What is an eviction suit?

In Texas, a suit to evict a tenant is known a suit for forcible detainer.  If you have a tenant in a property you own who is not willing to vacate the premises voluntarily, the only legal means of removing such tenant is through an eviction proceeding in a court of appropriate jurisdiction. For Texas, the court of appropriate jurisdiction is the justice of the peace for the precinct in which the tenant to be evicted resides. This article addresses eviction procedures for a tenant.  Please note that if the person to be evicted was residing at the property prior to a foreclosure, the requirements for eviction will vary from those described in the article.  In addition, evicting a tenant who receives federal housing assistance will have additional requirement not addressed in this article.

Of course, to obtain an eviction, you must have a legal basis for the eviction.  The purpose of a suit for forcible detainer is to determine who has a greater right of possession of the property.  A breach of the lease agreement is the typical legal basis for eviction.  If a tenant breaches its lease agreement, then the landlord has a greater right of possession in property because it was the lease which gave the tenant its right of possession.  In addition to failing to pay rent, and depending on the lease agreement, criminal activity, disturbing neighbors, damaging the property, having unapproved guests or residents, or failing to abide by any other requirement of the lease agreement can be a breach of the lease contract. However, maintaining possession of a property after the expiration of a lease agreement can also subject a tenant to an eviction.

Do I need an attorney?

It is not always necessary to have an attorney represent the landlord or property owner at an eviction trial.  Eviction trials in the justice of peace courts are informal and routine.  In addition, the relaxed rules of the justice of peace court allow persons other than the owner of the property to present the eviction case without an attorney.  However, in complex circumstances, it may be advisable to either have an attorney represent you at a justice of the peace eviction or at least obtain advice from an attorney.

Regardless of the outcome, tenants have a right to appeal a justice of the peace court eviction to a County Court at Law.  While there may be a bond required for tenant to appeal its case to the County Court at Law, if the tenant files a pauper’s affidavit, a sworn statement that the tenant cannot afford to pay a bond, the tenant can appeal without a bond.  In my experience, it is common for tenant’s to appeal an eviction to the County Court at Law, either because they don’t understand the eviction laws or they want to buy more time before they are forced to leave the property.

If a case is appealed to the County Court at Law, is very important to hire an attorney to handle the eviction case.  Unlike the relaxed rules of the justice of peace courts, all of the formalities of the Rules of Civil Procedure and Rules of Evidence apply and failure to strictly adhere to the requirements of such rules can result in losing the case.  In addition, under many circumstances, a landlord may not be allowed to argue a case on his own behalf in the County Courts at Law.  If a corporation or LLC owns the property made the basis of the eviction, the landlord is required to be represented by an attorney because in Texas only individuals can represent themselves in County and District courts. Moreover, a representative of an owner, such as a management company, apartment manager or an employee, cannot represent the landlord because individuals who are not attorneys can not represent others in County and District courts.

Provide a notice to vacate.

If the tenant is subject to a rental agreement, before filing the eviction suit, the landlord must provide the tenant with at least 3 days notice unless the written lease contract specifies a notice requirement which is shorter or longer.  For instance, if the lease requires a 10 day notice, the landlords must provide the tenant with a notice to vacate at least 10 days before filing a suit for eviction.  If the lease states that the landlord must only provide 24 hours notice, as many leases do, then the landlord is not required to provide more than 24 hours notice, although 3 days notice may still be advisable to provide time for the tenant to vacate without the need to file an eviction suit.  If the lease is silent as to a notice to vacate, then the statutory 3 days notice is required.  The notice period is calculated from the day on which the notice is delivered.  If the required notice is not provided, the case may be dismissed and the landlord would have to re-file after providing the required notice.

The notice to vacate the premises must be delivered in one of three ways.  The landlord can hand deliver the notice to the tenant or a person over the age of 16 who resides at the premises.  Another method is to affix the notice to the inside of the front door to the premises.  If the landlord cannot obtain access to the inside of the front door, the landlord may securely affix the notice to the outside of the main entry door.  However, leaving the notice of the outside of the door is not recommended unless the landlord provides the notice by one of the other methods as well.  It is too easy for the tenant to claim that they never received the notice to vacate.  The third method, and the best, is to mail the notice.  Sending the notice by certified mail, return receipt requested is the best method, because it is the easiest method by which to prove proper service of the notice.  The landlord should be sure to keep a copy of the notice.  In addition, if the notice is hand delivered, the person who hand delivered the notice should be present at the eviction trial to testify that they hand delivered the notice.

The notice to vacate, as well as the eviction suit itself, should identify all individuals who are responsible for the payment of the lease as well “and all occupants.”  It will not do the landlord any good to evict one person on the lease only to the have another tenant argue that they do not have to vacate because the notice to vacate and/or the eviction suit does not mention them specifically.  Even if the landlord believes that there is only one person residing at the premises, always include “and all occupants” because there may be unknown persons residing at the premises.

Suit for Forcible Detainer.

Once the notice requirements expire, the landlord can file its eviction suit at the appropriate justice of the peace precinct.  The court will have forms that a landlord can fill out for the suit.  Be sure to identify the specific reason for the eviction (ie. failure to pay rent or the facts that establish that the lease agreement was violated).  If the Landlord is also seeking damages other than past due rents, the landlord can specify the basis and the amounts of such additional damages.  For instance, if the landlord is seeking damages to the property, the landlord should state what the damages are and how much the damages were calculated.

After the eviction suit is filed by the landlord, a constable will serve the tenant with a copy of the eviction suit and notice of the date and time for the eviction trial.  Be sure to appear for the eviction trial.  If the landlord does not appear at the justice of the peace court at the time of the eviction trial, the case will be dismissed.  The landlord must be sure to bring the following items in order to prove its case:

1)      The landlord must bring an executed copy of the lease;

2)      The landlord should bring a copy of the notice to vacate and proof that the tenant was provided with the notice;

3)      If the case is for non-payment of rent, the landlord should bring a copy of the ledger to establish the rents which have not been paid;

4)      If the case is based on a breach of the agreement other than failure to pay rent, the landlord should bring evidence of such breach or witnesses who have personal knowledge of the breach; and

5)      If the landlord is seeking damages other than past due rent, the landlord should bring witnesses who can testify as to the amount of the damages and any documents which support such damages including invoices and photos of the damage.

After the Suit.

Once a court has rendered a judgment, either party has five days to appeal.  Once the five days to appeal have expired, the landlord can obtain a writ a possession from the clerk for the court where the judgment was obtained.  A writ of possession will allow a county constable to force the occupants to vacate.  Typically, if a constable is forced to remove a tenant who is unwilling to vacate the premises voluntarily, the constable will request that the landlord provide labor to move the tenant’s property from the inside of the property to the outside.  The tenant’s property can be moved outside and left so long as it is not raining at the time.

Should the tenant file a pauper’s affidavit to allow the tenant to appeal the eviction without a bond, the landlord can challenge such pauper’s affidavit to prove that the tenant in not indigent and should pay a bond.  However, the landlord should take into consideration that challenging the pauper’s affidavit often increases the amount of time and the cost of obtaining the eviction judgment.  Appeals of an eviction are given a priority setting in the county courts by statute.  However, the challenge of a pauper’s affidavit requires a hearing prior to the appeal being heard.  Therefore, a challenge of a pauper’s affidavit requires an additional court appearance and because of the short time for an eviction appeal may result in a postponement of the appeal trial itself.