The Eviction Process

A landlord may try to evict a tenant for many reasons. These reasons include if a tenant owes any rent, even as little as $1; if any unauthorized occupants or guests are living in the dwelling; or if there is any other substantial breach of the rental contract. However, a tenant always has the right to fight an eviction in court. An eviction for alleged breach of the lease is different from terminating a lease at the end of its term.

What Is the Eviction Process?
The eviction process is a formal procedure that will include going to the justice of the peace (JP) court or possibly to a higher court. Evictions can be complicated. To fully understand the eviction process, carefully read this entire brochure.

The landlord must first deliver a written Notice to Vacate to the tenant. If the tenant does not move out after the deadline in the notice, the landlord must file an eviction suit with the JP court. A constable will deliver an eviction citation to the tenant. The citation willset a hearing date. If the tenant loses the eviction, the tenant will have five days to appeal the decision or move out.

Notice to Vacate. This notice, also known as a demand for possession, must be in writing. The landlord has to give the tenant at least three days to vacate unless a written lease sets a different time period, such as 24 hours. The notice may state the date it is delivered, the reason for the eviction, and indicate the amount of rent owed, if applicable, but this is not required by Texas law. The notice must:

  1. State the number of days the tenant has to vacate; and
  2. Indicate the tenant’s “right to occupancy is being terminated.”

There are several ways to deliver this notice. However, it is best to have proof that the tenant received the notice. The notice may be delivered:

  1. To the tenant or any person over 16 years of age residing at the unit;
  2. By certified, registered, or regular mail;
  3. By attaching it to the inside of the front entrance door; or
  4. By attaching it to the outside of the front door but only if:
    • There is no mailbox; and
    • The landlord cannot enter the unit because a dangerous animal, keyless deadbolt, or an alarm system prevents the landlord from entering.

NOTE: Normally, a notice to vacate must be unequivocal and must demand only that the tenant move. However, Texas law allows a landlord to give a notice to vacate which states the tenant should pay rent or move if the landlord first gives a written notice or reminder to pay the rent.

Eviction Citation. The tenant does not have to move out of the unit by the date indicated on the Notice to Vacate. If the tenant decides to stay in the unit, the landlord can file an eviction suit at the local JP court. The landlord cannot remove the tenant or the tenant’s property without a court order, except in the case of abandonment or when exercising a landlord’s lien. After the landlord files the eviction suit, the court clerk will send the eviction citation to the constable’s office for service to the tenant. The constable will attempt to hand-deliver the citation to the tenant at the tenant’s home. After two unsuccessful attempts, the constable may slip the citation under the front door or attach it to the front doors and mail a copy by first class mail.

The first page of the citation from the JP court must include the following notice in bold print and in English and Spanish:

Suit to Evict
This suit to evict involves immediate deadlines. Call the State Bar of Texas toll-free at 1-877-9TEXBAR if you need help locating an attorney. If you cannot afford to hire an attorney, you may be eligible for free or low-cost legal assistance.

If the eviction is for nonpayment of rent, the landlord is not obligated to accept delinquent rent. The tenant should attempt to pay the money due. If the landlord accepts it, the tenant should get a written receipt and try to get the landlord to sign an agreement to drop the eviction. The tenant should assume the landlord is going to continue with the eviction until the court says the case has been dropped.

The eviction procedure for public housing or subsidized housing tenants is different. If you are in that situation, consult with an attorney from Texas RioGrande Legal Aid (374-2700) or a counselor from the Austin Tenants’ Council.

The Tenant’s Answer. In Travis County, the justices of the peace set a trial date in the eviction citation. If the tenant prefers a jury trial, then the tenant will have to pay a jury fee within five days. The procedure and time period may be different in other counties, so read the citation carefully and follow the instructions!

Occasionally, a landlord will file a six-day immediate possession bond with the eviction suit. When a landlord files a six-day immediate possession bond, the tenant is served an eviction citation that clearly states that the landlord has filed the immediate possession bond and it gives the tenant six days in which to respond and set up a hearing. If the tenant fails to demand a trial within six days, the landlord can obtain a Writ of Possession immediately after the sixth day passes. If the tenant demands a trial by the sixth day, a hearing date will be set and the eviction will proceed the same as a standard eviction. If the tenant loses at the hearing, the tenant will still have five days after the hearing date to either move out or set up an appeal.

In Travis County, the tenant may simply appear for the trial. No written answer is required in justice court.

Failure to appear at trial allows the landlord to get a default judgment against the tenant. If the court awards the landlord a default judgment, the court must notify the tenant by sending a written notice within 48 hours after the entry of the judgment.

Going to Court. The landlord and the tenant should appear before the justice of the peace on the trial date and be prepared to present their case. The judge will make a decision based on the facts presented during the eviction hearing. The final decision is called a judgment. If the judgment is in favor of the landlord, the tenant will have five days to move out or appeal the decision. If the judgment is in favor of the tenant, the landlord also has five days to appeal.

Filing an Appeal. The tenant may dispute the judge’s decision by filing an appeal. The tenant will either have to pay an appeal bond or file a Pauper’s Affidavit if the tenant does not have the money or property to pay an appeal bond.

When a tenant appeals by filing a pauper's affidavit and the eviction is for nonpayment of rent, the tenant can stay in possession of the rental unit during the appeal by paying one month’s rent into the justice court’s registry. This needs to be done within five days of filing the affidavit. The tenant will also have to make future rental payments into the county court registry within five days of the date due under the lease.

