Appealing An Eviction
What if the tenant appeals an adverse ruling by the justice court? How does the judge set the amount of the appeal bond?
In residential eviction suits for nonpayment of rent, the justice court must state in the judgment the amount of the bond taking into consideration the money required by Section 24.0053. (Section 24.00511[a])
What information must the court include in the appeal bond?
In addition to meeting all the other requirements of the law, the bond must include information about the surety including the surety’s contact information—an address, phone number, and email address—if any. The surety must inform the court of any changes in the contact information (Section 24.00511[b]).
Are there any exceptions to the rules regarding surety?
Yes. The preceding rules do not apply to appeal bonds issued by a corporate surety authorized by the Texas Department of Insurance to engage in business in this state (Section24.00512[a]).
Can the opposing party (landlord) contest the amount of the appeal bond, its form, or financial ability of the surety to pay the bond?
Yes. If the party appeals a judgment of a justice court (the tenant) in a residential eviction suit for
the nonpayment of rent by filing an appeal bond, the opposing party (the landlord) may contest any of these three issues by filing a written notice with the court within five days after the date the appeal bond is filed. A copy must be served on the other party (the tenant). Afterwards, the justice court must notify the other party (the tenant) and the surety of the contest. The justice court must hold a hearing regarding the issues within five days after the filing the contest (Sections 24.00512[b] and[c]).
Who has the burden of proof at the hearing?
The party contesting the amount or form of the bond (the landlord) must prove by preponderance of the evidence that the amount or form of the bond is insufficient. However, if the contest is based on the financial ability of the surety to pay the bond, the party filing the bond (the tenant) must prove by the preponderance of the evidence that the surety has sufficient, nonexempt assets to pay the appeal bond.If the justice court finds the form or amount of the bond is insufficient or that the surety cannot pay the bond, the justice court must disapprove the bond. If the surety fails to appear at the hearing, the failure is prima facie evidence that the bond should be disap-proved (Section 24.00512[d]).
What happens if the bond is disapproved? What options does the tenant have?
If the bond is disapproved by the justice court, the appealing party (the tenant) has three options it may pursue within five days of the disapproval. These include: (1) make a cash deposit with the court for the full amount of the bond, (2) file a sworn statement of inability to pay with the court, or (3) appeal the decision by the justice court in disapproving the bond to the county court. If the appealing party does none of these within the five-day period, the judgment of the justice court becomes final, a writ of possession and other processes to enforce the judgment must be issued on the payment of the required fee (Section 24.0512[e]).
What happens if the matter is appealed to the county court?
If the party appeals to the county court, the justice court must transfer to the county court the contest concerning the appeal bond along with all the relevant documents. The county court then dockets the appeal, schedules a hearing within five days, notifies the parties and the surety of the time, date of the hearing. The contest will be heard de novo meaning a full-blown hearing takes place without taking into consideration anything decided by the justice court. The failure of the county court to conduct a timely hearing is not grounds for approval or denial of the
appeal. However, a writ of possession may not be issued before the county court issues a final decision on the appeal bond (Section 24.0512[f]).
What happens after the county court hears and determines the matter?
Once the contest is heard by the county court, it transmits the transcript and records of the case back to the justice court. If the county court disapproved the appeal bond, the tenant has five days to perfect the appeal of the judgment on the eviction suit either by (1) making a cash deposit with the justice court in an amount determined by the county court or by (2) filing a sworn statement of the inability to pay with the justice court pursuit to Texas rules of Civil Procedure.
What happens if the tenant pursued neither option to perfect the appeal?
If the tenant does not make the case deposit or file a sworn statement, the judgment of the justice court becomes final and a writ of possession and other processes to enforce the judgment must be issued upon the payment of the required fee.
What happens if the county court finds in favor of the tenant and against the landlord? Can the landlord appeal?
