Evictions in Justice of the Peace (J.P.) Court
Authored By: Texas RioGrande Legal Aid
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If you are being threatened with eviction, you should try to talk to your landlord to see if you can resolve your differences. Your interests may be better served if you work something out with the landlord without having to go to court. However, even if your landlord has grounds with which to evict you, your landlord may not remove you from the property without a final order from a court. The following are steps a landlord must go through before you can be legally evicted:
Step 1. The landlord must first give you a written three-day (or less, if allowed by your lease) notice to vacate by a certain date. [If you live in public housing or federally subsidized housing, you are usually entitled to longer notice periods and a meeting with the landlord before any eviction procedure can begin. Also, such a landlord must have good cause (like serious violations of your lease) to evict you.]
Step 2. If you do not move by the date given in the notice to vacate, the landlord can then file an eviction lawsuit against you in Justice of the Peace (J.P.) court. The landlord's written complaint in the lawsuit must state the specific reason why the landlord is evicting you, and the landlord must swear to the contents of the complaint. In an eviction case, the landlord can only ask for possession of the unit, back rent, court costs, and attorney's fees (if represented by an attorney); the J.P. judge should not consider any other damages, such as late fees or damages to the unit.
[Note: If your landlord is represented by an attorney and wins the eviction case, the landlord can only recover attorney's fees if the lease allows that or if the landlord sent you a notice, at least 10 days before the lawsuit was filed, via certified mail, return receipt, demanding that you vacate before the 11th day after the date of the receipt of the notice and warning you about the possibility of having to pay attorney's fees.]
Step 3. You will be served with an official notice (an eviction citation) and copy of the lawsuit by an official (usually a constable or sheriff) sent by the J.P. Court. Those papers will tell you when you must appear in J.P. Court or if you must answer (in writing or by telephone) the lawsuit before appearing in court. If you must answer the eviction lawsuit, keep in mind that weekends and holidays count in the number of days you have to respond. You should closely follow the instructions in the eviction citation. If you would prefer that a jury rather than the J.P. hear your case, you can request a jury and pay $5.00 within five days of receiving the eviction citation.
IMPORTANT: If you were served with a court paper that is called a "Possession Bond," pay close attention. While these are rare, a Possession Bond requires you to make a demand for a trial to the J.P. Court within six days of being served. If you do not do this, the landlord may have you and your property removed after the sixth day. It is always best to request the trial in writing. As with any filing with the court, you should bring your original request and a copy. The court clerk should stamp both documents with the date you filed them and return the file-stamped copy to you for your records.
Step 4. You must appear in the J.P. Court at the date and time given to you by the J.P. Court's staff or as listed in the court papers. (You should call the J.P. Court in advance to confirm the date and time of your trial and the location of the J.P. Court.) If you fail to appear by the deadline or if you fail to attend the hearing, the landlord will ask for a default judgment against you.
Step 5. The trial date is usually held between 6 and 10 days of when you receive the court papers. If you have a conflict, you can ask the judge to postpone the trial, but it is somewhat rare for the J.P. to change the date of trial unless both parties agree to the delay. At the hearing, the judge will listen to the landlord's side and to your side of the story. Both parties have the right to present their side of the case, and the landlord bears the burden of showing why you should be evicted. You should bring any witnesses, receipts, cancelled checks, photographs, and other evidence 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 of the landlord, you are entitled to ask them in front of the judge. After hearing from both parties, the judge will decide whether you are to be evicted.
Step 6. The J.P. will sign a written judgment in your case. If the judge rules to evict you, then you only have 5 days from the date the judgment is signed to file with the J.P. an appeal of that decision. Again, the 5 days include weekends and holidays, but if the deadline falls on a weekend or holiday, you must file your appeal the next day the court is open. If you have lost in eviction court and don't appeal, and you remain in the rental premises after the 5-day deadline passes, 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. An officer cannot execute a writ of possession (that is, remove you from the premises) if it is raining, sleeting, or snowing.
Step 7. To appeal the decision of the J.P. Court, you must, within five calendar days of the court's judgment, either file an appeal bond in the amount set by the justice of the peace OR file an Affidavit of Inability to Pay the Appeal Bond in which you say that you are financially unable to pay the appeal bond. The Affidavit must contain information about your income, assets, monthly expenses, dependents, and debts. The J.P. Court is supposed to provide a form Affidavit upon request. Section 24.0052 of the Texas Property Code sets forth all the information that must be provided. You must be careful to provide complete information. The landlord has the right to contest the affidavit. If that happens, you must go to the J.P. Court and testify before the judge about the information in the Affidavit.
In addition, if you appeal by filing an Affidavit and a reason for the eviction is nonpayment of rent, you must pay one rental period's rent into the J.P. Court registry within five days of filing the Affidavit and pay future rent into the county court at law registry each rental period within five days of its due date under the lease. If you fail to pay on time, the landlord may file a motion and ask the court to issue a writ of possession for the constable to remove you from the residence.
[Note: If you are a tenant renting a lot for your mobile home, the court must give you 30 days to move your mobile home so long as you pay the rent for 30 days to the landlord. This is true even if you owe rent for previous months. This law was designed with the recognition that it is difficult to move a mobile home in a short time. If you do pay the landlord, be sure to get a receipt and provide a copy to the court to confirm that the court will not issue the eviction writ until after the 30 days expire. You should do this soon after the judge rules against you and certainly by the fifth day after the date the judgment was issued.]