Check out My New San Antonio Evictions Attorney Website

San Antonio Eviction Lawyer - Bexar County Eviction Attorney - Trey Wilson Attorney in San Antonio, Texas wrote:

I'm proud to announce the launch of my new website dedicated to my practice as a San Antonio Evictions Attorney.  Come visit at www.SanAntonioEvictionLawyer.com

Thanks in advance for stopping by.

New Eviction Laws to Take Effect Soon -- Important Changes to Eviction and Eviction Appeals Process Are Coming

San Antonio Eviction Lawyer - Bexar County Eviction Attorney - Trey Wilson Attorney in San Antonio, Texas wrote:

As happens in every odd year, the Texas Legislature conducted its legislative session in 2015. This session (the 84th) resulted in a few new laws that directly impact evictions and eviction appeals in Texas. The following are summaries of the House Bills that directly impact eviction suits.

HB 1853:  Effective 9/1/15 -- H.B. 1853 amends current law relating to the removal of a tenant's personal property after a writ of possession has been issued in an eviction suit.  Specifically, Section 24.0061, Property Code, is amended by adding a new Subsection (d-1), which authorizes a municipality to provide, without charge to the landlord or to the owner of personal property removed from a rental unit under a writ of possession, a portable, closed container into which the removed personal property shall be placed by the officer executing the writ or by the authorized person. The municipality is further authorized to remove the container from the location near the rental unit and dispose of the contents by any lawful means if the owner of the removed personal property does not recover the property from the container within a reasonable time.

HB 1334:  Effective 1/1/2016 -- This new law amends Chapter 24 of the Texas Property Code and seeks to provide a process for ensuring the validity and financial integrity of appeal bonds filed in eviction cases, and to challenge the sufficiency of the bond posted by a tenant who appeals an eviction Judgment. 

HB 3364: Effective 1/1/2016 -- This Bill is aimed at the problematic wait that current law allows commercial tenants to remain in the property after final judgment of eviction has been issued. H.B. 3364 seeks to clarify that a final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises are for residential purposes only. 

Handling Eviction Appeals in San Antonio, Bexar County, Texas -- What Happens Behind the Scenes

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

Many times, a tenant who has lost an eviction case in the Justice Court will file an appeal. The right of appeal is automatic, and can be exercised in any case, irrespective of the merits of the appeal, the facts of the case, or the true intentions of the appealing party.  All the losing tenant is required to do is file a notice of appeal within 5 days of the JP's Judgment being entered, and either execute an Appeal Bond, or file a "Pauper's Affidavit" (Affidavit of Inability to Pay).  

Once these things occur, the Tenant is entitled to a Trial De Novo (Latin for "new trial") in the Bexar County Court at Law ("CCL"). Trial De Novo means that the CCL will proceed exactly as if the first trial never occurred. Thus, there is no appellate standard governing whether some error or injustice occurred in the JP trial, but rather, the County Court Judge views the case like a fresh, new case, and does not consider any findings made by the JP.  Further, the Tenant may (and frequently does) improve his or her arguments and/or evidence during the 2nd, new trial.

I have long been highly critical of the effectiveness of the Trial De Novo right of appeal, the ease with which an appeal may be brought, and the frequency with which unmeritorious appeals are filed solely to occasion delay (and at great expense and loss to the Landlord/Property Owner/Property Manager). Nevertheless, we are all left with the fact that an appeal with a Trial De Novo is an absolute right granted to any party unhappy with the Justice Court's decision in an eviction case.

Due to changes in the Eviction Rules, many of my Owner and property management clients are handling their eviction/FE & D trials "in-house" and without legal counsel. However, once an appeal is filed, the law prohibiting the practice of law by non-lawyers kicks in, and the files are routed to me to dispose of a tenant's eviction appeal.  Here's what happens from there.

Once an appeal of an FE & D / Eviction Judgement is filed in Bexar County, Texas, here's what happens:

1)  The Clerk of the Justice Court will MAIL (U.S.P.S.) the file ("transcript") to the Bexar County Clerk.  This may take several days or sometimes weeks.

2)  Once the Bexar County Clerk receives the "transcript" from the Justice Court, they will determine whether the case is one filed upon an "Appeal Bond," or a "Pauper's Affidavit."  If the case is one upon an Appeal Bond, the County Clerk WILL NOT assign a Cause Number or Court to the case unless and until somebody pays the court costs.  

