Part 2
1995 Landlord/Tenant Supplement to Desk Reference
by Robert Doggett, Legal Service of North Texas
1995 Landlord/Tenant Supplement to Desk Reference
by Robert Doggett, Legal Service of North Texas
Acknowledgement: The following was prepared and disseminated by Robert Doggett of North Texas Legal Services in Dallas.
Disclaimer: While every effort has been undertaken to ensure both the reliability and currency of the following information, the following DOES NOT constitute legal advice. It is strongly urged that one seek representation and advice from a licensed, competent attorney before taking any court action. For further information, call the Austin Tenant's Council (512-474-7006), the Legal Aid Society of Central Texas (512-476-7244), or the Dallas Housing Crisis Center (214-828-4244).
NOTE: The hyper text links won't work right unless you wait for the entire document to load before clicking.
(Return to part 1 of this document)10. JUDICIAL EVICTIONS
10-1. Definitions
Judicial evictions begin in Justice of the Peace (JP) courts. The proceedings generally are called forcible entry and detainer (FED) actions. Specifically, an FED occurs if a person enters the premises of another without legal authority or by force, and refuses to surrender it on demand. Tex. Prop. Code SS 24. 001 (a). Premises include the unit occupied or rented, and any outside area or facility. Tex. Prop. Code SS 24.0061(a). Thus, if a landlord illegally enters the tenant's dwelling but vacates after the tenant demands, then the landlord would not be guilty of an FED. The landlord would be guilty of a forcible entry (FE).
A FE is an entry without the consent of the person in possession, even if that person is a tenant at will or by sufferance, or also acquired possession by FE. Tex. Prop. Code SS 24.001(b).
If a landlord takes possession or control improperly and then refuses to provide the tenant access (e.g., illegal lockout) then the landlord is guilty of a FED. The tenant has more accessible remedies. See, Lockouts and Other Removals, 8.
A forcible detainer (FD) results when a once-legal possessor improperly refuses to surrender the premises. This complaint is usually alleged by landlords to judicially evict their tenants. If no landlord-tenant relationship exists, the justice court will not have jurisdiction to hear a forcible detainer action. Dent v. Pines, 394 S.W.2d 266 (Tex. Civ. App.--Houston 1965, no writ).
10-2. Jurisdiction
The justice court has exclusive jurisdiction to bear forcible entry and detainer cases. Tex. Gov't Code. SS 27.031(a)(2). Home Savings Ass'n v. Ramirez, 600 S.W.2d 911 (Tex. Civ. App.--Corpus Christi 1980, writ ref'd n.r.e.). There may be an exception where the landlord dies prior to or during the eviction proceeding. Chapman v. Southern Hospitalities, 624 S.W.2d 320 (Tex. App.--Tyler 1981, no writ)(the court held that the probate court and the justice court had concurrent jurisdiction).
In a FED or FD, the only issue is the right to actual possession, not title to the premises. Tex. R. Civ. P. 746; Tex. Prop Code 24.004; Tex. Gov't Code SS 27,031(b)(4). If the possession issue necessarily involves the determination of title of the property, then jurisdiction rests with the district court. Tex Const. art V, SS 8 (1869). Some cases imply that the burden rests with the defendant to prove that the justice court does not have jurisdiction. Johnson v. Fellowship Baptist Church, 627 S.W.2d 203 (Tex. App.--Corpus Christi 1982, no writ); Rodriguez v. Sullivan, 484 S.W.2d 592 (Tex. Civ. App.--El Paso 1972. no writ)justice court had no jurisdiction where plaintiff admitted that he had sold property to defendant who was delinquent in payments); c. f. Haith v. Drake, 596 S.W. 2d 194 (Tex. Civ. App.--Houston [lst Dist.] 1980, writ ref'd n.r.e.)(plaintiff must prove sufficient title).
If the validity of title is not in dispute, but the issue is whether the person purporting to be the landlord really has valid title, the justice court retains jurisdiction. The burden is on the landlord to prove sufficient title. Haith v. Drake, 596 S.W.2d 194 (Tex. Civ. App.--Houston [lst Dist.] 1980, writ ref'd n.r.e.). Evidence of title may be received in connection with or incident to the right of possession. Goggins v. Leo, 849 S.W.2d 373, 378 (Tex. App.--Houston [14th Dist.] 1993, no writ).
The justice court retains jurisdiction over the eviction even though other related matters are beyond its jurisdiction. McGlothlin v. Kliebert, 672 S.W.2d 231 (Tex. 1984). In A & A Liquor Store v. Duncan, 385 S.W.2d 738 (Tex. Civ. App.--Dallas 1964, no writ), the landlord filed a forcible detainer for a parking space being used by the tenant. The tenant asserted that the district court had jurisdiction because the issue involved a boundary dispute. The court disagreed and ruled that the case involved immediate possession of the parking space. In Bamstone v. Robinson, 678 S.W.2d 562 (Tex. App.--Houston [14th Dist.] 1984, writ dism'd), the court held that a district court exceeded its jurisdiction by granting an injunction to stop an eviction proceeding when the issue involved the amount of rent. The court reasoned that if the tenant contested the amount of rent, the tenant should bring an independent action for overcharges, rather than refusing to pay rent and attempting to enjoin the eviction. The tenant could more easily defend the eviction on the ground that the correct amount of rent was tendered.
