This guide will outline the typical way that eviction cases start and finish in Texas, along with some of the typical ways that landlords can get tripped up and tenants can delay the process.
Notice to Vacate
The first thing a landlord will do is serve on the tenant a "Notice to Vacate." Under the Texas Property Code, the minimum amount of time a landlord can give a tenant is 3 days. However, if only 3 days are given, the landlord cannot recover attorney's fees in the eviction lawsuit. If the landlord gives the tenant 10 days to vacate, then the landlord may recover his or her attorney's fees in the eviction lawsuit. The Notice to Vacate must be served on the tenant and the Court must be provided with proof of such service. The most common method is to send it to them Certified Mail Return Receipt Requested.
The Petition for Eviction or Forcible Entry and Detainer Lawsuit
An Eviction lawsuit begins in the Justice of the Peace Court (JP) in Texas. Most JP Courts have form eviction petitions that they prefer landlords follow. However, some attorneys prefer to draft their own. Each eviction petition must describe the premises from which the tenant is to be evicted and must have an affidavit regarding the tenant's military service or lack thereof. When the petition is filed, the JP will set the matter for a trial quickly, usually within only a few weeks.
The Eviction Trial
Eviction trials in the JP Court are usually only before the Judge. A landlord or tenant may request a jury trial and must pay the mandatory jury fee in order to receive it. The eviction trial is usually a very informal proceeding with the landlord, the tenant and counsel for either or both all standing at the bench with the judge talking about their case one at a time. The Judge will decide who holds a "superior right of possession" and award it to that party. When a Judge decides to evict the tenant, he or she will give the tenant 5 days to vacate. If the tenant does not vacate within those 5 days, or appeal, the JP will issue a "Writ of Possession" which allows the landlord to call the constable out to have the tenant forcibly removed from the premises.
Appeal to the County Court at Law for Trial De Novo
A tenant or landlord may appeal to the County Court or County Court at law within 5 days of the signing of the Judgment by the JP. When the landlord appeals the case is sent to the CCL without any further action. When the tenant appeals, the tenant must post a Bond with the Court that is equal to 1 month's rent on the property. If the tenant successfully appeals and posts that bond into the Court registry, then the JP Judgment becomes null and void. The case is then sent to the CCL for a "Trial De Novo" and whatever was decided in the JP Court is of no consequence to the new Court on appeal.
Discovery in the County Court
Tenants and Landlords are permitted to engage in discovery and even Motion practice in the County Court at Law on eviction appeals. This is a fact that many attorneys and litigants are unaware of. As a practical matter, this slows down the process and makes for the time in which a tenant would leave the premises much longer. However, the rules of procedure regarding "levels" of discovery will apply in this case, so there may be some limits on how many requests for admission and interrogatories may be served upon a party.
Trial in the County Court
On appeal, the County Court at Law hears the case as if it was first brought before it. Both sides are entitled to a jury, if they so desire, and both sides are entitled to present any evidence that they may get admitted into the record. One main difference in the trial in the JP Court and a trial in the CCL is that the CCL is a "court of record" and a Court reporter will be present to make a transcript or "record" of the proceedings. This record becomes important on appeal.
Appeal to the Court of Appeals
After the County Court at Law enters it's Judgment, the parties may appeal within 30 days or longer if a Motion for New Trial is filed with the CCL. The appealing party must post a "supersedes bond" in order to abate the effects of the CCL Judgment. Once that is filed, the appeal will be processed along with other civil appeals. For this appeal, there is no trial de novo, instead it is taken up with the "record" from the CCL as the thing to be reviewed. The Judgment of the CCL will only be overturned if the Court of Appeals finds that the Court made errors in law. Errors in fact will only be overturned if they are "clearly erroneous."
Remand for Enforcement
If the parties have gone through all of the available appeals, then the next step is for the appellate court to remand the case for enforcement. If the appellate court ruled in favor of the landlord, then the landlord must wait for the "mandate" to come from the appellate court, when it does, the landlord may then request the Writ of Possession, and then ask the local constable to serve it on the tenant and forcible remove the tenant from the property.
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