3)  The County Clerk will send a letter to the Appellant advising them that the "transcript" has been received, that an Answer should be filed, and that Court costs must be paid. The letter will also specify that the appeal will be dismissed if the costs are not paid within 21 days.

4)  If the Appeal is one upon a "Pauper's Affidavit," then the Justice Court Clerk will issue a "Written Notice" that the "Pauper's Appeal" has been filed. The Notice is intended to comply with property Code Section 24.0053 (payment of rent during an appeal), and lists the amounts, including an initial  deposit, that the tenant must pay during the pendency of the appeal.  If these amounts are not timely paid, then the Tenant is in Default, and the appeal is subject to dismissal (upon a written Motion to Dismiss filed by the Landlord/owner/Appellee).

5) Assuming that the court costs are paid to the County Clerk or (in the event of a Pauper's Appeal) the initial deposit and rents are paid to the court registry, then the appeal is assigned a Cause Number and a Court by the Bexar County Clerk.

6)  Then -- and here's the part that most Appellee/landlord/Owner/Property Managers don't comprehend -- ABSOLUTELY NOTHING HAPPENS.  That is, the Appeal sits there, on the Court's docket, languishing in inactivity, until somebody takes appropriate steps to set the case for trial.  Obviously,in a Non-Payment of Rent Appeal, the tenant who is living in the property and hasn't paid rent in months has no incentive to do this.  Truth is, the non-rent-paying Tenant virtually never sets their appeal for trial, because they do not really want another losing day in Court. Thus, it is incumbent on the Owner/landlord/Appellee -- or their lawyer -- to shepherd the eviction appeal through the County Court at Law as quick as possible.  This does not happen automatically or without a familiarity as to when and where to file and set requests for Court action.

7)  One a proper written Motion is made, an eviction appeal is subject to preferential treatment, and trial may be scheduled to occur in as few as 8 days after the date that the transcript has been received from the Justice Court. Again, however, getting the proper Motion filed and set for hearing-- with notice served upon the Appellant -- is up to the Appellee/ Owner/Landlord.

8)  Once the Appeal is presented to the CCL for trial, a Final Judgment must be prepared and presented to the Court for entry. Unlike the JP Court, the CCL does not have pre-printed template Judgments. Instead, the party seeking the Judgment is required to prepare and present one for the Court's consideration.

Unlike the Justice Court's procedure for automatically setting a trial in an eviction case upon filing the Complaint, noting in the Bexar County Court at Law is automatic. Likewise, nothing is quick. For these reasons, and so many others, a Landlord, Owner or Property Manager who finds themselves facing a Tenant's eviction appeal should consider hiring a lawyer who is experienced with the Bexar County Court at Law's procedures.

Bexar County JP Precinct Boundaries to Change -- Be Careful WHERE you file your San Antonio Eviction

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

Justice of the Peace Court Changes

On November 5, 2013, the Bexar County Commissioners Court  approved redistricting the Justice of the Peace and Constable precincts to balance the caseloads in each precinct. 

The Court also voted to add a half-time justice of the peace position to each precinct to better serve the growing population.

The redistricting becomes effective at 11:59 p.m. Nov. 8, 2013. 

Residents with upcoming cases in a JP court will receive a postcard letting them know to which precinct they should report. Residents who need to file a civil matter can see if their precinct has changed by using the My Bexar Community Dashboard mapping application at http://map.bexar.org/community.

Please note: As of Nov. 12, 2013 Justice of the Peace Precinct 1 Place 1 will no longer be located downtown. 

All Precinct 1 Justice of the Peace matters will be handled at the Precinct 1 Satellite Office, 3505 Pleasanton Road, San Antonio, 78221. All other Justice of the Peace offices remain in their current locations.

If you need to appear before the Justice of the Peace or need to pay in person, then the first digit of the case number designates the precinct number as follows:

• 1 and 5 for Precinct 1
• 2 for Precinct 2
• 3 for Precinct 3
• 4 for Precinct 4

If you need to file a civil matter and are not sure in which precinct you live, you can use the My Bexar Community Dashboard  to find your precinct.

Bad Tenants Have Been Around Since Biblical Times -- Jesus Spoke of Them

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

Think your tenants are bad? You are not alone, and your experiences are nothing new.

Bad tenants who abuse owners' trust have been around since ancient times. So prevalent and historical is the problem, that Jesus Christ even told a parable about evil tenant farmers. 

