Fort Worth, Texas - Tenant Eviction Process

How To Evict My Tenant / How Do I Evict a Tenant ?
EVICTION PROCESS IN TEXAS – TEXAS EVICTION PROCEDURE

Step 1: Learn the Eviction Laws - Texas Eviction Law

• Reasons for eviction / Grounds for eviction

• Tenant Not Paying Rent
• Lease Violations - (not rent related)
• Unauthorized pet
• Unknown occupant
• Property damages
• Criminal activity
• Unwanted occupants
• Ex-boyfriend / Ex-girlfriend
• Family members
• Squatters
• Post-foreclosure evictions
• Can a tenant deduct for repairs?
• Yes, but they must follow very strict eviction laws to do so.
• How long does it take to evict a tenant?  How long is the eviction process?
• 21 days, minimum; BUT a more complete eviction process explanation can be found below.
• Can I turn off the utilities if the tenant doesn't pay the rent?
  • No, if you do the tenant can sue you.
• Can I change the locks if the tenant does not pay the rent?
  • No, if you do the tenant can sue you. Some commercial leases allow for this, but it is still a bad idea and can lead to destruction of your property.

Step 2: Deliver the Eviction Notice - Notice to Vacate
This is the most important part of the eviction process.  To begin, the tenant must be given an Eviction Notice to Vacate. The eviction laws in Texas are very particular regarding: 1) what must be written in the Eviction Notice to Vacate, 2) what should not be written in the Eviction Notice to Vacate, 3) how the Eviction Notice to Vacate should be delivered to the tenant.
Not following the proper eviction procedure in Texas can have bad consequences.  My experience is that tenant evictions that get dismissed by judges are usually because there was a defect in the Eviction Notice to Vacate, so this step in the process is of utmost importance because most people do this incorrectly. Select provisions of Texas eviction law pertaining to the Eviction Notice to Vacate can be found below. An experienced attorney can ensure that your Eviction Notice to Vacate is valid.
Helpful Tip:  For eviction for nonpayment.  Once the Eviction Notice to Vacate is sent, the landlord does not have to accept any more payments from the tenant.  However, if a payment is accepted from the tenant, then a new eviction notice will need to be sent to the tenant(s) and the process has to start over.

Step 3: Filing the Eviction Lawsuit
After your tenant has been given a valid Eviction Notice to Vacate and the statutory time has passed, it’s time to file the lawsuit. The statutory time period depends on the situation and can be a 3 day eviction notice to vacate; can be a 30 day eviction notice to vacate, or whatever period is called for in your lease. For clients who wish to recover attorney’s fees as part of the judgment against the tenant, the lawsuit cannot be filed until ten (10) days after the Eviction Notice to Vacate is sent, even if a shorter time period is given in the select provisions of Texas eviction law pertaining to the filing of the lawsuit below. For people seeking possession of the property and less than $10,000 in damages, the eviction must be filed in the Justice Court having jurisdiction over the property. It is important to note that damages include back rent, court costs, and attorney’s fees only – physical damages to the property, late fees, and utility fees cannot be combined into an eviction lawsuit. Once the eviction has been filed, the Constable will handle the service of process necessary for the lawsuit. The Court will usually assign a court date 1-3 days after filing.

Step 4: Justice Court Trial
When you arrive at court, you will check in with the court clerk. When your eviction case is called, you will approach the bench and the judge will ask you to explain the case. Sometimes, tenants (defendants) don’t even bother to show up, but some do and it’s becoming increasingly popular for tenants to hire attorneys to represent them in eviction cases. The tenant may have no real defense (and often don’t) but work to prolong the eviction as long as possible giving their clients (your tenant) the longest period of time possible (free rent) in your property. An experienced attorney can advise you on the most expedient course of action. After hearing arguments from both sides, the Judge will issue a Judgment. If the verdict is for the Plaintiff (property owner), the Judgment will allow the tenant five (5) days to vacate the property or appeal the Judgment.
From here, the tenant can do one of three things:
1. The tenant can vacate the property. In which case on the sixth day after the Judgment, you go to the property and change the locks.
2. The tenant can NOT vacate the property. 
See “Step 4(a): Writ of Execution” below.
3. The tenant can NOT vacate the property and file an appeal.
See “Step 4(b): Second Trial – Appeal to County Court” below.