Yes. If the landlord is the appealing party, not the tenant, it has the same two option: 1) make a cash deposit with the justice court in an amount determined by the county court or by (2) file a sworn statement of the inability to pay with the justice court pursuit to Texas rules of Civil Procedure. If it does neither, the judgment of the justice court becomes final. The appeal bond is approved by the county court, the court transfers the transcript and other records back to the justice court. The justice court then then proceeds as if the appeal bond was originally approved (Section 24.0512[g]).
If an eviction case is appealed to the county court, can a party still contest the appeal bond?
Likewise, can the county court still modify the amount or form of the bond or determine the sufficiency of the surety? Yes. Just because the eviction suit is appealed to the county court, parties are not precluded from raising these issues with the county court (Section
How can a tenant appeal an adverse judgment of the justice court when the tenant cannot afford it?
A tenant lacking funds to appeal an adverse judgment of the justice court may file with the court not later than the fifth day after the judgment is signed, a pauper’s affidavit sworn to before the clerk of the justice court or before a notary public. (Section 24.0052[a]).
What must the pauper’s affidavit state?
The affidavit must state, in addition to the fact that the tenant is unable to pay the costs of appeal or file an appeal bond, the following nine items:
• the tenant’s identity;
• the nature and amount of the tenant’s employment income;
• the tenant’s spouse’s income, if available to the tenant;
• the nature and amount of any governmental entitlement income;
• the amount of available cash and funds available in savings or checking accounts;
• real and personal property owned by the tenant other than household furnishings, clothes, tools of the trade or personal effects;
• tenant’s debts and monthly expenses; and
• the number and age of the tenant’s dependents and where the dependents reside (Section
24.0052[a] and [b]).
Payment of Rent During an Appeal for Eviction
Must the tenant continue to pay rent during the appeal for eviction when the underlying
controversy is for nonpayment of rent and no pauper’s affidavit or appeal bond has
been filed? Yes. If the justice court enters a judgment for the landlord in a residential eviction for the nonpayment of rent, the justice court must determine the amount of rent payable for each rental period during any appeal and note the amount in the judgment. If all or part of the rent is paid by the government agency, the court must determine the portion to be paid by the tenant and the portion to be paid by the government agency and note it in the judgment. The amount must be determined based on the terms of the rental agreement and applicable laws and regulations. The law does not require nor prohibit the payment of rent into the court registry or directly to the landlord except when an eviction is based on the nonpayment of rent. Then it must be paid to the court registry. Either party may appeal the determi-nation of the amount. (Sections 24.0053[a] and [b]).
Must the tenant continue to pay rent during an eviction for nonpayment of rent when the tenant timely files a pauper’s affidavit and no appeal bond?
What does the justice court do when a paupers’ affidavit is filed?
If a paupers’ affidavit is filed, the justice court must provide the tenant a written notice containing
the following items printed in bold or conspicuous type:
(1) the amount of the initial deposit of rent as stated in the judgment that the tenant must
pay into the justice court registry;
(2) the means by which the initial deposit must be paid, i.e., cash, cashier's check, or money
order, and to whom the cashier's check or money order, if applicable, must be made payable;
(3) the calendar date by which the initial deposit must be paid into the justice court registry
and the time the court closes for a courts that close before 5 p.m. where the payment
is due; and
4) a statement that failure to pay the required amount into the justice court registry by the
date prescribed in subsection (3) above may result in the court issuing a writ of posses-
sion without a hearing (Section 24.0053[a-1]).
When is the last day the initial deposit must be paid into the justice court?
The initial deposit must be paid into the justice court no later than the fifth day after the pauper’s
affidavit is filed as required by the Texas Rules of Civil Procedure (Section 24.0053[a-2]).
What does the justice court do when the tenant files an appeal bond, not a paupers’ affidavit?
If the tenant files an appeal bond for an eviction for the nonpayment of rent, the tenant must, within five days after filing the appeal bond, pay into the justice court registry the amount of one month’s rent as determined by the justice court.
What happens when the tenant fails to tender the initial rent payment into the registry of the justice court?
