Relief From the Tenant Who Abuses the Pauper's Affidavit Process

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

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.

Understanding the Meaning of "Default" in an Eviction Appeal -- Obtaining a Default Judgment in the County Court at Law

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

In most Texas lawsuits, the threshold for defining a Defendant's "Answer" is pretty low.  In fact, just about any responsive writing typically constitutes an "Answer" that prevents a Plaintiff from obtaining a Default Judgment.  See Santex Roofing Sheet Metal, Inc. v. Venture Steel, Inc., 737 S.W.2d 55, 56-57 (Tex.App.—San Antonio 1987, no writ) ("Texas courts have always been reluctant to uphold a default judgment without notice where some response from the defendant is found in the record"); See also, Terehkov v. Cruz, 648 S.W.2d 441, 442 (Tex.App.—San Antonio 1983, no writ) (signed letters to clerk timely acknowledging receipt of citation sufficed as "pro se answer" to prevent default judgment).  Stated simply, just about any time that a Defendant in a Texas lawsuit timely files  a signed letter that identifies the parties, the case, and the defendant's current address, he has sufficiently appeared by "answer," and is not subject to a default judgment. 

Evictions cases, however, are non-typical, and the standard for obtaining a Default Judgment in an eviction appeal to the County Court at Law is, arguably, diminished by operation of Texas Rule of Civil Procedure 510, which "applies to a lawsuit to recover possession of real property under Chapter 24 of the Texas Property Code." See Tex.R.Civ.P. 510.1.

All eviction cases in Texas originate in the Justice Court.  Rule 510.6 governs the Defendant's Answer in the Justice Court, and provides: 

1. The defendant must appear for trial on the day set for trial in the citation. The defendant may, but is not required to, file a written answer with the court on or before the day set for trial in the citation. 
   

Thus, no pre-trial default judgment is available in the Justice Court because a Defendant need not file a written answer before the trial date.  Stated differently, there is no "Answer Day" in Justice Court other than the date of trial. As such, most Defendants in eviction cases do not file written answers, and there is no immediate consequence to such decision.

However, once a Judgment of Eviction is appealed to the County Court, the rules of the game change, and Rule 510.12 governs the effect of failure to file a written Answer. This Rule provides: 

An eviction case appealed to county court will be subject to trial at any time after the expiration of 8 days after the date the transcript is filed in the county court. If the defendant has filed a written answer in the justice court, it must be taken to constitute his appearance and answer in the county court and may be amended as in other cases. If the defendant made no answer in writing in the justice court and fails to file a written answer within 8 days after the transcript is filed in the county court, the allegations of the complaint may be taken as admitted and judgment by default may be entered accordingly. 

 As stated above, most Defendants do not file written Answers in Justice Court. Failure to file such an Answer, coupled with failure to timely file a written Answer in the County Court at Law places a Defendant in default under Rule 510.12 -- even if that Defendant has filed a "Notice of Appeal," "Pauper's Affidavit" or other responsive pleading associated with perfecting the appeal from Justice Court to County Court.  

In my experience, County Court judges will grant a Plaintiff/Landlord's Motion for Default Judgment based upon such failure to  file a written Answer, notwithstanding a Defendant's technical "appearance" in the case by filing the appeal.  

**See also Judgment Nihil Dicit, which is the subject of another post on this blog** 

Fourth Court of Appeals upholds Eviction Judgment

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

On January 8, 2014, the San Antonio Court of Appeals upheld a Judgment of Eviction (and accompanying award of attorneys' fees) originally entered by the Bexar County Court at Law No. 10.

In the appeal to the Fourth Court, the Tenant alleged that the trial court erred in the case (which was an appeal to CCL of the Judgment of a Justice Court) in calculating the amount of unpaid rent, and in failing to find that Landlord violated a statute pertaining to a landlord’s duty to repair or remedy conditions and a statute prohibiting retaliation.

The Court reviewed the record from the trial court, noted the absence of Findings of Fact, and affirmed the Judgment. The Opinion can be read HERE

New Eviction Rules to Take Effect Tomorrow - 8/31/13 Get a copy here

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

Effective on Saturday, 8/31/13, a new set of eviction rules formulated by the Texas Supreme Court will become effective. 

