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    June 01, 2015 Article

    Saddle Up with New Eviction Rules in Texas Justice Courts

    Learn why justice courts in Texas are different from the "big" courts

    by Karen L. Hart

    Understanding the recent amendments to the rules of civil procedure governing justice courts in Texas can help make justice court and the eviction process feel less like the Wild West, particularly to attorneys who are used to a more formal system of rules. The amendments, effective in August 2013, govern, among other things, eviction or forcible detainer actions in Texas, over which justice courts maintain exclusive jurisdiction. See Tex. R. Civ. P. 500–507 and 510, et seq.; Tex. Prop. Code § 24.004. Here is a practical guide to avoiding many of the pitfalls newcomers may face when litigating eviction cases in Texas.

    Cases Subject to the Amended Justice Rules

    The “Rules of Practice in Justice Courts” apply to small claims filed in justice court involving not more than $10,000, excluding statutory interest and court costs but including attorney fees, if any. Tex. R. Civ. P. 500.3. The justice court rules also apply to debt claims and repair and remedy claims brought by Texas residential tenants under Chapter 92, Subchapter B, of the Texas Property Code, also subject to the same $10,000 cap for monetary relief. Id. And, as noted, these rules apply to eviction cases brought to recover possession of real property under Chapter 24 of the Texas Property Code, often by a landlord against a tenant, which may also be coupled with claims for rent, if the amount of rent due and unpaid is not more than the foregoing $10,000 limit. Id.

    Lawyers Not Required, Even for Corporate Parties

    Justice court cases are less formal than other cases filed in district or county courts to make the system more accessible to ordinary citizens as well as more flexible for corporate entities. The amended rules more clearly specify that an individual may

    (1) represent himself or herself;

    (2) be represented by an authorized agent in an eviction case; or

    (3) be represented by an attorney [presumably licensed in Texas under applicable Texas ethics rules].

    Tex. R. Civ. P. 500.4 (emphasis supplied). Contrary to the rules that apply in district or county courts in Texas requiring a corporate entity to be represented by an attorney (of course licensed in Texas), the amended rules also clarify that a corporation or other entity may:

    (1) be represented by an employee, owner, officer, or partner of the entity who is not an attorney;

    (2) be represented by a property manager or other authorized agent in an eviction case; or

    (3) be represented by an attorney [presumably licensed in Texas under applicable Texas ethics rules].

    Id. (emphasis supplied).

    Avoid Inappropriate Litigation Tactics That May Irritate the Presiding JP

    The flexibility provided by the justice court rules has its advantages, but the informality can, at times, frustrate attorneys if they are not prepared for it. If presented with an eviction case, the exclusive jurisdiction of the justice courts in Texas will apply. Therefore, it is imperative to understand the rules, or lack thereof, to avoid trying to shoehorn inappropriate litigation tactics into an small clams and/or eviction case, which may rub your presiding JP, who may or may not be a lawyer, the wrong way.

    Quirks under the “General” Amended Justice Rules

    Thus, several important quirks you should be aware of under the “general” justice court rules, Tex. R. Civ. P. 500–507, include the following: 

    • Unless otherwise ordered by the presiding JP or provided under the justice court rules, the “regular” or “other” Texas Rules of Civil Procedure generally do not apply.
    • Likewise, the Texas Rules of Evidence do not generally apply.
    • Discovery, if conducted at all, is limited to what the JP determines is reasonable and necessary and must be requested through a written motion to the court.
    • Justice court is not a court of record; any appeal, which is made to the applicable county court in Texas, is de novo (i.e., what happened at trial before the JP does not matter and, lucky or unlucky for you, the case starts over before the county court).
    • Summary disposition prior to trial is generally not the natural inclination, particularly in eviction cases which generally proceed to trial, but the amended rules now specifically provide for motions for summary disposition, which appear to be similar to summary judgment motions. 

