A PRIMER ON EVICTIONS IN BEXAR COUNTY

WHAT IS AN EVICTION?

An "eviction" is a legal proceeding by which the landlord seeks to reclaim the premises and put the tenant out.

If you are a landlord, you should find out the legal grounds for evicting a tenant as well as the proper notification requirements. A tenant could receive compensation for costs paid because of unlawful eviction.

If you are a tenant, you need to know how you can defend yourself against an unjustifiable eviction. To protect yourself, know what your lease says.

WHAT IS THE DIFFERENCE BETWEEN AN “EVICTION” AND A “FORCIBLE DETAINER?”

A person commits a forcible entry and detainer if the person enters the real property of another without legal authority or by force and refuses to surrender possession on demand.
See Tex. Prop. Code § 24.001(a)

WHAT IS A “FORCIBLE ENTRY?”

A forcible entry is: (1) an entry without the consent of the person in actual possession of the property; (2) an entry without the consent of a tenant at will or by sufferance; or (3) an entry without the consent of a person who acquired possession by forcible entry.
See Tex. Prop. Code § 24.001(b)

WHO MAY BRING AN EVICTION ACTION?
The landlord, his/her attorney, or a non-lawyer agent may sign and file the Complaint of Forcible Detainer and represent the owner at the court hearing. Though the law does not require an attorney to represent you, it is highly recommended that you have an experienced lawyer to assist you in the eviction process!
See TRCP 747a

DO I NEED A WRITTEN LEASE TO EVICT?

No, many times occupants of properties are there under oral agreements, or even without any right of possession. A written lease is not required for eviction.

WHAT ARE THE MOST COMMON REASONS TENANTS ARE EVICTED?

Non-payment of rent
The landlord must inform the tenant in writing that full rent is due by a specific deadline or the lease will be terminated. If the landlord refuses to take full payment and the tenant can prove it, the eviction can be challenged in court. After the deadline, the landlord doesn't have to accept payment.

Other tenant violations
The landlord must inform the tenant in writing of the supposed violation. The tenant must have ample time to correct the problem. If the tenant does nothing to correct it, the landlord may evict.

Lease has expired
If the landlord doesn't extend an expired lease and the tenant refuses to leave, the landlord may evict. The tenant must be given written notice.

WHERE DO I FILE AN EVICTION LAWSUIT?

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.
See Tex. Prop. Code § 24.004.

WHAT MUST BE INCLUDED IN MY COMPLAINT FOR EVICTION?

The complaint shall describe the lands, tenements or premises, the possession of which is claimed, with sufficient certainty to identify the same, and it shall also state the facts which entitled the complainant to the possession and authorize the action under Sections 24.001 - 24.004, Texas Property Code.
See TRCP 741

AM I ENTITLED TO HAVE A JURY HEAR MY EVICTION CASE?

Any party can request a jury trial on or before 5 days from the date the defendant is served with the citation by paying a $5.00 fee.

WHAT NOTICE IS REQUIRED PRIOR TO FILING FOR EVICTION?

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.

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.

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.

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.

The notice period is calculated from the day on which the notice is delivered.
See Tex. Prop. Code § 25.005(g).

HOW SHOULD THE NOTICE TO VACATE BE DELIVERED?

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.
See Tex. Prop. Code § 24.005(f).

WHAT IS THE COST OF FILING THE EVICTION?

Filing fee and service charge is $87.00. (27.00 filing fee, 60.00 serves one person in Bexar County).

WHAT TYPE OF NOTICE WILL THE TENANT RECEIVE?

At the time of filing, the Court Clerk will issue a receipt. The receipt will include the case number and the court date. Please refer to your case number when communicating with the court regarding your case. The Court will then issue a citation to the defendant(s) commanding him/her to appear before the Justice of the Peace on the assigned court date. A copy of the complaint will be attached to the citation and both the citation and the attached complaint will be served upon the defendant by the Constables Office.

WHEN WILL MY EVICTION LAWSUIT BE HEARD?

By law, the hearing date will be not less than six (6) day nor more than ten (10) days from the date the citations is served. The hearing date will be set for either a Tuesday at 10:00 a.m. or Thursday 11:00 a.m. Should the plaintiff/landlord fail to appear at the hearing, their case may be dismissed or there may be a judgment for the defendant.

