Eviction Appeals to County Court
Authored By: Texas RioGrande Legal Aid
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If the Justice of the Peace (J.P.) judge rules against you in an eviction case and signs a Judgment for your eviction, you have the right to appeal. If you do not appeal the decision of the J.P. within five days and you do not move out, your landlord can ask the J.P. for a ?writ of possession?, which allows the constable or sheriff to give you a 24-hour warning and then to supervise the removal of your family and your belongings from the premises.
I. HOW DO I APPEAL A J.P. EVICTION JUDGMENT?
The J.P. should give you information about your right to appeal. During the appeal, you may remain in the residence. You will have only five days (counting Saturdays, Sundays and holidays) to appeal the decision of the J.P. Court. However, if your deadline to appeal lands on a weekend or holiday, you can file your appeal on the next day the court is open. You should call the court to confirm what hours it is open, because some J.P. Courts may not be open during normal business hours, and this will not extend your appeal deadline if it is not a weekend or holiday.
A. APPEALING BY FILING A BOND
To appeal, you must file EITHER an appeal bond at an amount set by the J.P. OR an Affidavit of Inability to Pay the Appeal Bond. If the tenant is appealing the case, the J.P. will often set the appeal bond at two or three times your monthly rent. A bond, or promise to pay, must be signed by you and two others who have real estate in Texas (that no one lives on) or other sufficient assets (e.g. savings accounts or stocks). The J.P. must approve the appeal bond. You can also deposit cash with the court in the place of the bond.
B. APPEALING BY FILING AN AFFIDAVIT OF INABILITY TO PAY
If you cannot afford the appeal bond, you can appeal by instead filing with the J.P. Court an Affidavit of Inability to Pay the Appeal Bond. The J.P. Court is supposed to give you an Affidavit form if you request it. The Affidavit form will ask about your income, assets, monthly expenses, dependents, and debts. Section 24.0052 of the Texas Property Code sets forth all the information that must be provided. You must provide complete information.
[Note: Your landlord has the right to contest your Affidavit of Inability to Pay. If that happens, you must go to the J.P. Court and testify before the judge about the information in the Affidavit. If you lose this ?financial hearing?, you have five days to either post the appeal bond with the J.P. Court, or appeal this decision to the County Court. If you appeal the decision of the J.P. to deny your Affidavit of Inability to Pay, the County Court will set a hearing to consider your evidence that you cannot afford the bond. If the County Court does not approve your Affidavit of Inability to Pay, you can remain in possession of the unit only if you file an appeal bond within five days of the County Court judge?s decision.]
Once you file your appeal with the J.P. Court and it is accepted, the case is then sent to the County Court for a new trial.
SPECIAL CAUTION FOR NONPAYMENT OF RENT EVICTION CASES: If you appeal an eviction case by filing an Affidavit of Inability to Pay the Appeal Bond, and a reason for the eviction is nonpayment of rent, you must pay one month's rent into the J.P. Court registry within five days (counting Saturdays, Sundays and holidays) of filing the Affidavit. You will do this by paying the rent payment to the J.P. Court clerk. After that, you must pay future rent into the County Court registry by making that payment to the County Court clerk within five days of when the rent is due under the lease. If you fail to pay into the court registry on time, the landlord may ask the court to issue a ?writ of possession?, which allows the constable or sheriff to give you a 24-hour warning and then to supervise the removal of your family and your belongings from the premises. If a portion of your rent is paid by a government agency (for example, public housing, subsidized housing, or a Section 8 rental voucher), the J.P. should state in the judgment the portion to be paid by the government and the portion to be paid by you. If the judge does not correctly determine these amounts, you must contest in writing, within five days of the court?s judgment, the amount incorrectly determined by the court, so that you only have to pay your correct portion of the rent to the court.
II. WHAT HAPPENS AFTER MY CASE GOES TO COUNTY COURT?
A. COUNTY COURT COSTS
If you file an appeal bond rather than an Affidavit of Inability to Pay Appeal Bond with the Justice of the Peace, then the County Court clerk may send you a letter by certified mail telling you when you have to pay a filing fee for the appeal. If you cannot afford to pay the filing fee, file an Affidavit of Inability to Pay, sometimes called a Pauper's Oath, with information about your income, your property, monthly expenses, dependents, and debts. Such a form may be available at the County Court clerk's office. You must provide complete information. If a filing fee is required and you do not pay the fee or file an affidavit by the court's deadline, the court will dismiss your appeal. In that case, the landlord can ask the court to issue a ?writ of possession?, which allows the constable or sheriff to give you a 24-hour warning and then to supervise the removal of your family and your belongings from the premises.
B. WRITTEN ANSWER
IMPORTANT: No matter who appeals the eviction case, unless you filed a written answer with the J.P. Court, you must also file a written answer with the County Court within eight days after the County Court receives the appeal. If you did not file a written answer in J.P. Court and you do not file one in County Court, your appeal can be dismissed eight days after the County Court receives the file from the J.P. Court, and the landlord can ask the J.P. to send the constable to evict you. An answer may be a simple hand-written letter asking for a trial. If you have good reasons why you should not be evicted, you should describe them. For example, if you have paid the rent or if the landlord failed to give you proper notice, you should state this in your answer.
C. PAYMENT OF RENT
REMEMBER, IF YOUR CASE INVOLVES NONPAYMENT OF RENT AND YOU APPEALLED WITH AN AFFIDAVIT OF INABILITY TO PAY, you will have to pay your rent every month to the clerk of the County Court at the courthouse until your appeal is decided. Payment must be made within five days of the date it is due under the lease. If you pay more than five days late, the landlord may ask the judge to send the constable to remove your property from the unit.
The trial of your appeal in County Court will be a new trial, meaning that any papers, witnesses, or photographs you presented in J.P. Court will have to be presented again. Like the Justice of the Peace, the County Court judge will listen first to the landlord's side and then to your side of the story. Then the judge will decide whether to evict you. Be sure to bring any witnesses or papers to the hearing that will help you defend yourself. Do not be afraid to speak up-the judge cannot read your mind, so do not remain silent. If you have questions for the landlord, you are entitled to ask them in front of the judge.
If the County Court Judge evicts you, he or she should give you five or ten days to move or pursue an appeal. Although you can appeal to the Court of Appeals this is complicated. If you intend to appeal the County Court judgment, you should see a lawyer immediately to discuss your next steps.