Defending An Eviction Appeal Based Upon A Pauper's Affidavit

San Antonio Eviction Lawyer Trey Wilson wrote:

It is a sad fact that many Tenants facing eviction are "pros" at living rent free for as long as possible. As a lawyer with an active eviction practice in San Antonio, my Landlord clients have all-too-often been deflated when a Tenant appeals an eviction Judgment using a pauper's affidavit. Frequently, such an appeal adds insult to injury and results in additional time with a non-paying Tenant living in the property.

Texas Rule of Civil Procedure 749a provides:

If appellant is unable to pay the costs of appeal, or file a bond as required by Rule 749, he shall nevertheless be entitled to appeal by making strict proof of such inability within five days after the judgment is signed, which shall consist of his affidavit filed with the justice of the peace stating his inability to pay such costs, or any part thereof, or to give security...

Tenants familiar with the process will frequently use this Rule to appeal a Judgment granting a Landlord possession of the rental premises, and do so for FREE. They know how the "game" is played, and frequently know that operation of Rule 749b allows a tenant/appellant who has appealed by filing a pauper's affidavit in a nonpayment of rent forcible detainer case a "to stay in possession of the premises during the pendency of the appeal."

In plain English, this means that the Tenant who properly files an appeal using a Pauper's Affidavit can remain in the property until the appeal is decided by the County Court at Law. Often, they remain in the rental property even though they may have not paid rent in months, and even though the Justice Court already ruled that they are not entitled to possession! This arrangement absolutely gives rise to abuses, and, in my opinion, needs to be changed!

Fortunately, however, a tenant/appellant's right to stay in the property during the appeal is not absolute. Rule 749b provides for certain conditions that must be met in order for the tenant to retain possession. Two very important obligations involve the payment of rents that come due during the appeal.

(1) Within 5 days of the date that the tenant/appellant files his pauper's affidavit, he must pay into the justice court registry one rental period's rent (generally one month) under the terms of the rental agreement; and

(2) During the appeal process as rent becomes due under the rental agreement, the tenant/appellant shall pay the rent into the county court registry within five days of the due date under the terms of the rental agreement.

Notably, a Landlord can withdraw any or all rent in the county court registry -- even while the appeal is pending -- upon presenting a sworn motion and having a hearing before the County Court at Law Judge.

Rule 749b also provides Remedies to a Landlord when the Tenant/Appellee fails to pay rent during the appeal (as described above). Specifically, if the tenant/appellant fails to pay the rent into the court registry within the prescribed time limits, the Landlord/appellee may file a "notice of default" in county court. Upon sworn motion by the appellee and a showing of default to the judge, the court shall issue a writ of restitution, which gives IMMEDIATE possession of the property to a Landlord.

Very often, a tenant familiar with this process is able to "pull a fast one" by appealing with a Pauper's Affidavit, and then never paying any rent or actively prosecuting the appeal. This inevitably results in an extended, free stay in the property, and financial harm to the Landlord.

A vigilant Landlord should be aware of the strict procedural and time requirements related to eviction appeals, and consider hiring an attorney with experience in the eviction and eviction appeal processes. An astute attorney can minimize the additional financial losses attributable to a deadbeat Tenant who abuses the Pauper's Affidavit appeals process.