Eviction

An eviction is a lawsuit filed by a landlord to remove persons and belongings from the landlord’s property. In Texas law, these are also referred to as “forcible entry and detainer” or “forcible detainer” suits. There are hundreds filed every day with Texas justice courts (also called justice of the peace or J.P. courts).

A landlord should start this process by terminating a tenant’s right to possession by giving a notice to the tenant. A landlord might do this for a number of reasons — the number one reason is for nonpayment of rent. Sometimes a landlord may claim the tenant is staying past the agreed lease term (“holding over”). So long as a landlord is not discriminating in violation of the Fair Housing laws, or retaliating in violation of the Texas Property Code, a landlord can refuse to renew a lease for any reason.

(If you are faced with an eviction you should seriously consider getting advice and assistance from an attorney. If you have a very low income you may qualify for free or low cost legal aid from a nonprofit legal aid organization in your area.)

Court approval required

If a tenant refuses to move after a landlord asks the tenant to leave, the landlord must file an eviction case with the J.P. court to get approval to remove the tenant. The landlord must prove that the tenant has either violated the lease or has not moved after the landlord lawfully did not renew the lease. While it may be the landlord’s property, before a tenant can actually be forced from their home a court rule for the landlord and a constable must supervise the actual eviction. Court approval is required because landlords make mistakes and because they sometimes have improper motives. And, if a landlord did not have to get court approval prior to evicting someone from their home these problems would be even worse.

Blacklisting

Of course, if you do not get out when a landlord asks you to, and the landlord files an eviction, win or lose, other landlords may not want to rent to you in the future. Court records are public information, and a landlord might refuse to rent to you just because you have had an eviction filed against you. So sticking up for yourself may come at a price. (It is possible to leave under protest and then sue the landlord for wrongful termination of the lease.)

Process

Step #1: You receive notice to vacate

Step #2: Talk to your landlord

Step #3: You receive eviction papers from court

Step #4: Answer the eviction case

Step #5: The eviction hearing

 

Step #1: You receive notice to vacate

Under Texas law, a landlord is required to give you a written notice to vacate before filing an eviction lawsuit. After you get the notice to vacate, consider whether or not you have any defenses to stay in your rental unit.

You may not have violated the lease as is claimed by the landlord. The landlord may not have given you a proper notice. Know that it is illegal to evict a tenant because the tenant requested repairs or called a housing inspector (see retaliation).  An eviction should also be denied if your landlord is discriminating against you based upon race, religion, disability, sex, national origin, color, or having children. The landlord also may have miscalculated the rent owed because of the abuse of late fees. Despite what some landlords say, there are defenses to an eviction suit. These and other issues are discussed more in the Defenses section below.

Step #2: Talk to your landlord

Try to talk to your landlord about the vacate notice, either to understand what happened or to see if you can get more time to fix the situation. You may want to ask the landlord to hold off on filing an eviction lawsuit in return for your fixing the lease violation.  For example, you may be able to stop the landlord from filing an eviction suit by paying rent that you might owe, getting rid of pets not allowed under the lease, or cutting down loud noise.

We have a form agreement at the bottom of this page that you and your landlord can sign to hold off on an eviction while you correct the lease violation or agree to make payments on the rent you owe. It is best to put an agreement you reach in writing and have both you and the landlord sign it.

Step #3: You receive eviction suit papers from court

Once the landlord files an eviction suit, a constable will try to hand deliver the eviction suit papers to your home. If the constable or sheriff makes two (2) unsuccessful attempts, they should post the papers in a visible location on the outside of the rental unit and mail you a copy. (It is best to get the papers so you know what is happening. Avoiding being served does not delay the process and might result in you losing the case automatically if you do not know when or where to defend yourself.) Only the constable or the sheriff can legally deliver the eviction suit papers from the court.

