Eviction
Check out this video from Texas Rio Grande Legal Aid explaining the eviction process in Texas
What is an eviction?
An eviction is a lawsuit filed by a landlord to remove people and belongings from the landlord’s property. In Texas law, these are also called “forcible entry and detainer” or “forcible detainer” suits. There are hundreds filed every day in Texas justice courts (also called justice of the peace or J.P. courts).
A landlord must start this process by giving a notice to vacate and demand for possession to the tenant. You do not have to move out at this point. See the sections below for more information about how to advocate for yourself if you’re being evicted.
A landlord may evict a tenant for violating the terms of the lease (for example, for failing to pay rent) or staying past the agreed lease term (“holding over”). Your landlord cannot discriminate or retaliate against you.
If you are getting evicted, you should try to get advice from an attorney. If you have a very low income, you may qualify for free or low-cost legal aid from a nonprofit legal aid organization in your area. See the Resources page for more information.
What should I do if I get an eviction notice?
If you get an eviction notice, it’s important to take action. You can take some small steps to stop or delay your eviction. Below are some useful tools that will help you understand your rights in the case of an eviction.
You do not have to move out just because you received a notice to vacate.
If a tenant does not move after a landlord gives the tenant a notice to vacate, the landlord must file an eviction case with the J.P. court to get approval to kick the tenant out. The landlord must prove that the tenant has either violated the lease or has not moved after the landlord lawfully did not renew the lease and that the landlord gave the tenant proper notice in the manner required under the law. Before a tenant can actually be forced from their home a court must rule that the landlord is legally entitled to recover possession, and a constable must supervise the actual removal of the tenant from the unit.
The eviction process
LL: landlord NTV: notice to vacate JP: justice of the peace WP: writ of possession
1. RECEIVE A NOTICE TO VACATE
Under Texas law, a landlord is required to give you a written notice to vacate before filing an eviction lawsuit. The notice will demand that you vacate within three days unless your lease provides for a different notice period. You do not have to leave yet. After you get the notice to vacate, consider whether the landlord is following the law:
Did you actually violate your lease as the landlord claims?
Did the landlord give you proper notice in the proper manner?
Is the landlord retaliating? – It is illegal for a landlord to evict you because you asked for repairs, or called a housing inspector, or exercised some right under the lease, the Property Code, municipal ordinance, or federal or state law, or or participated in a tenant organization (see Retaliation)
Is the landlord discriminating against you? – It is illegal for a landlord to discriminate against you based upon race, religion, disability, sex, national origin, color, or familial status (having children).
Did the landlord miscalculate your rent and late fees?
You can defend yourself in court. If the landlord is wrong or did not follow the law, the justice of the peace should deny the eviction.
See “What should I do at the eviction hearing?” for information about defenses you can use in court.
TALK TO YOUR LANDLORD AND MAKE AN AGREEMENT
You might be able to come to an agreement with your landlord and avoid going to court. Try to talk to your landlord and see if you can get more time to fix the situation. You may want to ask the landlord to not file an eviction lawsuit in return for fixing the lease violation. For example, you may be able to stop the landlord from filing an eviction suit by paying rent that you owe, getting rid of pets not allowed under the lease, or cutting down loud noise.
It is best to put an agreement you reach in writing and have both you and the landlord sign and date it.
2. RECEIVE EVICTION PAPERS FROM THE COURT
If you can’t come to an agreement, your landlord will file an eviction suit in Justice Court. A constable will try (twice) to hand deliver the eviction suit papers to your home. If the constable or sheriff is unable to hand them to you or someone over 16 years of age residing at the premises, they should post the papers in a visible spot on the outside of the rental unit and mail you a copy. Only the constable or the sheriff can legally deliver the eviction suit papers from the court. You still do not have to move out yet.
Tip: If you’re home, you should accept the papers so that you know what is happening. You will have to go to court to defend yourself so you will want to know when and where you have to be at court.
When the landlord files an eviction suit, it becomes a permanent court record and will likely become a part of your tenant history record, making it harder to rent in the future. Once it is filed, it is best to have it dismissed or have a judgment made in your favor.