If the amount is not timely paid and the transcript has not been transferred to the county court, the plaintiff (landlord) may request a writ of possession. On request and payment of the applicable fee, the justice court must issue the writ of possession immediately and without a hearing. Regardless of whether a writ of possession is issued, the justice court must transfer the transcript and appeal documents to the county court for trial de novo (for a new hearing) on the issues relating to possession, rent, or attorney’s fees (Section 24.0053[a-3]).
Can the plaintiff (landlord) withdraw the money deposited into the justice court registry before the final determination of the case?
Yes. On sworn motion and hearing, the plaintiff (landlord) may in an eviction suit withdraw the money deposited with the court registry before the final determination of the case, dismissal of the appeal, or order of the court after the final hearing. The county court must give precedence to a hearing or motion under this subsection (Section 24.0053[a-4]).
What will trigger the justice court to issue a writ of possession immediately upon request and without a hearing during an appeal for an eviction for nonpayment of rent?
The justice court will immediately issue a writ of possession upon request by the landlord during an appeal for an eviction for nonpayment of rent when:
(1) a tenant fails to pay the initial rent deposit into the justice court registry within five days of the date the tenant filed a pauper's affidavit as required by Rule 749b(1), Texas Rules of Civil Procedure, and Section 24.0053;
(2) the justice court has provided the written notice required by Section 24.0053(a-1); and
(3) the justice court has not yet forwarded the transcript and original papers to the county
court as provided by subsection (a-2) (Section 24.0054[a]).
Who is responsible for executing the writ of possession? Who bears the cost?
The sheriff or constable must execute a writ of possession under Subsection (a) in accordance with Sections 24.0061(d) through (h) of the Property Code. The landlord must bear the costs of issuing and executing the writ of possession (Section 24.0054[a-1]).
When is the justice court required to forward the transcript and original papers to the county court in an appeal for an eviction?
When a pauper’s affidavit has been filed, the justice court may not forward the transcript and original papers to the county court before the sixth day after the tenant files the affidavit. However, if the tenant tenders the initial deposit of rent into the justice court registry before the fifth day, the justice court may forward the transcript and original papers immediately to the county court after confirming receipt of the deposit. If the tenant fails to pay the initial deposit of rent into the registry by the fifth day, upon request by the landlord, the justice court must issue a writ of possession even though the tenant has perfected an appeal by filing a pauper’s affidavit approved by the court. Even though the writ of possession has been issued under these circumstance, the justice court must still forward the transcript and papers to the county court for a trial de novo(Section 24.0054[a-2]).
Are there special provisions for issuing a writ of possession when a government agency is responsible for all or a portion of the rent under section 24.0053(d)?
Yes. When a government agency is responsible for all or a part of the rent, a writ of possession may not be issued when the tenant pays the initial deposit for the portion he or she feels responsible. (Section 24.0054[a-3]).64
What happens If the tenant tender the initial rent into the registry, but then fails to pay any subsequent amounts as they come due?
If the tenant in an eviction case for the nonpayment of rent fails to pay rent into the justice court or the county court registry as the rent becomes due in accordance with section 24.0053, the landlord may file with the county court a sworn motion that the tenant failed to pay as required and notify the tenant of the motion and hearing date (Section 24.0054[a-4]).Issuing a Writ of Possession
Will the county court then issue a writ of possession if it finds the sworn motion is true regarding the nonpayment of rent? How can the tenant avoid the writ from being issued?
The county court shall immediately issue the writ of possession unless on or before the date of the hear-ing, 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, for filing the motion. (Section 24.0054[b]).
Will it make any difference if the tenant has defaulted on one or more prior required rent
payment to the court registry?
If the court finds that the tenant failed to timely pay the rent into the court registry on more than one occasion, 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 the county court shall immediately issue a writ of possession (Section 24.0054[c]).
When the court finds the tenant has defaulted on one or more prior required rent payment to the court registry, how soon can the court issue a writ of execution?
