At a certain point in your career as a Landlord, you will likely have to move on to the next step in the Eviction process (this is the part when non-Landlords who read this blog start throwing tomatoes at me). You’ve tried to work things out with the Tenant who failed to pay their rent. You gave them an opportunity, in writing, to leave without a lawsuit. Ultimately, though, you can’t afford to let your rental property remain occupied without a regular monthly rent payment coming in, so you must file an Eviction petition.
But wait. Where do I file it? What should go into the eviction? I mean, what makes a good eviction petition? Should I include everything, or just the bare minimum? Should I submit all my evidence up front? What if the tenant is current on rent, can I sue for eviction for a non-rent breach of the Lease? How much can I sue to collect? Do I need an attorney? Can I file in Spanish? Can I file online?
For answers to these and many other questions, read on.
You’re ready to file for eviction once you’ve served a proper Notice to Vacate. Follow this link for a detailed explanation of what makes a good Notice to Vacate.
Know Yourself
This might seem silly at first, but many Landlords get this part wrong. Identifying the Defendant is easy. The Tenant(s) is/are the Defendant(s). But who is the the Plaintiff for your Eviction lawsuit? Is it the owner of the property? Is it the Property Management Company? Is it the bookkeeper who processes the rent payments? Typically, the Plaintiff in an Eviction lawsuit is the named Landlord on the Lease. This is not always the owner, and a Landlord does not have to be the owner, but it should be the same name you use as the Plaintiff in your Eviction lawsuit.
Furthermore, if your Landlord is a company, make sure that the company name isn’t one thing on the website, another thing on the Lease, and yet a third thing in your Lawsuit. Even small variations in a company’s name can create enough doubt in a lawsuit to get an eviction case dismissed.
Finally, if a company is the Landlord, make sure the name of the company is properly registered. If the name doesn’t actually exists, you may be unable to proceed with your case in a Texas Court. A person who fails to comply with Chapter 71 of the Texas Business and Commerce Code may not maintain in a court of this state an action or proceeding arising out of a contract or act in which an assumed name was used.
Filings Fees for Your Eviction Lawsuit
The cost for filing an eviction petition will vary, depending on the county where your property is located. It is important to know where you’re filing with regard to the justice court. The county cost is going to vary anywhere from $121 in Tarrant and Harris County to as high as $136 in Dallas County. This is for one defendant.
If your lease has three parties listed as tenants, all of whom remain on the premises (after you have delivered a proper Notice to Vacate and waited the correct number of days before filing), you’re required by law to file and include each of those tenants. This will increase your costs.
In Harris County, that generally adds an additional $75 per extra tenant. The $121 fee you pay to start the lawsuit, only includes the one tenant. You will need an additional $75 to serve the second and then another $75 to serve the third. You don’t want to file a petition incorrectly against only one or two tenants when all three need to be mentioned in the lawsuit for a judgment to be valid.
It is important to know what the law requires with regard to your eviction filing. Chapters 24 & Chapters 91 through 94 of the Texas Property Code cover the statues you may need along with Section 510 of the Texas Rules of Civil Procedure. Feel free to search these online at: https://statutes.capitol.texas.gov/ for the Texas Property Code and https://www.txcourts.gov/media/1448249/trcp-all-updated-with-amendments-effective-712020.pdf for the Texas Rules of Civil Procedure.
If any of this is confusing to you – believe me, it’s confusing to attorneys too or can be to someone who doesn’t regularly practice Landlord/Tenant law on a regular basis. If you have questions regarding the specific implementation of Texas law in a Landlord/Tenant matter, it’s not best to consult a general attorney or someone who practices essentially in other fields. Because the laws are so narrow, it’s always best to consult an experienced real estate attorney, particularly a real estate attorney who has some experience and some focus in Landlord/Tenant Law.
Where to File Your Eviction Lawsuit
Choosing the right court has to do entirely with where the rental property is located. If you are in a large county like Bexar County or Tarrant County or Harris County, you’re going to find that there are multiple justice courts to choose from within the same precinct. The law does not accommodate the Landlord for the sake of convenience in this matter. The law accommodates, in this case, the Tenant, specifically, where the rental property is located.
If, for example, you reside in Fort Bend County, but your rental property and your Tenant resides in Harris County, it’s important that you know to file the lawsuit in Harris County in this particular case. However, which justice court do you seek out?
Well, you need to know in which precinct your rental property is located. That could take some investigation. You may, for example, call a local justice court and say, “I’d like to know if this rental property is located in your precinct.” Some courts are more helpful than others.
Some counties have websites that can assist you with this process. For Harris County, visit: https://www2.harriscountytx.gov/itc/gis/ais/DisplayGISData.aspx
However, if you are unsure, or lost or not certain whether you’re filing in the right place, contact an attorney. It’s a terrible thing to have to file multiple times. I’ve seen it where landlords file the same lawsuit multiple times believing they’re filing in the right court, just to find over and over that they’re frustrated by a process because it is determined later that they filed in the wrong court. Contact somebody who knows how to find the information that you need to make sure that your eviction is filed in the right county and in the right precinct.
For Harris County, there are two Justice Courts in each precinct. This means that you can choose either court to file your eviction. If, for example, you had a bad experience in one court, you are free to try the other court in a future eviction, so long as that court is in the same precinct where your rental property is located.
