510 - Eviction Cases

Rule 500.5 applies to the computation of time in eviction case. But if a document is filed by mail and not received by the court by the due date, the court may take any action authorized by these rules, including issuing a writ of possession requiring a tenant to leave the property.

Contents

In addition to the requirements of Rule 502.2, a petition in an eviction case must be sworn to by the plaintiff and must contain:

1. A description, including the address, if any, of the premises that the plaintiff seeks possession of;
2. A description of the facts and the grounds for eviction;
3. A description of when and how notice to vacate was delivered;
4. The total amount of rent due and unpaid at the time the filing; and
5. A statement that attorney fees are being sought, if applicable.

Where Filed

The petition must be filed in the precinct where the premises is located. If it is filed elsewhere, the judge must dismiss the case. The plaintiff will not be entitled to a refund of the filing fee, but will be refunded any service fees paid if the case is dismissed before service is attempted.

Defendants Named

If the eviction is based on a written residential lease, the plaintiff must name as defendants all tenants obligated under the lease residing at the premises whom plaintiff seeks to evict. No judgment or writ of possession may issue or be executed against a tenant obligated under a lease and residing at the premises who is not named in the petition and served with citation.

Claim for Rent

A claim for rent within the justice court’s jurisdiction may be asserted in an eviction case.

Only Issue

The court must adjudicate the right to actual possession and not title. Counterclaims and the joinder of suits against third parties are not permitted in eviction cases. A claim that is not asserted because of this rule can be brought in a separate suit in a court of proper jurisdiction.

Issuance of Citation / Contents

When a petition is filed, the court must immediately issue citation directed to each defendant. The citation must:

1. Be styled "The State of Texas”;
2. Be signed by the clerk under seal of court or by the judge;
3. Contain the name, location, and address of the court;
4. State the date of filing of the petition;
5. State the date of issuance of the citation;
6. State the file number and names of parties;
7. State the plaintiff’s cause of action and relief sought;
8. Be directed to the defendant;
9. State the name and address of attorney for plaintiff, or if the plaintiff does not have an attorney, the address of plaintiff;
10. State the day the defendant must appear in person for trial at the court issuing citation, which must not be less than 10 days nor more than 21 days after the petition is filed;
11. Notify the defendant that if the defendant fails to appear in person for trial, judgment by default may be rendered for the relief demanded in the petition;
12. Inform the defendant that, upon timely request and payment of a jury fee no later than 3 days before the day set for trial, the case will be heard by a jury;
13. Contain all warnings required by Chapter 24 of the Texas Property Code; and
14. Include the following statement: "For further information, consult Part V of the Texas Rules of Civil Procedure, which is available online and also at the court listed on this citation."

Service & Return of Citation

Who May Serve

Unless otherwise authorized by written court order, citation must be served by a sheriff or constable.

Method of Service

The constable, sheriff, or other person authorized by written court order receiving the citation must execute it by delivering a copy with a copy of the petition attached to the defendant, or by leaving a copy with a copy of the petition attached with some person, other than the plaintiff, over the age of 16 years, at the defendant’s usual place of residence, at least 6 days before the day set for trial.

Return of Service

At least one day before the day set for trial, the constable, sheriff, or other person authorized by written court order must complete and file return of service in accordance with Rule 501.3 with the court that issued the citation.

Alternative Service by Delivery to the Premises

When Allowed

The citation may be served by delivery to the premises if:

1. The constable, sheriff, or other person authorized by written court order is unsuccessful in serving the citation under (2);
2. The petition lists all home and work addresses of the defendant that are known to the plaintiff and states that the plaintiff knows of no other home or work addresses of the defendant in the county where the premises are located; and
3. The constable, sheriff, or other person authorized files a sworn statement that it has made diligent efforts to serve such citation on at least two occasions at all addresses of the defendant in the county where the premises are located, stating the times and places of attempted service.

Authorization

The judge must promptly consider a sworn statement filed under (1)(C) and determine whether citation may be served by delivery to the premises. The plaintiff is not required to make a request or motion for alternative service.

Method

If the judge authorizes service by delivery to the premises, the constable, sheriff, or other person authorized by written court order must, at least 6 days before the day set for trial:

1. Deliver a copy of the citation with a copy of the petition attached to the premises by placing it through a door mail chute or slipping it under the front door; if neither method is possible, the officer may securely affix the citation to the front door or main entry to the premises; and
2. Deposit in the mail a copy of the citation with a copy of the petition attached, addressed to defendant at the premises and sent by first class mail.

3. Notation on Return

The constable, sheriff, or other person authorized by written court order must note on the return of service the date the citation was delivered and the date it was deposited in the mail.

Immediate Possession Bond

The plaintiff may, at the time of filing the petition or at any time prior to final judgment, file a possession bond to be approved by the judge in the probable amount of costs of suit and damages that may result to defendant in the event that the suit has been improperly instituted, and conditioned that the plaintiff will pay defendant all such costs and damages that are adjudged against plaintiff.

