Eviction proceedings in the Texas justice of the peace courts often involve unrepresented parties, minimal procedural rules and relaxed evidentiary standards, which predictably lead to inconsistent results.
While eviction appeals to county courts introduce more procedures and apply formal evidentiary rules, those appeals can take months or even years to resolve. As a result, eviction practitioners, landlords and tenants alike have felt unmoored by procedural uncertainty and indefinite timelines.
A process once designed to be efficient had devolved into something cumbersome, unpredictable and unjustifiably long, making eviction cases expensive and time-consuming.
But a recent legislative change to the Texas Property Code Section 24.001 overhauls this procedure as we know it. During the 89th legislative session,[1] the Texas Legislature overhauled the eviction process, seeking a more streamlined system with predictable deadlines and clearer procedures fostering quicker, less expensive resolutions.
Note that these substantive changes almost exclusively affect evictions for nonpayment of rent. As a broad summary, S.B. 38 makes a shift in favor of streamlined evictions.
Coupled with the new S.B. 1333, which authorizes law enforcement to remove personal property of nontenants and more heavily criminalizes trespassing, the Texas Legislature enacted a decisively pro-landlord statute that limits the rights of nonpaying tenants to challenge their evictions.
The following are summaries of the major changes, which became effective Jan. 1.
Notices to Vacate
The eviction process typically begins, or at least must include, a notice to vacate. Indeed, the central question of most eviction proceedings is whether the notice was served properly and whether it included the necessary language.
Under the new eviction provisions, a landlord may now serve a notice to vacate by: (1) mail; (2) posting to the inside of the door or some other conspicuous place; (3) hand delivery to any occupant over 16; and (4) via electronic means if included in the lease.[2] Electronic delivery is not limited to email and may include methods such as direct messaging through social media platforms. Notably, actual notice is now also sufficient.[3]
Substantively, for nonpayment of rent, if the tenant was not late in the month preceding the delinquency, the landlord may issue a pay-or-vacate notice.[4] If the tenant was late in the month preceding the delinquency, the landlord may issue either a pay-or-vacate notice or a notice to vacate, dispensing with the old law's requirements.[5]
Under prior law a notice to vacate could not have a choice to pay or vacate — the notice to vacate had to be unequivocal demand for possession.
During COVID-19 and its aftermath, some federally subsidized properties were required to provide longer notice periods for tenants to vacate than Texas required. These requirements created cumbersome delays due to timeline calculations and selective enforcement.
The new eviction procedure clarifies this. For federally funded properties with an extended notice requirement, a landlord may now complete the eviction process as if the property were not federally funded but must wait to seek a writ of possession until the federally required time has elapsed.[6]
New Summary Disposition Process Permits Resolution Without Trial
The new eviction laws permit a landlord to file an eviction petition with a request for summary disposition. A landlord may file a sworn petition alleging an eviction, including "a sworn motion for summary disposition without trial, setting out all facts and attaching all documents supporting the motion."[7]
According to the laws, "If the motion shows there are no genuinely disputed facts," the court may enter judgment without trial.[8] Disputed fact issues and improper service may defeat a summary disposition, but the court can resolve an eviction case without a trial and in less than 10 days from service of the eviction petition.
Definitive Time for Resolution
Unsuccessful eviction litigants generally appeal to a justice of the peace court's adverse ruling to the county court for two reasons: either an appeal affords additional time in the property during the administrative processing and trial setting process, or the justice of the peace court reached the wrong decision.
Before the recent legislative changes, the delay in obtaining a setting in county court could take up to three to six months, and in some instances include forced mediation or prolonged workouts that allowed continued occupancy.
Now, under the new eviction provision, a party must appeal within five days of the judgment date, and the appeal from the justice of the peace court to the county court must be resolved within 32 days.
Once the appeal is filed, the justice of the peace court must forward the appeal to the county court by 4 p.m. six days after the appeal is filed, and the county court must hear the appeal within 21 days of receipt.
In total, appeals should be set for trial and resolved within 32 days from the justice of the peace court judgment. This is a major change from the previous system that often took months to resolve.
Another notable change for unpaid rent eviction appeals authorizes a landlord to be represented by the owner or an owner's nonattorney authorized agent in county or district courts. Attorneys are no longer required for unpaid rent eviction appeals for entity landlords.
Additionally, a landlord is authorized to use an alternate service method for a writ of possession if the constable or sheriff does not serve the writ of possession within five days from the date it is issued.
When the writ of possession is not served within five days of its issuance, a landlord may employ any statutorily trained law enforcement officer, including an off-duty officer, to execute the writ.
All of this is contingent upon courts' availability. It is unclear what remedy, if any, is available to litigants for courts' potential inability to meet these rapid deadlines.
The Eviction Lab at Princeton University, a nongovernmental organization tracking nationwide eviction rates, estimates around 44,092 evictions will be filed in Dallas County this year, and another 76,258 evictions in Harris County. Respectively, this estimates for every 100 households, between 8.1 and 8.5 result in eviction.
Perhaps the outcome will result in favored summary disposition.
New Bond Requirements in Unpaid Rent Cases
Filing an appeal does not automatically stay execution of a writ of possession. In unpaid rent cases, a tenant must pay one month's rent into the registry to perfect their appeal and stay execution of the writ of possession. Payment must be made within five days of the appeal — in total, 10 days from the judgment.
The tenant must continue to pay rent into the court registry while the appeal is pending. A tenant's failure to pay into the registry for any given month during appeal means "the justice court or county court, as applicable, on request shall immediately issue a writ of possession, without hearing," effectively eliminating a tenant's ability to live rent-free for prolonged periods while an appeal is pending.[9]
Importantly, a landlord no longer has to wait until the case is over to draw rent from the court registry. The rent paid into the registry is immediately disbursable to a landlord, upon request.[10]
Overall, the eviction changes should yield a faster, less expensive process for all, while also promoting timely rent payment and lease compliance.
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