The Parable of the Evil Farmers is found in Chapter 12 of the Book of Mark, Chapter 21 of the Book of Matthew, and Chapter 20 of the Book of Luke, and goes like this:

^{33 “Listen to another parable: There was a landowner who planted a vineyard. He put a wall around it, dug a winepress in it and built a watchtower. Then he rented the vineyard to some farmers and moved to another place.34 When the harvest time approached, he sent his servants to the tenants to collect his fruit.}

^{35  “The tenants seized his servants; they beat one, killed another, and stoned a third. 36 Then he sent other servants to them, more than the first time, and the tenants treated them the same way. 37 Last of all, he sent his son to them. ‘They will respect my son,’ he said.}

^{38 “But when the tenants saw the son, they said to each other, ‘This is the heir.Come, let’s kill him and take his inheritance.’ 39 So they took him and threw him out of the vineyard and killed him.}

-Matt 21: 33-39

However destructive, abusive and financially irresponsible your tenants are, there's a pretty good chance that they aren't killing your family members.  Fortunately, you also shouldn't have to kill them to get them out of your property, and rent it to another tenant who "shares their fruit."

There are other options, including eviction through the Justice Courts.  Rather than sending servants, perhaps you should consider sending a Notice to Vacate, and starting the New Year with a resolution to turn your rental property into something other than a source of stress and financial problems.

Bexar County Soon to Get Two New JPs

San Antonio Eviction Lawyer Trey Wilson wrote:

Bexar County is on the verge of getting two new Justices of the Peace. By law, the Justice Court Judges, affectionately known as "JPs" have exclusive jurisdiction over eviction suits.  The two new JPs will serve in Precincts 2 and 3, respectively.

In Precinct 2, the incumbent Judge, Stephen Walker, didn't prevail in the Democratic primary, and will, therefore, not stand for re-election. His Precinct 2, Place 1 bench will go to a new Judge.

In Precinct 3, long-time JP Keith Baker will be retiring at the end of this year. Bexar County is  now accepting applications for his position, and a replacement will be appointed by the Bexar County Commissioners Court.

The individuals who fill these benches will largely change the evictions landscape in San Antonio.

Notice to Vacate is an Essential Component of a Successful Eviction

San Antonio & Bexar County Eviction Lawyer Trey Wilson wrote:

An essential element of any eviction proceeding is strict compliance with the statutorily-required notice to vacate before filing the forcible-detainer action. See Tex. Prop. Code  § 24.002(b); § 24.005. 

Issuance and delivery of a properly drafted notice to vacate is  required by statute, and, is  therefore  "mandatory and exclusive and must be complied with in all respects"  Employees Ret. Sys. of Tex. v. Blount, 709 S.W.2d 646, 647 (Tex. 1986).  In fact, delivery of a statutorily- sufficient written demand for possession is an essential element of forcible detainer, without which, a valid eviction Judgment cannot be issued. Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441, 445 (Tex. App.-Houston [1st Dist.] 2006, pet. deniedThus, the very first step in any eviction proceeding is the ); Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 497 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (landlord must strictly comply with section 24.002 requirements which state that landlord must make written demand for possession in compliance with section 24.005 requirements for notice to vacate).

Thus, the very FIRST STEP in any eviction proceeding is delivery of a properly drafted NOTICE TO VACATE, which complies with all requirements of section 24.005 of the Texas Property Code. Failure to meet any of the requirements of the Notice -- or the manner of delivery -- can result in the dismissal of the eviction suit.

Collecting on Money Awards in Eviction Judgments

San Antonio & Bexar County Eviction Lawyer Trey Wilson wrote:

Frequently, the prevailing Landlord in an eviction suit is awarded a money Judgment in addition to possession of the premises.  Justice Courts routinely award a prevailing Landlord liquidated cash sums for past-due rent, court costs, and (where applicable), attorneys' fees.  See Tex. Prop. Code § 24.006.  But are these money Judgments worth the paper they're written on?

It is a reasonable assumption that a Tenant who has just been evicted for failing to pay rent usually isn't sitting on a pile of cash or other assets that can be used to satisfy a money Judgment.  For this reason, Landlords usually "give up" and ignore the cash portion of eviction Judgments.  After all, it makes little sense to pursue collection of a Judgment from somebody you couldn't even collect rent from. But will this always be the case?????

