In order for your landlord to evict you, the Texas Property Code states he/she must deliver to you, a written notice to vacate with a move-out date. If you don’t move out by the date, the landlord STILL must file an eviction case in Justice Court to make you move out. You will know if you are being sued for eviction because a constable will come to your home and hand it to you or to anyone who answers the door who is at least 16 years old. If the Constable tries two or three times but never finds anyone old enough at your home, the justice court will give the constable permission to use another method of giving you the paperwork. Usually, the court will allow the constable to post the paperwork on your door, but sometimes the court may allow the constable to mail it to you.
Tip: The first page of the lawsuit will have your trial date listed on it.
What if I lose the trial, or don’t show up?
If you lose at trial or if you don’t show up, the judge will issue a judgment for possession to the landlord. You have five days after the judgment is signed to either move out or file an appeal. If the 5th day falls on a weekend or on a day when the court closes before 5:00 p.m., then the deadline rolls over to the next business day. Although there are many justice of the peace courts which stay open until 5:00 p.m., there are also many which close earlier than that. If you are not sure when your court closes for the day, call the court clerk and ask. This might give you one extra day.
After your deadline to move or appeal has passed, which is usually on the 6th day after the judgment is signed, the landlord can ask the judge for a writ of possession. A writ of possession is a special type of court order in which the judge instructs a sheriff or a constable to move the tenant out of the leased property, and to give possession of that property back to the landlord. Before the constable can use a writ of possession to move you out, the constable must first give you a written notice that says the writ has been issued, and which also says you and your property may be removed at any time after 24 hours has passed. The constable must either hand-deliver that written notice or else post it on your front door. If you do not move out by that 24-hour deadline, a sheriff or constable can physically remove you and your belongings from the property.
What if want to fight the eviction judgment, or what if I just need more time?
Either side in an eviction case has the absolute right to file an appeal and have a County Court conduct a new trial. If you need more time, you can file an appeal. The appeal must be filed within your 5-day deadline to move or appeal. Again, if the 5th day falls on a weekend or on a day where the court closed before 5:00 p.m., you may file your appeal on the next business day.
If you want to appeal, make sure you calculate all your deadlines as soon as possible.
● You have 5 (five) days to appeal a Justice Court decision to County Court. (County Court is the next or higher court.)
● The 5 (five) days are not only weekdays or business days, they include weekends and holidays.
● If your 5 (five) day appeal deadline falls on a day that the court is closed, you can file it the next day it is open.
Do I have to pay any fees to appeal?
Yes, there will be fees assessed by the County Court when filing an appeal. There are three ways to take care of such fees. You can file an appeal with a bond, cash deposit, or a declaration of inability to pay.
- A bond is a promise to pay the amount of the judgment if you lose at trial;
- A cash deposit is an amount determined by the judge, that would require you to pay a portion of the judgment while the case is on appeal, also promising to pay the remainder if you lose at trial; and
- A declaration of inability to pay is a written form from the Texas Supreme Court which requires you to tell the Justice of the Peace Court, under the penalty of perjury, all your income, assets, and expenses. If the justice of the court determines you’re unable to pay the applicable County Court fees, you will not be responsible.
Tip: You may have to prove your income, assets, and expenses with copies of your wage slips, food stamp approval letter, Social Security award letter, and/or anything that shows a benefit you are receiving. If you are receiving any type of government entitlement, the judge is supposed to approve your declaration. If no one challenges it and there is no hearing, it is automatically approved.
If any of the landlord’s reasons for filing an eviction suit against you is non-payment of rent, you are obligated to the following payments:
- 1 (one) month’s rent (your share/documented obligation per the Justice Court judgment) must be paid to the Justice Court within 5 (five) days of filing your affidavit, and then you must pay rent monthly to the county clerk until your appeal is decided.
- Monthly rental payments to the County Court are due within 5 (five) days of the date they’re due in the underlying lease. If you are late, your landlord can get a writ of possession to remove you and your belongings from the property.
Tip: If part of your rent is paid with federal funds (public housing, subsidized housing, Section 8 rental voucher), make sure the Justice Court judgment states the amount paid by the government and the amount paid by you. If this number is incorrect, you must file a written objection in Justice Court within 5 (five) days of the date of the judgment. This is important because you must deposit part of your rent (your share) while your appeal is pending and you want it to be what YOU actually owe.
What will I need to prepare for trial?
Appealing a Justice Court decision to County Court means you will have a new trial in the new court. You must present evidence that shows why you should not be evicted, you will give your testimony and have an opportunity to show receipts, documents, and photos as well as call any witnesses. After hearing both sides, the judge will make a decision on whether to evict.
Tip: Bring an extra copy of all your evidence to give to the judge as an exhibit.
If you have received a notice to vacate, have been served with an eviction lawsuit, or would like to appeal an eviction judgment and you need help, visit one of our offices or call toll-free at (800) 733-8394 to apply for legal assistance.