Although the "only issue" in a FE or FD is the right to possession, this is not to say that other claims by the plaintiff or defendant cannot be brought before the court (e.g., the landlord may concurrently sue for back rent, Tex. R. Civ. P. 738 [as long as the claim is within jurisdictional limit of the court -- $2,500]); unless the claim is specifically barred (e.g. defendant cannot counter-claim for failure to repair in an eviction suit. Tex. Prop. Code SS 92.059). See 10-9 Other Suits and Damages.
10-3. Venue
The justice court in the county and precinct in which the property is located is the appropriate venue in FED and FD suits. Tex. Prop. Code SS 24.004. However, often justice courts allow parties to file for a change of venue pursuant to Rule 527 and 528 Texas Rules of Civil Procedure. This may be improper as the Texas Property Code fixes jurisdiction in the precinct where the property is located and does not make exception, See Gambill v. Town of Ponder, 494 S.W.2d 808, 810 (Tex. 1993).
Texas Rules of Civil Procedure 528 through 532 set out a procedure whereby a suit can be transferred from any JP court to the nearest JP court within the county. This requires filing three affidavits, one by the party and two by other credible persons, citizens of that county, stating that they have good reason to believe and do believe that the defendant cannot have a fair and impartial trial before such justice or in the precinct of such justice. It then becomes mandatory for the JP to transfer the case to the nearest justice.
Tex. R. Civ. P. 528.
10-4. Certiorari
Normally, a party in a justice court proceeding can attempt to appeal or remove a case from the justice court by applying for a writ of certiorari in a county or district court. Tex. R. Civ. P. 575-591. The Texas legislature specifically removed this device in FEDS. Tex, Civ. Prac. & Rem. Code SS 51.002(a,d). But some have argued that this prohibition does not apply to FDs.
There are not any reported cases that specifically reject the distinction argument, although two cases clearly imply 5l.002 prohibits certiorari in FDs: Chang v. Resolution Trust Corp., 814 S.W.2d 543 (Tex.App.--Houston [lst Dist.] 1991, no writ); Crawford v. Siglar, 470 S.W.2d 915, (Tex. Civ. App.--Texarkana 1971, writ ref'd n.r.e.). Either the argument was not brought forward or the court did not find it worthy of even a small discussion.
10-5. Procedure
Texas Rules of Civil Procedure 738 through 755, and Chapter 24 of the Texas Property Code govern the filing, trial and appeal of FD and FED actions.
10-5.1. Demand for Possession (Notice to Vacate)
A demand to vacate the premises must first be given to the possessor in writing, regardless of whether the lease is oral or in writing, and regardless of the type of tenant (e.g., "tenant at will"). Tex. Prop. Code 24,005. To be valid this notice must be absolute and unequivocal. Johnson v. Golden Triangle Corp., 40.4 S.W.2d 44 (Tex. Civ. App.--Waco 1966, no writ); Schecter v. Folsom, 417 S.W.2d 180 (Tex. Civ. App.--Dallas 1967, no writ). The length of time the landlord must wait before the eviction can be filed is that set out in the lease. If no time is set by the lease, then a three day notice is required. Tex. Prop. Code SS 24.005(a).
Exceptions: If the possessor took possession by forcible entry, then the landlord can give the demand for possession orally, and does not have to wait three days before filing suit. Prop. Code 24,005(d). If the owner purchased the building at a foreclosure sale under a lien superior (before) to the tenant's lease, the purchaser must give a residential tenant of the building at least 30 days written notice to vacate if the purchaser does not want to continue leasing to the tenant, assuming the tenant is current on the rent. Tex. Prop. Code SS 24.005(b). A tenant is considered current on the rent if during the month of the foreclosure sale the tenant pays the rent directly to the foreclosure lienholder or purchaser no later than five days after receipt of written notice of the name and address of the purchaser who requested payment. By accepting one month's payment of rent, neither the lienholder nor the purchaser waives the right to force the tenant to vacate the premises after the 30 days have expired.
A strict reading of 24.005(b) implies that the lienholder may give written notice to the tenant prior to the foreclosure sale that informs the tenant that a foreclosure notice has been given to the landlord. Therefore, proper notice would enable the purchaser or lienholder to take possession of the premises not 30 days from the sale, but 30 days from the notice (and having completed the title transfer).
Cross Ref: 1-14.3. Notice to Vacate
10-5.2. Parties
After the proper notice, the owner or agent can then file a forcible detainer complaint with the JP court as a plaintiff, against the lessee, possessor, and occupants of the premises.
In forcible entry and detainer, or forcible detainer actions for nonpayment of rent or holding over beyond the rental term, either party may represent themselves or be represented by an authorized agent in justice court. Tex. Prop. Code SS 24. 01 1; Tex. R. Civ. P. 747a. In forcible detainer cases, the authorized agent need not be an attorney. Tex. Prop. SS Code 24. 011.
In order to file and prosecute a suit, non-incorporated companies and other business entities must file a fictitious name certificate with the office of the county clerk in the county in which the suit is brought. Tex. Bus. & Corn. Code SS 36.25. If the filings are not current, an objection should be made in the form of a plea in abatement at the justice court prior to trial, until the requirements of the Texas Commerce Code are met, otherwise the objection is waived. Continental Contractors Inc. v. Thorax, 578 S.W.2d 864 (Tex. Civ. App.--Houston [1st Dist.] 1979, no writ).