The Justice of the Peace, like all judges in Texas courts, is an elected official. You may find that a new judge has been elected in the court where you normally have filed your eviction lawsuits. You may find this particular judge favors Tenants or tends to rule in a less consistent manner than you prefer. That’s when a change to file your Eviction lawsuits in another court within the same precinct might be a good idea for you.
Service of Process: Delivery of the Eviction Lawsuit to the Tenant
If you file a lawsuit in Texas, service or notice of that lawsuit is required on the Defendant(s) against whom you are filing. Generally speaking, that notice is sent in Harris County by a constable. In the State of Texas, there are law enforcement agencies that deliver notices from the court to Defendants who are being sued. The same is true in the evictions process. Generally speaking, it’s a 21-day process from filing to trial. The courts have designed the process to be streamlined in an effort to protect landowners and people who rent these properties out.
In many cases, however, the constable will come and knock on the door and be unable to reach the tenant. The court will then have to sign what’s called an Order for Alternative Service. This may extend by some, but not much, the amount of time that it takes to get your case to trial. Please understand this is a normal part of the process. The court will allow the constable to deliver the notice by alternate means, which will likely include taping a copy of the notice to the door and simultaneously mailing that copy to the tenant.
In this way, the tenant is properly informed of your lawsuit against them, what the substance of the lawsuit is, and when the trial date will be held.
The Cause of Action: How the Tenant Breached the Lease
Your Eviction lawsuit must be submitted in English, even if your Lease is in another language. If English is not your first language, you may need some assistance to draft a proper petition. The Clerks at the Court are not there to assist you with this process. They’re actually not even allowed to give legal advice.
Most Eviction lawsuits are based on nonpayment of rent. These are the most direct and the hardest for a Tenant to contest. Either the Tenant paid their rent or they didn’t. However, it is up to you, the Landlord, to have clear and accurate records of each payment. If you fail in this respect, the Court can rule against you for a lack of credibility.
As such, I recommend that you keep an accurate Rent Ledger of payments. This can be physically journaled in a book or kept in a computer file of some sort, but Courts favor good record keeping. Some people hand out physical receipts. The law requires a Landlord to provide a written receipt whenever the Landlord accepts a cash payment for rent. If you accept cash and have no receipt book, you may find yourself in hot water when it comes to your Eviction Trial.
Additionally, you may have other causes of action (legal reasons to sue) that have nothing to do with rent. Your Tenant may have committed some crime on the Premises, or has created a nuisance, or maybe they have an unauthorized pet. These claims are less concrete than nonpayment of rent. They are also less common reasons for Eviction. If your Tenant has paid the rent, but you want to Evict for a Non-rent issue, you will need to make sure that this violation is clearly a legal basis for you to sue for Eviction. You maty be surprised to find that your Lease does not prohibit illegal activity, or you may find that your Lease doesn’t say anything about HOA violations.
What if the Tenant has violated both rent obligations and non-rent obligations? Sue to Evict them (after a proper Notice to Vacate), and mention all applicable causes of action in the Eviction Lawsuit. If you leave something out, you won’t be able to add it in at trial and definitely not on appeal.
How Much Can I Get Out of an Eviction Lawsuit?
You can basically request three things: Unpaid rent, Court costs, and Attorney’s fees. But what about the deposit, damage to my property, utilities, late fees, etc? No. The Eviction lawsuit is limited to Unpaid rent. Even Attorney’s fees are not guaranteed, but you should request them. The rest of the stuff, unfortunately stays out. You would have to file a separate lawsuit against your tenant to recover these other non-rent fees, damages, and charges.
As for the total amount that you can claim…Right now the limit is $10,000, including your attorney’s fees. However, on September 1, 2020, that limit will double to $20,000 in the Justice Court. You can read the amended statute here. This doesn’t mean that you should wait longer to file. This is an accommodation best suited for commercial leases with significantly higher rent.
Evidence: What You Should Attach to Your Eviction Lawsuit When You File
Never submit an original version of any of your evidence when you file your Eviction lawsuit. Attach a copy of the Notice to Vacate that you delivered to the Tenant. If you have a mailing receipt, add a copy of that too. The Rent Ledger, especially if it’s on a single page, also makes a good exhibit in nonpayment of rent cases. If there are other causes of action not involving rent, make sure to include copies of invoices, pictures, letters, receipts, reports, etc.
Now, if you have 100 documents that you believe are relevant to your case, I’d recommend saving them for trial. You don’t need to attach everything to the petition, including your Lease. The bulky material can wait. As a rule of thumb, if you are including more than 10 pages with your Eviction petition, it’s already too long. Keep it as simple as possible.
The Period Before an Eviction Trial Allows for Jury Election
Please also note that the tenant has a certain number of days to request a jury trial. Occasionally, tenants will seek the assistance of a jury trial in order to plead their case to a group of their peers. Sometimes people feel more confident presenting a case to a jury.
The unfortunate part for a Landlord is that jury election by the Tenant will inevitably increase legal costs, should you hire an attorney to represent you. A jury trial takes, inevitably many more hours of preparation and time in the presentation of your case to the court.
If you are in a situation where the tenant that you have attempted to evict has sought a jury trial for your eviction hearing, you likely want to consult an attorney for advice on how to handle this particular matter. Juries can be complicated and can be influenced by a sad story. You want to make sure that the court only hears the evidence necessary for you to gain possession. You want the Tenant’s default of the Lease to be front and center and not some extenuating circumstances or prior incidents of contention between you and the Tenant that have nothing to do with the eviction process.
To discuss your Eviction Filing with a licensed Texas attorney, call us today at 832-305-7694.
