The laws in Texas allow any justice court judgment to be appealed up to the county courts in the particular county where you live. Because of this, any tenant who has been evicted, even for an egregious violation of the lease, can simply file an appeal and move on to the next level. In fact, a tenant doesn’t even have to show up. They can lose their case by default, never having presented a defense to the justice court and, so long as they appeal on time, they get another bite at the apple.
It’s important for you to know how to protect yourself in the event of an appeal. How do you prevent an appeal in the first place? What do you do once you get notice that an appeal has been filed?
We’re going to cover the appeals process now. For answers to frequently asked questions answered by a licensed real estate attorney, Click HERE.
How Does a Tenant Appeal?
There are three procedures that a tenant can follow in order to appeal a ruling from a justice court. So long as that appeal is filed within the time limit established by the court – generally five to six days. Different courts can play with those rules a little bit. If you have a question about the number of days available in your specific case, you’re free to contact the court or, a licensed Real Estate attorney.
Generally speaking, if the appeal is filed on time, there are three ways to accomplish this appeal.
Appeal by Cash Bond
The courts will generally establish the bond amount at the trial. Depending on the amount of rent or the specific facts of your case, the court will set an amount that a tenant will have to pay in order to secure their place and to allow them to stay on the premises during the course of the appeal. Generally speaking, a cash bond is set at some multiple of the rent.
If rent is established, for example, at $1000 and a judgement is won, generally speaking the court can set bond at twice the amount of rent. Some courts set it higher. Some courts will set it lower, depending on facts.
Generally speaking, a bond amount will be set at twice the amount of rent. Where rent is $1000, a cash bond amount could reasonably be predicted to be set at $2000. If a tenant pays that $2000, they are allowed to stay on the premises over the course of the appeal.
Appeal by Surety Bond
The surety bond is essentially a third-party – someone who is not participating as a defendant or a plaintiff in the matter. A surety will sign a document that states essentially the following:
I can pay on appeal for any of the damages awarded up to two times an award amount or two times the amount of rent.
The surety bond essentially is security for the judgement on appeal. A third-party puts their neck on the line in favor of the defendant and says, “Whatever the costs, up to a certain limit, on appeal I can cover them.” In fact, if you win a judgement on appeal, you can collect that judgement where a surety bond is in place against the tenant or against the surety or a combination of the two.
As far as the collection process goes, that’s a different topic. The surety bond allows the tenant to appeal without paying a cash bond because a third-party secures the judgement. They will have to pay a filing fee, but essentially it’s a low-cost method. It is, however, not the lowest cost because the tenant
Appeal by Affidavit of Inability to Pay
The affidavit of inability to pay (also known as a “Pauper’s Affidavit”) is available to tenants who are unable to pay an appeal bond due to their financial situation. They present financial data to the court and the court will either approve or disapprove of this method of appeal. Generally speaking, they’re accepted. You are allowed to challenge them. In certain cases, we encourage the challenge. In most cases, we do not.
For specific guidance on your specific case – whether or not we would recommend it – we encourage you to contact us. Otherwise, we encourage you to contact any other real estate attorney with that specific question about an eviction appeal.
Rent Payments into the Court’s Registry
Now, whether a tenant files a surety bond or they file an affidavit of inability to pay – this is the second and third method of appeal – they make an agreement with the court to pay into the court’s registry one month of rent within one week. If they pay, they can stay.
If they fail to pay, then the landlord is entitled to a writ of possession. The matter can still go forward on appeal, but the tenant cannot maintain possession of the rental premises. Generally speaking, a tenant will pay in order to be allowed to stay throughout the course of the appeal.
Their agreement goes further to say that along with paying the first amount into the court’s registry, they agree month to month – for as long as the appeal goes forward – to pay their rent into the court’s registry to allow them to stay on the premises.
Now, in Harris County, the appeal process can be anywhere from four to eight weeks after an appeal is filed by the Tenant. Since March of this year, we’ve seen it go longer than eight weeks. After a hurricane situation, for example, many of these dates can be extended up to 12 weeks. But generally speaking, the process is four to eight weeks. Other counties go a little longer.
While the tenant resides on the premises, they are required to pay into the court’s registry each of the following month’s rents. That amount should be applicable to any judgement’s that’s won on appeal at a later date.
Recovering Funds Paid into the Court’s Registry
Your current Tenant has paid funds or maybe you have older judgment where amounts were previously paid into the registry and you’d like to get your hands on those funds. If you’re entitled to them based on your position in the justice court, you’ll want to consult an attorney on the proper motion to file in order for the court to release those funds to you. That’s your money, and you should have it.
What if the Tenant Stops Paying Rent Before the Appeal Trial?
Payments into the registry are established by agreement with the justice court. They should continue at the County Court after the appeal has shifted to that Court. If those payment terms are not followed, you may have rights to evict the tenant by a writ of possession.
If your tenant has failed to make additional payments after the first one, you will need to file a motion and set a hearing at the County Court. If you are successful at this hearing, the Court will sign an Order for Immediate Writ of Possession. Once you pay the fee, currently $130 in Harris County, the Court will prepare the Writ for the Constable.
This means that you can recover possession of the premises even prior to the actual Eviction Appeal Trial.
Additional Filing Fees for the Appeal
As far as additional filing fees, in the event of a cash bond or the event of a surety bond, the tenant will be given a deadline for payment of additional fees. Failure to pay those fees could result in a dismissal of their appeal. It’s important to follow those deadlines. You should be given written notice by the county regarding those deadlines in the mail.
The tenant is also required to file a written answer with the court. On appeal, the process goes before the county court. The county court is a court of record and will require that a defendant file a written answer. If they fail to file that answer, you might be eligible for a default judgement against them.
Preparing Your Exhibits and Trial Testimony
You will need to introduce your evidence to the County Court in a different way than you probably did for the Justice Court. In fact, many JP’s never ask for a shred of physical evidence. For the Eviction Appeal, you will want to prepare the following Exhibits:
- Your signed written lease;
- Your Notice to Vacate;
- A ledger of rent payments;
- Photographs, invoices, receipts, notices, etc. (as needed).
You will need to “prove up” your case to the Court by establishing the Landlord/Tenant relationship, the rental agreement, the breach of that agreement (usually non-payment of rent), the total amount of your unpaid rent, your Notice to Vacate (and the method of delivery), and any other relevant details necessary to recover possession of the premises.
Preventing a Second Appeal
Finally, the last deadline to consider is a deadline after the trial happens on appeal. You go through the process; you present your case and you win your judgment. In that judgment, you will set a supersedeas bond. A supersedeas bond is usually a high bond amount that is required to be paid to the court within 10 days of that judgement. Many judges will set the bond at ten times the monthly rent.
Even if the tenant appeals for a second appeal – which is rare but happens – they would have to pay that supersedeas bond within 10 days of the judgment. If they are unable to do it, you can still recover possession from them and remove them from the property, even if they attempt to move on with a second, much more expensive appeal on their part.
Generally speaking, tenants do not pay that supersedeas bond because it’s so high. We like to set a supersedeas bond as an effective means of protecting the landlord.
As always, if you have any questions about establishing a supersedeas bond or any of the other appeal matters, give us a call or text at 832-305-7694, or book your phone or Zoom conference by clicking HERE.
