It is a sad reality that more than a few tenants know how to play the "eviction game." They exploit due process protections and procedural nuances of the Texas court system for the purpose of delaying the inevitable, and maximizing rent-free occupancy of someone else's property.
I have personally handled the eviction of the same individual from two different properties owned by unrelated landlords who don't even know each other. In other instances, I have encountered tenants who have been Defendants in five or more eviction lawsuits, and have appealed every one.
One characteristic that most of these "professional evictees" have in common is a thorough understanding of the "Pauper's Affidavit" procedures existing under Section 24.0052 of the Texas Property Code. This Section provides:
Sec. 24.0052. TENANT APPEAL ON PAUPER'S AFFIDAVIT.
(a) If a tenant in a residential eviction suit is unable to pay the costs of appeal or file an appeal bond as required by the Texas Rules of Civil Procedure, the tenant may appeal the judgment of the justice court by filing with the justice court... a pauper's affidavit sworn before the clerk of the justice court or a notary public that states that the tenant is unable to pay the costs of appeal or file an appeal bond.
(e) If the justice court approves the pauper's affidavit of a tenant, the tenant is not required to pay the county court filing fee or file an additional affidavit in the county court under Subsection (a).
This statute (which corresponds with Texas Rule of Civil Procedure 510.9(c)) does allow the landlord to contest the tenant's claimed status as a "pauper." However, such a challenge further delays final resolution of the case -- even where the tenant is appealing a Judgment (including a Judgment by Default) requiring them to surrender possession of the property. Further, in my experience, Justice Courts give tenants the benefit-of-the-doubt regarding their purported financial condition, and landlords rarely prevail in convincing the court that a tenant is not a "pauper."
A Pauper's Appeal is particularly frustrating to the landlord in a non-payment of rent eviction case because the tenant: (i) hasn't bothered to pay rent; (ii) has already lost at trial in the justice court; and (iii) will certainly lose on appeal; BUT is permitted to remain in the property whole processing their FREE appeal!!!!
The Texas Rules of Procedure recognize this fundamental unfairness, and the inherent incentive of the appealing tenant to delay the appeal since he is theoretically living for free while it is pending. Accordingly, Rule 510.9(c)(5) requires a tenant appealing a Non-Payment of Rent Eviction Judgment to pay rent as it comes due while the appeal is pending. Failure to pay rent will -- upon proper motion from the Landlord and Order of the County Court -- result in the tenant losing the right to remain in possession while the appeal is pending.
If you are a landlord whose residential tenant is abusing the Pauper's Affidavit process by not paying rent during an appeal, you should contact an experienced eviction lawyer to bring this default to the Court's attention.
