Texas Commercial Law Firm
Lender Services: Eviction Service
Balcom Law Firm based in Houston, Texas, provides eviction services throughout Texas, including the following:
Send Notice to Vacate (NTV) to the occupants within 24 hours of our receipt of instructions to begin eviction;
File petition for forcible entry and detainer with the appropriate court;
Coordinate service of citation;
Obtain court date or date by which hearing must be requested by occupants;
Attend eviction hearing, present evidence to court and obtain judgment issuing writ of possession to the premises;
Coordinate with client and determine whether property is still occupied six (6) days after judgment was entered.
Order Writ of Possession to have constable remove occupants from premises if property is occupied.
Once writ is issued, coordinate move-out date with constable's office and advise client of specific requirements for completion of the move-out.
The lawyers at Balcom Law Firm in Houston, Texas are experienced and successful dealing with evictions. Contact us today to get more information.
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Designated by the Martindale Hubbell Bar Register as one of the Pre-Eminent Law practices in the United States
Evictions
In general, an eviction is an action by which one is legally deprived of use and possession of real property he previously leased or owned. Eviction is typically used to remove a tenant from property after default under a lease. One may also resort to eviction in the case when liens securing a loan to a borrower are foreclosed and the borrower fails to move off the property after foreclosure.
An owner of property is entitled, not just to title to the property, but also its use and possession. When an occupant not having the right to use and possess property refuses to relinquish possession, the party entitled to possession of the property may bring an action commonly referred to as an eviction, (See generally, Tex. Prop. Code Sec. 24.001 et seq), whereby the owner seeks recovery of possession to the property.
The legal term for an eviction action is an action for “Forcible Entry and Detainer”. (Tex. Prop. Code Sec. 24.004). Delving briefly into some technical detail, it is appropriate to note at this time that there is sometimes a distinction made as to whether an action is for forcible entry and detainer or just for detainer. “Forcible entry” means generally obtaining possession and “entry” onto property through force or without the proper consent of an authorized party. Where possession of property occurs without the consent of the owner, no landlord-tenant relationship exists, American Spiritualist Ass’n v. Ravkind, 313 S.W.2d 121, 124 (Civ. App.–Dallas 1958, ref.n.r.e.), and the occupant is deemed to be a “tenant at sufferance”, (see discussion below). In other words, the one who occupies the property has no right to do so and a tenant at sufferance has nothing more than mere “naked possession” of the premises without the consent of the owner. ICM Mortage Corp. V. Jacob, 902 W.W.2d 527, 530 (Tex. App.–El Paso 1994, den.).
Tenancies
Eviction usually arises upon termination of a landlord-tenant relationship. A landlord-tenant relationship may involve any one of several types of tenancies. Identification of the type of tenancy involved in a landlord tenant relationship is important in determining the rights, duties and liabilities of each party. It is also important to determine when the tenancy may be rightfully terminated as well as when eviction may be appropriate.
Tenancy for a defined period of time. This is the tenancy with which most people are familiar. It is defined by a written lease agreement and it is for a period of multiple months or years. The written lease agreement allows the beginning and end of the tenancy (or its “term”) to be determined with specificity. Willis v. Thomas, 9 S.W.2d 423, 424 (Civ. App.–San Antonio 1928, dis.). If the end of the lease is not specifically stated but rent is payable periodically, then the lease is a “periodic tenancy” (typically month to month) and, unless otherwise specified, terminable upon notice the length of which is usually the same as the term of the periodic payments. see Sellers v. Spiller, 64 S.W.2d 1049, (Civ. App.–Austin 1933, no writ).
Tenancy at will. Unlike a periodic tenancy, a tenancy at will is for an indefinite period of time. Robb v. San Antonio St. Ry., 82 Tex. 392, 18 S.W.707, 708 (1891); ICM Mortgage Corp. V. Jacob, 902 W.W.2d 527, 530 (Tex. App.–El Paso 1994, den.) While a tenancy at will does not have a defined term, it is important to note that the tenant maintains possession of the property with the owner’s consent and it is therefore fundamentally different than a tenancy at sufferance wherein the tenant has mere “naked possession”. ICM Mortgage Corp. V. Jacob, 902 W.W.2d 527, 530 (Tex. App.–El Paso 1994, den.).
Holdover Tenancy. A holdover tenancy typically occurs when a tenant under a written lease with a defined term continues to maintain possession of the property after the lease term expires. If the landlord accepts rent after a lease has expired by its terms, a holdover tenancy is created. Unless otherwise specified, the landlord-tenant relationship is continued for an additional term governed by the terms of the prior lease. Barragan v. Munoz, 525 S.W.2d, 559, 562 (Civ. App.–El Paso 1975, no writ); Street-Whittington co. v. Sayres, 172 S.W. 772, 777 (Civ. App.–Amarillo 1915, no writ).
Tenancy at sufferance. Referred to briefly above, a tenancy at sufferance occurs when a party continues to hold possession of property without the owner’s consent. A tenancy by sufferance differs from a tenancy at will in that a tenant at will has the owner’s permission to possess the property while a tenant at sufferance does not. Emerson v. Emerson, 35 S.W. 425, 426 (Civ. App. 1896, no writ). A tenancy at sufferance can arise after a lease expires or after foreclosure for example.
Unfortunately, one can find themselves to be a tenant at sufferance through no fault of their own. A tenant leasing property from a borrower, for example, whose ownership is terminated through foreclosure of a deed of trust lien pre-dating the lease, has his lease terminated, (unless the new owner consents to allowing the lease to remain in force) and thereby falls into the category of a tenant at sufferance though he may have fully performed under the lease. Tex. Prop. Code § 24.005(b); Russell v. American Real Estate Corp., 89 S.W.3d 204, 208-209 (Tex. App – Corpus Christi 2002, no pet.). Such a tenant must be provided by the new owner with 30 days’ written notice to vacate, Tex. Prop. Code § 24.005(b), and the buyer at foreclosure is required to bring eviction proceedings rather than attempting self help repossession. Russell v. American Real Estate Corp., 89 S.W.3d 204, 208-209 (Tex. App – Corpus Christi 2002, no pet.).