IMPORTANT: If any of the court papers you received is called something like “Bond for Possession” or “Notice of Filing Possession Bond” you must show up for the trial or file a written answer if you do not intend to show up. See Rule 510.5 of the Texas Rules of Civil Procedure. Otherwise, the justice of the peace may sign a default judgment, and the court must issue a writ of possession immediately. The writ of possession may be executed on or after the 7th day the constable served you with the Possession Bond. You should file a written answer and also appear for the trial. This will ensure that if you lose, you get five days after the hearing to move out or appeal. Because many J.P. courts follow different procedures regarding possession bonds, you should contact an attorney to help you and talk with the court clerks to understand how their court interprets the rule on possession bonds.
DECIDE IF YOU WANT TO FIGHT THE EVICTION SUIT
You will need to decide if you want to fight the eviction suit. Even if you do not have a legal defense (see below), you can often reach an agreement if you go to court that could mean the court or the landlord dismisses your case. This may help preserve your rental history, but the suit is still part of the public records.
If you move before the court date, you should still go to the hearing and tell the justice of the peace you have moved. You also want to make sure that the court does not give the landlord a judgment for more rent than you owe.
If you choose to fight an eviction suit and lose, you are liable for the landlord’s court costs and the landlord’s attorney’s fees, if the landlord hired an attorney. You may be held liable for the landlord’s attorney’s fees only if the lease says the landlord can recover attorneys’ fees or if the landlord gives you an 10-day notice to vacate by certified mail that specifically says you will be responsible for attorneys’ fees if you do not vacate before the 11th day after receiving the notice. See Section 24.006, Property Code.
If you want a jury trial, then you must file a written demand for trial by jury at least three days before the trial date. The demand must be accompanied by payment of the jury fee (currently $22.00) or a Statement of Inability to Afford Payment of Court Costs. Check with the court clerk to verify whether the jury fee amount has increased from $22.00.
3. GO TO THE EVICTION HEARING
The court papers you receive will set the date of the eviction trial, which must be held within 21 days of the date the landlord filed the eviction lawsuit. At the hearing you will need to be prepared to present your side of the story to the Justice of the Peace (judge). Take your copy of the lease, any pictures, letters, documents, receipts, or witnesses to show the judge as evidence.
Note: The judge may not consider letters and affidavits from witnesses. You need to take any witnesses with you if you want the court to hear what they have to say. You can request that the clerk issue a subpoena to force a particular witness to come to the hearing (the subpoena can be served by any person over 18, and not a party to the case). Constables charge fees (usually $60) to serve a subpoena. Check with the constable on the fee if you are asking the constable to deliver the subpoena.
For more on what to do at the hearing and to learn about what kind of legal defenses you might have, see “What should I do at the eviction hearing?” below.
The judge or the jury will make a final decision after hearing the case and sign a judgement. If the landlord wins, the law allows you five calendar days to appeal the decision or move out. If you win, the landlord also has five calendar days to appeal the decision.
4. APPEAL OR MOVE OUT
If you lose at the hearing, you have five calendar days to appeal. See “Appealing an eviction” below for more information.
5. WRIT OF POSSESSION
If you do not appeal, the landlord can ask the court for a writ of possession. The constable will then post a 24-hour notice on your front door stating the date and time the constable will return and remove you and your possessions. If you do not move, the constable or sheriff will execute the writ of possession by standing by to preserve the peace while the landlord removes you and your things.
What should I do at the eviction hearing?
Arrive at least 15 minutes early.
Bring your lease, receipts, money order stubs, other payment records, letters, pictures, witnesses and any other form of evidence you might need. You can pay for the constable to subpoena a witness if you need them to be there and they won’t otherwise come. The judge might not accept a testimony in writing or an affidavit.
Organize your documents before the hearing. It is a good idea to practice what you will say before going to the hearing.
Understand your legal defenses.
Tenants may assert two different kinds of defenses: procedural or substantive. A procedural defense alleges that the suit was improperly brought before the court, and the landlord is not entitled to win. A substantive defense alleges that the landlord is not entitled to win because you have not done anything to violate the lease agreement or have some other legal defense. Below are the different kinds of defenses:
Defective notice to vacate
The landlord must follow very strict guidelines in giving a tenant a notice to vacate the rental unit. If the landlord doesn’t provide proper notice in the proper manner, the tenant can get the eviction suit dismissed.