If the eviction is for some reason other than nonpayment of rent, the tenant should continue to pay the rent to the landlord or the landlord can file a new eviction for nonpayment. As long as the rent is paid, the tenant can stay in possession of the rental unit during the appeal.

In addition, if the tenant did not file a written answer with the justice court, the tenant must file a written answer with the county court within eight days after the court papers are filed in the county court or the landlord may win by default.

Also, the tenant must pay a county court filing fee within 20 days after receiving notice of the fee or file an affidavit of inability to pay the filing fee, unless the tenant filed a pauper's affidavit in justice court. If the tenant fails to do so, the appeal will be dismissed and the landlord can get a Writ of Possession removing the tenant from the property.

This brochure does not give all information about appeals because they can be complicated; it is advisable to consult an attorney.

Appointment of Counsel. A tenant who successfully files a pauper’s affidavit in the appeal of an eviction may request in writing that the county court or county court at law appoint a pro bono attorney to represent the tenant during the appeal.

Writ of Possession. If the tenant does not move out or appeal, the landlord must request that the judge issue a Writ of Possession, which is a court order directing the constable or sheriff to place the landlord in possession of the rental unit. This means the tenant, all occupants, and personal items will be removed by the landlord under the supervision of the constable or sheriff. Before removing all people and belongings, the officer executing the writ must give the tenant 24 hours to move from the time the officer posts a written warning notice on the front door. This notice must be on a paper that is no smaller than 8½" x 11". It must inform the tenant that a writ has been issued and state the date and time the writ will be executed.

What Else Can a Landlord Do?
If a tenant is behind on rent, a landlord may be able to temporarily lock that tenant out, but must give the tenant a key upon request, or remove some of the tenant’s belongings in a lien.

Lockout. A landlord may change the lock on a tenant’s door when the rent is delinquent, but only if:

  1. The landlord’s right to change the locks because of a tenant’s failure to timely pay the rent is written in the lease; and
  2. The landlord has given the tenant advance written warning that the locks will be changed. The warning must give three days’ notice if it is hand-delivered or posted and five days’ notice if mailed.

The notice must state the earliest date that the landlord proposes to changes the locks; the amount of rent the tenant must pay to prevent the changing of the locks; the location of where the tenant may discuss or pay the delinquent rent; and in underlined or bold print, the tenant’s right to receive a new key, at any hour, regardless of whether the tenant pays the delinquent rent.

The landlord is required by law to give the tenant a new key, and the tenant can continue living in the unit. The tenant does not have to pay the rent to get a key. The intended purpose of this law is to allow for a meeting between the landlord and the tenant. A lockout is not an eviction. For more information, see ATC’s brochure, Lockout.

Landlord’s Lien. A landlord’s lien is a state law that allows a landlord to remove a tenant’s property from the rental unit to secure payment of delinquent rent. There must be a statement in a written lease, either underlined or in bold print, that allows the landlord the right to enter a rental unit and remove the tenant’s personal property.

The rent must be delinquent in whole or in part for a landlord to seize any items. The law only allows a landlord to take certain non-exempt items such as televisions, VCRs, stereos, or computers. There are many items a landlord cannot take. Furthermore, the landlord must exercise a lien peacefully, so if a tenant refuses to allow a landlord entry or to remove the items, the landlord cannot exercise the lien. When the lien is exercised, the landlord must leave a notice of entry along with a written inventory of the items removed. The landlord must promptly return the items as soon as all fees and rent are paid. The landlord can charge money for packing, removing, or storing the items but only if authorized in a written lease. For more information, see ATC’s brochure, Landlord’s Lien. The one circumstance where a landlord can remove all of a tenant’s belongings without going to court first is when the tenant has abandoned the unit.

Many leases define the word “abandonment.” The lease will describe the circumstances in which the landlord can declare the rental unit abandoned and enter the unit and remove everything. A landlord who declares abandonment when there is no clear definition in the lease may be considered to have illegally evicted a tenant.

What Is an Illegal Eviction?
An illegal eviction occurs when a landlord illegally denies a tenant access to the rental unit or a tenant’s property is removed without a court order and the removal:

  1. Is not the result of abandonment and/or
  2. Is not the exercise of a landlord’s lien.

The landlord is prohibited from removing a door, window, or any mechanism connected to a door or window; or from removing furniture, fixtures, or appliances furnished by the landlord from premises leased to a tenant unless the landlord removes the item for a bona fide repair or replacement. If any of these items are removed and not promptly returned, this could be considered a constructive eviction and the landlord could be liable under the Removal of Property and Exclusion of Residential Tenant law.

If a landlord violates this law, the tenant can recover possession of the premises or terminate the lease. In addition, the tenant may sue the landlord for a civil penalty of one month’s rent, $1,000, actual damages, court costs, and reasonable attorney’s fees, minus any rent or other amounts the tenant owes the landlord.

The information in this brochure is a summary of the subject and other pertinent matters. It should not be considered conclusive or a substitute for legal advice. Unique facts can render broad statements inapplicable. Anyone needing legal assistance should contact an attorney.

Austin Tenants’ Council • 1640-B East 2nd Street • Austin, TX 78702 • 512.474.7006