10-5.3. Complaint and Citation
The landlord's complaint should identify the leased premises, and 'state the facts which entitled the complainant to the possession and authorize the action . . . ." Tex. R. Civ. P. 741. Often complaints for defaults other than nonpayment of rent are vague, and do not "allege facts" that would entitle possession required by the rule. A special exception to the pleadings could then be made pursuant to Rules 85 and 91 of the Texas Rules of Civil Procedure alleging a violation of Rule 741. Except where specifically limited by special rules, the general rules of civil procedure apply to forcible detainer actions. Tex. R. Civ. R. 523; Zamoro v. Rodriguez, 517 S.W.2d 838 (Tex. Civ. App.--Corpus Christi 1975, no writ). A motion for continuance should also be made to give the tenant time to prepare a defense.
After, the landlord files a sworn complaint alleging a forcible detainer and pays about $50 as a filing fee, the JP issues a citation which is served by a constable or other officer on the tenant or anyone over 16 years of age at the tenant's residence. Tex. R. Civ. P. 742. The citation will include an appearance date, and a copy of the complaint. Tex. R. Civ. P. 739. The appearance date cannot be more than ten days nor less than six days from the date of service of the citation. Tex. R. Civ. P. 739.
Because of the short time frame and the judges unfamiliarity with discovery rules, traditional discovery techniques are difficult to use at the JP level.
If the constable is unsuccessful at serving the defendant on two different occasions, then the officer can sua sponte serve the defendant by slipping the citation under the door, or tacking it to the door. Tex. R. Civ. P. 742a. The constable must also mail the citation and complaint by the next day to the defendant. For the alternative service to be valid, the officer must include a sworn statement with the return service indicating the date, time, and place of attempted personal service, and the date of mailing the papers once alternative service was performed. Such mailing and delivery to the premises must be made at least six days before the return day of the citation. Tex R.Civ. P. 742a.
10-5.4. Possession Bond
After the eviction suit is filed, the landlord can file a possession bond (sometimes incorrectly referred to as an "immediate possession bond") in amount fixed by the JP court which will depend on the probable amount the defendant would be damaged in the event that the eviction suit was improperly instituted. Tex. R. Civ. P. 740, This bond will allow the landlord to take possession of the premises immediately after the expiration of six days from the date the tenant is served notice of the filing, unless the tenant demands a trial or files a counterbond within six days.
If the defendant does demand a trial or post a bond within six days, but the JP still rules for the plaintiff at trial, the defendant still has five days to move out of the premises. The purpose of the five day period is to give the defendant time to appeal or move. Thus, an attorney representing a tenant who cannot post a counterbond would be well advised to request a trial prior to the six day period, whether or not the tenant has a defense.
Advocates should be aware that in some jurisdictions the court sends out a typical citation giving the defendant notice of the trial date, and also serves the defendant the possession bond notification documents. This practice usually causes the defendant to reasonably believe a request for a trial to be unnecessary. (Courts engaging in the practice usually require a trial before evicting the defendant whether or not the defendant requests a trial or posted a counterbond.) If the defendant is not victorious at trial, some judges try to rule that the defendant must move immediately. This conclusion, of course, is ridiculous. One argument is that the requirement to request to a trial is nullified or waived when the court has already set a trial date and notified the defendant of it. A second argument is contained within Rule 748, allowing a losing defendant five days from judgment to move or appeal. Tex. R. Civ. P. 748. Courts that engage in these practices should be sued for writs of mandamus and prohibition, and for injunctive relief pursuant to SS 1983. To avoid an eviction, some JPs might be persuaded to stay the action by filing appeal documents prior to the issuance of a writ of possession. See Tex. R. Civ. P. 75 1.
Note: Writs of mandamus and prohibition to JPs cannot be obtained from the Texas Supreme Court or a court of appeals. Tex. Gov't Code SS 22.002(a), 22, 221; Pat Walker & Co. v. Johnson, 623 S.W.2d 306, 308 (Tex. 198 1, orig. proceeding); Easton v. Franks, 842 S. W. 2d 772, 773 (Tex. App. --Houston [ 1st Dist. ] 1992, orig. proceeding).
10-5.5. Hearing
Eviction hearings are usually very informal. Quite often the parties will huddle in front of the bench and the JP will ask the questions be considers relevant. Here the tenant must actively urge any defenses, A tenant is not required to file a written answer. Tex. R. Civ. P. 525. Also, careful attention must be given to Rule 574a of the Texas Rules of Civil Procedure: "Either party may plead any new matter in the county or district court which was not presented in the court below, but no new ground of recovery shall be set up by the plaintiff, nor shall any set-off or counter-claim be set up by the defendant which was not pleaded in the court below." Therefore, JP hearings should be considered carefully, even if you plan to appeal.
Even in the best JP courts there can be a presumption that no matter what the facts of this specific case, the landlord is ultimately entitled to recover possession of the premises, But, the court should look for ways to save the contract if possible, rather than blindly insist on forfeiture. See Frank v. Kuhnreich, 546 S.W. 2d 844 (Tex. Civ. App.--San Antonio l977, writ ref'd n.r.e.). Furthermore, in most subsidized or public housing, the tenant can only be evicted for good cause. See 1-14.4. Terminations Based on Default.
A represented tenant could request that testimony be given from the witness stand only, to prevent a free debate from occurring. This also gives counsel the opportunity to object, and formally cross the plaintiff, and witnesses.
If the tenant loses, he/she will have at least five days before a writ of possession can be executed to remove the tenant from the premises. Some JPs will allow a tenant to prevent the issuance of the writ by paying all rent and late charges during this period. If such an arrangement is made, take precautions to insure that the landlord does not accept the rent and then go ahead and get the writ of possession anyway (get an agreement in writing and file with court).
