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.

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.