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.

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.