The earliest the court may issue a writ of execution under these circumstances is on the sixth day after the writ of possession was issued.A writ of possession is an order of the court enforc-ing a judgment to recover possession of property. It commands the sheriff to enter and give possession of the property to the person who received the writ of possession.
May the tenants represent themselves without an attorney when a motion has
been filed to dismiss an appeal for an eviction case in the county court or to defend a motion for failing to timely pay the required rent into the court’s registry?
Yes. No attorney is necessary (Section 24.0054[e]).
In cases where a government agency is responsible for all or a portion of the rent during an appeal for the nonpayment of rent, what happens if the government fails to make a timely deposit of its share of the rent into the registry?
As before, the landlord may file a motion with the county court requesting the tenant be required to pay the full amount each month as it becomes due. The court must grant the motion if the landlord can prove 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 rent due under the rental agreement (Section
Note. Nothing is said about the tenant’s defenses to an eviction suit in this subchapter. However, Subchapters B and G mention three defenses. These include:
• an unlawful retaliation by the landlord (Section 92.057),
• a lawful rent reduction by the tenant under Section 92.0561 (the repair-and-deduct provision)
• a lawful rent reduction by the tenant under Section 92.301 (the rent deductions permitted for
paying to reconnect or avoid a utility cutoff).
Can either the tenant or landlord contest the amount of rent so determined by the
court to be paid during the appeal when the underlying controversy is for nonpayment of rent?
Yes. Either the landlord or tenant may contest the amount by filing a protest within five days after the judge signs the document, even when a government agency is responsible for all or a portion of the rent.
The justice court must notify the parties and hold a hearing within five days after the protest is filed. After the hearing, the justice court shall determine the portion of the rent to be paid by the tenant. The portion paid by the government evidently cannot be appealed (Section 24.0053[c]).
Can the amount of rent required by the justice court as noted in Section 24.0053(c) be contested by the tenant?
Yes. If the tenant objects to the portion of rent he or she owes as determined on appeal by the justice court, the tenant may pay only the amount the tenant claims is owed until the issue is tried de novo along with the case on its merits in the county court. A trial de novo is a new trial on the facts and the law. It is independent of anything that occurred in the first trial.
While the appeal is pending on the merits of the case, either party may file a motion with the county court to reconsider the amount of the rent that must be paid by the tenant to the court registry (Section 24.0053[d]).
Are there any special rules when a pauper’s affidavit has been filed?
Yes. If either party files a contest under Section 24.0053[c] regarding the amount of the rent, and at the same time, the landlord contests the tenant’s filing a pauper’s affidavit under Section 24.0052(d), the justice court may hold the hearing on both issues at the same time (Section 24.0053[e]).
When the landlord prevails in an eviction suit, can the landlord recover attorney fees?
Yes. A landlord may recover attorney fees in an eviction suit when the landlord meets the following conditions:
(1) the landlord sends a written notice to the tenant who is in unlawfully possession to
vacate the landlord’s premises within 11 days after receipt of the notice,
(2) the landlord sends the notice via registered mail or by certified mail, return receipt
requested at least ten days before filing the eviction suit, and
(3) the landlord files and prevails in an eviction suit against the tenant who did not comply with the notice and demand (Section 24.006[a]).
Can a prevailing landlord recover attorney fees without sending the notice?
Yes. The prevailing landlord may avoid having to send the notice and still recover reasonable attorney fees when the written lease entitles the landlord to recover attorney fees for an eviction (Section 24.006[b]).
Is it possible for the tenant to recover reasonable attorney fees from the landlord if the tenant prevails?
Yes. The prevailing tenant may recover reasonable attorney fees under two conditions:
(1) The landlord provided the tenant the required notice under Section 24.006(a) or
(2) The written lease entitles the landlord or the tenant to recover reasonable attorney fees
Is there anything else the prevailing party may recover?
Yes. The prevailing party is entitled to recover all court costs (Section 24.006(d)).
If the landlord prevails in the lawsuit for eviction, what does the court issue so that the landlord may recover possession of the premises?
The prevailing landlord is entitled to receive a (1) judgment for possession of the premises and a (2) writ of possession.