When a tenancy at sufferance exists, eviction, (or a forcible detainer action, Tex. Prop. Code § 24.001 et seq) is appropriate in order for the owner to recover possession of the property. A tenant at sufferance (other than a tenant of the borrower who is current on his lease as described above) must be given at least 3 day’s written notice to vacate the premises. Tex. Prop. Code § 24.005(b). It is only after such notice is given that the owner may commence a forcible detainer action.
The Eviction Process
Termination of Relationship. If there is a lease agreement between the owner and tenant, it must be terminated before the owner seeks to evict the former tenant. The lease relationship can be terminated by its own terms if there is an uncured default or the term of the lease expires for example. The lease agreement may require notice of one party to the other and an opportunity to cure prior to termination of the lease. Once any required notices are given and the lease terminates, eviction proceedings may commence.
In the case of a foreclosure of a deed of trust lien, the act of foreclosure itself usually serves to create a tenancy at sufferance on the part of the borrower in accordance with the terms of the deed of trust. In this situation, no further action is required by the owner prior to starting the eviction process.
Notice to vacate. Once the owner or landlord have given any notice required by contract to be given before terminating the lease and/or possession to the property, a notice to vacate is required. Unless a written lease or other written agreement provides for a short or longer notice period, a landlord must give at least three days’ written notice to vacate the premises before filing a forcible detainer suit against the following categories of tenants:
1. a tenant who has defaulted or held over beyond the end of the rental term or renewal period under a written lease or oral rental agreement, Tex. Prop. Code § 24.005(a);
2. a tenant at will or by sufferance Tex. Prop. Code § 24.005(b); and
3. a tenant of a person who acquired possession by forcible entry Tex. Prop. Code § 24.005(c).
Other than clearly stating a demand for possession of the premises, Tex. Prop. Code § 24.005, there are no special requirements under Texas law regarding the form of the notice to vacate. It is important to bear in mind, however, that if the lease is subject to federal regulation there may be additional notice requirements under federal law. Corpus Christi Hous. Auth. v. Lara, 267 S.W.3d 222, 226-227 (Tex. App.--Corpus Christi 2008, no pet.); Nealy v. Southlawn Palms Apartments, 196 S.W.3d 386, 389-391 (Tex. App.--Houston [1st Dist.] 2006, no pet.) Even where there is a failure to provide proper notice under federal requirements, however, the Justice Court maintains its jurisdiction over the eviction action. Nealy v. Southlawn Palms Apartments, 196 S.W.3d 386, 391-393 (Tex. App.--Houston [1st Dist.] 2006, no pet.)
The landlord/owner should be careful to specify in the notice to vacate whether he is seeking possession of the premises or termination of the lease. This is because termination of the tenant’s right to possession of the premises does not terminate the lease and leaves the option open for the landlord to seek unpaid future rentals as a remedy he would not have if he terminated the lease. Rohrt v. Kelley Manufacturing Co., 349 S.W.2d 95, 96-98 (Tex. 1961).
The Property Code provides another avenue for recovery that should be considered in drafting a notice to vacate: If the landlord has given a written notice of default that rent is due and unpaid prior to sending the notice to vacate, the landlord may include a demand in the notice to vacate that the tenant must pay the delinquent rent or vacate the premises by the deadline stated in the notice to vacate. Tex. Prop. Code § 24.005(i).
Notice to Vacate: Seeking recovery of attorney’s fees. A demand for attorney’s fees may be included in a notice to vacate. A landlord who successfully prosecutes an eviction action is entitled to recover reasonable attorneys fees if such fees are granted in a written lease agreement or if the tenant has been sent a written demand to vacate the premises in accordance with Property Code Section 24.006(b). The demand must be sent by registered or certified mail, return receipt requested, at least 10 days before the suit is filed. It must state that if the tenant does not vacate the premises before the eleventh day after receipt of the notice and the landlord files suit, the landlord may recover attorney's fees. Tex. Prop. Code § 24.006(a) If the landlord would be entitled to attorney's fees on prevailing in the suit, either by virtue of having sent the notice required under Property Code Section 24.006 or by virtue of a lease provision, the tenant will also be entitled to attorney's fees if he or she prevails. The tenant is not required to give the landlord notice in order to be entitled to attorney's fees Tex. Prop. Code § 24.006©).
Notice to Vacate: When given. The notice to vacate may not be given until the tenant has been given an opportunity to respond to the notice of proposed eviction if the lease or applicable law requires that the landlord give the tenant an opportunity to respond to that notice Tex. Prop. Code § 24.005(e); Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 498 (Tex. App.--Houston [14th Dist.] 2006, no pet.) In Kennedy v. Andover, the lease provided that the tenant was to be provided with 10 days to respond to a notice of default and proposed eviction. Because the landlord failed to follow the notice of default and proposed eviction with a subsequent notice to vacate, the court ruled the eviction was ineffective under § 24.005(e).
Notice to Vacate: How given. The notice to vacate may be given in person or by mail. Notice in person may be by personal delivery to the tenant or to any person residing at the premises who is at least 16 years old, or by affixing the notice to the inside of the main entry door. Notice by mail may be by regular mail or by registered or certified mail, return receipt requested. 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. Tex. Prop. Code § 24.005(f). The notice period does not begin to run until the day the notice is actually delivered. Tex. Prop. Code § 24.005(g)
Complaint for Forcible Detainer. An eviction suit commences when a landlord or other person entitled to possession of real estate files a complaint in justice court seeking recovery of possession of the property. Tex. Prop. Code §§ 24.004, 24.0061 A complaint for forcible detainer must by preceded by a proper notice to vacate.
In an action for forcible detainer, the only issue to be determined is the right to possession of the property. Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441, 445-446 (Tex. App.--Houston [1st Dist.] 2006, pet. denied) Title questions are beyond the jurisdiction of the justice court and therefore not a subject of inquiry in an eviction action. Tex. R. Civ. P. 746; Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441, 445-446 (Tex. App.--Houston [1st Dist.] 2006, pet. denied). In Murphy v. Countrywide the court held that the foreclosure and sale gave the purchaser at foreclosure a superior right to possession and that title defects asserted by the tenant were irrelevant in the forcible detainer action. Although a forcible detainer suit may include a demand for rent, jurisdiction is only proper in justice court when the delinquent rent sought is within the $10,000 jurisdictional limit of the justice court. Tex. Gov't Code § 27.031(a)(1) By filing an eviction action, however, one is not precluded from filing a separate suit for rent or damage claims in other courts which have jurisdiction. McGlothlin v. Kliebert, 672 S.W.2d 231, 233 (Tex. 1984) ; see Tex. Prop. Code § 24.008.