The new Rules will apply to all eviction cases filed in Texas on or after 8/31 AND cases pending on 8/31 (unless applying the new Rules would work "injustice").

Prior Texas Rules of Civil Procedure 737-755 have been ABOLISHED, and New Rules 500-507 and especially 510 (the Eviction-specific Rule) will govern all eviction/FE&D cases.

I recently made a presentation to the San Antonio Chapter of the National Association of Residential Property Managers concerning the specifics of the new Rules. I anticipate that the powerpoint presentation I furnished in connection with that presentation will be posted on their site. If and when that happens, I will post a link on this page.

A full copy of the new Texas Rules of Civil Procedure applicable to ALL Justice Court cases (not just evictions) can be found HERE.

Can a Property Manager Represent a Landlord in an Eviction Lawsuit?

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

***THE INFORMATION CONTAINED IN THIS POST HAS BEEN SUPERSEDED BY NEW TEXAS RULE OF CIVIL PROCEDURE 500.4, EFFECTIVE 8/31/13.**** 

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

Many Texas residential property managers offer eviction-related services to their owner-clients. Frequently, these services are  limited to issuing Notices to Vacate/ Notices to Quit and rent demand letters, occasionally, a tenant will require a Court order  before he or she vacates a rental premises. When this occurs, it is important to understand the parameters within which non-lawyer property managers in Texas can represent their owner-clients' interests in Court.

Generally, only a licensed attorney can represent another person's, or any corporation's, interests in court in Texas.  See Section 83.001(a) of the Texas Government Code, which  prohibits a person, other than a member of the state bar from practicing law.  

However, an exception to this general rule exists in connection with some types of  EVICTION cases filed in the JUSTICE COURTS. This exception is found in two separate places in the law:

Texas Property Code Sec. 24.011.  NONLAWYER REPRESENTATION. In eviction suits in justice court for nonpayment of rent or holding over beyond a rental term, the parties may represent themselves or be represented by their authorized agents, who need not be attorneys. In any eviction suit in justice court, an authorized agent requesting or obtaining a default judgment need not be an attorney.

Texas Rules of Civil Procedure: RULE 747a. REPRESENTATION BY AGENTS. In forcible entry and detainer cases for non-payment of rent or holding over beyond the rental term, the parties may represent themselves, or be represented by their authorized agents in justice courts.

In all other types of eviction cases (i.e. non-monetary defaults or breach of Lease cases, the Owner can represent him/herself, but he/she cannot be represented by a property manager, unless that manager is also a licensed attorney.  

Further, because an appeal of a Judgment entered in an eviction suit is taken to the County Court at Law, a non-lawyer may not represent the owner's interests on appeal.

As with any power, just because you "have" it, does not always mean you should exercise it. Whether a manager hires an attorney in the early stage of the eviction process, versus saving the funds and attempting to prosecute an eviction themselves, is one that should be made after careful deliberation, and on a case-by-case basis.

Withdrawing Rent Deposit from the Court Registry During a Pauper's Appeal

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

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.

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.

Eviction Appeals to County Court at Law Are Subject to Expedited Trial

San Antonio Eviction Lawyer Trey Wilson wrote:

Often, a tenant who loses possession of a rental property following an eviction trial in the Justice Court will perfect an appeal to the County Court at Law. Though often frustrating to the landlord, the right of appellate review is a fundamental component of our judicial system.

However, appeal of an eviction Judgment to the County Court at Law need not unreasonably delay the landlord's right to possession of the property, as awarded by the Justice Court. This is especially true where frivolous appeals are filed solely for the purpose of a tenant "buying time" to vacate the premises, which is inevitable. That's because Texas Rule of Civil Procedure 753 provides for a rapid trial of the appeal "at any time after the expiration of eight full days after the date the transcript is filed in the county court."

In most other types of cases, at least 45 days' notice of trial is required. However, in adopting Rule 753, our judicial system recognized the need to counter-balance a tenant's right of appeal with a landlord's right to receive rent (or at least obtain a quick resolution as to the right of possession).

Rule 753 is an important provision whose practical effect prevents unscrupulous tenants from abusing the right of appeal by providing for a quick trial. It shouldn't be overlooked by the landlord-appellee or her lawyer when strategizing the defense of a tenant's appeal.