10-5.6. Attorney's Fee
If the landlord has hired an attorney, and included a request for attorney's fees in its pleadings, and admissible evidence of the fees has been offered to the court, the court may award attorney's fees to the landlord if: it is in the lease; or the landlord has given the tenant a written notice to vacate that states that the landlord will file suit for recovery of possession of the premises if the tenant is not out before the 11th day (after receipt of the notice), and if the landlord is successful, the landlord may recover attorney's fees. The demand must be sent by registered or certified mail, return receipt requested, at least 10 days before the suit is filed. Tex. Prop. Code SS 24.006(a).
If the plaintiff can be awarded attorney fees (if there is a provision in the contract, or if the plaintiff sent a ten day notice to vacate prior to eviction indicating the intention to seek attorney fees) the tenant is also entitled to them if victorious. Tex. Prop. Code SS 24,006(c).
Note: The prevailing party is entitled to recover all costs of court. Tex. Prop, Code SS 24.006(d).
10-5.7. Jury Trials
The tenant also has a right to demand a jury trial in a forcible detainer suit. Tex. R. Civ. P. 744. Jury trials are often used as a protection against an arbitrary or biased judge, or if a tenant has a strong equitable case but no law to support him, such as in rent withholding for failure to make repairs. To receive a jury trial requires paying a $5.00 fee on or before the expiration of five days after service of citation. Tex. R. Civ. 743. In a JP court jury trial, the jury decides questions of law and fact. Tex. R. Civ. P. 5 53. Therefore, the judge will not issue a charge to the jury, only general oral instructions; it is up to the parties to present the law to the jury. If in a forcible detainer the jury returns a verdict in favor of the plaintiff, then the JP should give a judgment for possession. If the jury returns a judgment in favor of the defendant, the JP should give a judgment for defendant. Tex. R. Civ. P. 748. However, recent case law indicates that the JP can issue an instructed verdict. Triple T Inns of Texas, Inc. v. Roberts, 800 S.W.2d 681 (Tex. App.--Amarillo 1990, writ denied).
10-6. Writ of Possession
If the plaintiff receives a standard judgment for possession from the JP, then on the sixth day after the judgment is signed, the plaintiff can have the judgment executed by a writ of possession. Tex. R. Civ. P. 748, 755; Tex. Prop. Code SS 24.0061. The writ commands the constable or other officer to instruct the tenant and all occupants to leave the premises immediately, and if the persons fail to comply, physically remove them. Tex. Prop. Code SS 24.0061(c). The constable also instructs the tenant or the landlord to remove all personal property from the premises. The property should be moved to a nearby location, but not blocking a sidewalk or street, and not while it is raining, sleeting or snowing. Tex. Prop. Code SS 24.0061(c)(3). The officer has discretion to give a posted warning prior to actual execution of the writ, and to have a warehouseman remove and store the property at no cost to the landlord. Tex. Prop. Code SS 24.0061(d). In any case, the landlord does not have to store the property. For a complete discussion of the legality of a writ of possession, see Conroy v. Manos, 679 S.W. 2d 124 (Tex. App.--Dallas 1984, ref'd n.r.e.).
A constable cannot execute a writ of possession when it is raining sleeting or snowing. Tex. Prop. Code SS 24.0061 (c) (3).
The constable also has the authority to employ the services of a bonded warehouseman, who will remove and store the property (and take a lien on the property). For a discussion of the warehouseman's rights and tenant's ability to retrieve property, see Tex. Prop. Code SS 24.0062.
10.7. Appeal to County Court
10-7.1. Overview
Either party is entitled to an appeal from a final JP judgment to the county court. Tex. R. Civ. P. 749. Since judges of justice courts are not required to be lawyers, and the justice courts are not courts of record, an appeal to the county court is heard de novo (an entirely new trial, with no weight being given to the decision below). Tex. R. Civ. P. 547b. Texas Rules of Civil Procedure 749 through 755 govern the appeal of forcible detainer actions to county court. A tenant may appeal either by filing an appeal bond or cash deposit in lieu (Rules 749 and 750), or by filing a pauper's affidavit (Rules 749a) before the expiration of five days from the signing of the judgment. Once this has been completed the appeal has been perfected (749c), and all action on the judgment must be stayed. Tex. R. Civ. P. 751. No motions of new trial will be accepted by the court. Tex. R. Civ. P. 749.
Note: As long the appellant files something in the JP court in a timely fashion that resembles a pauper's oath (or other appealable device), the JP court should still consider the appeal timely filed if the tenant-defendant corrects the defect (including a failure to have the document sworn or notarized).
Many JPs are unfamiliar with the appeal rules. Insist on strict performance. JP error may not prevent the county court from issuing the writ of possession in cases where the appeal is not properly perfected.
Once the appeal from county court has been perfected from justice court, the judgment of the justice court is annulled and void. Mullins v. Coussons, 745 S.W.2d 50 (Tex. App.--Houston [14th] 1987, no writ); Hall v. McKee, 179 S.W.2d 590, 593 (Tex. Civ. App.--Fort Worth 1944, no writ). "(O)nce the county court acquires jurisdiction by perfection of the appeal, it cannot affirm or reverse the judgment of the justice court, nor can it remand the cause to the justice court." Hall v. McKee, at 593. Even when the case is appealed by the defendant, the burden of the case does not shift; the plaintiff still has the duty to prosecute the suit. Poole v. Goods, 442 S.W.2d 810, 813 (Tex. Civ. App.--Houston [14th Dist.] 1969, writ ref'd n.r.e.).