Pleading requirement: Identification of Parties. As with most suits, a forcible detainer complaint should begin by identifying the parties and by specifying the defendant’s name and address in accordance with Rule 742a. Tex. R. Civ. P. 742a. Rule 742a requires the sworn complaint to specify all home and work addresses of the defendant which are known to the person filing the sworn complaint. The sworn complaint must also include a statement that the plaintiff knows of no other home or work addresses of the defendant in the county where the property in dispute is located. Tex. R. Civ. P. 742a; Thomas v. Olympus/Nelson Property Mgmt., 148 S.W.3d 395, 400-401 (Tex. App.--Houston [14th Dist.] 2004, no pet.) Thomas v. Olympus illustrates this rule. In Thomas ve Olympus, the court held that when the plaintiff was aware the defendant was in VA hospital when suit for eviction was filed, the hospital constituted the "home address" of defendant, and Plaintiff’s failure to list the V.A. hospital address rendered service improper under Tex. R. Civ. P. 742a). Rule 742 allows for service of citation by delivery to the property if the officer cannot complete service under Rule 742, Tex. R. Civ. P. 742, without a motion or separate request for alternative service. Tex. R. Civ. P. 742a
Requirements for Forcible Detainer Action
Rule 741, Tex. R. Civ. P. 741, refers to sections 24.001 – 24.004 of the Texas Property Code in setting out the elements of a forcible detainer action:
1. A description of the property, sufficient to identify it;
2. The existence of a landlord's right to possession of property;
3. The unlawful possession of that property by another; and
4. The landlord's compliance with statutory notice requirements.
The complaint in an eviction action must describe the property of which possession is sought and state the facts that entitle the petitioner to possession, Tex. R. Civ. P. 741; see Powelson v. U.S. Bank Nat'l Ass'n, 125 S.W.3d 810, 812 (Tex. App.--Dallas 2004, no pet.) The Court in Powelson found that a complaint that described property by merely giving the property address was sufficient to identify it. The Powelson Court found further that allegations of default on under the terms of a note secured by real estate and evidence of foreclosure of liens against the property were adequate to support the plaintiff’s claim for immediate possession. In the usual case, identification of the property and showing the owner’s entitlement for possession involves alleging that the defendant is holding property, willfully and without force, after termination of the tenant's right of possession. Tex. Prop. Code § 24.002(a)(1).
One is also guilty of forcible detainer if they are a tenant at will or by sufferance and they refuse to surrender possession of the property on demand. Tex. Prop. Code § 24.002(a)(2); see Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441, 445-446 (Tex. App.--Houston [1st Dist.] 2006, pet. denied). In Murphy v. Countrywide Home Loans the Court found that the person occupying the property and holding over after foreclosure sale was a permissive tenant whose right to possession was inferior to the right of the party who held title. see also Tex. Prop. Code § 24.002(b)(2) (describing types of tenancies). Likewise, a tenant of a person who acquired possession by forcible entry and who refuses to abandon the premises is guilty of forcible detainer. Tex. Prop. Code § 24.002(a)(3). Similarly, if a lease gives the landlord a right of reentry for violation of one of the covenants of the lease, such a violation gives rise to the landlord's right to bring a forcible detainer action. Calhoun v. Kirkpatrick, 155 S.W. 686, 687-688 (Civ. App.--San Antonio 1913, no writ) ; YWCA v. Hair, 165 S.W.2d 238, 242 (Civ. App.--Austin 1942, ref. w.o.m.).
The plaintiff’s complaint must also allege that they have complied with any notice requirements. Tex. R. Civ. P. 741; see § 282.120[2]. When the notice to vacate provides for recovery of attorney's fees or when the lease contract authorizes that recovery, additional allegations should be included for such fees and to the effect that additional time was provided in the notice to vacate as a prerequisite to the court awarding reasonable fees within its jurisdictional limits. see Tex. Prop. Code § 24.006.
The complaint may also include allegations for recovery for unpaid rents, provided the total amount sought is within the jurisdiction of the justice court. Tex. R. Civ. P. 738; see § 282.100(2).
Finally, to be effective, the complaint must include a request for a writ of possession providing that possession of the leased premises is granted to the plaintiff, see Tex. R. Civ. P. 755, together with costs of suit and other relief, such as rents and attorney's fees.
Plaintiff must either swear to the petition or support it by affidavit. The petition should be filed with the justice of the peace in the proper precinct. Tex. R. Civ. P. 739; The citation in an eviction action must contain a specific notice required by statute that the failure of the tenant to appear for trial may result in the entry of default judgment. Tex. Prop. Code § 24.0051(c) states that the citation must contain notice of the possibility of a default judgment, even if possession only is sought, and there is no claim for unpaid rent. Section 24.051(d) of the Property Code also requires the citation to contain, on the first page of the citation, in English and Spanish, and in conspicuous bold print, the following notice:
SUIT TO EVICT
THIS SUIT TO EVICT INVOLVES IMMEDIATE DEADLINES. CALL THE STATE BAR OF TEXAS TOLL-FREE AT 1-877-9TEXBAR IF YOU NEED HELP LOCATING AN ATTORNEY. IF YOU CANNOT AFFORD TO HIRE AN ATTORNEY, YOU MAY BE ELIGIBLE FOR FREE OR LOW-COST LEGAL ASSISTANCE.
Possession Bond. When the plaintiff files the forcible detainer action, or at any time before final judgment in the justice court, the plaintiff may execute and file a possession bond. The purpose of the bond is to gain possession of the leased premises, with the aid of a constable or the sheriff, after six days from the date the defendant receives notice of the bond. The tenant may retain possession by filing a counterbond Tex. R. Civ. P. 740.
PROPERTY CODE
TITLE 4. ACTIONS AND REMEDIES
CHAPTER 24. FORCIBLE ENTRY AND DETAINER
§ 24.001. Forcible Entry and Detainer
(a) A person commits a forcible entry and detainer if the person enters the real property of another without legal authority or by force and refuses to surrender possession on demand.