My experience and observation over the course of conducting countless evictions has been that Tenants facing eviction have an "exit strategy" well before their court date.  It's no secret that moving is expensive.  There are security deposits, application fees, utility deposits, and the costs of moving, itself (movers/U-Haul rental, etc.).  Often this is where the money that would have been a Landlord's rent is allocated once eviction becomes inevitable. 

The good news is that eviction Judgments become final -- and, thus, subject to collection -- quickly.  Unlike Judgments from "higher" courts, which usually aren't final for 30 days after they're signed, Justice Court Judgments in eviction cases become final after 5 days (unless appealed).  A diligent Landlord will attempt to collect upon an eviction Judgment promptly after it becomes final.

There are cheap and easy steps by which to pursue collection. Here are just a few suggestions:

• Abstract the Judgment with the County Clerk.  An Abstract is the first step in the collection process, and is a mechanism by which to record the Judgment in the Official Public Records of the County -- right where deeds, liens and other real property records are recorded.  The filing fees for Abstracts are nominal, and you might be surprised when the Abstract shows-up in the Tenant's unrelated efforts to obtain credit (such as when attempting to buy a house or obtain a job).
• Report the Judgment to a credit reporting agency.  Dealing with the "Big 3" is tough, but many communities have local credit reporting agencies. In San Antonio,  SARMA maintains a database of eviction Judgments. Filing the Judgment with them could result in your former Tenant being denied in his efforts to locate a new residence.
• Hire an attorney to perform limited collection activity, such as writing a demand letter, issuing post-judgment discovery, and possibly performing an asset-check or deposition in aid of collection.

You might be surprised at how a former Tenant reacts (and steps-up) when he learns that he can't just walk-away from your eviction suit.

Failure to Install Door Security Devices Not Always a Valid Defense in Eviction Suits

San Antonio & Bexar County Eviction Lawyer Trey Wilson wrote:

Tenants facing eviction for non-payment of rent frequently assert defenses based upon a Landlord’s failure to install security devices.  These defenses, even when factually-true, are effective only in limited circumstances, and should not automatically cause a Landlord to retreat from the position that rent is due.

Texas law does require landlords to install keyless bolting devices on the exterior doors of rental premises. See Tex. Prop. Code § 92.157. When demanded by Tenants in writing, a Landlord’s failure to install keyless bolting devices can also result in Landlord liability. See Tex. Prop. §§ 92.153, 92.164. However, Tenants facing eviction for non-payment must have “clean hands,” and cannot manufacture a “failure to install-defense” after the time that they are in default of their own obligations under a Lease. 

Stated differently, a Tenant who has breached the lease by failing to fully pay their rent before the date they request the installation of keyless bolting devices generally has no claim for the Landlord’s failure to install the device. This is because the Texas Property Code allows the antecedent breach of the lease to serve as a defense to the demand for the installation of security devices. See Tex. Prop. Code Ann. § 92.1641.

Thus, when a Tenant makes their request to install a keyless bolting device at a time when they have not paid all then-due rent, a Landlord may deem the Tenant in default and escape liability for failure to install.

Of course, prudence dictates that a conscientious Landlord honors all requests for installation of keyless bolting devices. Nevertheless, a non-paying tenant’s untimely assertion of the “failure to install defense” is rarely successful in an eviction proceeding before the Justice Courts.

San Antonio disabled vet rescued from Veterans Day eviction

From San Antonio KENS5.com - Posted on November 12, 2011

Friday brought a happy and heart-warming ending to a story about a disabled veteran who almost lost his home.
Navy veteran, Thomas Carlucci, could have been evicted on Veterans Day.

He says he had made arrangements with a previous manager to pay part of October's rent late and without a penalty. But, this week, a new manager arrived on the scene. The new person in charge told Carlucci he had to pay about $700 in late fees or be out by Friday.

Fortunately, someone came to the aid of this veteran. Carlucci said a retired sgt. major paid his November and December rent and utilities. "All I can say is I'm overwhelmed...grateful, and that there are many, many good, kind and generous people in San Antonio," said Calucci

Which Texas Laws Govern Eviction Suits?

San Antonio Eviction Lawyer Trey Wilson wrote:

As a lawyer with an active eviction practice in San Antonio, I'm often asked (mostly by other lawyers) where the Texas laws and/or Rules governing evictions can be located. Truth be told, they aren't all in one place, and some cross-checking is required to get the comprehensive picture.