Notice to Defendant

The court must notify a defendant that the plaintiff has filed a possession bond. The notice must be served in the same manner as service of citation and must inform the defendant that if the defendant does not file an answer or appear for trial, and judgment for possession is granted by default, an officer will place the plaintiff in possession of the property on or after the 7th day after the date defendant is served with the notice.

Time for Issuance & Execution of Writ

If judgment for possession is rendered by default and a possession bond has been filed, approved, and served under this rule, a writ of possession must issue immediately. The writ must not be executed before the 7th day after the date defendant is served with notice under "Notice of Defendant".

Effect of Appearance

If the defendant files an answer or appears at trial, no writ of possession may issue before the 6th day after the date a judgment for possession is signed.

Trial Date & Answer

The defendant must appear for trial on the day set for trial in the citation. The defendant may, but is not required to, file a written answer with the court on or before the day set for trial in the citation.

Default Judgment

If the defendant fails to appear at trial and fails to file an answer before the case is called for trial, the allegations of the complaint must be taken as admitted and judgment by default rendered accordingly. If a defendant who has answered fails to appear for trial, the court may proceed to hear evidence and render judgment accordingly.

Notice of Default

When a default judgment is signed, the clerk must immediately mail written notice of the judgment by first class mail to the defendant at the address of the premises.

Trial

An eviction case will be docketed and tried as other cases. No eviction trial may be held less than 6 days after service under Rule 510.4 has been obtained.

Jury Trial Demanded

Any party may file a written demand for trial by jury by making a request to the court at least 3 days before the trial date. The demand must be accompanied by payment of a jury fee or by filing a Statement of Inability to Afford Payment of Court Costs. If a jury is demanded by either party, the jury will be impaneled and sworn as in other cases; and after hearing the evidence it will return its verdict in favor of the plaintiff or the defendant. If no jury is timely demanded by either party, the judge will try the case.

Limit on Postponement

Trial in an eviction suit must not be postponed for more than 7 days unless both parties agree in writing.

Judgment Upon Jury Verdict

Where a jury has returned a verdict, the judge may render judgment on the verdict or, if the verdict is contrary to the law or the evidence, judgment notwithstanding the verdict.

Judgment for Plaintiff

If the judgment or verdict is in favor of the plaintiff, the judge must render judgment for plaintiff for possession of the premises, costs, delinquent rent as of the date of entry of judgment, if any, and attorney fees if recoverable by law.

Judgment for Defendant

If the judgment or verdict is in favor of the defendant, the judge must render judgment for defendant against the plaintiff for costs and attorney fees if recoverable by law.

Writ

If the judgment or verdict is in favor of the plaintiff, the judge must award a writ of possession upon demand of the plaintiff and payment of any required fees.

Time to Issue

Except as provided by Rule 510.5, no writ of possession may issue before the 6th day after the date a judgment for possession is signed or the day following the deadline for the defendant to appeal the judgment, whichever is later. A writ of possession may not issue more than 60 days after a judgment for possession is signed. For good cause, the court may extend the deadline for issuance to 90 days after a judgment for possession is signed.

Time to Execute

A writ of possession may not be executed after the 90th day after a Judgment for possession is signed.

Effect of Appeal

A writ of possession must not issue if an appeal is perfected and, if applicable, rent is paid into the registry, as required by these rules.

No Motion For New Trial

No motion for new trial may be filed.

How Taken / Time

A party may appeal a judgment in an eviction case by filing a bond, making a cash deposit, or filing a Statement of Inability to Afford Payment of Court Costs with the justice court within 5 days after the judgment is signed.

Amount of Security

The justice court judge will set the amount of the bond or cash deposit to include the items enumerated in Rule 510.11. The bond or cash deposit must be payable to the appellee and must be conditioned on the appellant’s prosecution of its appeal to effect and payment of any judgment and all costs rendered against it on appeal.

Statement of Inability to Afford Payment of Court Costs

Filing / Contest

An appellant who cannot furnish a bond or pay a cash deposit in the amount required may instead file a Statement of Inability to Afford Payment of Court Costs. The statement must be on the form approved by the Supreme Court or include the information required by the Court-approved form.  

Contest

The Statement may be contested as provided in Rule 502.3(d) within 5 days after the opposing party receives notice that the Statement was filed.

Appeal If Contest Sustained

If the contest is sustained, the appellant may appeal that decision by filing notice with the justice court within 5 days of that court’s written order. The justice court must then forward all related documents to the county court for resolution. The county court must set the matter for hearing within 5 days and hear the contest de novo, as if there had been no previous hearing, and, if the appeal is granted, must direct the justice court to transmit to the clerk of the county court the transcript, records, and papers of the case, as provided in these rules.

If No Appeal or If Appeal Overruled

If the appellant does not appeal the ruling sustaining the contest, or if the county court denies the appeal, the appellant may, within one business day, post an appeal bond or make a cash deposit in compliance with this rule.

