Can Tenants use Property without Paying Rent? – Navigating the Minefield of Eviction Procedures in Texas

August 1, 2019 – In his New York Times bestseller “Evicted” Matthew Desmond, a Pulitzer Prize winner, chronicles the link between poverty in middle America and its correlation to evictions.  Desmond walks the reader through the lives of low-income families across America who have suffered through the eviction process.  It is often heartwrentching.
Likewise, however, Landlords who are property owners often suffer an arduous legal process in dealing with a tenant who has remained in possession of real property after a lease has ended (“Holdover Tenant”) or who defaults in the payment of rent during the term of a lease and remains in possession of the property (“Defaulting Tenant”).  While residential and commercial tenancies are often handled differently, this article explains some of the general steps that a landlord must take to remove a Holdover Tenant or a Defaulting Tenant.

In Texas, the legal term for an eviction suit is a Forcible Detainer and the procedures for evictions are set forth in Chapter 24 of the Texas Property Code (“Code”). Under the Code, eviction suits must be filed in the Justice of the Peace Courts and the sole issue before such court is the Tenant’s or Landlord’s immediate right to possession of the property.  No other issues will be heard or decided by the Justice Court in a forcible detainer suit.

Proper Notice to Vacate
The eviction process begins with giving a tenant proper notice to vacate the premises.  In Texas, the landlord is required to give 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 as set forth in the lease. Texas Property Code 24.005(a).
The notice to vacate should be delivered by both personal delivery or by mail at the premises in question.  Notice in person may be by personal delivery to the tenant or personal delivery to the premises and affixing the notice to the inside main entry door. Texas Property Code 24.005(f).

Forcible Detainer Lawsuit
After the notice to vacate is given, the eviction lawsuit should be filed with the Justice of the Peace court in whose precinct the property is located. A judge will determine which party has the right to possession of the Property and what costs of suit or damages for unpaid rent will be awarded to the landlord.

The losing party in JP Court may appeal the ruling.  After 5 days, the losing party may appeal the Justice Court’s judgment to the County Court at Law. The file will be transferred to County Court at Law where it will be heard as a new case (de novo).  At that point, everything starts over.
During a residential forcible detainer case in Justice Court, the Court will set a cash appeal bond which may be three times the monthly rent.  See Tex. Prop. Code Section 24.00511.
If a tenant in a residential eviction suit is unable to pay the costs of appeal or file an appeal bond the tenant may appeal the judgment of the Justice Court by filing a pauper’s affidavit sworn before the clerk of the Court. See Tex. Prop. Code Section 24.002.

During the appeal, the tenant may be obliged to begin making monthly rental payments to the court during the pendency of the appeal. Likewise, the ruling of the County Court may then be appealed to the Texas Court of Appeals.

Writ of Possession
Upon a final judgment from the court having jurisdiction the prevailing party will be entitled to a Writ of Possession.

Racy L. Haddad is a Director in the Real Estate practice in the firm’s Austin office.  She has an extensive background related to property issues, and she provides her clients guidance as a real estate professional, accomplished litigator, and a CEO focused on business and individual profitability. Her diverse real estate and litigation practice includes complex cases involving commercial and residential acquisitions, development, leasing, real estate brokerage, real estate finance, title issues, disposition of property, and construction law.



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