Generally speaking, the statutes governing Forcible Entry & Detainer (including eviction) suits can be found in Chapter 24 of the Texas Property Code.

However, there also exist a detailed series of Rules governing the filing, trial and appeal of eviction suits located in Part VII, Section 3 of the Texas Rules of Civil Procedure. These Rules (738-755) are specific to the procedure to be followed in the Justice and County Court at Law courts where eviction suits are tried and considered on appeal.

Other relevant provisions include Title 8 of the Texas Property Code, which includes Chapter 91 (general provisions applicable to landlords and tenants), Chapter 92 (governing residential tenancies), and Chapter 93 (governing commercial tenancies). and Chapter 94 (governing manufactured home tenancies).

All relevant statutes and rules should be reviewed prior to proceeding with an eviction, so as to avoid falling into a procedural trap or running afoul of any of the applicable provisions.

Proper Notice to Vacate is Essential for Eviction Success

San Antonio Eviction Lawyer Trey Wilson wrote:

Most landlords are understandably reluctant to hire a lawyer to deal with a problem tenant. Many times, the tenant is already not paying rent, and the landlord is losing money by the day. Naturally, hiring a lawyer only adds to the Lessor's expense, and exacerbates the non-producing character of a rental property.

For this exact reason, many landlords come to me as a final straw, and only after they have done everything in their power to handle the tenant themselves. Frequently, Landlords have already sent or delivered to the Tenant a "homemade" Notice to Vacate or Notice to Quit. Unfortunately, in many instances, the Notice is defective, or was delivered in a manner that fails to comply with the strict requirements of the Texas Property Code. When this occurs, the process is delayed, so that I may provide proper notice to the tenant within the time required by law.

Failure to provide a tenant with a notice to vacate that contains the required warnings, or delivering the notice in a manner other than prescribed by law can be fatal to an eviction suit. Bexar County Judges frequently dismiss FE & D suits based upon improper Notices to Vacate. Dismissal results in the landlord having to restart the entire process, resulting in further delay, expense, and financial loss.

Because a landlord's success in an eviction suit is dependent upon the proper drafting, delivery and timing of a written Notice to Vacate, the importance of getting the Notice right should not be overlooked. If a landlord/lessor has doubts about the requisites of Notice, he should contact a lawyer experienced with evictions in the Justice Courts.

Issues in Texas Eviction Suits are Limited to Possession and Rent

San Antonio Eviction Lawyer Trey Wilson wrote:

Despite the frequent desire of both landlords and tenants to make eviction cases about "bigger and broader" disputes, Texas law limits the scope of issues that may be presented to the Court in Forcible Entry & Detainer ("FE & D")suits.

Specifically, two Rules contained in the Texas Rules of Civil Procedure provide express limits on what matters an eviction court may consider. Rule 746 states that in forcible entry cases and forcible detainer cases, the only issue "shall be as to the right of actual possession." However, Rule 738 provides that a "suit for rent" may be joined with an FE & D action "whenever the suit for rent is within the jurisdiction of the justice court."

Because of these specific limitations on the topics within the Justice Court's jurisdiction in an eviction lawsuit, Bexar County Judges will generally not permit testimony about collateral issues such as whether a landlord has failed to repair certain items, the condiction of the rental property, or the tenant's hygine and living conditions. While these matters may be relevant to the overall dispute between the landlord and tenant, they are required to be brought in a separate suit in a Court of appropriate jurisdiction.

Writ of Possession in the Bexar County Justice Courts

After the rendition of a Judgfment of Eviction, either party (landlord or tenant) has five (5) calendar days to appeal the judgment to the County Court at Law. Appeal of a Justice Court's eviction Judgment may be perfected by filing a Notice of Appeal and Appeal Bond with the Justice Court. Upon proper perfection of the appeal, the Clerk of the Justice Court will transfer the Court's file to the County Clerk, who will assign a new cause number to the suit.

If no appeal is filed, and the tenant has not vacated the premises within five (5) calendar days from the date of the judgment, the plaintiff/landlord may obtain a Writ of Possession to legally remove all of the tenant's personal property from the premises. A Writ of Possession is executed by the Constable’s Office. However, the Constable does not represent the landlord or the tenant, and will remain on the premises solely as a keeper of peace to see that the writ is executed according to law. The physical removal of all property will be made by the landlord or their designated personnel.