So, you’ve begun the eviction process. You have succeeded in obtaining a judgment from the Justice of the Peace granting you possession of your rental property, but the tenant has appealed the case to the County Court. Now what?
First, it’s important to understand that you are not alone. It is common practice for many tenants to appeal the ruling. Some appeal because they feel that the Justice of the Peace made an incorrect ruling given the facts of the case, but most do so because it extends the period of time in which they can remain in the property.
The Appeal Process
If you are reading this you likely know that a tenant has five days after the Justice Court renders a judgment to file a Notice of Appeal. Upon filing the Notice of Appeal, the tenant must pay an appeal bond (which will be stated in the judgment) or appeal via an Affidavit of Inability to Pay. If neither are provided to the Justice Court, the appeal is not perfected and the landlord may obtain a Writ of Possession after the expiration of five days following the judgment.
If the appeal is perfected, the case file is transferred to the County Court for further processing. If the tenant appeals without filing an Affidavit of Inability to Pay, the tenant will be responsible for paying any filing fees associated with the appeal.
Depending on the county, some courts will set the case for hearing. In others, a request that the case be heard must be requested. It is important to note that monthly rent is due during the period the case is pending. Rent must be paid into the Court Registry.
Bond on Appeal
Prior to the case being appealed to the County Court level, most Justices of the Peace will set an appeal bond, which is the amount of money that must be paid into the registry of the court to act as security for buying time and for giving something of value to be held in trust pending the results of the underlying appellate actions.
In Tarrant, Dallas, Harris, Travis and Bexar Counties, many Justices will ask the Eviction attorney what the appeal bond should be. It can range based on circumstances, but typically is 1% of the home value or a percentage of the rent. The particular section that deals with the appeal bond is Texas Property Code §24.00511 which states:
(a) In a residential eviction suit for nonpayment of rent, the justice court shall state in the court’s judgment the amount of the appeal bond, taking into consideration the money required to be paid into the court registry under Section 24.0053.
(b) In addition to meeting all other requirements of law, the bond must require the surety to provide the surety’s contact information, including an address, phone number, and e-mail address, if any. If any of the contact information changes, the surety shall inform the court of the surety’s new contact information.
Pursuant to the Texas Property Code §24.0052, “If a tenant in a residential eviction suit is unable to pay the costs of appeal or file an appeal bond as required by the Texas Rules of Civil Procedure, the tenant may appeal the judgment of the justice court by filing with the justice court, not later than the fifth day after the date the judgment is signed, a pauper’s affidavit sworn before the clerk of the justice court or a notary public that states that the tenant is unable to pay the costs of appeal or file an appeal bond.”
The affidavit must contain the following information:
(1) the tenant’s identity;
(2) the nature and amount of the tenant’s employment income;
(3) the income of the tenant’s spouse, if applicable and available to the tenant;
(4) the nature and amount of any governmental entitlement income of the tenant;
(5) all other income of the tenant;
(6) the amount of available cash and funds available in savings or checking accounts of the tenant;
(7) real and personal property owned by the tenant, other than household furnishings, clothes, tools of a trade, or personal effects;
(8) the tenant’s debts and monthly expenses; and
(9) the number and age of the tenant’s dependents and where those dependents reside.
(b) The justice court shall make available an affidavit form that a person may use to comply with the requirements of Subsection (a).
(c) The justice court shall promptly notify the landlord if a pauper’s affidavit is filed by the tenant.
(d) A landlord may contest a pauper’s affidavit on or before the fifth day after the date the affidavit is filed. If the landlord contests the affidavit, the justice court shall notify the parties and hold a hearing to determine whether the tenant is unable to pay the costs of appeal or file an appeal bond. The hearing shall be held not later than the fifth day after the date the landlord notifies the court clerk of the landlord’s contest. At the hearing, the tenant has the burden to prove by competent evidence, including documents or credible testimony of the tenant or others, that the tenant is unable to pay the costs of appeal or file an appeal bond.
(e) If the justice court approves the pauper’s affidavit of a tenant, the tenant is not required to pay the county court filing fee or file an additional affidavit in the county court under Subsection (a).
It is important to know that you can contest the Paupers Affidavit, which is something that we routinely appear for and attempt to refute language of in the Inability to Pay Affidavit. Information such as bank accounts, hidden funds, social welfare benefits, and other sources of income will come into play and will be determining factors when the Justice makes up his or her mind on the eviction appeal.
Trial on Appeal (DE NOVO)
An appeal from the Justice Court is considered a “trial de novo” (new trial). This means that nothing presented in the Justice Court matters. The County Court Judge will require all evidence and testimony to be readmitted.
Unlike in the Justice Court, trials in the County Court are governed by the Texas Rules of Civil Procedure as well as local rules of court, if available. In general, you can expect to encounter a markedly different level of conduct and candor in the County Court than what you encountered in the Justice Court, since it is a court of evidentiary record and may be set aside in a higher level appeal if challenged further. In order to be successful at this level, a party or eviction attorney must know what needs to be “on the record” to prevent the matter from being appealed and costing you far more time and money.
Upon commencement of the trial, the landlord will be allowed to produce its evidence, explain its side of the case, present argument for the damages being sought, and question the tenant (if it wishes). Once the landlord has completed presenting its case, the tenant will have the same opportunity.
After the considering all the evidence and testimony presented to it, the Court will issue a ruling. In many cases, landlords will be entitled to possession of the property, the recovery of past-due rent up to and including the date of trial, and the costs of court and attorney’s fees.
Attorney’s fees may be awarded only if the requirements of Texas Property Code Section 24.006 are met.
Once the County Court has rendered judgment in favor of the landlord, the landlord may then obtain a Writ of Possession to have the tenants and their belongings removed from the property.
Preserve your Rights to your Property
There are vast differences between Justice Courts and County Courts caused by the introduction of the rules of civil procedure and evidence that are almost nonexistent in Justice Courts. It is not unusual for landlords to lose their County Court case due to a simple oversight on their part as a result of being unfamiliar with the rules that govern the County Court.
If you have any questions or concerns regarding an eviction that has been appealed to the County Court, contact the real estate attorneys at The Farah Law Firm, P.C. We will work relentlessly to get your case set for hearing on the earliest available date and will take advantage of any and every opportunity to expeditiously dispose of the case.