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** 

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

This is an interesting concept from Dave Ramsey. I have handled numerous evictions where a non-paying tenant causes an Owner to default on his mortgage.

Texas Supreme Court Adopts New Rules for Justice Courts, Abolishes Small Claims Courts

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

In accordance with a law passed last legislative session (82nd Session, 2011), the Texas Supreme Court on February 12, 2013, adopted a Miscellaneous Order (No. 13-9023) that ABOLISHES the Small Claims Court as of May 1, 2013, and REPEALS a broad swath of the Texas Rules of Civil Procedure (Rules 523-591 and 737-755) and a statute from the Texas Property Code (Section 92. 0563(d)). 

The repealed Rules are replaced by newly-adopted Rules 500-510 of the Texas Rules of Civil Procedure, which will govern cases filed on or after May 1, 2013, as well as cases pending on that day.

The legislation mandating the changes, HB 79,  had far-reaching implications on the judiciary, and has been called a "major court reorganization bill."  Only a small -- yet very important -- part of the new law impacts landlord-tenant lawsuits in the Texas justice courts.

Of particular importance to this blog are the new rules governing eviction proceedings (Rules 500-507 and 510) and those governing "repair and remedy cases" in which a tenant alleges that a landlord has failed to repair a condition required by Chapter 92 of the Texas Property Code (Rules 500-507 and 509).

When time permits, I will post detailed explanations of the new Rules, and how they are different from the soon-to-be-abolished Rules governing eviction cases until April 31, 2013.