Attorney Trey Wilson - RL Wilson Law

29 July 2008

Eviction Appeals and Pauper's Affidavits -- What to Do When a Tenant Appeals an Eviction and Doesn't Pay Rent

Many residential tenants are smarter than they are given credit for. They often default on Lease Agreements by not paying rent to the landlord. Eventually, the landlord gets fed-up, and files an eviction proceeding with the Justice of the Peace either personally, or through an attorney. The tenant often attends the eviction hearing and offers everything but to pay the rent. Inevitably, a Forcible Entry and Detainer or Eviction Judgment is entered by the Justice Court. But this often isn't the end of the road. It seems like more and more evicted tenants are filing appeals to the County Court at law. After all, it's pretty easy, and in many instances FREE. That is, wise tenants are availing themselves of the procedure whereby the can file an appeal , and stay the award of possession of the premises to the landlord, by filing an "Affidavit of Inability to Pay Costs for Appeal," more commonly known as a "Pauper's Affidavit." Once this Affidavit is filed, the costs for filing the appeal are waived, and the tenant has effectively managed to negate the Judgment of Eviction that the Landlord had to jump through hoops to secure.....or has he?

Texas Rule of Civil Procedure 749b(1) requires that tenants who appeal a Judgment of Eviction based upon Non-Payment of rent to pay into the Registry of the Justice Court one rental period’s rent under the terms of the rental agreement. This usually requires that one month's rent be paid shortly after the appeal is filed. At the latest, this rental payment must be made to the Court Registry within 5 days after filing the Pauper's Affidavit. Failure to timely pay this "good faith" rental payment can result in the Court granting possession of the premises to the landlord immediately -- even if the appeal is still pending.

If you are a landlord who is the victim of a frivolous appeal by a tenant who simply wishes to extend his "free rent" arrangement (which you never agreed to in the first place), you should contact experienced legal counsel to handle the appeal. An attorney familiar with Evictions and Landlord - tenant law could very well be the difference between you collecting rent or getting stiffed for a long period of time while the appeal works its way through County Court. For more information about appeals, check out the Evictions section of my website. You'll be glad you did!

Trey Wilson --Named By Scene in SA Magazine As One of San Antonio's Best Real Estate Litigation Attorneys -- September 2008 -- As voted on by peers