    Jury Trial Process Is Different

    The jury trial process is also different in justice court. See, generally, Tex. R. Civ. P. 504. A jury trial generally may be demanded 14 days prior to trial and, in eviction cases, a jury may be demanded three days before trial. If no jury is demanded, the case is tried to the presiding JP. If a jury is demanded, the judge, if no method of electronic draw has been implemented, “must write the names of all prospective jurors present on separate slips of paper as nearly alike as may be, place them in a box, mix them well, and then draw the names one by one from the box. The judge must list the names drawn and deliver a copy to each of the parties or their attorneys.” The judge, the parties, and/or their attorneys may question the jury as to their “impartially in the trial but may not ask the jurors how they will rule in the case.” After objections for cause, the judge is to impanel six jurors. The judge “must not charge the jury.”  

    Amended Justice Rules Specifically for Eviction Cases

    The more specific justice rules that apply to eviction cases are found under Texas Rule of Civil Procedure 510, which applies “to a lawsuit to recover possession of real property under Chapter 24 of the Texas Property Code.” It is imperative to comply with Chapter 24 requirements (e.g., notice to vacate, etc.) to avoid trip-ups in the eviction process. 

    Eviction Petition Requirements

    Under Rule 510.3, an eviction case must be filed in the precinct where the premises at issue is located; otherwise, the action must be dismissed. An eviction petition must be sworn by the plaintiff and provide:

    (1) a description, including the address, if any, of the premises that the plaintiff seeks possession of;

    (2) a description of the facts and the grounds for eviction;

    (3) a description of when and how notice to vacate was delivered;

    (4) the total amount of rent due and unpaid at the time of filing, if any (and which must be within the $10,000 jurisdictional limit); and

    (5) a statement that attorney fees are being sought, if applicable.

    In Eviction Cases, Possession Is the Only Issue Decided; Counterclaims Are Prohibited

    Significantly, Rule 510.3(e) provides: 

    Only issue. The court must adjudicate the right to actual possession and not title. Counterclaims and the joinder of suits against third parties are not permitted in eviction cases. A claim that is not asserted because of this rule can be brought in a separate suit in a court of proper jurisdiction.

    Rule 510.3(e) crystallizes the established limitation of Texas justice courts’ jurisdiction to only deciding possession and not title. The Rule also further clarifies that counterclaims and third party claims are prohibited in eviction cases, which helps to establish and explain why res judicata is generally not applicable to eviction suits in Texas -- even for such claims as wrongful eviction. Thus, it is important to keep in mind that the eviction suit may not be the end of the war with a litigious tenant who may decide to bite back later, even after a landlord walks away victorious in the eviction battle.   

    Summary of Eviction Procedures

    Other peculiar procedures under Rule 510 governing Texas eviction cases include the following:

    • Citation, which must also meet Chapter 24 requirements, must be served by a sheriff or constable.
    • Following service, the defendant must appear in person for trial, which must not be less than 10 days nor more than 21 days after the eviction petition is filed and not less than six days following service.  
    • Bond, as approved by the court, may be posted for immediate possession prior to trial.
    • A defendant is not required to file a written answer, but must appear at trial to avoid default.
    • A jury trial, if one is requested, must be demanded no later than three days prior to trial.
    • Unless otherwise agreed by the parties, eviction trial may not be delayed for more than seven days.
    • No motion for new trial may be filed following judgment or verdict
    • No writ of possession may issue before the sixth day after the date a judgment for possession is signed or the day following the deadline for the defendant to appeal the judgment, whichever is later.
    • A writ of possession may not issue more than 60 days after a judgment for possession is signed. For good cause, the court may extend the deadline for issuance to 90 days after a judgment for possession is signed.
    • A writ of possession may not be executed after the 90th day after a judgment for possession is signed (i.e., don’t dawdle on serving the writ).
    • A party may appeal a judgment in an eviction case by filing a bond, making a cash deposit, or filing a sworn statement of inability to pay with the justice court within 5 days after the judgment is signed.
    • On appeal, “the case must be tried de novo in the county court. A trial de novo is a new trial in which the entire case is presented as if there had been no previous trial. The trial, as well as any hearings and motions, is entitled to precedence in the county court.” 

    Conclusion

    Justice courts in Texas, like other small claims or eviction courts in other states, are just different from the “big” courts. Not knowing the rules, or again lack thereof, and understanding the environment, however, can lead to “big” problems for pro se litigants and seasoned attorneys alike. So, saddle up and read up on the amended Texas Justice Court and eviction rules.

    Copyright © 2015, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).