Eviction suits in Texas are governed by Rule 510 of the Texas Rules of Civil Procedure and by Chapter 24 of the Texas Property Code. Most of the important laws governing eviction suits exist in either Tex. R. Civ. P. 510 or Tex. Prop. Code § 24.001 to 24.011. The Texas legislature enacted these rules “to provide a speedy and inexpensive remedy for the determination of who is entitled to possession of property.” Johnson v. Fellowship Baptist Church, 627 S.W.2d 203, 204 (Tex. App. Corpus Christi 1981).
In Texas, your local Justice of the Peace Court (frequently known as “JP court,” “justice court,” the “people’s court,” or “small claims court”) has exclusive jurisdiction over eviction suits, known in Texas as forcible entry and detainer suits. In layman’s terms, this means that Texans must file their eviction suits at the local JP court. Usually, the district and county courts will all be located downtown at the largest city in your county, while there will be several justice court subcourthouses spread throughout the county, often sharing office space with your local city hall or the local branch of the tax collector’s office. In 2013, the Texas legislature abolished small claims courts and gave jurisdiction over small claims cases to the JP courts. See Act of June 29, 2011, 82nd Leg., 1st C.S., ch. 3, § 5.07 (repealing former Tex. Gov’t Code ch. 28, governing small claims courts, effective May 1, 2013); Act of April 2, 2013, 83rd Leg., R.S., ch. 2, § 2 (delaying abolition of small claims courts from May 1, 2013 to August 31, 2013); see Misc. Docket No. 13-9049 (Tex. April 15, 2013), ¶ 1. So, the JP courts also function as small claims courts in Texas for claims of under $10,000.00 in monetary damages.
Because the Texas Rules of Civil Procedure and the Texas Rules of Evidence do not apply in justice court (See Tex. R. Civ. P. 500.3(e)), Texans are supposed to be capable of adequately representing themselves without the help of a licensed attorney in justice court and they frequently do so. Consequently, many, if not most, eviction suits are filed at the local JP court subcourthouse without the help of an attorney.
Eviction suits in Texas are called forcible entry and detainer suits, or “forcible detainer” for short, probably because the tenant to be evicted is detaining themselves in the property after the lease expired, or their lender foreclosed on the property, and the owner wants court permission to enter the property by force to stop the unlawful detainer of the tenant. “The sole issue in a forcible detainer suit is who has the right to immediate possession of the premises.” Aguilar v. Weber, 72 S.W.3d 729, 732 (Tex. App.—Waco 2002). “To prevail in a forcible detainer action, a plaintiff is not required to prove title, but is only required to show sufficient evidence of ownership to demonstrate a superior right to immediate possession.” Id. So, most disputes over the right to possession of real estate in Texas happen in the local JP subcourthouse for the constable precinct that the property is located in. There are, however, other causes of action (lawsuits) over the right to possession of real estate, which can be filed in a county or district court (usually district court for jurisdictional reasons).
Other Possessory Causes of Action and Where to File Them. Trespass to Try Title is an example of a possessory cause of action that must be brought in district court rather than justice court. It’s the Berrys, LLC v. Edom Corner, LLC, 271 S.W.3d 765, 770 (Tex. App. Amarillo 2008). Title suits generally need to be filed in a Texas district court, and not a county court or JP court. Escobar v. Garcia, 2014 Tex. App. LEXIS 5157, *9 (Tex. App. Corpus Christi—May 15, 2014) (county courts generally have no subject matter jurisdiction over title disputes); but see Tex. Gov’t Code § 25.0592 (county courts in Dallas County have concurrent jurisdiction with the district court in civil cases regardless of the amount in controversy and subject matter jurisdictional problems can be cured by retroactive assignment to district court).