(b) For the purposes of this chapter, a forcible entry is:
(1) an entry without the consent of the person in actual possession of the property;
(2) an entry without the consent of a tenant at will or by sufferance; or
(3) an entry without the consent of a person who acquired possession by forcible entry.
Texas Property Code § 24.001 (2010)
§ 24.002. Forcible Detainer
(a) A person who refuses to surrender possession of real property on demand commits a forcible detainer if the person:
(1) is a tenant or a subtenant wilfully and without force holding over after the termination of the tenant's right of possession;
(2) is a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant's lease; or
(3) is a tenant of a person who acquired possession by forcible entry.
(b) The demand for possession must be made in writing by a person entitled to possession of the property and must comply with the requirements for notice to vacate under Section 24.005.
Texas Property Code § 24.002 (2010)
§ 24.003. Substitution of Parties
If a tenancy for a term expires while the tenant's suit for forcible entry is pending, the landlord may prosecute the suit in the tenant's name for the landlord's benefit and at the landlord's expense. It is immaterial whether the tenant received possession from the landlord or became a tenant after obtaining possession of the property.
Texas Property Code § 24.003 (2010)
§ 24.004. Jurisdiction
A justice court in the precinct in which the real property is located has jurisdiction in eviction suits. Eviction suits include forcible entry and detainer and forcible detainer suits.
Texas Property Code § 24.004 (2010)
§ 24.005. Notice to Vacate Prior to Filing Eviction Suit
(a) 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 days' written notice to vacate the premises 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. A landlord who files a forcible detainer suit 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.
(b) If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three 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 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 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.
(c) If the occupant is a tenant of a person who acquired possession by forcible entry, the landlord must give the person at least three days' written notice to vacate before the landlord files a forcible detainer suit.
(d) In all situations in which the entry by the occupant was a forcible entry under Section 24.001, the person entitled to possession must give the occupant oral or written notice to vacate before the landlord files a forcible entry and detainer suit. The notice to vacate under this subsection may be to vacate immediately or by a specified deadline.
(e) 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.
(f) 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.
(g) The notice period is calculated from the day on which the notice is delivered.
(h) A notice to vacate shall be considered a demand for possession for purposes of Subsection (b) of Section 24.002.
(i) 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.
HISTORY: Acts 1997, 75th Leg., ch. 1205, effective September 1, 1997.
Texas Property Code § 24.005 (2010)
§ 24.0051. Procedures Applicable in Suit to Evict and Recover Unpaid Rent
(a) In a suit filed in justice court in which the landlord files a sworn statement seeking judgment against a tenant for possession of the premises and unpaid rent, personal service on the tenant or service on the tenant under Rule 742a, Texas Rules of Civil Procedure, is procedurally sufficient to support a default judgment for possession of the premises and unpaid rent.
(b) A landlord may recover unpaid rent under this section 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.
(c) In a suit to recover possession of the premises, whether or not unpaid rent is claimed, the citation required by Rule 739, Texas Rules of Civil Procedure, must include the following notice to the defendant:
FAILURE TO APPEAR FOR TRIAL MAY RESULT IN A DEFAULT JUDGMENT BEING ENTERED AGAINST YOU.
(d) In a suit described by Subsection (c), the citation required by Rule 739, Texas Rules of Civil Procedure, must include the following notice to the defendant on the first page of the citation in English and Spanish and in conspicuous bold print:
SUIT TO EVICT
THIS SUIT TO EVICT INVOLVES IMMEDIATE DEADLINES. CALL THE STATE BAR OF TEXAS TOLL-FREE AT 1-877-9TEXBAR IF YOU NEED HELP LOCATING AN ATTORNEY. IF YOU CANNOT AFFORD TO HIRE AN ATTORNEY, YOU MAY BE ELIGIBLE FOR FREE OR LOW-COST LEGAL ASSISTANCE.
HISTORY: Acts 1999, 76th Leg., ch. 1464, effective September 1, 1999; Acts 2005, 79th Leg., ch. 712 (S.B. 439), § 1, effective September 1, 2005; am. Acts 2007, 80th Leg., ch. 812 (S.B. 1483), § 1, effective September 1, 2007.
Texas Property Code § 24.0051 (2010)
§ 24.0052. Tenant Appeal on Pauper's Affidavit
(a) If a tenant in a residential eviction suit is unable to pay the costs of appeal or file an appeal bond as required by the Texas Rules of Civil Procedure, the tenant may appeal the judgment of the justice court by filing with the justice court, not later than the fifth day after the date the judgment is signed, a pauper's affidavit sworn before the clerk of the justice court or a notary public that states that the tenant is unable to pay the costs of appeal or file an appeal bond. 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.
(b) The justice court shall make available an affidavit form that a person may use to comply with the requirements of Subsection (a).
(c) The justice court shall promptly notify the landlord if a pauper's affidavit is filed by the tenant.
(d) A landlord may contest a pauper's affidavit on or before the fifth day after the date the affidavit is filed. If the landlord contests the affidavit, the justice court shall notify the parties and hold a hearing to determine whether the tenant is unable to pay the costs of appeal or file an appeal bond. The hearing shall be held not later than the fifth day after the date the landlord notifies the court clerk of the landlord's contest. At the hearing, the tenant has the burden to prove by competent evidence, including documents or credible testimony of the tenant or others, that the tenant is unable to pay the costs of appeal or file an appeal bond.
(e) If the justice court approves the pauper's affidavit of a tenant, the tenant is not required to pay the county court filing fee or file an additional affidavit in the county court under Subsection (a).
HISTORY: Acts 2005, 79th Leg., ch. 1185 (H.B. 62), § 1, effective September 1, 2005.
Texas Property Code § 24.0052 (2010)
§ 24.0053. Payment of Rent During Appeal of Eviction
(a) If the justice court enters judgment for the landlord in a residential eviction case based on nonpayment of rent, the court shall determine the amount of rent to be paid each rental pay period during the pendency of any appeal and shall note that amount in the judgment. If a portion of the rent is payable by a government agency, the court shall 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. The court's determination shall be in accordance with the terms of the rental agreement and applicable laws and regulations. This subsection does not require or prohibit payment of rent into the court registry or directly to the landlord during the pendency of an appeal of an eviction case based on grounds other than nonpayment of rent.
