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Writ of Possession

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Writ of Possession

So you won your suit for eviction, five days has passed, and your tenant hasn’t vacated yet or appealed. What do you do? Why, you get the writ of possession of course. But what is the writ of possession? Where do you get it from? How do you get it? Situations like this occur quite often after evictions and many landlords do not know what can be done at this point. Luckily, the attorneys at The Farah Law Firm can help.

 

What is the writ of possession?

The writ of possession (we’ll just call it the writ going forward) is an order from a judge that directs a law enforcement official to go and seize or take possession of a particular property for the county. This typically comes after the judge has issued a prior judgment directing that a particular party (i.e. the landlord/property owner) should have possession of the named property, although the writ can be issued in other situations. The writ can be issued by a Justice of the Peace, County, or District court, and is available for both residential and commercial properties.

 

How does the writ process work?

After a judge signs the order for the writ, it is transferred to the office of a law enforcement official in the county where the property is located, typically the Constable’s office. Once received by the office, one of the deputies will contact the landlord/property owner to schedule the date of service, or the date the deputy will go to the property to seize it. In accordance with Section 24.0061(d) of the Texas Property Code, the day before service, the deputy will go to the property and place a notice on the front door, giving the tenant one last chance to vacate on their own. The deputy will then return the following day at the time previously arranged with the landlord/property owner to see if the tenant has left. If not, the deputy will then remove the tenant and seize the property, allowing the landlord/property owner to remove the tenant’s belongings and place them on the sidewalk/front yard and change the locks. The deputy’s main goal is to maintain the peace during this time; they do not participate in the removing of belongings. Once the moving is finished, the deputy will then return the property to the landlord/property owner and release the tenant.

 

Important timelines/deadlines to know:

  • According to Rule 510.8(d)(1) of the Texas Rules of Civil Procedure, the writ cannot be served before the 6th calendar day after the writ is issued, and in our observation, many times the court will not even accept a request for the writ before that time.
  • Once a judgment for possession is signed, a landlord/property owner has up to 60 calendar days to request the writ. Id. This time can be extended to 90 calendar days if the landlord/property owner can show good cause as to why the extension is needed. For example, a landlord stating they were hospitalized may be a good reason for the court to grant an extension; however just simply not requesting the writ in time will not be a good reason. And pursuant to Rule 510.8(d)(2), the writ absolutely cannot be issued after 90 days; there would need to be another eviction hearing held and judgment issued.
  • Once the writ is issued and transferred to the law enforcement official, it is up to that office and the landlord/property owner to coordinate when the writ will be served. The deputy will make contact with the landlord/property owner when they have availability coming up on their calendars. This could be the day after the deputy receives the writ or it could be a few weeks.

 

How do you get the writ?

Legal Document from court

The court where the eviction hearing was held can provide the document needed to request the issuance of the writ. It’s usually just a one-page form. An example can be found here. Of course, if you’d like, the attorneys at The Farah Law Firm can always assist with obtaining the writ.

 

Is it free to get the writ?

Unfortunately no. The court will charge a small fee to process the request and transmit the writ, somewhere around $5-$8. On top of that, the law enforcement office serving the writ charges a fee for the time the deputy is on the property. This amount varies across the counties, but generally the fee is around $125-$175. This covers the landlord/property owner for two hours of the deputy’s time to finish moving the tenant’s belongings out of the property. If more time is needed, the deputy can usually stay for a set hourly amount.

 

What if there is no judgment for possession?

A mentioned before, the writ typically comes after a judgment for possession. However, there are other scenarios in which the writ can be issued. For example, if the tenant in an eviction for nonpayment has appealed the judgment, but has not paid their rent to the court as ordered, the writ can be issued to remove the tenant while the appeal is pending. Depending on the timing, a hearing for the writ may or may not be needed.

 

Is there anything else?

While the deputy may deliver the notice of the writ any day of the week, the service of the writ can be any day except Sunday. Also, the writ will not be serviced if there is inclement weather on the day of service; it will be rescheduled

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