Genuine Title Disputes Deprive the Justice of the Peace Courts of Jurisdiction. A title dispute between the landlord and tenant can deprive the JP court of jurisdiction over the eviction case. For a title dispute to deprive the justice of the peace court of jurisdiction, the title dispute must be “genuine.” Padilla v. NCJ Dev., Inc., 218 S.W.3d 811, 815 (Tex. App.—El Paso 2007) (receipt without material elements of transaction and unsigned sales contract not enough to raise a genuine title dispute). A genuine title dispute requires “specific evidence of a title dispute.” Id. Moreover, “A justice court is not deprived of jurisdiction merely by the existence of a title dispute; it is deprived of jurisdiction only if resolution of a title dispute is a prerequisite to determination of the right to immediate possession.” Espinoza v. Lopez, 468 S.W.3d 692, 695 (Tex. App.—Houston [14th Dist.] 2015). “To prevail in a forcible detainer action, the plaintiff must present sufficient evidence of ownership to demonstrate a superior right to immediate possession. Ordinarily, a forcible detainer action requires proof of a landlord-tenant relationship. Although such a relationship is not a prerequisite to jurisdiction, the lack of such a relationship indicates that the case may present a title issue. Id. at 695-96.
Even if you wanted to file your eviction suit in county or district court, you cannot do so. Aguilar v. Weber, 72 S.W.3d 729, 731 (Tex. App.—Waco 2002) (“Jurisdiction of forcible detainer actions is expressly given to the justice court of the precinct where the property is located and, on appeal, to county courts for a trial de novo.”); It’s the Berrys, LLC v. Edom Corner, LLC, 271 S.W.3d 765, 769–772 (Tex. App.—Amarillo 2008, no pet.) (justice court has exclusive jurisdiction over the issue of the right to immediate possession). Also, “The appellate jurisdiction of a statutory county court is confined to the jurisdictional limits of the justice court, and the county court has no jurisdiction over an appeal unless the justice court had jurisdiction.” Aguilar at 731. So, even if your county court at law is one of the few in the State of Texas that shares jurisdiction with the district courts over title disputes, then that county court still lacks jurisdiction over the title dispute if the county court is hearing the case on appeal from a justice of the peace court.
Notice to Vacate. A three-day Notice to Vacate must be sent to the tenant before the eviction suit is filed, unless the parties contracted for a shorter or longer notice period in writing. Tex. Prop. Code § 24.005. The notice period is calculated from the day on which the notice is delivered. Id. If the eviction suit is against a holdover tenant after a rental term expired, then the landlord also needs to comply with the tenancy termination requirements of Tex. Prop. Code § 91.001. Id. Generally, the landlord must give one-month notice of termination in order to terminate a month-to-month tenancy. Tex. Prop. Code § 91.001. If the landlord wants attorney’s fees from the tenant, then the landlord should send a ten-day Notice to Vacate, unless a written lease entitles the landlord to attorney’s fees, and the notice should 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.” Tex. Prop. Code § 24.006. Some Justice Courts and County Courts at Law in Texas apply the “mailbox rule” of Tex. R. Civ. P. 21a to notices to vacate. If the Court applies the mailbox rule, then the notice is presumed to be delivered within three days from the date that it was deposited in the mail. Onabajo v. Household Fin. Corp. III, No. 03-15-00251-CV, 2016 Tex. App. LEXIS 7454, at *13-14 (App.—Austin July 14, 2016); Tex. R. Civ. P. 21a(e). Under Tex. R. Civ. P. 21a(c), when mail is used as a delivery method, “three days shall be added to the prescribed period,” whatever period that might be. Accordingly, the best practice for landlords is to always consider the notice to vacate to be a six-day notice to vacate rather than a three-day notice to vacate, when mail is used to deliver the notice.