(b) If an eviction case is based on nonpayment of rent and the tenant appeals by filing a pauper's affidavit, the tenant shall pay the rent, as it becomes due, into the justice court or the county court registry, as applicable, during the pendency of the appeal, in accordance with the Texas Rules of Civil Procedure and Subsection (a). If a government agency is responsible for all or a portion of the rent under an agreement with the landlord, the tenant shall pay only that portion of the rent determined by the justice court under Subsection (a) to be paid by the tenant during appeal, subject to either party's right to contest that determination under Subsection (c).
(c) If an eviction case is based on nonpayment of rent and the tenant's rent during the rental agreement term has been paid wholly or partly by a government agency, either party may contest the portion of the rent that the justice court determines must be paid into the county court registry by the tenant under this section. The contest must be filed on or before the fifth day after the date the justice signs the judgment. If a contest is filed, not later than the fifth day after the date the contest is filed the justice court shall notify the parties and hold a hearing to determine the amount owed by the tenant in accordance with the terms of the rental agreement and applicable laws and regulations. After hearing the evidence, the justice court shall determine the portion of the rent that must be paid by the tenant under this section.
(d) If the tenant objects to the justice court's ruling under Subsection (c) on the portion of the rent to be paid by the tenant during appeal, the tenant shall be required to pay only the portion claimed by the tenant to be owed by the tenant until the issue is tried de novo along with the case on the merits in county court. During the pendency of the appeal, either party may file a motion with the county court to reconsider the amount of the rent that must be paid by the tenant into the registry of the court.
(e) If either party files a contest under Subsection (c) and the tenant files a pauper's affidavit that is contested by the landlord under Section 24.0052(d), the justice court shall hold the hearing on both contests at the same time.
HISTORY: Acts 2005, 79th Leg., ch. 1185 (H.B. 62), § 1, effective September 1, 2005.
Texas Property Code § 24.0053 (2010)
§ 24.0054. Tenant's Failure to Pay Rent During Appeal
(a) During an appeal of an eviction case for nonpayment of rent, if a tenant fails to pay rent into the justice court or county court registry in accordance with the Texas Rules of Civil Procedure and Section 24.0053, the landlord may file with the county court a sworn motion that the tenant failed to pay rent as required. The landlord shall notify the tenant of the motion and the hearing date.
(b) If the county court finds that the tenant has not complied with the payment requirements of the Texas Rules of Civil Procedure and Section 24.0053, the county court shall immediately issue a writ of possession unless on or before the day of the hearing the tenant pays into the court registry:
(1) all rent not paid in accordance with the Texas Rules of Civil Procedure and Section 24.0053; and
(2) the landlord's reasonable attorney's fees, if any, in filing the motion.
(c) If the court finds that a tenant has failed to timely pay the rent into the court registry on more than one occasion:
(1) the tenant is not entitled to stay the issuance of the writ by paying the rent and the landlord's reasonable attorney's fees, if any; and
(2) the county court shall immediately issue a writ of possession.
(d) A writ of possession issued under Subsection (c) may not be executed before the sixth day after the date the writ is issued.
(e) In a motion or hearing in county court under Subsection (a), the parties may represent themselves or be represented by their authorized agents, who need not be attorneys.
(f) During the appeal of an eviction case, if a government agency is responsible for payment of a portion of the rent and does not pay that portion to the landlord or into the justice court or county court registry, the landlord may file a motion with the county court requesting that the tenant be required to pay into the county court registry, as a condition of remaining in possession, the full amount of each rental period's rent, as it becomes due under the rental agreement. After notice and hearing, the court shall grant the motion if the landlord proves by credible evidence that:
(1) a portion of the rent is owed by a government agency;
(2) the portion of the rent owed by the government agency is unpaid;
(3) the landlord did not cause wholly or partly the agency to cease making the payments;
(4) the landlord did not cause wholly or partly the agency to pay the wrong amount; and
(5) the landlord is not able to take reasonable action that will cause the agency to resume making the payments of its portion of the total rent due under the rental agreement.
HISTORY: Acts 2005, 79th Leg., ch. 1185 (H.B. 62), § 1, effective September 1, 2005.
Texas Property Code § 24.0054 (2010)
§ 24.006. Attorney's Fees and Costs of Suit
(a) Except as provided by Subsection (b), to be eligible 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.
(b) If the landlord provides the tenant notice under Subsection (a) 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.
(c) If the landlord provides the tenant notice under Subsection (a) 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 under this subsection.
(d) The prevailing party is entitled to recover all costs of court.
HISTORY: Acts 1997, 75th Leg., ch. 1205, effective September 1, 1997.
Texas Property Code § 24.006 (2010)
§ 24.0061. Writ of Possession
(a) A landlord who prevails in an eviction suit is entitled to a judgment for possession of the premises and a writ of possession. In this chapter, "premises" means 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.
(b) A writ of possession may not be issued before the sixth day after the date on which the judgment for possession is rendered unless a possession bond has been filed and approved under the Texas Rules of Civil Procedure and judgment for possession is thereafter granted by default.
(c) 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.
(d) The writ of possession shall order the officer executing the writ to:
(1) post a written warning of at least 8- 1/2 by 11 inches 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 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.
(e) The writ of possession shall authorize 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.
(f) The officer may not require the landlord to store the property.
(g) The writ of possession shall contain notice to the officer that under Section 7.003, 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.
(h) A sheriff or constable may use reasonable force in executing a writ under this section.
HISTORY: Acts 1997, 75th Leg., ch. 1205, effective September 1, 1997.
Texas Property Code § 24.0061 (2010)
§ 24.0062. Warehouseman's Lien
(a) If personal property is removed from a tenant's premises as the result of an action brought under this chapter and stored in a bonded or insured public warehouse, the warehouseman has a lien on the property to the extent of any reasonable storage and moving charges incurred by the warehouseman. The lien does not attach to any property until the property has been stored by the warehouseman.