Be aware: Even though the case will be dismissed, dismissal does not stop the landlord from correcting the notice and trying to evict you again. The defective notice defense can give you more time to either come to an agreement with your landlord, prepare your case against the landlord, or move out.
Even if the court or the landlord dismisses the case for defective notice, the eviction filing will still likely appear on your tenant history if that information has been picked up by an agency, such as Tenant Tracker, which reports tenant history to landlords. This can make it harder to find a landlord that will rent to you in the future.
Oral notice
Did the landlord give you a written notice to vacate your rental unit before filing the eviction suit? If the landlord didn’t give you a written notice to vacate, you can ask the court to rule in your favor or to dismiss the eviction suit. If you just got papers from the court, that is not sufficient. The landlord must first give you written notice to vacate before filing in court. Make sure you bring all documents you have received from the landlord to the court, so that the judge will be able to determine whether your defense is valid.
Eviction suit filed too soon
Did the landlord provide a written notice to vacate at least one day before filing the eviction suit? Check your lease; if it does not specify a notice period, or if the lease is oral, then the landlord must give you notice to vacate three days before filing the eviction suit. If the landlord filed the eviction suit before giving the proper notice to vacate and waiting until the end of the vacate period, the suit is improperly filed and the tenant is entitled to win.
Notice is unclear
No matter the reason for the eviction, the landlord has to clearly tell you to move out in the notice. For example, a notice that says “pay your rent or vacate” does not clearly tell you to move out and is improper (unless the landlord has provided a prior written notice that the rent is due and unpaid).
Lease non-renewals
Has your lease term expired, but you still live in the rental unit? If you remain in your rental unit after your lease term ends and the lease says it will continue on a month-to-month basis, the landlord must provide you 30 days notice of non-renewal (you must also provide 30 days notice if you want to move out). The landlord must also provide you a three-day notice to vacate if you do not vacate after the 30-day notice.
Improper delivery
The landlord should hand deliver a notice to vacate to someone living in the household, who is over 16 years old, or tape the notice inside the front entry door. There are certain occasions when this is not possible, like if there’s a dangerous animal inside, but generally some examples of improper delivery are: the notice was stuck to a clip on the outside of the door or stuck between the door and the door frame.
Premature notice to vacate
Example: The landlord gives a notice to vacate for nonpayment of rent before the rent is due.
Failure to give tenant opportunity to correct (cure)
Texas does not require that the landlord give the tenant an opportunity to cure a lease violation. It’s unlikely, but your lease may provide for a right to cure a lease violation such as nonpayment of rent.
Waiver
If the landlord consistently accepts rent payments on the 4th day of the month that are due on the 1st and without warning refuses to accept a payment on the 4th, the tenant can argue the landlord has waived the right to payments on the 1st. If, however, the lease says the landlord cannot waive its right to timely payment by accepting late payments, the court may uphold the eviction.
Landlord caused tenant to default
Note: In a nonpayment of rent eviction case, it is not a defense to say that the nonpayment resulted from a hardship that was not your fault. For example, loss of a job, emergency car repairs, family funeral expenses, etc., don’t count as defenses.
If you live in public housing or federally subsidized housing or have a Section 8 voucher, you should call your local legal aid organization because there are many more defenses available. For example, you may have a defense to nonpayment of rent if your landlord or public housing authority did not reduce your rent after you lost income and reported the loss to the landlord.
TexasLawHelp.org has more advice about what to do during a hearing and tips on virtual hearings. The most important thing is to show up and make your case.
What are my options if the court rules against me and approves the eviction?
You have 3 options if the court rules against you:
Option #1 – Move out
If you choose not to appeal, you still have five calendar days from the date of the hearing to move before the landlord can obtain a writ of possession. If you choose to move out, do not leave any of your things in the rental unit. Make sure you clean the rental unit after you move out all of your belongings. Do a walk-through with the landlord and a witness. Take pictures or videotape to document the condition of the rental unit. Leave a forwarding address with the landlord (this just needs to be a place where you can receive mail; it can be a friend’s house). Return the key to the landlord. You can also try to negotiate for more time. If you do get some sort of agreement, be sure the agreement is in writing and signed by the landlord.
Tip: Be careful about giving the landlord any money in exchange for more time unless the agreement is very clear. Sometimes landlords take tenant money and evict the tenant anyway.
