Suit to Evict
The landlord 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 must file an eviction case in Justice Court with a Justice of the Peace (a type of judge). A constable will serve you with the lawsuit, and the first page will state the date of the trial.
If you don’t appear at the trial, the landlord wins by a default judgment. Six days after the judgment, they can ask the Justice Court for a "Writ of Possession" to remove you. The constable will then post a 24 hours’ notice to vacate on your front door. After that period, the sheriff and constable can remove you and your belongings.
I lost my eviction case because I missed the hearing. Can I still appeal?
You can still appeal, yes. If you had a very good reason for missing your hearing, you can also ask for a new hearing in Justice Court. You can do this by filing a Motion to Set Aside Default Judgment. Note that filing for a new Justice Court hearing does not give you extra time to appeal to County Court.
Stay Pending Appeal
If you lose the hearing or there is a default, you can appeal within five days and remain in the property while the appeal is pending. You still must pay rent as set forth below if the eviction is for nonpayment of rent.
If part of your rent is paid with federal funds (public housing, subsidized housing, Section 8 rental voucher), make sure the Justice Court’s judgment states the amount paid by the government and the amount to be paid by you. If this isn’t correct, you must file a written objection in Justice Court within five days of the date of the judgment. This is important because you must deposit your part of the rent while your appeal is pending when the eviction is for nonpayment and you appeal by filing an Affidavit of Inability to Pay. You want it to be what you actually owe.
Basics of Appealing an Eviction from JC: Pay attention to deadlines!
Five days to appeal (filed in Justice Court)
You have only five days to appeal the Justice Court’s decision to the County Court (the next highest court). The five days include weekends and holidays. If the deadline falls on a day that the Justice Court is closed (or is not open until 5:00PM), you can file the appeal on the next day that the Justice Court is open. If you miss the deadline, the judgment stands and the landlord can get an Writ of Possession to have you and your belongings removed.
Appeal (filed in Justice Court)
You can appeal with a (1) bond or (2) cash deposit OR (3) an Statement of Inability to Pay Court Costs (Fee Waiver).
- Appeal Bond or Cash Deposit: A bond is a promise to pay the judgment if you lose the appeal. The judge usually sets the amount at one month's rent, but this may vary. of the bond is set by the Justice Court, usually at two to three times your monthly rent. You can deposit cash or file a bond with the Justice Court. A bond must be signed (guaranteed) by you and one or more people (for example who have assets in Texas) who are approved by the Justice Court. If the eviction is for nonpayment of rent and you file an appeal bond rather than a cash deposit, you must then also pay one rental period’s rent into the Justice Court’s court registry within five days. And you will also have to pay a filing fee for the appeal once it arrives at the County Court.
- Statement of Inability to Pay Court Costs (Fee Waiver): If you can’t afford the bond or a cash deposit, you can file an Affidavit of Inability to Pay (also called a Sworn Statement of Inability to Pay). The Justice Court should provide you a form Affidavit upon request. If you appeal with an Affidavit, you are not responsible for County Court filing fees. If the landlord disagrees with your Affidavit, you must prove in a Justice Court hearing that you cannot afford to pay the cash deposit or file the bond. If you disagree with the Justice Court decision, you can appeal to County Court.
Paying Rent into the Court Registry (nonpayment of rent evictions only)
If you appeal by Affidavit of Inability to Pay (fee waiver): You must pay one rental period’s rent (as stated in the judgment) to the Justice Court Clerk within five days of filing your Affidavit. After that, you must pay rent every rental period (usually monthly) to the County Court Clerk until your appeal is decided. Pay the County Court within five days after rent is due under the lease. If you are late, your landlord can get a Writ of Possession to have you removed.
If you appeal by bond: You must pay one rental period’s rent (as stated in the judgment) to the Justice Court within five days of filing the bond. The law does not require you to make regular rent payments to the County Court. You will, however, still owe the landlord regular rent for as long as you live on the property.
If you appeal by cash deposit: You do not have to make an initial rent payment to the Justice Court. As with appeal by bond, the law does not require you to make regular rent payments to the County Court. However, you will still owe the landlord regular rent for as long as you live on the property.
Texas Rent Relief recipients: If you are appealing an eviction after having received Texas Rent Relief funds, you may use those funds to pay rent into the court registry instead of to your landlord.
Paying Rent to the Landlord (if eviction is for other than nonpayment)
If the eviction is for some reason other than nonpayment of rent, you should continue to pay the rent to the landlord directly to prevent eviction for nonpayment. If the landlord refuses to accept your rent, you should put it aside and not touch it, because you will still owe it.
If you didn’t file a written answer to the lawsuit in the Justice Court, you must file one in the County Court within eight days after the County Court receives your case. The Clerk will send you notice by certified mail (check with the Court frequently!). If you don’t file a written answer, the landlord may win by default. Your answer can be a simple hand-written letter asking for a trial and giving the reasons why you shouldn’t be evicted. Or you can find Answer forms here.
Filing Fee (County Court)
If you did not appeal with an Affidavit of Inability to Pay, you must pay a filing fee to the County Court within 20 days after receiving notice of the fee. If you can’t afford the filing fee, you can file an Affidavit of Inability to Pay Costs.
Appeals Process Flowchart
The Travis County Law Library has created a flowchart to help tenants understand the eviction appeals process.
Trial on Appeal
Your appeal means you will have a new trial in the County Court. The same evidence you used in Justice Court (papers, witnesses, photographs) can be presented again. If you have new evidence, you can also present it. The judge will listen first to the landlord's side and then to your side, and then make a decision about whether to evict. You also have the right to ask questions of the landlord in court.
If You Lose the Appeal
You have 10 days to file a supersedeas bond set by the County Court if you wish to appeal to the court of appeals and remain in possession. The process is complicated; consult a lawyer immediately to discuss your next steps.
- Statement of Inability to Pay Court Costs (Fee Waiver)
- Notice of Filing Statement of Inability to Pay Court Costs
- Notice of Hearing on Contested Statement of Inability to Pay Costs
- Order on Statement of Inability to Pay (Complete as much as you can with the information you have. The judge will finish the form and sign it if they grant your fee waiver request.)
Paying rent while on appeal
If you file an appeal by bond or cash deposit, you are not bound to pay rent while your case is on appeal. Rent may still accrue, though.
Payments when appealing by Statement of Inability to Pay Court Costs:
If you choose to appeal by Statement of Inability to Pay Court Costs, you must pay rent into the court registry. There are two payment deadlines you need to be aware of:
- The day rent is normally due. Failure to pay on time every month allows the court to remove you before the County Court can even hear your case.
- Within five days of the appeal. With the Statement of Inability to Pay option, you must also make an initial rent payment within five days of your appeal. That means if your normal payment date falls outside of those five days, you may need to make two rental payments in a short amount of time.
Example: If you appeal with a Statement of Inability to Pay on the 15th, you must make an initial payment into the court registry by the 20th. If rent is normally due on the 1st of the month, you must also pay on the 1st in addition to the payment you made on the 20th. However, if you appealed on the 28th and rent is normally due on the 1st, making a single payment on the 1st will count as paying both your normal rent and paying within five days of the appeal.
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