The Texas Rules of CivilProcedure certainly have their limitations. Any experienced lawyer can describe
circumstances either never contemplated by the Rule drafting/advisory
committee, or scenarios where they just got it wrong.
However, when it comes
to non-payment of rent eviction appeals upon Pauper's Affidavits, I fervently
believe that the Rules are efficient and effective.
Let's face it,
non-paying tenants frequently know how to game/abuse the system. Far too often,
they don't pay rent, don't show up for their eviction trial (in Justice Court),
and then file a meritless appeal to County Court at Law -- many times without
spending a dime because they file a Pauper's Affidavit as authorized by law. To make matters worse,
they don't pay any rent while the appeal is pending -- a process that I have
seen take close to a year!
Unfortunately, when the
Landlord isn't represented by an experienced evictions lawyer and is otherwise
unfamiliar with the law, the Tenant's appeal can result in substantial delay.
Time is money in this instance, and delay frequently equates to
substantial financial loss (i.e no rent coming in, and possibly even
mortgage payments going out). But this doesn't have to be the case for a
few reasons.
First, the Landlord can
(within the bounds of the Court's schedule), control the timing of an eviction
appeal. Eviction appeals are
expressly entitled to precedence in the County Court under Rule
510.9(c)(5)(B)(vi) -- this is a far too little known and little used fact. Frequently, trial on an eviction
appeal can be scheduled within 8 days of the date that the County Court at Law dockets the appeal (after
receiving the file from the Justice Court)
Second,
and even more important, is the fact that there exist tremendous consequences
to a tenant who does not pay rent during an appeal of an eviction Judgment
based upon non-payment of rent. Rule
510.9(C)(5)(B)(ii) require and Texas Property Code Section 24.0053 both such an appealing tenant to – during the entire
appeal -- pay rent into the county court registry as it becomes due, or within
5 days of the rental due date under the terms of the parties’ rental agreement
(i.e. the Lease). Failure to make the aforementioned payment(s) constitutes a
default, and upon a showing of such default, the Landlord is entitled to a MANDATORY writ of possession.
That’s
right, Texas
Rule of Civil Procedure 510.9(c)(5)(B)(iv) provides that the Court “must issue
a writ of possession” upon Plaintiff /Landlord showing that the Defendant/Tenant
is in default by failing to pay rent during the appeal. Texas Property Code Section 24.0054 contains the same requirement, and also provides for Landlord remedies. While relief under Rule 510.9(c)(5)(B)(iv) is
not dispositive of the entire case on appeal (the issues of rent and damages
remain pending), such relief does change the parties' circumstances drastically, because
possession of the rental property is immediately returned to the Landlord/Plaintiff through the writ of possession. Many
times, loss of the property will result in a Tenant simply abandoning the
remainder of their appeal.
If you are a Landlord or Property Manager who finds yourself facing a Non-Paying Tenant's frivolous appeal of an eviction Judgment, you are well served to hire an experienced eviction lawyer who knows and understands the Rules of Procedure, and who can end the appeal effectively and quickly. Our firm exclusively represents Owners/Landlords and Property Managers in Evictions cases.