In this context, what area does the term premises include?
In this context, the term 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, an oral rental agreement or any area held out for the use of tenants generally (Section 24.0061[a]).
Once a judgment of (or for) possession is issued, how soon can the court issue a writ
A writ of possession may not be issued before the sixth day after the date on which the judgment for possession was rendered (Section 24.0061[a]).
Are there any exceptions to this rule?
Yes. The writ of possession came be entered earlier if a possession bond has been file and approved under the Texas Rules of Civil Procedure and the judgment of possession has been granted thereafter by default (Section 24.0061[b]).
Must the court inform the tenant of the default judgment?
Yes. Within 48 hours after entering the default judgment, the court must send a copy of the judg-
ment to the premises by first-class mail (Section 24.0061[c]).
Executing the Writ of Possession
What directives must the writ of possession entered by the court contain?
The writ of possession direct (orders) the officer executing the writ to:
• post a written warning on a sheet of paper at least 8½ by 11 inches on the exterior of the
front door of the rental unit notifying the tenant that the writ has been issued and the execution of the writ must occur on or after a specific date and time, which can be no sooner than 24 hours after the warning is posted;
• deliver possession of the premises to the landlord;
instruct the tenant and all persons claiming under the tenant to leave the premises
imme diately, and, if the persons fail to comply, they may be physically removed from the premises;
• 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
• place, or have an authorized person place, the removed personal property outside the rental
unit to a nearby location that does not block a public sidewalk, passageway, or street. The removal cannot occur while it is raining, sleeting, or snowing (Section 24.0061[d]).
Removal and Care of Personal Property
Are there any exceptions to placing the removed personal property in an unprotected area?
Yes. A municipality may provide, without charge, to either the landlord or the owner of the personal property, a portable closed container in which the officer or authorized agent executing the writ will place the property. The owner of the personal property has a reasonable time thereafter in which to remove it. Otherwise, the municipality may remove the container and dispose of the contents (Section 24.0061[d-1])
Can the officer executing the writ hire someone to remove the personal property?
Yes. The writ of possession must 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 (Section 24.0061[e]).
Can the officer require the landlord to store the personal property?
No. The officer may not require the landlord to store the property (Section 24.0061[f]).
Is the officer executing the writ liable for damages?
It depends. The writ of possession must 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 as long as the officer acts in good faith and with reasonable diligence (Section 24.0061[g]).
How much force may the sheriff or constable use in executing the writ of possession?
A sheriff or constable may use reasonable force in executing a writ of possession (Section 24.0061[h]).
When does a warehouseman’s lien arise?
A warehouseman’s lien arises when the tenant’s personal property is removed from the premises as a result of a writ of possession and thereafter stored in a bonded or insured public warehouse (Section 24.0062). The warehouseman thereby obtains a lien on the personal property to the extent of any reasonable moving and storage charges incurred by the warehouseman. However, the lien does not arise until all the tenant’s personal property has been stored. If the tenant’s personal property is to be removed and stored under a writ of possession, the executing officer must give the tenant certain notices. The notices may be delivered either personally or, if the tenant is not present when the writ of possession is executed, sent by first class mail to the tenant’s last known address. The delivery of notice by mail must be sent no later than 72 hours after the execution of the writ.
What information must the notice contain?
The notice must contain the complete address and telephone number of the location where the property may be redeemed. Also, the notice must state all of the following:
• The tenant’s property is to be removed and stored by a public warehouseman according to
the Texas Property Code, Section 24.0062.
