THE ANATOMY OF AN EVICTION APPEAL

There are many questions about the appeal process.

By HOWARD BOOKSTAFF, Hoover Slovacek LLP, HAA General Counsel

YOU ARE SITTING in your office going over your delinquencies. In its effort to show compassion, your company has refrained from evicting residents during the pandemic who didn’t pay rent. Some delinquent residents have left. However, others have remained, but have not paid. As a consequence, you currently have substantial delinquencies that you need to deal with.

You pick up one of the delinquent files. After months of trying to work things out with this particular resident, nothing has been resolved. The resident is currently 10 months delinquent. Yes, 10 months! You have no choice but to start the eviction process and you need to do things right to avoid any further delays!

You first wonder how many days’ notice you should give the resident to vacate. You remember that the property has a federally backed mortgage and, consequently, is subject to the CARES Act, which has no expiration date. You remember that if a property is subject to the CARES Act, a 30 days’ notice to vacate is required. You promptly give the 30day notice.

You also remember that the court, and any attorney representing the resident, would be sticklers with respect to how the notice is delivered. You correctly post the notice on the inside of the main entry door of the resident’s unit and take a picture.

After the 30-day period, you file the eviction. There was some delay in getting the resident served, but you finally get a court date 45 days after you file the petition.

At trial, the resident does not show. You think, great! You’ll finally get your unit back!

After six days from the date of the judgment, you contact the court. You ask the clerk how much you should pay to get a writ of possession.

Surprise! The clerk tells you that the writ is not available because the resident has appealed the court’s judgment.

You wonder – how in the world can a resident appeal a judgment if the resident did not even show up for court! You also wonder how a resident can appeal if the resident has not paid you for 10 months. You have done everything right. You tried to work things out with the resident. You gave a 30-day notice to vacate in compliance with the CARES Act. You appeared in court. You got a judgment from the Judge. You waited the correct number of days before you contacted the clerk to get the writ.

You are frustrated!

You have many questions about the appeal process.

Note: references to rules are to the Texas Rules of Civil Procedure and references to sections are to the Texas Property Code.

What does a resident have to do to appeal an eviction?

Pursuant to rule 510.9(a), a party may appeal a judgment in an eviction case by filing a bond, making a cash deposit, or filing a Statement of Inability to Afford Payment of Court Costs (typically known as the “pauper’s affidavit”) with the justice court within five days after the judgment is signed.

In other words, it’s pretty easy for a resident to appeal an eviction. All the resident has to do is file the bond, make a cash deposit or file a pauper’s affidavit. Most of the cases that are appealed involve the resident filing a pauper’s affidavit.

What makes a resident eligible to file a pauper’s affidavit?

Pursuant to rule 510.9(c), a resident who cannot furnish a bond or pay a cash deposit may file a pauper’s affidavit. Pursuant to section 24.0052(a), if a resident is unable to pay the costs of appeal or file an appeal bond, the resident may appeal by filing a pauper’s affidavit not later than five days after the date the judgment is signed.

Pursuant to section 24.0052(a), the pauper’s affidavit must contain certain information including information about the resident’s income, the amount of available cash and funds available in savings or checking accounts and the resident’s debts and monthly expenses.

Can an owner contest a resident’s pauper’s affidavit?

Yes, but be careful! Pursuant to section 24.0052(d), an owner may contest a pauper's affidavit on or before the fifth day after the date the affidavit is filed. If the owner contests the affidavit, the justice court notifies the parties and holds a hearing to determine whether the resident is unable to pay the costs of appeal or file an appeal bond.

Pursuant to section 24.0052(e), if the justice court approves the pauper’s affidavit of a resident, the resident is not required to pay the county court filing fee or file an additional affidavit in the county court. However, pursuant to rule 510.9(c)(3), if the contest is sustained (the court determines that the pauper’s affidavit is not valid), the resident may appeal that decision to the county court. Consequently, there may be an unattended delay if you contest a pauper’s affidavit and you win by having the contest granted because the resident would still have the right to appeal that decision to the county court. Further, if you contest the pauper’s affidavit and win, and the resident still appeals by filing an appeal bond or making a cash deposit, the resident may not have an ongoing obligation to pay rent into the court’s registry (as explained below).

