The Woodlands, Texas - Tenant Eviction Process

TWO TYPES OF EVICTION LAWSUITS IN TEXAS

There are two types of eviction lawsuits that may be filed in Texas. The distinction between the two is very important and should be noted.

The first is called a "forcible entry" and is statutorily defined as either: (1) an entry without the consent of the person in actual possession of the property; (2) an entry without the consent of a tenant at will or by sufferance; or (3) an entry without the consent of a person who acquired possession by forcible entry. Tex. Prop. Code § 24.001(b). In a forcible entry and detainer lawsuit, no landlord- tenant relationship exist.

The second is called a “forcible detainer” and occurs when a person refuses to leave the property that they no longer are entitled to if the person is: (1) a tenant or a subtenant willfully and without force holding over after the termination of the tenant's right of possession; (2) a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant's lease; or (3) a tenant of a person who acquired possession by forcible entry.

EVICTION PROCESS

(1) Notice to Vacate

The first thing that must be done in Texas when trying to evict someone is a notice to vacate. Texas has several requirements that the notice must contain in order for it to be a lawful notice. The notice to vacate is giving to a tenant who is holding over, not paying rent, staying in a property that has been purchased by another buyer at a foreclosure sale, or a variety of other things that might have happened. The notice is one of the most important steps in the eviction process and not having a proper notice sent can cause the judge not to rule in your favor.
The notice to vacate puts the tenant on notice that they have a certain number of days to vacate the property or an eviction suit will be filed against them. The number of days is typically three (3) or thirty (30). The notice should state the reason for the landlord’s action absent the tenant with enough specificity that it allows the tenant to prepare a defense. The notice shall be given by mail or in person or both.
If the tenant still refuses to leave after the set number of days then an eviction suit shall be filed against them. After filing the required forms, the tenant will be served thereby putting them on notice that an eviction lawsuit (forcible detainer or forcible entry) has been filed against them.

3 MAIN ISSUES TO EVICT:

1. BREACH OF CONTRACT
2. LATE PAYMENT
3. NO PAYMENT

(2)Justice Court Trial

If the tenant refuses to leave the property after the notice has been properly given, a lawsuit will need to be filed at the justice court in the precinct in which the property is located. Each county varies as to what is required when filing to evict a tenant. However, must counties require several key documents that must be filed so that the eviction proceeding can officially begin.
After the filing of the petition for eviction and proper service of citation has been accomplished, the case will be brought before a Justice of the Peace Judge to determine whether the plaintiff (landlord/property owner) is entitled to relief. To prevail in a forcible detainer action, the plaintiff must prove only sufficient evidence to demonstrate a superior right to possession of the property. If the landlord can convince the court he has immediate right to possession, the court will issue a writ of possession.

(3) Writ of Possession

When a landlord prevails in an eviction suit, a judgment for possession of the property is given to him. The Justice Court then gives the tenant five days to vacate the property or appeal the judgment of the Justice Court. After the five days has expired, the owner/landlord will then have to file a writ of possession with the Justice Court and a constable will serve the writ on the tenant. If the tenant still does not leave, the constable will be sent back out to the property to forcefully remove the tenant from the property along with all of the tenant’s belongings. The writ must also authorize the officer to hire a bonded or insured warehouseman to remove and store all of the tenant’s belongings at no cost to the landlord/owner of the property.

TEXAS PROPERTY CODE

Sec. 24.005. NOTICE TO VACATE PRIOR TO FILING EVICTION SUIT.

(a) If the occupant is a tenant under a written lease or oral rental agreement, the landlord must give a tenant who defaults or holds over beyond the end of the rental term or renewal period at least three days' written notice to vacate the premises before the landlord files a forcible detainer suit, unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. A landlord who files a forcible detainer suit on grounds that the tenant is holding over beyond the end of the rental term or renewal period must also comply with the tenancy termination requirements of Section 91.001.

(b) If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three days' written notice to vacate before the landlord files a forcible detainer suit unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. If a building is purchased at a tax foreclosure sale or a trustee's foreclosure sale under a lien superior to the tenant's lease and the tenant timely pays rent and is not otherwise in default under the tenant's lease after foreclosure, the purchaser must give a residential tenant of the building at least 30 days' written notice to vacate if the purchaser chooses not to continue the lease. The tenant is considered to timely pay the rent under this subsection if, during the month of the foreclosure sale, the tenant pays the rent for that month to the landlord before receiving any notice that a foreclosure sale is scheduled during the month or pays the rent for that month to the foreclosing lienholder or the purchaser at foreclosure not later than the fifth day after the date of receipt of a written notice of the name and address of the purchaser that requests payment. Before a foreclosure sale, a foreclosing lienholder may give written notice to a tenant stating that a foreclosure notice has been given to the landlord or owner of the property and specifying the date of the foreclosure.

(c) If the occupant is a tenant of a person who acquired possession by forcible entry, the landlord must give the person at least three days' written notice to vacate before the landlord files a forcible detainer suit.

(d) In all situations in which the entry by the occupant was a forcible entry under Section 24.001, the person entitled to possession must give the occupant oral or written notice to vacate before the landlord files a forcible entry and detainer suit. The notice to vacate under this subsection may be to vacate immediately or by a specified deadline.

(e) If the lease or applicable law requires the landlord to give a tenant an opportunity to respond to a notice of proposed eviction, a notice to vacate may not be given until the period provided for the tenant to respond to the eviction notice has expired.

Disclaimer: The law is constantly changing and there may be times when the information on this web site will not be current. This information is provided for general informational purposes only and is not intended as legal advice. This information is not a comprehensive treatment of the subject and is not a substitute for advice from an attorney.