Denton, Texas - Tenant Eviction Process

Texas Eviction Process

This free brochure walks you through the entire eviction process, taking you to the bitter end - removal by force. The eviction process has many steps, and it is easy to become disoriented. The purpose of this brochure is to help you see the forest for the trees. There are a lot of steps in a Texas eviction. Below, we review an eviction that is appealed to a County Court. As we are making our way through this eviction journey, we will occasionally pause to discuss and better understand the various forks in the road.

The Notice to Vacate

Your tenant stopped paying rent. Or, perhaps, you have a conflict of personalities with your tenant and the time for your tenant to leave has long passed. To begin the process, you will need to send your tenant a nasty-gram called a "3-Day Notice to Vacate." Sometimes I see landlords who send longer notices to vacate; 30-Day and 20- Day Notices to Vacate are not uncommon. Other than giving the tenant additional time, it is fine to do this. However, I prefer to do the 3-Day Notice to Vacate and either hold off on filing the eviction lawsuit or – if I have already filed the lawsuit - seek the Court’s permission to extend the trial date. Courts are often happy to do this, if it appears to the Court you and your tenant are “working things out.” Simply put, using the 3-Day Notice to Vacate is the quickest way for you to obtain control over the pace of the eviction. If you send a 30-Day Notice to Vacate, regret doing so, and hope to get away with filing suit after day 10, you should plan on the Judge dismissing the eviction lawsuit and instructing you to file after the 30 days have passed. Now you are in a position of having to wait the full 30 days (while your meth-using tenant destroys your property) and you are going to have to pay the court’s filing fee a second time. 

Filing the Eviction Lawsuit and Service of Process

Three days after your tenant receives your Notice to Vacate (assuming you took my advice and used a 3-Day Notice), you may file a Petition for Eviction. This lawsuit may also be called a "Suit for Forcible Entry and Detainer." Either of these documents starts a lawsuit that could result in your tenant being forcibly removed from the property. Unless you are suing for possession of the property AND back rents for an amount that exceeds $10,000.00, you must file your eviction lawsuit in a Justice of the Peace court . The specific Justice of the Peace Court in which you must file your eviction lawsuit is determined by the location of the rental property. If you are unsure of which Justice of the Peace to use, you may call any of the Justice of the Peace clerks in your county and they will identify your court by looking up the address of your rental property. After you file the eviction lawsuit, the clerk for the Justice of the Peace will immediately schedule a trial date. This date will typically be a week and a half to two weeks following the date you filed your lawsuit. After you file the eviction lawsuit, the Constable will serve the tenant. I know - you've seen this kind of thing on TV. A process server walks up to the defendant and snaps, "You've been served!" These lawsuits really don't work that way.

More often than not, the tenant will get a knock at the door and a smiling Constable will hand them a citation with a copy of your lawsuit. Sometimes tenants will try to avoid service. That’s fine. If the Constable has made at least two attempts to catch the tenant at home but has been unsuccessful, the Constable may submit a motion to the Justice of the Peace requesting the Court's permission for something called "substituted service." In other words, as a substitute to personal service (where the Constable serves the tenant in person), the Court is authorizing service by posting the lawsuit to the tenant’s front door. As long as the judge signs off on this motion, this type of service is lawful. Generally, Constables are able to complete substituted service before it becomes necessary to reschedule the trial date. 

The Defendant's Answer

In a perfect world, the defendant will file an "Answer." This is simply just a response to the lawsuit. In most lawsuits, the answer stops the clock and prevents the person who brought the suit from winning by default – winning because the other party ignored the lawsuit. Truth be told, few tenants respond to these lawsuits. And the few who do often get it wrong. Nonetheless, the rules in eviction cases are very different than your standard trial. You will not have an opportunity to bring a motion to obtain a judgment by default, as you can with other types of lawsuits. And even if the tenant submits an answer that is legally defective, the Justice of the Peace will often ignore this formality. Many Justices of the Peace regard their courts as being “the peoples’ court” and will often avoid rulings based on legal technicalities like that. These judges are sensitive to the fact an unsophisticated citizen may lack access to an attorney has little chance of correctly drafting all of the requirements in even a simple pleading.

