executed after the 90th day after a judgment for possession is signed. Rule 510.8.
There is no motion for new trial in an eviction proceeding. Rule 510.8.
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.
During the appeal of an eviction case for nonpayment of rent, if a tenant fails to pay rent into the registry of the Justice Court or the County Civil Courts at Law as the rent becomes due under the rental agreement, the landlord may file a sworn motion with the County Civil Courts at Law stating that the tenant failed to pay rent as required. After hearing, if the County Civil Courts at Law find that the tenant has not paid the delinquent rent the County Civil Courts at Law will issue a writ of possession to be executed after the expiration of 5 days. See Section 24.0054, Texas Property Code.
Either party may appeal from a final judgment in an Eviction Case within 5 days after the judgment is signed by filing a bond, making a cash deposit, or filing with the Justice Court a Sworn Statement of Inability to Pay. The Court will set the amount of the bond or cash deposit based on damages, if any, for withholding or defending possession of the premises during the appeal, loss of rentals during the appeal, and attorney fees, if any. Rule 510.11.
Trial de novo in the County Civil Courts at Law
An Eviction Case appealed to the County Civil Courts at Law will be tried at any time after the expiration of 8 days after the transcript is filed. 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 8 days after the transcript is filed in the County Civil Courts at Law. Failure to file a written answer in the County Civil Courts at Law will result in the entry of a judgment by default. Rule 510.12.
Writ of Possession Appeal
At the conclusion of the appeal, a writ of possession, or execution, or both, will be issued by the County Clerk and will be executed by the Sheriff or Constable. A judgment of the County Civil Courts at Law cannot be stayed unless within 10 days from the date of judgment, the party further appealing the judgment of the County Civil Courts at Law files a supersedeas bond. Rule 510.13. See also Section 24.007, Texas Property Code