EVICTIONS

There are many reasons for which a landlord may try to evict a tenant. These reasons include: if a tenant owes any rent, even as little as $1.00; if there are any unauthorized occupants or guests living in the dwelling; or if there is any other substantial breach of the rental contract. However, a tenant always has the right to fight an eviction in court. Note that an eviction is different from terminating a lease at the end of its term.

What Is The Eviction Process?
The eviction process is a formal procedure that will include going to the Justice of the Peace (JP) court or possibly to a higher court. The next paragraph will provide a brief description of this process, but evictions can be complicated. To fully understand the eviction process it is important to carefully read this entire brochure. You can also look at the flow chart on page 10 for more clarification.

The landlord must first deliver a written Notice to Vacate to the tenant. If the tenant does not move out after the deadline in the notice, the landlord must file an eviction suit with the Justice of the Peace court. A Constable will deliver an eviction citation to the tenant, who will then need to respond and set up a hearing date in order to defend their case. If the tenant loses the eviction, the tenant will have five days to appeal the decision or move out.

Notice to Vacate. This notice, also known as a demand for possession, must be in writing. The landlord has to give the tenant at least three days to vacate unless a written lease sets a different time period, such as 24 hours. The notice should have the date it is delivered, the reason for the eviction, and indicate the amount of rent owed, if applicable. The notice must:

There are several ways to deliver this notice. However, it is best to have proof that the tenant received the notice. The notice may be delivered:

NOTE: Normally a notice to vacate cannot tell a tenant to pay rent or move. However, a recent modification in Texas law does allow a landlord to give a notice to vacate which states the tenant should pay rent or move. But, the landlord must first give a written notice or reminder to the rent.

Eviction Citation. The tenant does not have to move out of the unit by the date indicated in the Notice to Vacate. If the tenant decides to stay in the unit, the landlord can then file an eviction suit at the local JP court. The landlord still cannot remove the tenant or the tenant's property without a court order, except in the case of abandonment or when exercising a landlord's lien. After the landlord files the eviction suit, the court clerk will send the eviction citation to the Constable's office for service to the tenant. The Constable will attempt to hand deliver the citation to the tenant at the tenant's home. After two unsuccessful attempts, the Constable will post the citation in a conspicuous place on the outside of the rental unit or mail it.

If the eviction is for non payment of rent, the landlord is not obligated to accept delinquent rent. The tenant should attempt to pay the money due. If the landlord accepts it, the tenant should get a written receipt and try to get the landlord to sign an agreement to drop the eviction. The tenant should assume the landlord is going to continue with the eviction until the court says the case has been dropped.
The eviction procedure from Public Housing or Subsidized Housing is different. It is advisable to consult with an attorney from Legal Aid or a counselor from the Austin Tenants' Council.

The Tenant's Answer. In Travis County, once the tenant receives the eviction citation, the tenant will usually have to contact the court by 10:00 a.m. on the seventh day after it is received to file an answer with the court. If the tenant prefers a jury trial then the tenant will have to respond to the court within five days and pay a $5.00 fee. The procedure and time period may be different depending on the type of eviction and the county in which it is filed, so read the citation carefully and follow the instructions!

When a landlord files a six-day immediate possession bond , the tenant is served an eviction citation that clearly states that the landlord has filed the immediate possession bond and it gives the tenant six days in which to respond and set up a hearing. If the tenant fails to respond, the landlord can obtain a Writ of Possession immediately after the sixth day passes. If the tenant responds by the sixth day, a hearing date will be set and the eviction will proceed the same as a standard eviction. If the tenant loses at the hearing, the tenant will still have five days after the hearing date to either move out or set up an appeal.

The tenant's answer to the court may be written, oral, or submitted by an attorney. The court clerk will inform the tenant or the tenant's attorney of the court date scheduled for the eviction hearing.

Failure to answer within the time limit will allow the landlord to get a default judgement against the tenant. If the court awards the landlord a default judgment, the court must notify the tenant by sending a written notice within 48 hours after the entry of the judgment.

Going to Court. Once the date for the hearing has been set the landlord and the tenant should appear before the Justice of the Peace and be prepared to present their case. The Judge will make a decision based on the facts presented during the eviction hearing. The final decision is called a Judgment. If the Judgment is in favor of the landlord the tenant will have five days to move out or appeal the decision. If the judgement is in favor of the tenant, the landlord also has five days to appeal.

Filing an Appeal. The tenant may dispute the judge's decision by filing an appeal. The tenant will either have to pay an appeal bond or file a Pauper's Affidavit if the tenant does not have the money or property to pay an appeal bond.

When a tenant appeals by filing an affidavit, and the eviction is for nonpayment of rent, the tenant can stay in possession of the rental unit during the appeal by paying one month's rent into the court's registry. This needs to be done within five days of filing the affidavit. The tenant will also have to make future rental payments into the court registry within five days of the date due under the lease.

If the eviction is for some reason other than nonpayment of rent, the tenant should continue to pay the rent to the landlord or the landlord can file a new eviction for nonpayment. As long as the rent is paid, the tenant can stay in possession of the rental unit during the appeal.

In addition, if the tenant did not file a written answer with the justice court, the tenant must file a written answer with the county court within eight days after the court papers are filed in the county court or the landlord may win by default.