Step 5(a): Writ of Possession
If the tenant has an Eviction Judgment ordering them to vacate and they do not leave, you must file a Writ of Possession. This is essentially asking the Constable to go out to the property and ask the tenant to leave. What actually happens is that a Constable will drive to the property and try to serve the Writ on the tenant, twice. If the tenant will not answer the door, the Constable leaves a notice explaining that they will return and forcefully (if necessary) remove the tenant. If this is necessary, either the property owner or the Constable will remove the belongings and either place them in a bonded warehouse or on the curb – property owners should discuss this with the Constable’s office as the process varies between different precincts. This process can take up to 3 weeks and will require someone to be meet the Constable at the property.

Step 5(b): Eviction Appeal to County Court
When an eviction appeal is filed, the case is now transferred to the County Court for a trial “de novo.” This is essentially a “do over.” It can take from 2 – 6 weeks for the County Court to schedule a trial date for an eviction appeal. The entire eviction trial will be redone but, unlike the Justice Court, must now be conducted in accordance with the Texas Rules of Civil Procedure and the Texas Rules of Evidence. The County Courts expect everyone to know everything an attorney knows (including eviction procedure) and it can get very complicated. They will not help property owners or the tenants with legal or procedural questions and are known for not being tolerant of mistakes.
At the conclusion of the County Court trial, the Judge will issue a Judgment. If the verdict is for the property owner, the Judgment will allow the tenant five (5) days to vacate the property or appeal the Judgment.
From here, the tenant can do one of three things:
1. The tenant can vacate the property. In which case on the sixth day after the Judgment, you go to the property and change the locks.
2. The tenant can NOT vacate the property.
See “Step 4(a): Writ of Execution” above.
3. The tenant can NOT vacate the property and file an appeal to a higher court. 
This is VERY rare because the cost to appeal is usually quite high.

 

Select Provisions of Texas Law Pertaining to Forcible Entry and Detainer Lawsuits.

Select Provisions of Texas Law Pertaining to Forcible Entry and Detainer Lawsuits.
In Texas, the action of forcible entry and detainer is governed by statutes and by rules of civil procedure. The specific authority and procedure is set forth in the Texas Property Code as follows:

TEXAS PROPERTY CODE

TITLE 4. ACTIONS AND REMEDIES

CHAPTER 24. FORCIBLE ENTRY AND DETAINER

§ 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 willfully 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

TITLE 8. LANDLORD AND TENANT

CHAPTER 92. RESIDENTIAL TENANCIES

SUBCHAPTER A. GENERAL PROVISIONS

 

Sec. 92.001.  DEFINITIONS.  Except as otherwise provided by this chapter, in this chapter:
(1)  "Dwelling" means one or more rooms rented for use as a permanent residence under a single lease to one or more tenants.
(2)  "Landlord" means the owner, lessor, or sublessor of a dwelling, but does not include a manager or agent of the landlord unless the manager or agent purports to be the owner, lessor, or sublessor in an oral or written lease.
(3)  "Lease" means any written or oral agreement between a landlord and tenant that establishes or modifies the terms, conditions, rules, or other provisions regarding the use and occupancy of a dwelling.
(4)  "Normal wear and tear" means deterioration that results from the intended use of a dwelling, including, for the purposes of Subchapters B and D, breakage or malfunction due to age or deteriorated condition, but the term does not include deterioration that results from negligence, carelessness, accident, or abuse of the premises, equipment, or chattels by the tenant, by a member of the tenant's household, or by a guest or invitee of the tenant.
(5)  "Premises" means a tenant's rental unit, any area or facility the lease authorizes the tenant to use, and the appurtenances, grounds, and facilities held out for the use of tenants generally.
(6)  "Tenant" means a person who is authorized by a lease to occupy a dwelling to the exclusion of others and, for the purposes of Subchapters D, E, and F, who is obligated under the lease to pay rent.

Acts 1983, 68th Leg., p. 3630, ch. 576, Sec. 1, eff. Jan. 1, 1984.  Amended by Acts 1993, 73rd Leg., ch. 48, Sec. 12, eff. Sept. 1, 1993;  Acts 1993, 73rd Leg., ch. 357, Sec. 1, eff. Sept. 1, 1993.

 

Sec. 92.002.  APPLICATION.  This chapter applies only to the relationship between landlords and tenants of residential rental property.

Acts 1983, 68th Leg., p. 3631, ch. 576, Sec. 1, eff. Jan. 1, 1984.

Disclaimer: The law is constantly changing and there may be times when the information on this web site will not be current. This information is provided for general informational purposes only and is not intended as legal advice. This information is not a comprehensive treatment of the subject and is not a substitute for advice from an attorney.