(b) If property is to be removed and stored in a public warehouse under a writ of possession, the officer executing the writ shall, at the time of execution, deliver in person to the tenant, or by first class mail to the tenant's last known address not later than 72 hours after execution of the writ if the tenant is not present, a written notice stating the complete address and telephone number of the location at which the property may be redeemed and stating that:
(1) the tenant's property is to be removed and stored by a public warehouseman under Section 24.0062 of the Property Code;
(2) the tenant may redeem any of the property, without payment of moving or storage charges, on demand during the time the warehouseman is removing the property from the tenant's premises and before the warehouseman permanently leaves the tenant's premises;
(3) within 30 days from the date of storage, the tenant may redeem any of the property described by Section 24.0062(e), Property Code, on demand by the tenant and on payment of the moving and storage charges reasonably attributable to the items being redeemed;
(4) after the 30-day period and before sale, the tenant may redeem the property on demand by the tenant and on payment of all moving and storage charges; and
(5) subject to the previously stated conditions, the warehouseman has a lien on the property to secure payment of moving and storage charges and may sell all the property to satisfy reasonable moving and storage charges after 30 days, subject to the requirements of Section 24.0062(j) of the Property Code.
(c) The statement required by Subsection (b)(2) must be underlined or in boldfaced print.
(d) On demand by the tenant during the time the warehouseman is removing the property from the tenant's premises and before the warehouseman permanently leaves the tenant's premises, the warehouseman shall return to the tenant all property requested by the tenant, without charge.
(e) On demand by the tenant within 30 days after the date the property is stored by the warehouseman and on payment by the tenant of the moving and storage charges reasonably attributable to the items being redeemed, the warehouseman shall return to the tenant at the warehouse the following property:
(1) wearing apparel;
(2) tools, apparatus, and books of a trade or profession;
(3) school books;
(4) a family library;
(5) family portraits and pictures;
(6) one couch, two living room chairs, and a dining table and chairs;
(7) beds and bedding;
(8) kitchen furniture and utensils;
(9) food and foodstuffs;
(10) medicine and medical supplies;
(11) one automobile and one truck;
(12) agricultural implements;
(13) children's toys not commonly used by adults;
(14) goods that the warehouseman or the warehouseman's agent knows are owned by a person other than the tenant or an occupant of the residence;
(15) goods that the warehouseman or the warehouseman's agent knows are subject to a recorded chattel mortgage or financing agreement; and
(16) cash.
(f) During the first 30 days after the date of storage, the warehouseman may not require payment of removal or storage charges for other items as a condition for redeeming the items described by Subsection (e).
(g) On demand by the tenant to the warehouseman after the 30-day period and before sale and on payment by the tenant of all unpaid moving and storage charges on all the property, the warehouseman shall return all the previously unredeemed property to the tenant at the warehouse.
(h) A warehouseman may not recover any moving or storage charges if the court determines under Subsection (i) that the warehouseman's moving or storage charges are not reasonable.
(i) Before the sale of the property by the warehouseman, the tenant may file suit in the justice court in which the eviction judgment was rendered, or in another court of competent jurisdiction in the county in which the rental premises are located, to recover the property described by Subsection (e) on the ground that the landlord failed to return the property after timely demand and payment by the tenant, as provided by this section. Before sale, the tenant may also file suit to recover all property moved or stored by the warehouseman on the ground that the amount of the warehouseman's moving or storage charges is not reasonable. All proceedings under this subsection have precedence over other matters on the court's docket. The justice court that issued the writ of possession has jurisdiction under this section regardless of the amount in controversy.
(j) Any sale of property that is subject to a lien under this section shall be conducted in accordance with Section 7.210 and Subchapters D and F, Chapter 9, Business & Commerce Code.
(k) In a proceeding under this section, the prevailing party is entitled to recover actual damages, reasonable attorney's fees, court costs, and, if appropriate, any property withheld in violation of this section or the value of that property if it has been sold.
HISTORY: Acts 1999, 76th Leg., ch. 414, effective July 1, 2001.
Texas Property Code § 24.0062 (2010)
§ 24.007. Appeal
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 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.
HISTORY: Acts 1997, 75th Leg., ch. 1205, effective September 1, 1997.
Texas Property Code § 24.007 (2010)
§ 24.008. Effect on Other Actions
An eviction suit does not bar a suit for trespass, damages, waste, rent, or mesne profits.
HISTORY: Acts 1997, 75th Leg., ch. 1205, effective September 1, 1997.
Texas Property Code § 24.008 (2010)
§ 24.011. Nonlawyer Representation
In eviction suits in justice court for 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 suit in justice court, an authorized agent requesting or obtaining a default judgment need not be an attorney.
HISTORY: Acts 1997, 75th Leg., ch. 1205, effective September 1, 1997.
Texas Property Code § 24.011 (2010)
Texas Rules of Civil Procedure
Part VII. Rules Relating to Special Proceedings
SECTION 3. Forcible Entry and Detainer
Rule 738 May Sue for Rent
A suit for rent may be joined with an action of forcible entry and detainer, wherever the suit for rent is within the jurisdiction of the justice court. In such case the court in rendering judgment in the action of forcible entry and detainer, may at the same time render judgment for any rent due the landlord by the renter; provided the amount thereof is within the jurisdiction of the justice court.
Tex. R. Civ. P. 738 (2010)
Rule 739 Citation
When the party aggrieved or his authorized agent shall file his written sworn complaint with such justice, the justice shall immediately issue citation directed to the defendant or defendants commanding him to appear before such justice at a time and place named in such citation, such time being not more than ten days nor less than six days from the date of service of the citation.
The citation shall inform the parties that, upon timely request and payment of a jury fee no later than five days after the defendant is served with citation, the case shall be heard by a jury.
Tex. R. Civ. P. 739 (2010)
Rule 740 Complainant May Have Possession
The party aggrieved may, at the time of filing his complaint, or thereafter prior to final judgment in the justice court, execute and file a possession bond to be approved by the justice in such amount as the justice may fix as the probable amount of costs of suit and damages which may result to defendant in the event that the suit has been improperly instituted, and conditioned that the plaintiff will pay defendant all such costs and damages as shall be adjudged against plaintiff.
