Attorney Trey Wilson - RL Wilson Law

17 August 2008

A General Overview of the Process and Prcodeure for Eviction Suits in the Texas Justice Courts

Unfortunately, Landlords are sometimes required to Evict their Tenants for various reasons. In Texas, eviction suits are called suits for "Forcible Entry & Detainer," and are governed by the Texas Property Code. FE&D suits are filed in the Justice Courts, which require landlords to very strictly adhere to the procedures set out in the Code. THE FOLLOWING IS A VERY BROAD OVERVIEW AND INTERPRETATION OF THE LAWS THAT APPLY TO THE JUSTICE COURT. THIS POST IS FOR PURELY INFORMATIONAL PURPOSES, AND SHOULD NOT BE RELIED UPON AS LEGAL ADVICE. ANY LEGAL QUESTIONS OR LEGAL INTERPRETATION SHOULD BE BASED UPON YOUR OWN RESEARCH OF THE MATTER OR THE ADVICE OF AN ATTORNEY RETAINED TO REPRESENT YOU IN YOUR SPECIFIC FACTUAL AND LEGAL SITUATION!


By statute, the landlord must give the tenant written notice of the eviction suit before filing an Eviction suit. The notice may be by personal delivery to the tenant or any person residing at the premises who is 16 years of age or older or personal delivery to the premises by affixing the notice to the inside of the main entry door. Notice by mail may be by regular, registered, or certified mail, return receipt requested, to the premises. If the dwelling has no mailbox and has a keyless bolting device, alarm system, or dangerous animal that prohibits entry to dwelling, the notice to vacate may be securely affixed on the outside of the main entry door. If before the notice to vacate is given, the landlord has given written notice or reminder that rent is due and unpaid, the notice may include a demand that the tenant pay the delinquent rent or vacate by the date and time stated in the notice.

If your reason for filing the eviction proceeding is:

1) Defaults of an Oral or written lease, i.e., Non-payment of rent, Dog on Premises, etc.: 3 day written notice is required – or less IF AND ONLY IF that shorter period is provided for in a written lease. Some notice is required!

2) Periodic tenancies (month to month, week to week, etc.) Where landlord desires possession. (This would also be in a case where the tenant was holding over after the expiration of the primary term of the lease): 3 days written notice is required – can be shortened or lengthened by written lease or agreement. Some notice is required. Periodic tenancies may require a notice to terminate the lease or agreement.

3) Tenant at will or tenant at sufferance: 3 days written notice is required – can be shortened or lengthened by written lease or agreement. Some notice is required.

4) Forcible entry and detainer; (where a person enters the property without legal authority or by force and refuses to surrender possession on demand): Oral or written notice to vacate immediately or by a specified deadline.

5) Occupant is a tenant of a person who acquired possession by forcible entry: 3 days written notice to vacate.

6) Attorney’s fees and costs of suit: 10 days notice by registered or certified mail, return receipt requested. The notice period can be shortened or waived by written lease. If the lease provides for attorney’s fees, the notice provision in the lease controls. If the lease is silent as to attorney’s fees, a 10 day notice is required. If the landlord provides the tenant notice for attorney’s fees, or if a written lease entitles the landlord or the tenant to recover attorney’s fees, the prevailing tenant is entitled to recover attorney’s fees from the landlord. A prevailing party is entitled to recover all costs of court.


Eviction suits must be filed in the precinct of the county where all or part of the leased premises are located


The fee for filing on one defendant (i.e. Tommy Tenant and all occupants) is currently $103.50 ($ 28.50 Justice Court Fee and a $ 75.00 Sheriff’s Service Fee.) An additional $75.00 Sheriff’s Service Fee is needed for each additional defendant named in your suit.


A citation (notice to the defendant) is prepared by the Justice Court and sent with a copy of the petition (suit papers) to the Constable’s Office for service on the defendant. The Constable will be diligent to make personal contact with the defendant and should personal contact not be able to be made, the Constable will usually request that the Court allow him to perfect service by an alternative method.


There will be a hearing on the eviction case scheduled no sooner than the 6th day nor later than the 10th day from the date of service by the Court where you filed the case. It is the responsibility of the plaintiff and/or her attorney to stay in touch with the Court to determine your hearing date. Failure to do so may result in your case being dismissed for want of prosecution.


At the time of the hearing, bring any receipts, rent ledgers, lease(s) or any witnesses you may have to support your case.


You may request a trial by jury upon payment of a jury fee no later than 5 days after the citation is served upon the defendant. Jury trials are rare in eviction cases, and my experience has been that the JP doesn't like them.


1) For non-payment of rent or the tenant is holding over after the rental period, the owner, agent (manager) or an attorney may represent the plaintiff.

2) Any other reason, (i.e., Defaults on Executory Contracts, Mortgage Foreclosures, Forcible Entry and Detainer actions: where tenant enters by force or without legal authority, defaults on lease provisions) only the owner of the premises or an attorney for the owner may represent the Plaintiff in a trial by the Judge or Jury.


Either party may appeal from a final judgment in an eviction case, to the county court of the county in which the judgment is rendered by filing with the Justice Court the documents required by Statute(s) within five (5) days after the judgment is signed. Appeals sometimes affect which party (landlord or tenant) maintains possession of the leased premises while the appeal is pending.


On the 6th day after a judgment for possession is awarded, the Plaintiff may request a Writ of Possession. A Writ of Possession allows the Constable to oversee the move-out of the defendant(s) out of the leased premises, and see that no breach of peace is violated. There is usally a fee associated with the preparation and service of the Writ of Possession.


At the time you file your Eviction suit, you may also file for back rent in the maximum amount of $10,000.00.

Again, Evictions are complicated proceedings that require strict adherence to the timelines and procedures set-forth in the Texas Property Code. A lawyer such as Trey Wilson, who is experienced with handling evictions in Texas Courts is always your best bet. Contact Mr. Wilson at, or call 210/223-4100 to discuss your landlord-tenant eviction needs.

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