Rules allowing nonlawyer representation are not applicable in county court. Tex. Prop. Code SS 24.011.
10-7.2. Computation of Time
Texas Rule of Civil Procedure 4 expressly requires that in counting the five day periods provided in Rules 748 and 749(a-c), weekends and holidays are included. If the last day falls on a weekend or holiday, then the last day will be the next day which is not on a weekend or holiday.
10-7.3. Appeal Bonds
The bond amount is usually set equal to two times the monthly rental payment. A valid bond must have the signature of the principal, and two signatures of Texans who own land other than their homestead (or one corporate surety). The appellant can also deposit funds equal to the full bond amount in lieu of signing a bond.
10-7.4. Pauper's Appeals
In lieu of signing a bond, or making a deposit, an indigent appellant can sign an affidavit to perfect appeal. Tex. R. Civ. P. 749a. The affidavit must state or indicate that the appellant is unable to pay the costs for an appeal. Other financial information is advisable but not mandatory.
Only the plaintiff can object or dispute the filing of a pauper's affidavit pursuant to 749a; the clerk will notify the plaintiff of the filing by mail and inquire whether the plaintiff wishes to contest (or maybe over the phone). If no contest is filed within five days after the pauper's affidavit is filed, the information contained is conclusively established. Tex. R. Civ. P. 749a. If contested, the JP court will have a hearing on the appellant's indigence within five days. An objection to the hearing (plea in abatement) should be made if no written contest was filed within the five days.
The test for determining whether the appellant can appeal in forma pauperis is whether the record shows that the appellant would be unable to pay if he really wanted to and made a good-faith effort to do so. " Allred v. Lowry, 597 S.W.2d 353 (Tex. 1980)(quoting Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19 (1942). If the appellant is receiving any governmental entitlements based on indigence for food, shelter, etc., then this is prima facie evidence of an inability to pay costs. See Goffney v. Lowry, 554 S.W. 2d 157 (Tex. 1977); Sansom v. Sprinkle, 799 S.W.2d 776 (Tex. App.--Fort Worth 1990, no writ); Brown v. Clapp, 613 S.W.2d 78,79 (Tex. Civ. App.-Tyler 1981, no writ); Tex. R. Civ. P. 145.
Even if the indigent has some funds, they are not to be used to partially pay costs or give security. Williams v. Maynard, 515 S. W. 2d 9, 11 (Tex. Civ. App,--Austin 1974, writ dismissed)(party held indigent although he had a job paying $300-S400 a month to support his wife and four children). "[R]easonably necessary living expenses are not required to be surrendered." Cuilla v.Hardy, 431 S.W.2d 364,366 (Tex.Civ.App.--Houston[1st Dist.] 1968, no writ).
If the appellant is not determined to be a pauper by the JP, the appellant can take an appeal of this decision to the county court within five days. If the county court also disapproves the affidavit, the appellant can still file an appeal bond or cash deposit within five days of the county court's decision in order to perfect appeal. Tex. R. Civ. P. 749a.
In order for a tenant in a nonpayment of rent case to stay in possession of the premises during the appeal after having filed a pauper's oath, the tenant must meet the requirements of 749b. First, the tenant must pay one rental period's rent into the JP court at the time the tenant files the pauper's affidavit or within five days of that date. If the five day period extends beyond the next due date, it is advisable to wait to the due date to make the deposit. This way the tenant will avoid having to make two deposits in rapid succession. Then, during the appeal process the tenant must continue to pay the rent as it comes due into the county clerk's registry within five days of the due date of the rent under the terms of the rental agreement. If the tenant fails to make these payments as required, then a writ of possession can be issued by the county court. The tenant still has the right to a trial de nova, upon which the county court could restore the dwelling to the tenant.
Note: The JP courts used to be able to dismiss an appeal if the funds required by Rule 749b were not timely deposited This power has now been completely confined to the appeal. If a pauper's affidavit is filed timely (and accepted by default or after hearing) the JP must send the transcript up to the county court for resolution. Only the appellee can complain of a violation of 749b by notice of default in county court. Of course, the landlord must give the tenant prior written notice of the landlord's intent to seek a writ of possession for failing to deposit funds required by Rule 749b. Hughes v. Habitat Apartments, _ S.W.2d _ (Tex. September 10, 1993)(required notice on motion for default for failure to file an answer pursuant to Rule 753; overruled lbarra).
10-7.5. Requirement of Written Answer
If the tenant does appeal, a written answer on behalf of the tenant must be filed within eight days after the transcript of the appeal if filed in county court, or a default can be entered against the tenant. Tex. R. Civ. P. 753. It is common practice to include an answer with the other documents used for perfecting appeal (styled in the JP court). Even if an answer is not filed, the tenant still has a due process right to notice of the default hearing (at least as long as tenant appeals or somehow makes an appearance). Hughes v. Habitat Apartments, _ S.W.2d _ (Tex. September 10, 1993).
10-7.6. Writs in County Court
In justice court, there is a five day period from judgment which must expire before a writ of possession can be issued. Tex. R. Civ. P. 748. However, the general rule for county court execution requires the expiration of 30 days. Tex. R. Civ. P. 627. Normally, the county court is also required to toll the 30 day period until after a motion for new trial is overruled. Generally, county courts do not follow these time periods, and usually issue writs of possession after five days. County courts have offered Rule 755 and SS 24.0061(b) of the Texas Property Code as authority for their position. However, Rule 755 does not mention the time frame required and SS 24.0061(b) does not apply to county courts.