At the eviction hearing, the Judge will ask for proof that the Notice to Vacate was given. Many, if not most, landowners send the Notice to Vacate by mail or by affixing it to the front door of the property. Surprisingly, both of these methods are wrong or potentially ineffective, despite being the most common methods. Even if the Notice to Vacate is sent by certified and regular mail, the tenant can claim not to have received it and, unless the landowner has the signed green return card, the Judge may or may not agree that the notice was effective. Gore v. Homecomings Fin. Network, No. 05-06-01701-CV, 2008 Tex. App. LEXIS 640, at *6, 2008 WL 256830 (App.—Dallas Jan. 31, 2008) (mem. op., not designed for publication) (Notice to Vacate sent by regular and certified mail, but both envelopes had notations indicating that they were returned unclaimed—court ruled in favor of the tenant on the grounds that the evidence did not establish that the tenant received the notice); Brittingham v. Fed. Home Loan Mortg. Corp., No. 02-12-00416-CV, 2013 Tex. App. LEXIS 10624, at *6, 2013 WL 4506787 (App.—Fort Worth Aug. 22, 2013) (court ruled in favor of landowner even though the main distinctions from the Gore case were that there was a business records affidavit to go along with the regular and certified letters and that only the certified letter was marked unclaimed). The Notice to Vacate does not have to be received by any particular person, but rather must be sent “to the premises.” Trimble v. Fannie Mae, No. 01-15-00921-CV, 2016 Tex. App. LEXIS 13482, at *13 (App.—Houston [1st Dist.] Dec. 20, 2016). “When a letter containing notice is properly addressed and mailed with prepaid postage, a presumption exists that the notice was received by the addressee. Thomas v. Ray, 889 S.W.2d 237, 238 (Tex. 1994).” Id. at *11. Addressing the notice to “all occupants” and mailing it is sufficient to raise the presumption that the notice was delivered to the property. Id. In at least one case, the court held that whether the tenant “received the notice is not determinative of whether notice was given.” U.S. Bank, N.A. v. Khan, No. 05-14-00903-CV, 2015 Tex. App. LEXIS 8388, at *6, 2015 WL 4736839 (App.—Dallas Aug. 11, 2015). If the tenant testifies that the tenant did not receive the notice, then the court is not required to accept the tenant’s testimony. Kaldis v. U.S. Bank Nat’l Ass’n, 2012 Tex. App. LEXIS 6609, 2012 WL 3229135, at *3 (Tex. App.—Houston [14th Dist.] Aug. 9, 2012, pet. dism’d w.o.j.) (mem. op.).
To be fair regarding Notices to Vacate, most of the time, regular or certified mail works just fine and the landlord does not lose the case due to the tenant claiming not to have received the Notice to Vacate. However, going through a JP court eviction trial and then a county court de novo trial on appeal, just to find out that the landlord’s suit is dismissed due to insufficient evidence of tenant’s receipt of a notice that is no more than a technicality since the tenant clearly knows that the tenant has been sued for eviction and has been litigating the issue for several months is kind of ridiculous. To make it worse, since most landlords handle the JP eviction suit without an attorney, the attorney who gets involved at the county court appeal level is not able to go back and correct any deficiencies in the manner of delivery of the notice to vacate. Clearly, there should be an opportunity to cure any defects in the notice to vacate before the county court appeal trial occurs, but there is not. Under Tex. Prop. Code § 24.005, the Notice to Vacate can be affixed to the “inside of the main entry door.” This has to be one of the worst laws on the books. No sane landlord who is involved in a dispute with a tenant, or even a squatter, wants to open the resident’s front door and risk getting shot. Texas has “castle doctrine,” which means that if someone enters your habitation, then you can, generally and subject to some exceptions, use deadly force against them. Tex. Penal Code § 9.31–.32. This requirement to post notice to vacate on the inside of the main entry door is horribly unsafe and should be repealed immediately. There is a procedure in Tex. Prop. Code § 24.005(f-1) that is an alternative to posting notice on the inside of the front door if the “landlord reasonably believes that harm to any person would result from . . . affixing the notice to the inside of the main entry door,” but the procedure is rarely used, probably because it is so complex that no one seems to understand the procedure or be capable of performing it correctly, primarily because the vast majority of evictions are handled without the assistance of an attorney.
Appeal of Eviction Suit. Whoever loses the JP court eviction suit can appeal to the county court at law. Because JP courts do not employ court reporters to keep a record of their proceedings and because the Texas rules of procedure and evidence do not apply (See Tex. R. Civ. P. 500.3(e)), no record exists for the county court to review on appeal. Consequently, the county court conducts a trial de novo, which means a brand new trial. Whatever evidence the landlord or tenant offered in the JP court case is gone and irrelevant. The judge of the county court, in fact, will know nothing about what happened in the JP court other than the outcome as expressed in the final order signed by the JP court judge, but the county court judge must decide the new case based solely on the new trial, and so most, if not all, county court judges could not care less about what happened in the JP court. In county court at law, the landlord/plaintiff generally does need an attorney because the rules of evidence and procedure apply in full regardless of whether the landlord knows and understands them. The landlord/plaintiff who wins in JP court can easily lose in county court on some technicality that the landlord did not understand. Also, if the landlord is a corporation, then the landlord’s suit will be dismissed if the landlord appears for the county court appeal trial without a licensed attorney. See Wuxi Taihu Tractor Co. v. York Grp., Inc., No. 01-13-00016-CV, 2014 Tex. App. LEXIS 12888, at *21, 2014 WL 6792019 (App.—Houston [1st Dist.] Dec. 2, 2014).