•The tenant may redeem any of the property, without paying the 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. (This
provision must be underlined or in boldfaced print.) The tenant may redeem, within 30 days from the date of storage, any of the property described below (hereinafter referred to as “the 16 essential items”) on demand by payment of the moving and storage charges reasonably attributable to the following items:
• wearing apparel
• tools, apparatus and books of a trade or profession
• school books
• a family library
• family portraits and pictures
• one couch, two living room chairs and a dining table and chairs
• beds and bedding
• kitchen furniture and utensils
• food and foodstuffs
• medicine and medical supplies
• one automobile and one truck
• agricultural implements
• children’s toys not commonly used by adults
• 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
• goods that the warehouseman or the warehouseman’s agent knows are subject to a recorded chattel mortgage or financing agreement
The statute says nothing about partial redemptions within each group. It is unclear if part of the property within a group may be redeemed without redeeming the entire group. After 30 days of storage have transpired, the two groups become one. To redeem any of the property, the tenant must redeem all the property on demand and pay all moving and storage charges. Naturally, the redemption must occur before the property is sold to satisfy the lien as described below. Finally, the tenant must be told that the warehouseman has a lien on the property to secure payment of the moving and storage charges. The property may be sold to satisfy the lien if the property is not redeemed within 30 days. If the property is sold to satisfy the lien, the sale must be conducted in accordance with the Texas Business and Commerce Code, Sections 7.210, 9.301-9.318 and 9.501-9.507. Basically, these sections permit the sale of the property at either a private or public sale, in bulk or in parcels but always in a commercially reasonable manner.
When may the tenant intervene?
Before the property is sold to satisfy the lien, the tenant may intervene judicially for two different
causes (Section 24.0062[i]). Either or both suits must be brought in the justice court where the eviction judgment was rendered or in another court in the county of competent jurisdiction. However, if the justice court has issued a writ of possession, it has exclusive jurisdiction for the matters regardless of the amount in controversy. All proceedings under Section 24.0062(i) shall take precedence over other matters as the court’s docket. First, the tenant may file an action to recover “the 16 essential items” on the ground that the landlord failed to return the property after timely demand and payment was made by the tenant. The statute says nothing about the tenant filing an action to recover any nonessential items for the same reason. Also, it is interesting that the statute designates the landlord as the defendant when the property is in the possession of the warehouseman. Second, the tenant also may file a suit to recover all the property (both essential and nonessential) on the ground that the amount of the warehouseman’s moving or storage charges were unreasonable. If the tenant successfully proves the moving or storage charges are unreasonable, the warehouseman is barred from recovering any of them (Section 24.0062[h]).
In addition, the prevailing party under Section 24.0062 is entitled to recover actual damages, reasonable attorneys' fees, court costs and, if appropriate, any property withheld in violation of the section or the value of the property that was sold in violation of the section.
Can the final judgment of the county court in an eviction suit be appealed on the issue
of possession? Are there any exceptions?
No, with one exception. The exception is when the premises are being used for residential purposes only. This issue can be appealed (Section 24.007).
Can the judgment of the county court be stayed pending an appeal?
No, with one exception. The exception is when the appellant (the party making the appeal) files a supersedeas bond in an amount set by the county court (Section 24.007).
How does the county court set the amount of the supersedeas bond?
In setting the supersedeas bond, the county court protects the appellee (probably the landlord in most cases) to the same extent as in any other appeal, taking into consideration the value of rents likely to accrue during appeal, damages that may occur as a result of the stay during appeal, and other damages or amounts as the court may deem appropriate (Section 24.007).
Does an eviction suit bar any other suits from being filed such as far trespass?
No. An eviction suit does not bar a suit for trespass, damages, waste, rent, or mesne profits (profits received from the land by the tenant during the unlawful possession (Section 24.008).
When is an attorney required?
A party to an eviction suit need not be an attorney (Section 24.011). Others, not just attorneys, generally may represent themselves in a justice court to bring either type of suit. Likewise, the authorized agent of a party, whether an attorney or not, may bring an eviction suit in a justice court for the nonpayment of rent or for a hold-over tenant. However, the only other instance when an authorized agent who is not a lawyer may bring either suit is when the agent requests or obtains a default judgment.
When can a judge or justice of the peace be disqualified?
According to Section 21.005 of the Texas Government Code, a judge or a justice of the peace may not sit in a case if either of the parties is related to the judge by affinity or consanguinity within the third degree.