CAN I RECOVER MY COSTS?

Yes. The prevailing party in an eviction proceeding will generally be awarded costs, particularly if they are prescribed by a written lease agreement.

CAN I RECOVER ATTORNEYS’ FEES?

To recover attorney's fees in an eviction suit, a landlord must give a tenant who is unlawfully retaining possession of the landlord's premises a written demand to vacate the premises. The demand must state that if the tenant does not vacate the premises before the 11th day after the date of receipt of the notice and if the landlord files suit, the landlord may recover attorney's fees. The demand must be sent by registered mail or by certified mail, return receipt requested, at least 10 days before the date the suit is filed.

If the landlord gives this notice, or if a written lease entitles the landlord to recover attorney's fees, a prevailing landlord is entitled to recover reasonable attorney's fees from the tenant.

If the landlord gives this notice, or if a written lease entitles the landlord or the tenant to recover attorney's fees, the prevailing tenant is entitled to recover reasonable attorney's fees from the landlord. A prevailing tenant is not required to give notice in order to recover attorney's fees.
See Tex. Prop. Code § 24.005(f).

CAN I RECOVER PAST-DUE RENT?

A suit for rent may be joined with an action of forcible entry and detainer, wherever the suit for rent is within the jurisdiction of the justice court. In such case the court in rendering judgment in the action of forcible entry and detainer, may at the same time render judgment for any rent due the landlord by the renter; provided the amount thereof is within the jurisdiction of the justice court.
If the complaint for Forcible Detainer includes a suit for unpaid rent, the plaintiff/landlord must clearly state the amount of back rent for which judgment is being sought, and should reserve the right to include any additional rents that may become due during the pendency of the suit.
See TRCP 738

WHAT ISSUES WILL THE JUSTICE COURT DETERMINE?

If the judgment is favor of the landlord, the justice shall give judgment for the landlord for possession of the premises, costs, and damages; and he shall award his writ of possession.

If the judgment or verdict is in favor of the tenant, the justice shall give judgment for tenant
against the landlord for costs and any damages.
See TRCP 748

HOW LONG DOES IT USUALLY TAKE TO PROCESS AN EVICTION IN THE JUSTICE COURT?

Eviction proceedings in Bexar County take, from start to finish approximately three weeks.
• 3 days from notice to vacate to filing of suit.
• 8-10 days to serve the citation and get to Court. Texas law requires the defendant have at least six days notice before the hearing.
• 5 days to appeal the suit following the hearing required by law.
• 2 days- The Constable is required by law to post a 24 hour vacate notice on the Writ of Possession

IS THE JUSTICE OF THE PEACE RULING FINAL?

Not if it is timely appealed. That is, either party may appeal from a final judgment in an eviction case to the county court of the county in which the judgment is rendered.

HOW CAN I APPEAL A JUSTICE COURT RULING?

After the hearing, either pary has five (5) calendar days to appeal the judgment by filing an Appeal Bond with the Justice Court. It is strongly suggested that an attorney be consulted before filing an appeal. A Transcript Fee will be charged for appeals.
See TRCP 749

TO WHOM IS AN EVICTION JUDGMENT APPEALED?

To the county court of the county in which the judgment is rendered.

HOW DO I PERFECT AN APPEAL FROM A JUDGMENT OF EVICTION?

Either party may appeal to County Court by filing either an Appeal Bond which conforms with Texas Rule of Civil Procedure 750, or a Pauper's Affidavit within 5 days from the date of judgment. When appeal is perfected, the Justice Court will stay further proceedings and file the transcript in the county clerk's office.
See T.R.C.P. 751

WHAT GROUNDS OR EVIDENCE WILL THE COUNTY COURT REVIEW ON APPEAL?

The entire proceeding / trial will be de novo in County Court. A trial de novo is a type of appeal in which the appeals court (County Court in the case of evictions) holds a trial as if a prior trial had never been held.
See TRCP 751

Trey Wilson is an attorney and real estate agent in San Antonio, Texas. He routinely represents landlords and tenants in residential eviction lawsuits in the Bexar County Justice Courts. To schedule a free consultation call 210/223-4100 or visit www.sa-law.com Most residential eviction cases can be handled on a flat fee basis.