The defendant shall be notified by the justice court that plaintiff has filed a possession bond. Such notice shall be served in the same manner as service of citation and shall inform the defendant of all of the following rules and procedures:
(a) Defendant may remain in possession if defendant executes and files a counterbond prior to the expiration of six days from the date defendant is served with notice of the filing of plaintiff's bond. Said counterbond shall be approved by the justice and shall be in such amount as the justice may fix as the probable amount of costs of suit and damages which may result to plaintiff in the event possession has been improperly withheld by defendant;
(b) Defendant is entitled to demand and he shall be granted a trial to be held prior to the expiration of six days from the date defendant is served with notice of the filing of plaintiff's possession bond;
(c) If defendant does not file a counterbond and if defendant does not demand that trial be held prior to the expiration of said six-day period, the constable of the precinct or the sheriff of the county where the property is situated, shall place the plaintiff in possession of the property promptly after the expiration of six days from the date defendant is served with notice of the filing of plaintiff's possession bond; and
(d) If, in lieu of a counterbond, defendant demands trial within said six-day period, and if the justice of the peace rules after trial that plaintiff is entitled to possession of the property, the constable or sheriff shall place the plaintiff in possession of the property five days after such determination by the justice of the peace.
Tex. R. Civ. P. 740 (2010)
Rule 741 Requisites of Complaint
The complaint shall describe the lands, tenements or premises, the possession of which is claimed, with sufficient certainty to identify the same, and it shall also state the facts which entitled the complainant to the possession and authorize the action under Sections 24.001--24.004, Texas Property Code.
Tex. R. Civ. P. 741 (2010)
Rule 742 Service of Citation
The officer receiving such citation shall execute the same by delivering a copy of it to the defendant, or by leaving a copy thereof with some person over the age of sixteen years, at his usual place of abode, at least six days before the return day thereof; and on or before the day assigned for trial he shall return such citation, with his action written thereon, to the justice who issued the same.
Tex. R. Civ. P. 742 (2010)
Rule 742a Service by Delivery to Premises
If the sworn complaint lists all home and work addresses of the defendant which are known to the person filing the sworn complaint and if it states that such person knows of no other home or work addresses of the defendant in the county where the premises are located, service of citation may be by delivery to the premises in question as follows:
If the officer receiving such citation is unsuccessful in serving such citation under Rule 742, the officer shall no later than five days after receiving such citation execute a sworn statement that the officer has made diligent efforts to serve such citation on at least two occasions at all addresses of the defendant in the county where the premises are located as may be shown on the sworn complaint, stating the times and places of attempted service. Such sworn statement shall be filed by the officer with the justice who shall promptly consider the sworn statement of the officer. The justice may then authorize service according to the following:
(a) The officer shall 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, the officer shall securely affix the citation to the front door or main entry to the premises.
(b) The officer shall that same day or the next day deposit in the mail a true copy of such citation with a copy of the sworn complaint attached thereto, addressed to defendant at the premises in question and sent by first class mail;
(c) The officer shall note on the return of such citation the date of delivery under (a) above and the date of mailing under (b) above; and
(d) Such delivery and mailing to the premises shall occur at least six days before the return day of the citation; and on or before the day assigned for trial he shall return such citation with his action written thereon, to the justice who issued the same.
It shall not be necessary for the aggrieved party or his authorized agent to make request for or motion for alternative service pursuant to this rule.
Tex. R. Civ. P. 742a (2010)
Rule 743 Docketed
The cause shall be docketed and tried as other cases. If the defendant shall fail to enter an appearance upon the docket in the justice court or file answer before the case is called for trial, the allegations of the complaint may be taken as admitted and judgment by default entered accordingly. The justice shall have authority to issue subpoenas for witnesses to enforce their attendance, and to punish for contempt.
Tex. R. Civ. P. 743 (2010)
Rule 744 Demanding Jury
Any party shall have the right of trial by jury, by making a request to the court on or before five days from the date the defendant is served with citation, and by paying a jury fee of five dollars. Upon such request, a jury shall be summoned as in other cases in justice court.
Tex. R. Civ. P. 744 (2010)
Rule 745 Trial Postponed
For good cause shown, supported by affidavit of either party, the trial may be postponed not exceeding six days.
Tex. R. Civ. P. 745 (2010)
Rule 746 Only Issue
In case of forcible entry or of forcible detainer under Sections 24.001--24.008, Texas Property Code, the only issue shall be as to the right to actual possession; and the merits of the title shall not be adjudicated.
Tex. R. Civ. P. 746 (2010)
Rule 747 Trial
If no jury is demanded by either party, the justice shall try the case. If a jury is demanded by either party, the jury shall be empaneled and sworn as in other cases; and after hearing the evidence it shall return its verdict in favor of the plaintiff or the defendant as it shall find.
Tex. R. Civ. P. 747 (2010)
Rule 747a Representation by Agents
In forcible entry and detainer cases for non-payment of rent or holding over beyond the rental term, the parties may represent themselves or be represented by their authorized agents in justice court.
Tex. R. Civ. P. 747a (2010)
Rule 748 Judgment and Writ
If the judgment or verdict be in favor of the plaintiff, the justice shall give judgment for plaintiff for possession of the premises, costs, and damages; and he shall award his writ of possession. If the judgment or verdict be in favor of the defendant, the justice shall give judgment for defendant against the plaintiff for costs and any damages. No writ of possession shall issue until the expiration of five days from the time the judgment is signed.
Tex. R. Civ. P. 748 (2010)
Rule 749 May Appeal
In appeals in forcible entry and detainer cases, no motion for new trial shall be filed.
Either party may appeal from a final judgment in such case, to the county court of the county in which the judgment is rendered by filing with the justice within five days after the judgment is signed, a bond to be approved by said justice, and payable to the adverse party, conditioned that he will prosecute his appeal with effect, or pay all costs and damages which may be adjudged against him.
The justice shall set the amount of the bond to include the items enumerated in Rule 752.
Within five days following the filing of such bond, the party appealing shall give notice as provided in Rule 21a of the filing of such bond to the adverse party. No judgment shall be taken by default against the adverse party in the court to which the cause has been appealed without first showing substantial compliance with this rule.