You will need to make a decision about whether you want to fight the eviction suit. As soon as the landlord files an eviction suit, it becomes a permanent court record and will likely become a part of your tenant history record for future rental applications. Of course, once it is filed, it is best to have it dismissed or have a judgment rendered in your favor. Even if you do not have defenses, you can often make an agreement that may result in a dismissal of the eviction case. This may help preserve your rental history, but the suit is still part of the public records.

If you choose to fight an eviction suit and lose, be aware that you may be responsible for court costs and the landlord’s attorney’s fees (if the landlord uses an attorney, and either the lease says the landlord can get attorney fees or the landlord gives you an 11 day notice to vacate by certified mail that specifically indicates you will be responsible for attorneys’ fees). Section 24.006, Property Code.

IMPORTANT: If any of the court papers you received is called something like “Bond for Possession” or “Possession Bond pursuant to Rule 740” you have to demand a trial; otherwise the landlord can obtain possession of the premises without a hearing. You must demand the trial in writing within 6 days of receiving the court papers. Even if the J.P. court has already set up the hearing, you still should request one in writing. This will ensure that if you lose, you get five days after the hearing to move out or appeal. You can use the form answer we have provided to demand the trial. (Because many J.P. courts follow different procedures regarding possession bonds, you should contact an attorney to help you and also communicate with the court clerks to confirm how their court interprets the rule on possession bonds.)

Step #4: Answer the eviction suit

Once you receive the eviction suit papers (also known as an eviction citation and petition), make sure you read them carefully. The eviction citation is signed by the court clerk and will tell you when you have to appear in court. You should call the court clerk and find out if this is your actual hearing date. In some counties you can answer the case any time prior to the deadline in person, in writing or even over the phone, and then the court will give you a date for your hearing. You can use our answer form to file a written answer. It other areas, you are required to go to court on the specific date and time. In these cases it is not necessary to file a written answer.

The date and time by which you must answer the suit or appear for trial will be stated on the citation page of the eviction suit papers. Generally, you will have between six to ten days to answer the eviction suit after you receive the eviction papers. If you do not answer or appear by the deadline given in the eviction papers, the court will award a default judgment against you automatically.

If you want a jury trial, then you have to go to the justice court within five days after receiving the eviction papers. You should file a request for a jury trial in writing and pay a $5.00 jury fee.

Note: If you were served with a “Bond for Possession” the rules are different. You must demand a trial within 6 days of receiving the bond. You can use the answer form we have provided to demand the trial. Then talk to the court clerks about when the hearing will be held. If you do not demand a trial, the landlord could obtain a court order to evict you without a hearing at all.

Step #5: The eviction hearing

At the hearing you will need to be prepared to present your side of the story. Take your copy of the lease, any pictures, letters, documents, receipts, or witnesses to show the judge as evidence. The judge may not consider letters and affidavits from witnesses. You need to bring live persons with you if you want the court to hear what they have to say. You can request that the clerk issue a subpoena to compel the attendance of a witness at the hearing (the subpoena can be served by any person over 18, and not a party to the case). Constables charge fees (typically $40 to serve a subpoena).

The judge or the jury will make a final decision after hearing the case. If the landlord wins, the law allows you five days to appeal the decision or move out. If you win, the landlord also has five days to appeal the decision.

Defenses

Types of defenses

Once you receive the notice to vacate and even before you receive the notice from the constable for your court hearing, you should consider whether you have any defenses available to the eviction suit. In a nonpayment of rent eviction case, the judge will not consider most cases of hardship (e.g., car breaking down, being in the hospital, losing your job).

If you are in public housing, federally subsidized housing or have a Section 8 voucher, you should call your local legal aid organization because there are many more defenses available (e.g., you may have a defense to nonpayment of rent if your landlord or public housing authority did not reduce your rent after you lost income).

Defenses will be either procedural, meaning that the suit was improperly brought before the court, or substantive, meaning that the eviction suit is invalid because you have not done anything to violate the lease agreement.