The more reasonable and fair interpretation imports the time period mentioned in SS 24.007 of the Texas Property Code which gives the appellant 10 days in which to file a supersede as bond in order to stay execution of the judgment pending an appeal to the court of appeals. A writ should not be issued until after the expiration of ten days otherwise the defendant is denied the right to stay the eviction pending appeal as guaranteed by SS 24,007. Stays of execution beyond ten days should be specifically requested from the county court for consideration of a motion for new trial or other motion.
10-8. Appeals to Court of Appeals
Section 24.007 of the Texas Property Code has been amended to allow a tenant to appeal the judgment of a county court on the issue of possession. The premises must be used for residential purposes only.
For the tenant to remain in possession of the premises during the appeal, the tenant must file a supersede as bond in an amount to be set by the court. A supersede as bond cannot be waived upon a showing of indigence, (but see Tex. Civ. Prac. & Rem Code SS 65.041 allowing pauper's oath in lieu of TRO bond to stop foreclosure). A bond should be based upon the resources of the appellant (i.e., bond can be structured to make periodic payments in the court registry similar to Rule 749b requirements). Review can also be made by the appellate court. Tex. R. App. P. 49. Appellate attorney fees cannot be covered by the bond. Hughes v. Habitat Apartments, _ S. W. 2d _ (Tex. App.--Dallas 1992, mand. overr.).
10-9. Other Suits and Damages
Texas Rule of Civil Procedure 748 allows a tenant to counterclaim against the landlord in the justice court: "[T]he justice shall give judgment for defendant against plaintiff for costs and any damages." Rule 752 allows the defendant to recover damages suffered for withholding or defending possession of the premises during the pendency of an appeal to county court. Tex. R. Civ. P. 752. These damages are limited to those expenses and losses relating to maintaining or obtaining possession of the premises. Hanks v. Lake Towne Apartments, 812 S.W.2d 625, 626 (Tex. App. --Dallas 1991, writ denied).
However, "general" counterclaims have not been allowed in forcible detainer proceedings. See Rushing v. Smith, 630 S.W.2d 498 (Tex. App.--Amarillo 1982, no writ); Grayson v. Rodermund, 135 S.W.2d 178 (Tex. Civ. App.--Austin 1939, no writ); Hanks, 812 S.W.2d at 626. Advocates should still consider filing counterclaims making appropriate arguments that distinguish these cases and emphasize that the additional claims will not slow the proceedings substantially (if so, request severance) and will do justice. It certainly appears that the landlord must object to the counterclaim, otherwise the argument is waived. Anarkali Enterprises, Inc. v. Riverside Drive Enterprises, Inc., 802 S.W.2d 25 (Tex. App.--Fort Worth 1990, no writ) (counterclaim of wrongful eviction was discussed, however, the court did not mention whether the claim was proper).
Res judicata applies to forcible detainer proceedings in the justice court on the issue of possession, except if properly appealed to the county court. Tex. Civ. Prac. & Rem Code SS 31.005. For example, a landlord cannot refile its case on the same exact facts twice. A landlord must appeal a justice court decision that it disagrees with otherwise the forcible detainer judgment is final. However, a forcible detainer suit does not bar a suit for trespass, damages, waste, rent, or mesne profits.
Tex.Prop.Code SS 24.008.
Collateral should still be used to thwart a landlord's attempt to sue a tenant on the same facts after losing a forcible detainer.
If a tenant loses an eviction case, the tenant is not barred from bringing a wrongful eviction suit. Tallwater v. Brodnax, 156 S.W.2d 142 (Tex. 1941); Johnson v. Highland Hills, 552 S.W.2d 493 (Tex. Civ. App.--Dallas 1977, writ ref'd n.r.e.); McCloud v. Knapp, 507 S.W.2d 644, 647 (Tex. Civ. App.--Dallas 1974, no writ); Valencia v. Garza, 765 S.W.2d 893, 898 (Tex. App--San Antonio 1989, no writ); Martinez v. Beasley, 572 S.W.2d 83, 85 (Tex. Civ. App.--Corpus Christi 1978, no writ); Byter v. Garcia, 685 S.W.2d 116 (Tex. App.--Austin 1985, writ ref'd n.r.e.).
1996 Landlord / Tenant Supplement
1995 Supplement:
Section I.A. [pg. 1]. The correct citation for Goldman v. Alkek is 850 S.W.2d 568 (Tex. App.-- Corpus Christi 1993, writ requested.)
Section I.D. [pg. 2]. Please note the correct citations for the following cases:
Morgan v. Pierce, 864 S.W.2d 643 (Tex. App.--Tyler 1993, no writ).
Krull v. Sonwza, 879 S.W.2d 320 (Tex. App.--Houston [14th District] 1994, writ denied).
Fandey v. Lee, 880 S.W.2d 164 (Tex. App.--El Paso 1994, writ denied).
Nitchell v. Armstrong Capital Corp., 877 S.W.2d 480 (Tex. App.--Houston [1st District) 1994, no writ).
Weeks v. Hobson, (Tex. App.--Houston [lst District] 1994, no writ).
Main Outline
Section 1-3.3. Missing Terms [pg. 2]. The correct citation for Flores v. Rizik is 683 S.W.2d 112 (Tex. Civ. App.--San Antonio 1984, no writ).