The Immediate Possession Bond

But there is an exception! Despite the fact you can generally not win an eviction trial by default, there remains for landlords one tool designed to short-circuit the eviction process: the Immediate Possession Bond. With an Immediate Possession Bond, you are basically betting that the tenant will not respond to the lawsuit. You post a bond with the Justice of the Peace Court. If your tenant fails to answer the lawsuit before the end of 7 days following the time the Constable serves your tenant, the Court will issue you a judgment for possession by default. There is no trial, but you will need to file all of the certificates and pleadings Justice of the Peace Courts require for a default judgment ahead of time. You will also be allowed to execute your judgment for possession of the property by filing for a Writ of Possession on the eighth day following service. Writs of Possession are explained below. 
Think of a bond as good-faith money. You are letting the court hold onto this money just in case it turns out you were misrepresenting details about your landlord-tenant relationship. If you were lying about having the right to evict the defendant, this bond money is available for the defendant to recover his costs for fighting your improperly filed Immediate Possession Bond. I practice in the Dallas-Fort Worth area, and most judges around here require $750.00 for an Immediate Possession Bond. Assuming your tenant does not challenge your Immediate Possession Bond, you will be able to later file a motion with the Justice of the Peace Court, requesting that your bond money be returned to you.
Immediate Possession Bonds are very useful in situations where your tenant has abandoned the property, or you where you have squatters. In my experience, squatters tend not to appear in court.

The First Trial - Justice of the Peace

Under state law, virtually all eviction cases in Texas must be heard in the local Justice of the Peace court. Justices of the Peace are not required to be attorneys, and many are not. In addition, no record of the trial is made other than the court's written judgment. This, among other reasons, is why the Texas Constitution guarantees both parties the right to an appeal - without reason or justification - to a County Court.
The Justice of the Peace trial itself looks much like any other trial, but there are some important distinctions. Many Justices of the Peace keep their trials a lot more relaxed than other Texas trial courts. Justices of the Peace will often guide both parties through the trial process, rather than expecting them to know the trial process cold. Another important difference is the fact Justices of the Peace have the right to investigate details of the case. They will often take the initiative to ask questions of the parties to further understand the details of the case. At the end of the eviction trial, the Judge will issue a ruling that awards possession of the property to either you or to your tenant. The Justice of the Peace will also set a bond. The bond is typically $500.00 if you lose, and one month’s rent for your tenant, should your tenant lose. When the tenant loses he will have to make a rent payment into the court’s registry within 5 days after he files an appeal. He will then have to make rent payments each month as payments come due under the lease agreement. These rent payments are in addition to the bond and the court filing fee the tenants are typically required to pay in order to complete an appeal. The rent payments work much like a bond. However, the landlord does not have to prove the tenant did anything wrong to obtain these rent payments. 

About Non-Attorney Judges

Before you get your hopes up about going in front of a non-attorney judge in the Justice of the Peace Court, I want to caution you about what you can expect from a Justice of the Peace. First, some Justices of the Peace are attorneys. There is no requirement that a Justice of the Peace be a non-attorney. Instead, the law permits non-attorneys to serve as a Justice of the Peace. I find most Justices of the Peace are not attorneys. Second, some Justices of the Peace may have gone to law school, but no longer have active law licenses. Third, the ones who do not have law degrees or law licenses are very well trained. These judges are responsible for a relatively small portion of Texas law. In addition, they are required to obtain several hours of legal training while they are on the bench. In my experience, they tend to know the areas of the law for which they are responsible very well. Indeed, despite being a licensed attorney, I have been corrected on procedural matters by non-attorney judges on several occasions! As a licensed Texas attorney, I never make the mistake of underestimating a Justice of the Peace. You would be well advised to do the same. If learning more about your Judge is important to you, you should first visit the "About" page on the Justice of the Peace's website. But not all Justices of the Peace will have websites. Also, try googling the Judge's name and reviewing any campaign websites that may be out there. If you would like to determine if your Judge is an attorney, run the Judge's first and last name through the attorney search section at the Texas bar's website. 

No Discovery

Discovery is the process lawyers use to obtain information from the other party. Discovery may be in the form of a list of questions, a demand for documents, or an interview in the presence of a court stenographer. Yeah - we don't do any of that stuff in eviction cases! Texas law provides for evictions to be "accelerated" cases. Basically, we cut to the chase and go straight to the trial. 

Only One Issue at Trial

An eviction trial is designed to ask only one question: who has the superior right to possess the property? 
It is the landlord’s job to present to the Court the question of who has the superior right to possession. To make your case, you will have to provide to the Judge an original lease agreement. The Judge will then confirm you properly served your tenant with the Notice to Vacate. If you followed my advice about sending the Notice to Vacate by certified mail, you will be able prove you served your tenant with this notice by providing the Judge the following:

A copy of the Notice to Vacate;

The green and white certified mail receipt;

The light green return receipt postcard.

Often the return receipt post card will not have been returned to you by the day of the trial. That’s not a problem. Simply go to the U.S. Postal Service’s website, www.usps.com, and run tracking number from the green and white receipt through this website’s tracking system. The results should show the post office either left a notice (which is sufficient) or actually delivered the notice. This printout is also useful if you have misplaced the return receipt postcard. The Judge will also require that you file various affidavits and certificates prior to his ruling in your favor. 
Upon being satisfied you proved the tenant failed to pay rent and was properly served with the notice, the Judge will sign a judgment awarding you possession. If your petition was properly worded, the court will also often award you the right to collect unpaid rent and interest at a rate as high as 5% per year. Be mindful that judgments from Texas courts are good for 10 years, and can be easily renewed for an additional ten years. In theory you could sit on that judgment for 19 years and 11 months, and garnish your tenant’s checking account for the money portion of the judgment, plus interest. I do not speak to the adverse impact such a move would have on your karma….

