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A Brief Summary of the Complicated Eviction Process

Real Estate
A Brief Summary of the Complicated Eviction Process


To begin the process, the tenant must receive a Notice to Vacate in accordance with procedures outlined in the lease or the oral agreement. If it was not outlined in the lease or agreement, then the requirements in the Texas Property Code must be strictly followed. Tex. Prop. Code § 24.005; Tex. Prop. Code § 91.001.



Once the stated time period given in the Notice to Vacate has passed and the tenant still has not vacated, then a Petition for eviction (officially called a “Forcible Detainer” suit) must be filed with the Justice Court of the precinct where the Property lies. Once the Petition is processed, the court will schedule the eviction for trial. TRCP 510.3.



Once the Petition is filed, the court will give the Sheriff/Constable a copy of the Petition and a Citation to deliver to the tenant. The Citation informs the tenant about the suit for eviction. The Sheriff/Constable will “serve” or hand-deliver these documents, collectively called Process, to the tenant. The Sheriff/Constable will attempt two or three times to serve Process. If the tenant fails to answer, then an "Alternative Service Rule" will be sought from the Judge. This means that the Sheriff/Constable will not have to serve the tenant in-person and can instead either mail Process or leave it at the Property. TRCP 510.4.



On the day of the eviction trial, the Judge will ask to hear the arguments of the Plaintiff (the landlord or owner asking to evict the tenant). The Plaintiff will, at the very least, need to present a copy of the Notice to Vacate and explain how it was delivered to the tenant. Other helpful documents to present are the lease (if it was written), a copy of the ledger (if the eviction is due to nonpayment) or a copy/proof of the violation (if the eviction is due to some other lease violation). The Judge will then allow the Defendant (the tenant) to present a defense. TRCP 510.7.



If the Judge is convinced that the Plaintiff should have the immediate right to possession, then the Judge will issue a judgment reflecting such. Once judgment is issued, the tenant has five days to either: a) vacate the property; b) do nothing; or c) appeal the judgment. TRCP 510.8.

a) If the tenant vacates the property, then the process is complete.
b) If the tenant does nothing, then a Writ of Possession can be requested. TRCP 510.8(d).
c) If the tenant appeals within that five-day period, the case moves to the next higher court, the County Court at Law. TRCP 510.9.



To appeal, the tenant must go back to the Justice Court and either a) pay a cash deposit; b) file an appeal bond; or c) submit a Statement of Inability to Pay for an Appeal (commonly referred to as a Pauper’s Affidavit). Once this is properly done, the Justice Court will send all the documents involved with the case over to the County Court. TRCP 510.9; TRCP 510.10(a).



The appeal trial is done de novo, meaning that it is conducted like a brand-new trial, as if there was no prior trial at the Justice Court. All testimony and evidence must be presented again in the County Court. However, unlike at the Justice Court, any testimony given must be formally presented and any evidence must be properly admitted into the record. The Judge, in a similar fashion, will first allow the Plaintiff (now called the Appellee) to present their side, then allow the Defendant (now called the Appellant) to present any defense. TRCP 510.10(c).



If the final judgment is in the Appellee’s favor, then the tenant will again have five days to either: a) vacate the property; b) do nothing; or c) appeal the judgment. This time however, while appeal is possible, it is highly unlikely. A tenant at this point cannot do an appeal for free (the tenant must hire an attorney, pay the court fees, precisely follow the appeals procedure, etc.).

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