The Texas eviction process provides for a standard eviction procedure or an expedited one at the option of the landlord. In any case, a Texas residential landlord may not evict a tenant without obtaining a court order after following all the necessary steps in the Texas eviction process.
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Generally, a landlord is prohibited from denying the tenant access to the rental property if the tenant is behind on rent or violates some provision of the lease that warrants eviction. Texas law permits a landlord to change the locks for nonpayment of rent. This is only if it is written in the lease and the landlord has given the tenant at least 3-days written notice of the intent to change the locks if such notice is personally delivered or 5-days if mailed.
This notice must advise the tenant of the earliest date the locks will be changed, the amount of rent due and the location where the rent may be paid or a discussion may be held regarding the rent. It must also state in bold or underlined terms that the tenant will receive a new key regardless of whether the past due rent is owed.
The purpose of this peculiar provision is to facilitate a meeting between the tenant and landlord. Once a meeting is held, the landlord must give the tenant the new key and allow him or her to continue living in the unit, though the landlord may initiate eviction proceedings.
A landlord may also remove a tenant’s property to secure payment of overdue rent if the written lease states in bold or underlined words that he or she is permitted to do so. The tenant, however, can refuse entry to the landlord and the landlord must comply. Otherwise, the landlord may only take non-exempt items such as electronics and computers and must leave a notice of entry along with a written inventory of the items seized. Windows, doors, appliances and fixtures may not be removed.
If the tenant pays the overdue rent, the items must be returned. The landlord may charge the tenant for costs incurred in removing, packing and storing the items so long as this is also enumerated in the written lease.
Texas Notice to Vacate
The Texas eviction notice is also known as a Demand for Possession or a Notice to Vacate. It must be in writing. The notice period to comply may be as short as 24-hours if it is written in the lease, or 3-days if no provision for the notice is provided. The 3-days is for any eviction reason whether it is for nonpayment of rent or for violation of the lease.
The Texas eviction notice must advise the tenant of the number of days he or she has to cure the breach of the lease or pay the delinquent rent or vacate. It must also indicate to the tenant that the right to occupancy is being terminated. Unlike other states, the landlord need not state the reason for the eviction.
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Serving the Texas Notice to Vacate
The notice or Demand for Possession must be served in any of the following ways:
- Personal service on the tenant
- Service on a member of the household or co-tenant who is at least 16 years of age
- By registered, certified or regular mail
- Posting it to the inside of the front entrance door
- Posting it to the outside of the front door if there is no mailbox or the landlord is unable to enter the premises because of an alarm system, the presence of a dangerous animal or guard dog or the door has been bolted.
Suit to Evict and Eviction Citation
If the tenant fails to pay the rent or cure the breach of the lease, the landlord must go to the Justice Court and appropriate precinct to file a suit for eviction. An eviction suit in Texas is called a Forcible Entry and Detainer suit. In some counties, the tenant need not file a written response to the suit and can just appear on the date set in the eviction citation to contest the eviction. The eviction citation or suit is served by the constable on the tenant.
A landlord has the option of a more expedited process by filing an immediate possession bond with the eviction citation. This process gives the tenant 6-days to respond and to schedule a hearing. If the tenant fails to demand a trial within the 6-days, the court can issue a Writ of Possession to the landlord.
In a standard eviction, the tenant’s failure to appear will also result in a default judgment and issuance of the Writ of Possession. The court must inform the defaulting tenant written notice of the judgment within 48-hours.
In this case and in cases where the tenant loses at trial, the tenant will have 5-days to vacate the rental property or file an appeal.
Most trials are before a judge only. A tenant can ask for a jury trial within 5-days of receiving the eviction citation. At trial where both parties have appeared, the landlord still must prove that the tenant has violated the lease or failed to pay the rent on time.
Tenant Defenses to Texas Eviction
A Texas residential tenant has a variety of defenses in an eviction action:
- Improper service of the notice
- The notice was oral and not written
- Improper notice
- The landlord always accepted late rent and has waived going forward with the eviction proceeding
- The suit was filed before the end of the compliance period
- The reason for the eviction is not in the written lease
- The landlord had knowledge of the violation but did not complain
- The landlord failed to remedy a condition hazardous to the tenant’s safety or health or which is in violation of the housing code after having been an opportunity to repair it.
- The eviction is in retaliation for the tenant having filed a complaint regarding the condition of the property or for joining a tenant’s rights organization
- The eviction is based on the tenant’s religion, race, sex, national origin, creed, age, family status, or disability
Judgment and Writ of Possession
A judgment in favor of the landlord gives the tenant 5-days to leave the property. If the tenant fails to vacate, the landlord must obtain a Writ of Possession after the fifth day, which is given to the constable who will schedule an eviction date with the landlord. For practical reasons, it is rare for a tenant to be forced to vacate by a Writ of Possession.
On the eviction day, the constable only supervises the eviction. Movers and any locksmiths must be provided by the landlord.
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