Tex. R. Civ. P. 749 (2010)
Rule 749a Pauper's Affidavit
If appellant is unable to pay the costs of appeal, or file a bond as required by Rule 749, he shall nevertheless be entitled to appeal by making strict proof of such inability within five days after the judgment is signed, which shall consist of his affidavit filed with the justice of the peace stating his inability to pay such costs, or any part thereof, or to give security, which may be contested within five days after the filing of such affidavit and notice thereof to the opposite party or his attorney of record by any officer of the court or party to the suit, whereupon it shall be the duty of the justice of the peace in whose court the suit is pending to hear evidence and determine the right of the party to appeal, and he shall enter his finding on the docket as a part of the record. Upon the filing of a pauper's affidavit the justice of the peace or clerk of the court shall notice the opposing party of the filing of the affidavit of inability within one working day of its filing by written notification accomplished through first class mail. It will be presumed prima facie that the affidavit speaks the truth, and, unless contested within five days after the filing and notice thereof, the presumption shall be deemed conclusive; but if a contest is filed, the burden shall then be on the appellant to prove his alleged inability by competent evidence other than by the affidavit above referred to. When a pauper's affidavit is timely contested by the appellee, the justice shall hold a hearing and rule on the matter within five days.
If the justice of the peace disapproves the pauper's affidavit, appellant may, within five days thereafter bring the matter before the county judge for a final decision, and, on request, the justice shall certify to the county judge appellant's affidavit, the contest thereof, and all documents, and papers thereto. The county judge shall set a day for hearing, not later than five days, and shall hear the contest de novo. If the pauper's affidavit is approved by the county judge, he shall direct the justice to transmit to the clerk of the county court, the transcript, records and papers of the case.
A pauper's affidavit will be considered approved upon one of the following occurrences: (1) the pauper's affidavit is not contested by the other party; (2) the pauper's affidavit is contested by the other party and upon a hearing the justice determines that the pauper's affidavit is approved; or (3) upon a hearing by the justice disapproving of the pauper's affidavit the appellant appeals to the county judge who then, after a hearing, approves the pauper's affidavit.
No writ of possession may issue pending the hearing by the county judge of the appellant's right to appeal on a pauper's affidavit. If the county judge disapproves the pauper's affidavit, appellant may perfect his appeal by filing an appeal bond in the amount as required by Rule 749 within five days thereafter. If no appeal bond is filed within five days, a writ of possession may issue.
Tex. R. Civ. P. 749a (2010)
Rule 749b Pauper's Affidavit in Nonpayment of Rent Appeals
In a nonpayment of rent forcible detainer case a tenant/appellant who has appealed by filing a pauper's affidavit under these rules shall be entitled to stay in possession of the premises during the pendency of the appeal, by complying with the following procedure:
(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, the 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 limits 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.
(4) Landlord/appellee may withdraw any or all rent in the county court registry upon a) sworn motion and hearing, prior to final determination of the case, showing just cause, b) dismissal of the appeal, or c) order of the court upon final hearing.
(5) All hearings and motions under this rule shall be entitled to precedence in the county court.
Tex. R. Civ. P. 749b (2010)
Rule 749c Appeal Perfected
When an appeal bond has been timely filed in conformity with Rule 749 or a pauper's affidavit approved in conformity with Rule 749a, the appeal shall be perfected.
Tex. R. Civ. P. 749c (2010)
Rule 750 Form of Appeal Bond
The appeal bond authorized in the preceding article may be substantially as follows:
"The State of Texas,
"County of
"Whereas, upon a writ of forcible entry (or forcible detainer) in favor of A.B., and against C.D., tried before , a justice of the peace of county, a judgment was rendered in favor of the said A.B. on the day of , A.D. , and against the said C.D., from which the said C.D. has appealed to the county court; now, therefore, the said C.D. and his sureties, covenant that he will prosecute his said appeal with effect and pay all costs and damages which may be adjudged against him, provided the sureties shall not be liable in an amount greater than $ , said amount being the amount of the bond herein.
"Given under our hands this day of , A.D. ."
Tex. R. Civ. P. 750 (2010)
Rule 751 Transcript
When an appeal has been perfected, the justice shall stay all further proceedings on the judgment, and immediately make out a transcript of all the entries made on his docket of the proceedings had in the case; and he shall immediately file the same, together with the original papers and any money in the court registry, including sums tendered pursuant to Rule 749b(1), with the clerk of the county court of the county in which the trial was had, or other court having jurisdiction of such appeal. The clerk shall docket the cause, and the trial shall be de novo.
The clerk shall immediately notify both appellant and the adverse party of the date of receipt of the transcript and the docket number of the cause. Such notice shall advise the defendant of the necessity for filing a written answer in the county court when the defendant has pleaded orally in the justice court.
The trial, as well as all hearings and motions, shall be entitled to precedence in the county court.
Tex. R. Civ. P. 751 (2010)
Rule 752 Damages
On the trial of the cause in the county court the appellant or appellee shall be permitted to plead, prove and recover his damages, if any, suffered for withholding or defending possession of the premises during the pendency of the appeal.
Damages may include but are not limited to loss of rentals during the pendency of the appeal and reasonable attorney fees in the justice and country courts provided, as to attorney fees, that the requirements of Section 24.006 of the Texas Property Code have been met. Only the party prevailing in the county court shall be entitled to recover damages against the adverse party. He shall also be entitled to recover court costs. He shall be entitled to recover against the sureties on the appeal bond in cases where the adverse party has executed such bond.
Tex. R. Civ. P. 752 (2010)
Rule 753 Judgment by Default
Said cause shall be subject to trial at any time after the expiration of eight full days after the date the transcript is filed in the county court. If the defendant has filed a written answer in the justice court, the same shall be taken to constitute his appearance and answer in the county court, and such answer may be amended as in other cases. If the defendant made no answer in writing in the justice court, and if he fails to file a written answer within eight full days after the transcript is filed in the county court, the allegations of the complaint may be taken as admitted and judgment by default may be entered accordingly.
Tex. R. Civ. P. 753 (2010)
Rule 754 [Rule Not Adopted]
Rule 755 Writ of Possession
The writ of possession, or execution, or both, shall be issued by the clerk of the county court according to the judgment rendered, and the same shall be executed by the sheriff or constable, as in other cases; and such writ of possession shall not be suspended or superseded in any case by appeal from such final judgment in the county court, unless the premises in question are being used as the principal residence of a party.
Tex. R. Civ. P. 755 (2010)