Section 1-3.6. Construction Against Landlord [pg. 21. The 5th Circuit has subsequently affirmed the decision in Freight Terminals, Inc. v. Ryder Systems, Inc., 326 F. Supp. 881 D.C. Tex. 1971) at 461 F.2d 1046. (Also cited at Section 1-12., pg. 8).
Section 1-16. Foreclosure or Sale of the Premises [pg. 13]. The El Paso Court of Appeals has disavowed its decision in the case of United General Ins. Agency of Midland v. American Nat. Ins. Co., 740 S.W.2d 885 (Tex. Civ. App.--El Paso, 1987, no writ) in a subsequent opinion, ICM Mortgage Corp. v. Jacob, 902 S.W.2d 527, (Tex. App.--El Paso 1994, writ denied).
2. Security Deposits
Section 2-4. Non-Refundable "Deposits" and Fees [pg. 15]. New SS 92.1031 of the Tex. Prop. Code restricts the circumstances under which a landlord may retain a security deposit or a rent prepayment where the tenant fails to occupy the dwelling according to a lease between the landlord and the tenant. In that case, if either the tenant or the landlord obtains a replacement tenant who is satisfactory to the landlord and who begins occupying the dwelling on or before the lease date, the landlord must return any security deposit or rent prepayment to the tenant. If the landlord secures the replacement tenant, the landlord is entitled to deduct either a sum agreed to in the lease as a cancellation fee or the actual expense's incurred in obtaining a replacement tenant.
Where a landlord has rejected a person who has applied to rent a dwelling, SS 92.331-.334 will require that the landlord make refundable any monies collected in connection with the application. An applicant is deemed to have been rejected if the landlord does not give notice of the applicant's acceptance as a tenant within 7 days of the landlord having received either a completed rental application or an application deposit. Landlords who fail to refund an application deposit in bad faith may he liable are liable for $100 plus 3 times the amount of the application deposit, as well as the applicants reasonable attorney's fees in a suit to recover the deposit.
Section 2-6. Other Issues [pg. 15]. SS 92.103 of the Tex. Prop. Code has been amended to give priority to a tenant's claim to a security deposit, over and above the claim of all other creditors, including a trustee in bankruptcy. Previously, the claim of a trustee in bankruptcy could defeat a tenant's claim to a security deposit.
The correct citation for Robinson v. Garcia is 804 S.W.2d 238 (Tex. App.--Corpus Christi 1991, writ denied).
4. Repairs
Section 4-6. Retaliation for Reporting Repairs [pg. 221]. New SS 92.331 replaces former SS 92.057, expanding the category of actions for which a landlord may not retaliate against a tenant. Landlords will now be prohibited from retaliating against a tenant who:
(1) in good faith exercises or attempts to exercise a right or remedy granted by lease, municipal ordinance, or federal or state law; or
(2) makes a good faith complaint about possible housing code violations or utility problems to a governmental entity responsible for enforcing housing codes, a public utility, or a civic or nonprofit agency.
SS 92.333 now provides that tenants who are retaliated against may recover one month's rent plus $500, actual damages, court costs, and reasonable attorney's fees, less any amounts owed by tenant to the landlord, all of which is in addition to any other remedies the tenant may be entitled to.
SS 92..334 protects landlords against retaliation suits which are filed in bad faith by tenants. In those instances, the landlord may recover possession of the dwelling unit as well as a civil penalty of one month's rent plus $500.
Section 4-11. DTPA and Repairs [pg. 24]. The correct citation for Epps v. Ayer is 859 S.W.2d 107 (Tex. App.-Eastland 1993, writ denied).
Section 5. Security Devices [pg. 24]. SS 92.153 of the Tex. Prop. Code has been amended to exempt landlords from having to install keyless bolting devices where a disabled tenant or tenant over age 55 has requested in writing that the keyless bolting device be deactivated or not installed.
Section 6. Disclosure of Ownership and Management [pg. 281]. SS 92.201-.207 of the Tex. Prop. Code have been amended to require landlords to disclose ownership information when such information is requested by a government official or employee.
7. Smoke Detectors
Section 7-1. Landlord Duty [pg. 29]. Under SS 92.258 of the Tex. Prop. Code, landlords will now be required to determine that the smoke detector is in good working order at the beginning of the tenant's possession (if the dwelling unit is not already equipped with a smoke detector, this will also necessitate installing a smoke detector at the beginning of tenant's possession). If the landlord fails to inspect at the time of initial occupancy by tenant, or the tenant may obtain injunctive relief as well as actual damages. In addition to these remedies, if a landlord fails to install, inspect, or repair a smoke detector within 7 days of receiving a written request from the tenant to do so, the tenant may also recover a civil penalty of one month's rent plus $100.
New SS 92.611 makes tenants liable for disabling a smoke detector. Specifically, a tenant is liable for damages if they remove a battery from a smoke detector without immediately replacing it with a working battery, knowingly disconnect the smoke detector, or intentionally damage, the smoke detector, causing it to malfunction. A landlord may also obtain injunctive relief and a civil penalty equal to one month's rent plus $100 against a tenant who disables a smoke detector if (1) the tenant's lease contains a notice stating that the smoke detector may not be disabled and the possible legal consequences for disabling and (2) the tenant fails to repair, replace within seven days after receiving written notice from the landlord notifying tenant that the landlord intends to exercise their remedies under this section. Subsection (f) gives guests and invitees of a tenant a cause of action against the landlord for any damages suffered due to the landlord's failure to install, repair, or inspect a smoke detector. If the damages suffered by a guest or invitee are because of the tenant having disabled the smoke detector, recovery must be from the tenant.
