The tenant must have already failed to pay the rent as agreed. Landlord cannot refuse to accept rent and thereafter claim rent was not paid.
The landlord must deliver a written "Notice to Vacate" or "Demand for Possession" naming each occupant the landlord seeks to evict from the premises. The notice must give the reason for demanding possession. The written notice must give the tenant time to vacate voluntarily. The time to vacate in the notice must be at least three (3) days, unless the landlord and tenant have agreed to a greater or lesser than three day time period in a written lease or agreement.
Delivery of the notice must be done by one of the following methods:
1. Handed to a tenant in person. (Or anyone living at the premises who is at least 16 years old.)
2. Mailed to the tenant. (If mailed the landlord must wait an additional two (2) days to allow for the mail to be delivered before filing the eviction.)
3. Attached to the inside of the main entry door.
Filing the Complaint/Petition
After the notice is delivered, wait until after the notice period expires, then go the Justice of the Peace Court in the precinct where the property is located to file a written "sworn petition" for eviction. The court will determine who has a greater right to possession of your rented property. Forms for filing are available online at the website for the Justice of the Peace for the county in which the property is located. In Texas, this is called a Forcible Entry and Detainer Action.
A constable will serve a copy of your Petition to the Defendant (tenant) and the hearing is typically one week from the date of service.
The Initial Hearing
At the hearing, the Judge will hear evidence from both sides to determine which party has the greater right of possession. The Landlord will typically present a copy of the Lease, a copy of the 3 day Notice to Vacate and an accounting of payments. A Petitioner who purchased the property at a foreclosure sale and who is trying to evict the prior owners will present a copy of the Substitute Trustee's Deed and the Notice of Sale. The Petitioner (landlord) can also seek a judgment for court costs and back rent, in addition to an order of possession.
The Defendant (tenant) typically will present evidence of rent payments, an agreement to forgive rent or delay in enforcing rent, or any other documents which would tend to show they have a greater right of possession than the Landlord.
Enforcing the Judgement
If the Judge grants possession of the property to the Petitioner (landlord), the Petitioner can seek a Writ of Possession. A Writ of Possession can not issue before the expiration of five days. So, the earliest a Writ of Possession can issue is the next business day following five days after the date of the court hearing.
The constable posts the Writ of Possession order on the front door of the dwelling, ordering the tenant to remove all persons and belongings within twenty-four hours. Once the time frame expires, the Constable is then authorized to physically remove all persons and property from the dwelling. This is known as Execution of Writ. Although the Writ states the occupants must vacate within 24 hours, the actual time of the lock out is arranged by the Petitioner and the Constable's office.
Appealing the Final Judgment
At any time before the end of five days from the date of the initial hearing, the Defendant (tenant) can appeal the judgment of the Justice Court to the County Court for the county in which the property is located.
To appeal a case to the County Court, a tenant must put up a bond (a promise to pay a certain amount), which must be signed by the tenant and two other individuals (sureties) who have real estate in Texas or other assets sufficient to pay the landlord if the tenant loses on appeal. The Justice of the Peace sets the amount of the bond (usually twice the amount of one month's rent plus approximately $175 for court costs) at the initial hearing and approves the bond. If the tenant wins the appeal, no payment on the bond will need to be made. If the tenant loses the appeal, the tenant will be required to pay the amount, and if he or she fails to make payment, the individuals who signed on the bond will be liable up to the amount of the bond.
If the tenant cannot afford a bond, or is unable to obtain sureties, the tenant may choose to file a pauper's affidavit. A pauper's affidavit is a sworn statement (it must be notarized) made by the tenant stating that the tenant is too poor to make bond or pay costs. The pauper's affidavit must be filed on or before the fifth day after the judgment is signed or the tenant loses his ability to appeal and the judgment becomes final. A landlord can contest the pauper's affidavit and force the tenant to prove that he or she is unable to obtain a bond at a hearing.
Additional resources provided by the author
A more detailed discussion of the process can be found at the following link: www.dallascounty.org/legal-info/media/Eviction.pdf
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