Option #2 – Appeal the eviction
If you want to appeal the eviction ruling from the judge, it would best for you to speak to an attorney about the appeal. If you have a low income you may qualify for a legal aid attorney.
You will have five calendar days to file an appeal (when you count the five days, count the weekends and holidays). If the justice court is not open until 5:00 p.m. on the last day to file the appeal, you have one additional day to file the appeal. See Texas Rule of Civil Procedure 500.5(a)(3)(B). You will have to either:
Post an appeal bond with two good sureties approved by the court (a promise to pay a specific amount set by the court) or
Pay a cash deposit in the amount of the bond set by the court or
File an affidavit of inability to pay the appeal bond in order to appeal the judge’s ruling to higher court (see below for a form affidavit of inability to pay).
In addition, under Texas Rule of Civil Procedure 143a, if you appeal by posting an appeal bond or paying a cash deposit with the justice court, you must pay the county court filing fee within twenty days of being notified that it is due. If you do not pay the fee or file a Statement of Inability to Pay the court filing fee with the county court at law, then your appeal will be deemed not perfected, and the court clerk will return the file to the justice court. The justice court may then issue a writ of possession.
If you appeal and did not file a written answer with the justice of the peace, you must file a written answer with the county court at law within eight days after receiving notice from the county clerk that the appeal has been received. If you do not do so the landlord may obtain a default judgment.
The case may be set for trial any time eight days after the appeal is docketed by the county clerk. You are entitled to a minimum of at least three days written notice of the trial date either from the court or from the landlord.
If you win in County Court, any cash deposit you paid for the bond amount should be returned to you. If you lose, the landlord may ask the court to award the cash deposit to the landlord for back rent, court costs, and, if applicable, attorney’s fees, with any remainder returned to you. See “Appealing an eviction” (below) if you plan to appeal.
If you lose and filed an appeal bond with two sureties, the landlord may sue you and the sureties to recover any damages resulting from the appeal.
Option #3 – Do nothing and be forced to move out
If you choose not to move out or appeal, the Landlord will request a Writ Of Possession, which is a court order directing the constable or sheriff to give the landlord physical possession of the rental unit. The writ cannot be issued until at least five days after the judgment from the eviction hearing (counting weekends and holidays). The constable or sheriff must post a 24-hour written notice on your door stating when the constable/sheriff will come over and make you move out. You, any other persons who live with you, and all of your possessions, will be removed by the landlord under the supervision of the constable or sheriff. If it is raining, sleeting, or snowing you cannot be removed.
The landlord might still let you stay in the premises, even after the judge has ruled that the landlord may evict you, if you pay back rent and court costs before the five days are up. If your landlord agrees to let you stay, get a written statement that the landlord will not enforce the eviction judgment; otherwise, the oral agreement will be hard to enforce.
Appealing an eviction
If you lose at the hearing, you have five calendar days to appeal, unless the justice court is not open until 5:00 p.m. on the last day to file the appeal, in which case, the appeal period is extended through the next day. If the 5th day falls on a weekend or holiday, the appeal period is extended to the next business day the court is open. For the basics on making an appeal, check out this page from Texas Rio Grande Legal Aid.
You may appeal by:
depositing a cash deposit with the justice court in the amount of the appeal bond set by the justice of the peace, or
filing an appeal bond with two good sureties, which the court must approve, or
filing an Affidavit of Inability to Pay the Appeal Bond. (The court clerk must give you the form Affidavit of Inability upon request, but linked here is one from Texas Rio Grande Legal Aid that you can fill out yourself.)
Almost all tenants who appeal do so by filing an Affidavit of Inability to Pay Appeal Bond because they lack the money to pay the appeal bond with a cash deposit and are unable to find two good sureties with the money to pay the appeal bond. You can get any forms you need from the justice court.
It is important to pay your rent if you appeal. There may be rules about who you should pay depending on the kind of eviction case (nonpayment of rent or something else):
Nonpayment of Rent Cases Only:
If you appeal a nonpayment of rent case either by filing the Affidavit of Inability to Pay Appeal Bond or by filing an appeal bond with two good sureties, you have five calendar days from the date you file to pay one rental period’s rent into the justice court registry to remain in possession as the appeal proceeds;
If you appeal by paying a cash deposit into the justice court registry (usually 2-3 months of rent), you don’t have to pay rent into the justice court registry or the county court at law registry.