Can I get a writ from the justice court even though the resident has appealed by pauper's affidavit?

Possibly. Pursuant to section 24.0053(a), if the justice court enters a judgment based on nonpayment of rent, the court is required to determine the amount of rent to be paid each rental pay period during the pendency of any appeal. Pursuant to Section 24.0053 (a-1), if a resident files a pauper’s affidavit,

Pursuant to rule 510.9(c)(5)(B), a resident who appeals by filing a pauper’s affidavit is entitled to stay in possession of the premises during the pendency of the appeal by complying with a payment procedure outlined in the rules. The procedure requires that, within five days of the date the resident files a pauper’s affidavit, the resident must pay into the justice court registry the amount set forth in the notice provided to the resident. If the resident was provided the notice from the court and fails to pay the designated amount into the justice court’s registry within the five days, and the transcript for the case has not been transmitted to the county clerk (for the county court’s determination on appeal), the owner is entitled, upon request and payment of the applicable fee, to a writ of possession, which the justice court must issue immediately and without a hearing.

In other words, if a resident appeals by pauper’s affidavit (which is the most common type of appeal), you need to contact the justice court clerk on the sixth day after the date on which the pauper’s affidavit is filed to determine whether the resident paid one month’s rent into the court registry as required. If the resident did not, you should request a writ of possession from the clerk. However, you should do so as soon after the five days as possible because once the transcript of the case is sent to the county clerk, the justice court no longer has the file and can no longer issue the writ.

If the resident has failed to pay a month’s rent into the justice court’s registry, and I obtain a writ of possession, is the appeal over?

No. Pursuant to rule 510.9(f), a resident perfects an appeal simply by filing the pauper’s affidavit. Consequently, even though the resident fails to pay rent into the court registry, and you regain possession of your unit, the appeal to the county court will continue.

Pursuant to section 24.0054(a-2), if the resident has not timely paid the initial deposit into the justice court’s registry, the justice court on request shall issue a writ of possession notwithstanding the fact that the resident has perfected an appeal by filing a pauper’s affidavit. The justice court is required to forward the transcript and original papers in the case to the county court for trial de novo (a brand new trial), notwithstanding the fact that a writ of possession under the property code has already been issued.

What do I do if I have possession and don’t need to go forward in the county court even though the case has been appealed?

If you don’t see a benefit of obtaining a judgment against the resident and the possession issue has been resolved, you can dismiss the case in the county court. Although dismissal of the case will not result in a judgment in your favor (the justice court judgment is no longer valid because the judgment was appealed), you may not need to have a judgment against the resident. Dismissing a case without prejudice should not affect your ability to pursue whatever collection action you would typically pursue against a delinquent resident.

Does the resident have an ongoing obligation to pay money into the court registry during the appeal process when the case is with the county court?

Yes. However, it becomes more difficult to obtain possession when the resident has failed to pay the money into the court registry while the case is pending in the county court.

Pursuant to section 24.0053(b), if an eviction is based on nonpayment of rent and the resident appeals by filing a pauper’s affidavit, the resident is required to pay the rent, as is becomes due, into the justice court or the county court registry, as applicable, during the pendency of the appeal.

Pursuant to rule 510.9(c)(5)(B), during the appeal process as rent becomes due under the lease, the resident must pay the designated amount into the county court registry within five days of the due date under the lease. If the resident fails to pay the designated amount within the time limits prescribed by the rules, the owner may file a sworn motion that the resident is in default in the county court. Upon a showing that the resident is in default, the court must issue a writ of possession.

The appeal process can be complicated and confusing. Once an appeal has been perfected and the case is pending in the county court, you may want legal representation to assist you in the county court. However, before the case gets to the county court, you should be prepared to determine whether the writ is available from the justice court due to the resident failing to pay the initial rent into the justice court registry.

Hopefully this outline of the appeal process helps you navigate these potentially complicated waters so that you can expedite regaining possession of your unit after prevailing in the justice court.