Payment of Rent in Nonpayment of Rent Appeals

Notice

If a defendant appeals an eviction for nonpayment of rent by filing a Statement of Inability to Afford Payment of Court Costs, the justice court must provide to the defendant a written notice at the time the Statement is filed that contains the following information in bold or conspicuous type:

1. The amount of the initial deposit of rent, equal to one rental period’s rent under the term of the rental agreement, that the defendant must pay into the justice court registry;
2. Whether the initial deposit must be paid in cash, cashier’s check, or money order, and to whom the cashier’s check or money order, if applicable, must be made payable;
3. The calendar date by which the initial deposit must be paid into the justice court registry, which must be within 5 days of the date the Statement of Inability to Afford Payment of Court Costs is filed; and
4. A statement that failure to pay the required amount into the justice court registry by the required date may result in the court issuing a writ of possession without hearing.

Defendant May Remain in Possession

A defendant who appeals an eviction for nonpayment of rent by filing a Statement of Inability to Afford Payment of Court Costs is entitled to stay in possession of the premises during the pendency of the appeal by complying with the following procedure:

1. Within 5 days of the date that the defendant files a Statement of Inability to Afford Payment of Court Costs, it must pay into the justice court registry the amount set forth in the notice provided at the time the defendant filed the statement. If the defendant was provided with notice and fails to pay the designated amount into the justice court registry within 5 days and the transcript has not been transmitted to the county clerk, the plaintiff is entitled, upon request and payment of the applicable fee, to a writ of possession, which the justice court must issue immediately and without hearing.
2. During the appeal process as rent becomes due under the rental agreement, the defendant must pay the designated amount into the county court registry within 5 days of the rental due date under the terms of the rental agreement.
3. If a government agency is responsible for all or a portion of the rent, the defendant must pay only that portion of the rent determined by the justice court to be paid during appeal. Either party may contest the portion of the rent that the justice court determines must be paid into the county court registry by filing a contest within 5 days after the judgment is signed. If a contest is filed, the justice court must notify the parties and hold a hearing on the contest within 5 days. If the defendant objects to the justice court’s ruling at the hearing, the defendant required to pay only the portion claimed to be owed by the defendant until the issue is tried in county court.
4. If the defendant fails to pay the designated amount into the court registry within the time limits prescribed by these rules the plaintiff may file sworn motion that the defendant is in default in county court. The plaintiff must notify the defendant of the motion and the hearing date. Upon a showing that the defendant is in default, the court must issue a writ of possession.
5. The plaintiff may withdraw any or all rent in the county court registry upon sworn motion and hearing, prior to final determination of the case, showing just cause; dismissal of the appeal; or order of the court after final hearing.
6. All hearings and motions under this subparagraph are entitled to precedence in the county court.

Notice to Other Parties Required

If a Statement of Inability to Afford Payment of Court Costs is filed, the court must provide notice to all other parties that the Statement was filed no later than the next business day. Within 5 days of filing a bond or making a cash deposit, an appellant must serve written notice of the appeal on all other parties using a method approved under Rule 501.4

No Default on Appeal Without Compliance With Rule

No judgment may be taken by default against the adverse party in the court to which the case has been appealed without first showing substantial compliance with this rule.

Appeal Perfected

An appeal is perfected when a bond, cash deposit, or Statement of Inability to Afford Payment of Court Costs is filed in accordance with this rule.

Preparation & Transmission of Record

Unless otherwise provided by law or these rules, when an appeal has been perfected, the judge must stay all further proceedings on the judgment and must immediately send to the clerk of the county court a certified copy of all docket entries, a certified copy of the bill of costs, and the original papers in the case together with any money in the court registry, including sums tendered pursuant to Rule 510.9(c)(5)(B).

Docketing / Notice

The county clerk must docket the case and must immediately notify the parties of the date of receipt of the transcript and the docket number of the case. The notice must advise the defendant that it must file a written answer in the county court within 8 days if one was not filed in the justice court.

Trial De Novo

The case must be tried de novo in the county court. A trial de novo is a new trial in which the entire case is presented as if there had been no previous trial. The trial, as well as any hearings and motions, is entitled to precedence in the county court.

On the trial of the case in the county court the appellant or appellee will be permitted to plead, prove and recover his damages, if any, suffered for withholding or defending possession of the premises during the pendency of the appeal. Damages may include but are not limited to loss of rentals during the pendency of the appeal and attorney fees in the justice and county courts provided, as to attorney fees, that the requirements of Section 24.006 of the Texas Property Code have been met. Only the party prevailing in the county court will be entitled to recover damages against the adverse party. The prevailing party will also be entitled to recover court costs and to recover against the sureties on the appeal bond in cases where the adverse party has executed an appeal bond.

An eviction case appealed to county court will be subject to trial at any time after the expiration of 8 days after the date the transcript is filed in the county court. If the defendant has filed a written answer in the justice court, it must be taken to constitute his appearance and answer in the county court and may be amended as in other cases. If the defendant made no answer in writing in the justice court and fails to file a written answer within 8 days after the transcript is filed in the county court, the allegations of the complaint may be taken as admitted and judgment by default may be entered accordingly.

The writ of possession, or execution, or both, will be issued by the clerk of the county court according to the judgment rendered, and the same will be executed by the sheriff or constable, as in other cases. The judgment of the county court may not be stayed unless within 10 days from the judgment the appellant files a supersedes bond in an amount set by the county court pursuant to Section 24.007 of the Texas Property Code.