Second Trial - County Court

Should you or your tenant appeal, the appeal will be what lawyers call a trial “de novo.” This means there will be an entirely new trial. The County Court will act as though the first trial never happened. If you won at the Justice of the Peace trail, this fact will not help you; it has no bearing on the County Court trial! Usually when a losing party files an appeal, they are asking the appeals court to review the trial for errors. That does not happen in a trial de novo. Instead, the trial process starts over.

The County Court is responsible for scheduling the second trial. The County Court will typically do so after receiving the Justice of the Peace Court's trial folder. This process can take as little as two or three weeks, although I have had some County Court trials scheduled out as far as a month.

The County Court is a “real” trial. There will be none of the hand-holding you might have enjoyed with the Justice of the Peace. The County Court judge will expect you to present your case just like an attorney would. You will need to know the trial process in order to do this properly. You will need to know what certificates and affidavits must be presented. You will also need to know how to properly submit evidence before the court, call witnesses, and examine or cross-examine witnesses on the stand. All of this requires an understanding of the Texas Rules of Evidence. Handling a trial at this level is complicated. You should either hire an attorney for this step, or be a very quick study. Trust me – lawyers make this stuff look much easier than it really is…. 

One final consideration is whether or not the lease agreement you are suing over has your name on it, the name of your company, or the name of a trust. If the lease agreement has your name on it, you have every right to represent yourself in court at this level. However, if your lease agreement lists the name of a corporation (this includes LLCs) or a trust, you MUST hire a licensed Texas attorney for a County Court trial. This is law in Texas, and there is no way around it. Part of the flexibility you enjoy in the Justice of the Peace Court is being able to represent your corporation or trust, despite being a non-attorney. And I wouldn’t count on the judge missing this! Many landlords are not aware of this law, and will often appear in a County Court trial, attempting to represent the corporation or trust that owns the rental property. Judges look for the parties on the lease immediately upon realizing a landlord is representing himself. Placing your rental property into an LLC or a trust offers landlords great protections. Attorney representation in these courts is just one of the downsides to enjoying this protection. 

Writ of Possession

Most of the time, tenants respond to an eviction judgment by packing up and leaving – quickly! The fear of removal by force is a strong motivator. But some tenants can be pig-headed. A judgment for possession DOES NOT give you the right to remove the tenants, the tenants’ property, or change the locks on the property. In fact, there are some rather stiff penalties for taking matters into your own hands.

So, you ask, what is the point of obtaining a judgment if you can’t enforce it? That’s the wrong question, actually. Obtaining a judgment gives you the right to request the Court to order the County Constable to enforce the judgment. Texas law has been careful to ensure the process of removing tenants is carefully managed by someone OTHER than the landlord. But as you are about to see, Constables really only supervise the removal of the tenants.

On the sixth day following the day you received a judgment for possession of the property, you have the right to file an Application for a Writ of Possession. In every case where the tenant has not vacated the property by day five, I apply for a Writ of Possession, and I always advise my landlord clients to do the same. It does not matter what promises the tenants have made or how close they are to being out of the property. Applying for your Writ helps your tenants understand the finality of the situation, and that you will entertain no more haggling. More importantly, it eliminates any chance of tenants suddenly re-occupying the property just as it appeared they were about to move out.

A writ is a legal instrument a court uses to enforce one of its judgments. It is an order, following a judgment for someone to do something necessary for the court to enforce its judgment. There are writs that order banks to freeze and remove funds from a judgment-debtor’s checking account. There can be quite severe consequences for ignoring a writ; fines, even jail time. In the case of an eviction, the Writ of Possession has a Judge ordering a Constable to forcibly remove the tenant from your property. 

After the Judge signs your Writ of Possession, the Constable will post a notice on the front door of the rental property telling the tenant they have 24 hours to leave. The Constable will then coordinate with you so you can have professional movers handle the tenant’s move-out. Your movers will remove all of your tenants’ property to the curb. The Constable will supervise the process, and will arrest the tenants should they attempt to interfere with the move out. 

If you are suing for rent in excess of $10,000.00, you must file your eviction lawsuit with your county’s District Court Clerk. The rules regarding attorney representation where your tenant contracted with a corporation or a trust (discussed below in the “Second Trial – County Court”) apply to District Courts.

Copyright © 2014 by Girling Law, PLLC

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Published by Girling Law, PLLC, Bedford, Texas.
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ISBN: 978-0-9915257-4-4

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