Also, the tenant must pay a county court filing fee within 20 days after receiving notice of the fee or file an affidavit of inability to pay the filing fee. If the tenant fails to do so, the appeal will be dismissed and the landlord can get a Writ of Possession removing the tenant from the property.

This brochure does not give all information about appeals because they can be complicated; it is advisable to consult an attorney.

Writ of Possession. If the tenant does not move out or appeal, the landlord must request that the judge issue a Writ Of Possession, which is a court order directing the constable or sheriff to place the landlord in possession of the rental unit. This means the tenant, all occupants, and personal items will be removed by the landlord under the supervision of the constable or sheriff. Before removing all people and belongings, the officer executing the writ must give the tenant 24 hours to move from the time the officer posts a written warning on the front door. This notice must be no smaller than 8 1/2 x 11 inches. It must inform the tenant that a writ has been issued, and state the date and time the writ will be executed.

What Else Can a Landlord Do?
If a tenant is behind on rent a landlord may be able to temporarily lock that tenant out or remove some of the tenant's belongings in a lien.

Lockout. A landlord can change the lock on a tenant's door when the rent is delinquent, but the landlord must give the tenant written warning that the locks will be changed. This notice must either be hand-delivered or posted on the inside of the tenant's front door, not later than the third day before the locks will be changed, or locally mailed not later than the fifth day before the locks will be changed.

The landlord is required by law to give the tenant a new key and the tenant can continue living in the unit. The tenant does not have to pay the rent to get a key. The intended purpose of this law is to allow for a meeting between the landlord and the tenant. A lockout is not an eviction . For more information, see ATC's brochure, Lockout .

Landlord's Lien. A landlord's lien is a state law that allows a landlord to remove a tenant's property from the rental unit in order to secure payment of delinquent rent. There must be a statement in a written lease, either underlined or in bold print , that allows the landlord the right to enter a rental unit and remove the tenant's personal property.

The rent must be delinquent in whole or in part in order for a landlord to seize any items. The law only allows a landlord to take certain non-exempt items such as televisions, VCRs, stereos, or computers. Furthermore, the landlord must exercise a lien peacefully, so if a tenant refuses to allow a landlord entry or to remove the items, the landlord cannot exercise the lien. When the lien is exercised, the landlord must leave a notice of entry along with a written inventory of the items removed. The landlord must promptly return the items as soon as all fees and rent are paid. The landlord can charge money for packing, removing, or storing the items but only if authorized in a written lease. For more information, see ATC's brochure, Landlord's Lien . The one circumstance where a landlord can remove all of a tenant's belongings without going to court first is when declaring abandonment.

Abandonment
Many leases define the word abandonment. It will usually be a statement in a written lease that allows the landlord the right to peacefully enter a rental unit and remove everything. The lease will describe the circumstances in which the landlord can declare the rental unit abandoned. A landlord who declares abandonment when there is no clear definition in the lease may be considered to have illegally evicted a tenant.

What Is An Illegal Eviction?
An illegal eviction occurs when a landlord illegally denies a tenant access to the rental unit or a tenant's property is removed without a court order and the removal:

The landlord is also prohibited from removing a door, window or any mechanism connected to a door or window; or remove furniture, fixtures or appliances furnished by the landlord from premises leased to a tenant unless the landlord removes the item for a bona fide repair or replacement. If any of these items are removed and not promptly returned, this could be considered a constructive eviction and the landlord could be liable under the Removal of Property and Exclusion of Residential Tenant law.

If a landlord violates this law, the tenant can recover possession of the premises or terminate the lease. In addition, the tenant may sue the landlord for a civil penalty of one month's rent, $500, actual damages, court costs, and reasonable attorney's fees.

For Further Assistance

Austin Tenants' Council - A private, non-profit organization providing information and assistance on all areas of tenant/landlord relations. However, there are no attorneys on staff and ATC can not give legal advice. ATC is located at 1619 East Cesar Chavez Street, Austin 78702. Our phone number is 474-1961.

Legal Aid of Central Texas - Legal assistance only for low-income residents of Central Texas. It is located at 2201 Post Road, Suite 104, Austin 78704. The phone number is 447-7707.

Lawyer Referral Service - Legal services and referrals are available for clients who are not eligible for Legal Aid. Fees: $20 for the first 30 minutes; additional fees based on services required. The phone number is 472-8303.

Legal Services for Students - For UT students only. It is located at 2609 University Avenue, Room 2.112, Austin 78705. The phone number is 471-7796.

Attorney General's Consumer Protection Division - Enforces the Deceptive Trade Practice Act which sometimes applies to the security deposit. Mailing address is P.O. Box 12548, Austin, Texas 78711. The phone number is 463-2070.

Justice of the Peace Offices in Travis County

Precinct 1
1811 Springdale Road, Suite 110
Phone: 929-0593

Precinct 2
10409 Burnet Road, Suite 180
Phone: 708-4545

Precinct 3
2919 Manchaca Road, Suite 202
Phone: 442-6763

Precinct 4 2201
Post Road, Suite 101
Phone: 473-9478

Precinct 5
1000 Guadalupe, Room 112
(County Courthouse) Phone: 473-9049


The information in this brochure is a summary of the subject and other pertinent matters. It should not be considered a substitute for legal advice. Unique facts can render broad statements inapplicable. Anyone needing legal assistance should contact an attorney.

ref: http://www.housing-rights.org/evictions.html