Equitable Title. A claim of equitable title can prevent the justice court from having jurisdiction over an eviction suit. “Upon payment of the purchase price and full performance of a contract for sale of real property, a party becomes vested with an equitable title in the land sufficient to enable him to maintain an action for trespass to try title.” Brown v. Davila, 807 S.W.2d 12, 14 (Tex. App.—Corpus Christi 1991, no writ); Also see Johnson v. Wood, 138 Tex. 106, 110, 157 S.W.2d 146, 148 (1941) (performance of a contract for conveyance of title grants equitable title upon the performer). Even an allegation of oral contract for conveyance of property can defeat the jurisdiction of the JP court if an exception the statute of frauds is satisfactorily alleged. Jennifer Yarto & DTRJ Invs., L.P. v. Gilliland, 287 S.W.3d 83, 94 (Tex. App.—Corpus Christi 2009). The Statute of Frauds is a rule that, in general, requires contracts for conveyance of real estate to be in writing. Tex. Bus. & Com. Code § 26.01(b)(4).
Wrongful Foreclosure Generally Not a Defense to Eviction. Claiming that a foreclosure was wrongful due to defects in the foreclosure process, regardless of whether those claims are filed in a separate district court lawsuit, generally does not constitute a sufficient defense to a post-foreclosure eviction suit. Pinnacle Premier Props. v. Breton, 447 S.W.3d 558, 565 (Tex. App.—Houston [14th Dist.] 2014); Home Sav. Asso. v. Ramirez, 600 S.W.2d 911, 914 (Tex. Civ. App.—Corpus Christi 1980). Generally, a claim of wrongful foreclosure, and a request to rescind the foreclosure sale and restore ownership of the property to the borrower, may be considered to be a title dispute, but it is not a title dispute that deprives the justice court of jurisdiction because the issue of immediate right to possession of the premises is not dependent on the outcome of the title dispute. Id. If the deed of trust and substitute trustee’s deed do not contain a tenancy-at-sufferance clause and there is no other basis for a landlord-tenant relationship, then a wrongful foreclosure suit claim may constitute a title dispute sufficient to deprive the justice court of jurisdiction over the eviction. Chinyere v. Wells Fargo Bank, N.A., 440 S.W.3d 80, 85 (Tex. App.—Houston [1st Dist.] 2012); Rice v. Pinney, 51 S.W.3d 705, 712 (Tex. App.—Dallas 2001, no pet.) (arguably interpreting the Texas Supreme Court’s decision in Scott v. Hewitt, 127 Tex. 31, 35, 90 S.W.2d 816, 819 (1936) as providing that a justice court is never deprived of jurisdiction over an eviction due to a wrongful foreclosure allegation); Diffley v. Fed. Nat. Mortg. Ass’n, 02-13-00403-CV, 2014 WL 6790043, at *2 (Tex. App.—Fort Worth Nov. 26, 2014, no pet.). In a situation, like the Chinyere case, where the justice court lacks jurisdiction over the eviction, the foreclosure sale purchaser would need to file suit in district court and either obtain a trial setting as soon as possible (which will probably be at least five times longer than it would take to get a trial setting in JP court) or set an injunction hearing, prove an imminent, irreparable injury; for which no adequate remedy at law exists (i.e., monetary damages are inadequate); a probable right of recovery and likelihood of success on the merits; and post an injunction bond.