8. Lockouts and Removal
Section 8-2. Adding or Changing Locks [pg. 301]. New section SS 92.0081 of the Tex. Prop. Code prohibits landlords from locking out tenants who have failed to pay rent unless the landlord follows the procedures for lock-out as set forth in the statute. Prior to the lock-out, the landlord must give written notice (5 days if mailed or 3 days if hand-delivered or posted on the inside of the main entry door) stating the earliest proposed date for lock-out, the amount of rent payable to prevent lock-out, and the location where payment may be made during landlord's normal business hours. At the time of lockout, landlord must place written notice on tenant's front door stating: an on-site location where tenant may go 24 hours a day to obtain a key or a phone number that is answered 24 hours a day which the tenant may call and have a key delivered within two hours; the fact that the landlord must give the tenant a new key at any hour regardless of whether tenant pays any of the delinquent rent; the amount of any delinquent charges owed by tenant. Landlords cannot lock-out on a day or prior to a day when there is no one available to accept rental payments.
Section 8-4. Remedies for Noncompliance [pg. 31]. Under new SS 92.0091 section, a tenant who is locked out improperly may recover one month's rent plus $500, in addition to court costs and reasonable attorney's fees. In addition, if the, landlord fails to give the tenant a key to the changed to the lock prior to the tenant paying the delinquent rent, tenant may recover an additional civil penalty of one month's rent,
9. Utility Problems
SS 92.008 of the Tex. Prop. Code has been amended to broaden the prohibition against utility disconnections by landlords.
Section 9-2. "All Bills Paid" Leases [pg. 31-32]. SS 92.008(b) prohibits landlords from interrupting water, wastewater, gas or electric furnished to the tenant by the landlord either as an incident of the tenancy or by other agreement (the "all-bills-paid" situation) or by other agreement except for bona fide repairs, construction, or an emergency.
Section 9-3. Submeter or Master Metering Apartments [pg. 32]. SS92.008(c)-(d) provide that landlords may interrupt electrical service furnished by the landlord if (1) the, electrical service connection with the utility company is in the name of the landlord or the landlord's agent and (2) the following procedures for interrupting service are observed:
Individually metered electrical service--landlord must comply with the rules adopted by the PUC for discontinuing submetered electrical service.
Electrical service not individually metered--landlord may interrupt electrical service only if (1) tenant is at least 10 days late in paying rent and (2) landlord has mailed or hand-delivered written notice at least 5 days before interruption which states the earliest day of proposed interruption, the amount of rent payable to avoid interruption, and the name and location of the individual to whom payment is to be made. Interruptions can only begin during the landlord's normal business hours, and may begin on or preceding a day when the individual who can accept rent and restore electrical service will not be available. If a landlord interrupts electrical service under Subsections (c) or (d), service must be restored within two hours of the late rent or utility payment being tendered.
Remedies--If a landlord interrupts any utility service in violation of this section, tenant may: (1) either recover possession of the premises or terminate the lease and (2) recover from the landlord actual damages, the greater of one month's rent or $500, reasonable attorney's fees, and court costs, less any amounts owed by tenant to landlord.
Section 10-7.4. Pauper's Appeal's [pg. 39]. The full citation for Hughes v. Habitat Apartments is 860 S.W.2d 872 (Tex. 1993).
Nuisance Law
Legislation passed during the 1995 legislative session expanded the power of courts to deal with multiunit residential properties which have been found to be a nuisance. SS 125.046 of the Tex. Civ. Prac. & Rem. Code was amended to allow a court, on its own motion or the motion of any party, to order the appointment of a receiver to manage a property where a court has found that a rental property is being maintained in such a manner that it is a private or public nuisance. The statute specifically authorizes action taken by the receiver in order to bring the property into compliance with local housing ordinances.
SCOPE and ACKNOWLEDGMENTS
This chapter was produced to assist a lawyer inexperienced in landlord-tenant law in the consultation and representation of the indigent citizens of Texas, and is intended as a guide, rather than actual authority. Therefore, all assertions and citations should be checked and confirmed by the advocate before use. The materials contained herein apply to residential leases only, and are not intended to be utilized in connection with commercial lease questions or issues. Personal injury issues and other related matters are not addressed in this chapter. These cases are usually not accepted by legal service lawyers, but are referred to the private bar for resolution. If you feet specific areas of the chapter need revision or require more explanation do not hesitate to contact me at Housing Crisis Center/Dallas Tenants' Association, 3108 Live Oak St., Dallas, Texas, 75204, 214/828-4244 (ext. 111), HN1439.
The following publications, although not specifically cited within the text of this manual, were consulted in the preparation of this manual:
Daniel, Weathered and Levinson, Routine Case Manual, Ch. 7, "Landlord-Tenant Relations."
Dorsaneo and Knippa, Texas Litigation Guide, Ch. 282, 155.
Hauser, Bax and Fuchs, Texas Residential Landlord-Tenant Law, Butterworth Legal Publisher, Austin, Texas.
Fuchs, Introduction to HUD Public and Subsidized Housing Programs: A Handbook for the Legal Services Advocate, Nat. Clearinghouse No. 49,100 (1993).
Fuchs, Forcible Detainer Lawsuits: Issues and Traps for the Unwary, Legal Aid Society of Central Texas, Austin, Texas (1993).
Last updated August 13, 1996 Send comments to: txlihis@uts.cc.utexas.edu