It is no secret that many Tenants know how to "game" the system, and frequently squeeze in a few weeks of free rent, even after being evicted for non-payment. A typical component of this scheme is to file a baseless appeal to the County Court at Law by and through a Pauper's Affidavit.
Rule 749b expressly provides: "In a nonpayment of rent forcible detainer case a tenant/appellant who has appealed by filing a pauper's affidavit under these rules shall be entitled to stay in possession of the premises during the pendency of the appeal..."
To retain possession of the premises (in the face of a Judgment of Eviction from the JP Court), a tenant need only to comply with the following procedure:
(1) Within five 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 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.
However, the Rule does provide some Draconian consequences for a tenant/appellant failing to make timely payments. It also grants to the Landlord some financial relief (albeit minor) for the period of time during which the appeal is pending (assuming that some rent has been paid to the court):
"(4) Landlord/appellee may withdraw any or all rent in the county court registry upon a) sworn motion and hearing, prior to final determination of the case, showing just cause, b) dismissal of the appeal, or c) order of the court upon final hearing."
Unfortunately, however, the real-life prospect of getting rental funds out from under the grasp of the court registry can be challenging in Bexar County, Texas.
First, the Landlord is required to file (and set for hearing) a sworn motion to withdraw funds. Next, a hearing must be conducted, at which the tenant has an opportunity to appear and try to justify non-payment. Then, even if the County Court Judge signs an order releasing the funds, it usually takes weeks for the Bexar County court registry to process the order and issue a check representing the rents it has received. This process can take several weeks -- all the while the Tenant may be living in the property.