Contracts for Deed. Generally, the justice court does not have jurisdiction over a contract for deed case (also known as an executory contract for conveyance governed by the extensive regulations of Subchapter D of Chapter 5 of the Texas Property Code), but if the contract for deed expressly states that it creates a landlord-tenant relationship, then the JP court might have jurisdiction. Ward v. Malone, 115 S.W.3d 267, 271 (Tex. App.—Corpus Christi 2003); Aguilar v. Weber, 72 S.W.3d 729, 735 (Tex. App.—Waco 2002) (justice court lacked jurisdiction over contract for deed, among other reasons, “because no landlord-tenant relationship was set forth in the contract . . . .”). So, based on the caselaw, if there was an express landlord-tenant relationship in the contract, then justice court jurisdiction may exist. However, if there is a contract for deed and the and the purchaser/tenant has paid “40 percent or more of the amount due or the equivalent of 48 monthly payments,” or if the contract is recorded (which is actually required by Tex. Prop. Code § 5.076, though, the damages for violation are only $500.00 per year), then the seller must perform a foreclosure on the property just as if the transaction were a “deed with a vendor’s lien.” Tex. Prop. Code §§ 5.079; 5.066. At the foreclosure sale, the seller must convey fee simple title and warrant that the property is free from any encumbrance. Tex. Prop. Code § 5.066(d). This tends to be a virtually insurmountable problem for contract for deed sellers that violate Tex. Prop. Code § 5.085 (Fee Simple Title Required) by selling property subject to a pre-existing lien. Unfortunately, many if not most, contracts for deed violate Tex. Prop. Code § 5.085 (Fee Simple Title Required) because one of the primary reasons for selling the property on a contract for deed basis was to avoid recording the contract and, thus, alerting the bank holding the first lien that the due-on-sale clause of the lien note has been violated.
Landlord Gets a Mulligan Due to Lack of Res Judicata. If the landlord makes a mistake and fails to win the eviction suit, then the landlord can, for the most part, simply file the suit again and start the process from scratch. Res judicata, which is a doctrine holding that once a case is resolved, the case cannot be re-litigated again for a different result, does not generally apply to eviction suits. Puentes v. Fannie Mae, 350 S.W.3d 732, 738–739 (Tex. App.—El Paso 2011, pet. dism’d); Fed. Home Loan Mortg. Corp. v. Pham, 449 S.W.3d 230, 235–238 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The landlord can even have multiple eviction cases pending against the tenant at the same time since the issue to be determined is the right to possession as of the time of the suit, which may change as time goes on. Id.; In re Victor Enters., 308 S.W.3d 455 (Tex. App.—Dallas 2010).
The Misnomer Rule and Serving the Correct Parties. Because many eviction suits occur in justice of the peace court without an attorney, people involved often fail to recognize the misnomer rule. The misnomer rule provides that misspellings or even incorrect names do not matter as long as the defendant is not mislead regarding who was sued or the intention to sue the defendant who was actually served with citation was apparent from the pleadings and process. Dezso v. Harwood, 926 S.W.2d 371, 374 (Tex. App.—Austin 1996). Eviction suits are generally made out against a particular defendant “and all occupants.” Pinnacle Premier Props. v. Breton, 447 S.W.3d 558, 561 (Tex. App.—Houston [14th Dist.] 2014). Because the Notice to Vacate rules allow for service upon the property itself, the “all occupants” language can effectively evict anyone occupying the property as long as the notice and citation are served pursuant to the rules. Tex. Prop. Code § 24.005. The big exception to the use of “all occupants” language is Tex. R. Civ. P. 510.3(c), which provides that any tenants listed on a written lease must be named and served with citation.
Verification Requirement. Eviction petitions must be “sworn to by the plaintfiff.” Tex. R. Civ. P. 510.3(a). However, an agent or attorney for the plaintiff can verify the petition. Norvelle v. PNC Mortg., 472 S.W.3d 444, 446–449 (Tex. App.—Fort Worth 2015, no pet.).