If you appeal with an Affidavit of Inability to Pay in a nonpayment of rent case, you must also pay future rent each rental period into the county court at law registry within five calendar days of the due date under the lease to remain in possession during the appeal. If you do not pay the rent as into the county court at law registry as it comes due, the landlord can file a motion with the court and ask for a writ of possession to have the constable remove you. The court will schedule a hearing on the motion. (Important: The requirement to pay rent into the county court at law as it comes due does not apply if you filed an appeal bond with the justice court. You must only pay the initial rental period’s rent into the justice court.)
Evictions for Reasons Other Than Nonpayment of Rent: Tenants who appeal such cases by filing an Affidavit of Inability to Pay Appeal Bond or an appeal bond are not required to pay rent into the justice court registry or county court at law registry to remain in possession during the appeal. Such tenants should continue paying rent directly to the landlord. If the landlord is refusing to accept the payment, the tenant should re-tender the rent each rental period.
IMPORTANT: If you do not appeal or fail to pay rent as required, the landlord can ask the court for a writ of possession. The constable will then post a 24-hour notice on your front door stating the date and time the constable will return and remove you and your possessions.
If you follow all of the steps above and appeal your case, this is what will happen next:
The justice court will forward the case file to the county court at law.
The county court clerk will notify the parties that the case file has been received, and the appeal has been docketed.
The case is subject to trial any time eight days after the appeal has been docketed.
The trial in county court at law is a de novo trial. This means the case is tried as if the trial in the justice court had not occurred (you should bring all the same evidence you brought to justice court and anything additional).
The county court at law judge will hear the evidence and sign a judgment.
Preparing for the appeal: An appeal from J.P. court goes to the county court, where the landlord has to start all over again and must prove their case again. What happened in justice court does not matter. This is a completely new trial. You should be prepared to show how the landlord is wrong and why the eviction should be denied. You are also entitled to a jury trial in county court if you make a timely request in writing and pay the fee required. Follow the same advice we gave you in preparing for the J.P. court hearing (above).
If you lose the appeal, you can appeal again by posting a supersedeas bond to remain in possession during an appeal to the court of appeals in an amount set by the county court at law judge within 10 days of the date the judgment is signed as permitted under section 24.007 of the Texas Property Code. Otherwise, the landlord may obtain a writ of possession to have the constable remove you after 10 days.
If you do not post a supersedeas bond within 10 days and the landlord asks the constable to execute the writ of possession, the constable will first post a 24-hour warning on your front door.
If you don’t move, the constable or sheriff will execute the writ of possession by standing by to preserve the peace while the landlord removes you and your things.
Resources for obtaining advice or legal representation
If you are faced with an eviction you should try to get advice and assistance from an attorney.
If your income is very low, you may qualify for free or low cost legal aid. The Legal Services Corporation funded “legal aid” programs in Texas are:
Legal Aid of Northwest Texas: 888-529-5277 — free legal aid for low income people in northern and western Texas
Lone Star Legal Aid: 800-733-8394 — free legal aid for low income people in southern and eastern Texas
Texas RioGrande Legal Aid: 888-988-9996 — free legal aid for low income people in southwest Texas
There are additional legal providers listed on the Resources page.
There are also tenant organizations in some Texas cities that may be able to support you during your eviction proceedings. See the Tenant organizing page for more information.
You might have extra legal protections because of COVID-19.
Check out this page from TexasLawHelp.org that may answer your questions about evictions and COVID-19.
What is the Texas Eviction Diversion Program (TEDP)?
TDEP is a program created by the Texas Supreme Court in conjunction with the Governor’s Office. Under the Program, “the TEDP may provide up to six months of rental assistance for eligible tenants who are behind on their rent due to the COVID-19 pandemic and have been sued for eviction. Both the tenant and the landlord must agree to participate and meet the requirements in the chart” linked here. The Program is supposed to begin in all Texas counties effective January 1, 2021.
An eviction might make it hard for you to rent in the future.
If the landlord files an eviction with the court, win or lose, other landlords may not want to rent to you in the future. Court records are public information, and a landlord might refuse to rent to you just because you have had an eviction filed against you. If you want to keep an eviction off your record, you should come to an agreement with your landlord or move out before they take it to court.
