Attorney Trey Wilson - RL Wilson Law

19 August 2008


The Law

1. Texas Property Code (T.P.C.) 24.001 to 24.011.

2. Texas Rules of Civil Procedure (T.R.C.P.): Rules 738-755


A justice court in the precinct in which the real property is located has jurisdiction in eviction suits. Eviction suits include forcible entry and detainer and forcible detainer suits (T.P.C. # 24.004). Only issue to be determined is the right to actual possession. Merits of title cannot be determined.

Notice to Vacate

1. Written notice must be given prior to filing eviction suit.

2. 3 day notice must be given for non-payment of rent and/or violation of lease.

If a written lease contract exists stipulating a different notice time, that stipulation must be followed. Unless your lease states otherwise, either party can terminate a month-to-month lease at any time by giving the other party a 30-day notice.


Either the owner or owner's agent can hand deliver or mail the notice under Sec. 24.005. There is no statute, rule or case law which requires the constable or sheriff to serve such notices. In fact, the constable or sheriff - if in uniform - cannot personally serve them.


A. Hand deliver to tenant or any person residing at the premises who is 16 years of age or older (NOTE: it may be helpful to have a witness).

B. Regular or Certified mail.

C. Attaching notice to inside of main entry of the premises (Always keep a copy of the notice to vacate).

After notice is given and tenant does not vacate the premises, a complaint for eviction would need to be filed in the precinct where the property is located. The complaint will describe the lands, tenements, or premises. The possession of which is claimed, with sufficient certainty to identify the same and shall also state the facts which entitle the complainant to the possession (T.R.C.P. 741). At the time of filing the complaint, the landlord will be given a date and time to appear for court. Also at that time a citation will be prepared notifying the tenant of the hearing.


1. If the defendant fails to appear before the case is called for trial, JP can enter a default judgment. (T.R.C.P. 743)

2. If plaintiff fails to appear when case is called for trial, JP may, on motion of defendant, dismiss suit. (T.R.C.P. 543)

3. Any party can request a jury trial on or before 5 days from the date the defendant is served with the citation by paying a $5.00 fee.

4. Parties may represent themselves or be represented by authorized agents (who do not have to be attorneys) when case involves non-payment of rent holding over beyond rental term.

5. The party that wins is entitled to court costs. Attorney's fees are recoverable only if special 10-day notice is given or if written lease entitles landlord to them. (T.P.C. #24.006)


1. No motion for a new trial will be filed.

2. Either party may appeal to County Court by filing an Appeal Bond or Pauper's Affidavit (T.R.C.P. 749 & 749A) within 5 days from the date of judgment.

3. T.R.C.P. 750 Form of Appeal Bond.

4. Party appealing has the duty to notify the other side of the filing of the bond (T.R.C.P. 749)

5. Trial de novo in County Court which is entitled to precedence. When appealed, JP stays further proceedings and files transcript in county clerk's office. (T.R.C.P. 751)


1. Cost of writ is $165.00.

2. If tenant fails to vacate the property after the expiration of 5 days from the day of judgment was entered which is required by law, on the 6th day the landlord may request a writ of possession. A writ of possession allows the constable to oversee the move-out of the defendant(s) from the leased premises, and insure no breach of peace is violated.

3. Officer may post warning on front door that writ will be executed at future date and time, and may engage services of warehouseman to remove and store property. (T.P.C. #24.0062 deals with warehouseman's lien.)

4. Officer may not require landlord to store property.

5. Officer may, if necessary, use reasonable force in executing writ.

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