Further Appeal. Effective January 1st, 2016, the issue of possession is non-appealable, after the county court at law appeal, in commercial property cases. Tex. Prop. Code § 24.007; 2015 Bill Text TX H.B. 3364 (84th Legislature, As Reported by Committee May 1, 2015). The courts of appeal lack jurisdiction over an appeal on the issue of possession on commercial property. Volume Millwork, Inc. v. W. Hous. Airport Corp., 218 S.W.3d 722, 726 (Tex. App.—Houston [1st Dist.] 2006). Accordingly, a writ of possession should issue after county court at law commercial eviction trial regardless of whether a supersedeas bond is posted. If the property is residential, then appeal can be taken from the county court at law, and the supersedeas bond to stop the eviction should take “into consideration the value of rents likely to accrue during appeal, damages which may occur as a result of the stay during appeal, and other damages or amounts as the court may deem appropriate.” Tex. Prop. Code § 24.007. In eviction cases, “A defendant’s indigence does not relieve her of the obligation to file a supersedeas bond.” Brigandi v. Am. Mortgage Inv. Partners Fund I Tr., 02-16-00444-CV, 2017 WL 1428726, at *3 (Tex. App.—Fort Worth Apr. 20, 2017, pet. dism’d) (because Tex. Prop. Code § 24.007 states what the bond should be without reference to indigency rules, the normal indigency rules on supersedeas bonds are generally inapplicable in eviction cases).
Post Tax Foreclosure Suit Evictions. Do not bother filing an eviction suit after a delinquent property tax sale. Under Section 33.51 of the Texas Tax Code, the tax sale buyer can simply order a writ of possession from the tax sale court. There is no need to file a separate eviction case.
Payment of Rent During County Court at Law Appeal. The tenant needs to pay rent into the court’s registry during the appeal. The tenant can appeal by filing an appeal bond within five days after the date that the judgment is signed. Tex. R. Civ. P 510.9(a), (b). The tenant can also appeal by filing a pauper’s affidavit within the same time period. Tex. R. Civ. P. 510.9(a), (c)(1), (f); Tex. Prop. Code § 24.0052. The tenant must pay one month of rent into the court’s registry within five days of the filing of the pauper’s affidavit. Tex. Prop. Code § 24.0053(a-2), 24.0054. If the rent is not paid timely, then the landlord can get a writ of possession from the justice court. Tex. Prop. Code § 24.0053(a-2), 24.0054(a), (a-2); Tex. R. Civ. P. 510.9(c)(5)(B)(i). On a sworn motion and hearing, the landlord can get a writ of possession from the county court if the tenant fails to pay rent into the court’s registry during the pendancy of the appeal. Tex. R. Civ. P. 510.9(c)(5)(B)(iv); Tex. Prop. Code § 24.0054(a-4), (b), (c).
Default on Appeal for Failure to File Written Answer. If the defendant does not file a written answer in the justice court, then the tenant must file a written answer within eight days of the transcript being filed in the county court, and if the defendant does not do so, then the plaintiff may take a default judgment. Tex. R. Civ. P. 510.12. A pauper’s affidavit counts as a written answer. Hughes v. Habitat Apartments, 860 S.W.2d 872, 872-73 (Tex. 1993). If the defendant files a pauper’s affidavit, then the pauper’s affidavit constitutes an appearance, which entitles the defendant to receive notice of a default judgment hearing. Hughes v. Habitat Apartments, 860 S.W.2d 872, 873 (Tex. 1993). Accordingly, when the landlord moves for default judgment or for possession due to failure to remit rent payments to the Court’s registry, both of those motions should be set for hearing with notice to the defendant, even if the motions are set for hearing contemporaneously with a trial on the merits set by the Court.
Corporate Party Must Have Attorney on Appeal. A corporation or other business entity must have an attorney to represent it in county court on appeal in an eviction suit. McClane v. New Caney Oaks Apts, 416 S.W.3d 115, 120-21 (Tex. App.–Beaumont 2013, no pet.). There is a statutory exception for sworn motions for dismissal or eviction due to non-payment of rent during appeal. Tex. Prop. Code § 24.0054(e).
No Counterclaims or Third-Party Joinder. The only issue in an eviction suit is the right to immediate possession of the property. Tex. R. Civ. P. 510.3(e). No counterclaims can be raised. Id. No third-parties can be joined. Id. Because of this rule, the compulsory counterclaim rule generally does not apply to eviction suits. Id.
Copyright 2017, Ian Ghrist, All Rights Reserved.
Disclaimer: This blog is for informational purposes only. Do not rely on any part of this blog as legal advice. Instead, seek out the advice of a licensed attorney. Also, this information may be out-of-date.