What’s the deal with evictions in Texas?
In Texas, the legal term for an eviction suit is forcible detainer.
Evictions are handled by the Justice of the Peace Court for the precinct in which the property is located. This is true regardless of the dollar amount at stake.
Texas eviction laws have changed in recent years. Prior to 2013, Texas was truly the Wild West of the eviction world, with judges in small claims courts interpreting the laws differently across 254 different counties. However, in 2013, a new law tightened things up, forcing landlords and judges to adhere to a more uniform standard and process. So if it’s been a while since you’ve filed to evict a tenant, be sure to do your homework first.
Recent changes in the Texas eviction process
Among the changes: Landlords now have to bring each adult resident of a unit to court in order to evict them—whether they’re on the lease or not. Previously, to save time and money, landlords had just been serving a single tenant with an eviction notice. Understandably, however, that resulted in problems, as the other tenants’ lawyers could raise a due process defense: You can’t evict someone if they were never notified or brought to court!
Unless the eviction is for non-payment of rent or holding over beyond a lease’s expiration date, you will need a lawyer to appear to represent you.
If you win the eviction hearing, the tenant then has 5 days from the time the decision’s made to appeal the ruling, or to vacate the premises. An appeal could take a few weeks.
Don’t try to force a tenant out by shutting off the power or changing the locks. This is called ‘constructive eviction’ and is against the law. The tenant could turn around and sue you, and you could end up in more trouble than they are! There is a process for evictions in Texas that works, but it requires some patience on the landlord’s part. Follow the process step by step, and don’t try to take shortcuts.
What are some reasons that I can evict a tenant in Texas?
The vast majority of residential evictions are for non-payment of rent or staying after the expiration of a lease. These cases don’t require an attorney in Texas; however, we recommend working with an attorney in just about every eviction case, except for the most experienced landlords and property managers.
You can also evict for other violations of the lease agreement, but these procedures require an attorney. Examples of possible situations leading to an eviction include:
- Criminal activity
- Threats or unsafe behavior
- Violation of pet rules
- Violation of firearms provisions in the lease
Generally, however, it all comes down to the lease. If the lease has not expired, the burden of proof will be on the landlord or property management company to prove to the court that the tenant is in violation of a specific lease provision.
Are there situations in which I cannot evict a tenant in Texas?
You cannot discriminate (or appear to discriminate) against a class that’s protected by the federal government, the state of Texas, or your county. You also cannot conduct a retaliatory eviction because a tenant filed a housing complaint against you.
Tenants and their attorneys may raise a variety of defenses against an eviction. Any one of the following defenses could derail the process and force you to start over:
- Notice to vacate was vague or defective
- Notice did not name every adult in the dwelling
- Notice was not properly delivered
- Notice was delivered orally (which doesn’t count)
- Notice was delivered prematurely
- Landlord is practicing illegal discrimination
- Landlord is improperly retaliating against the tenant
- Default in the agreement is the fault of the landlord
- Tenant did not violate the lease as alleged
If a lease expires and the tenant remains in the dwelling on a month-to-month basis, and is not otherwise in violation, you must provide a 30-day notice of non-renewal of the lease. If the tenant is not out after 30 days, you can then proceed with a 3-day notice to vacate and go through the forcible detainer suit process in a normal fashion.
What is the Texas eviction process normally like?
To evict a tenant, you must present the tenant with a formal notice to vacate. You can do this by mail (which doesn’t have to be a certified letter, though this makes it easier to prove that you’ve given notice); by posting a notice to vacate to the inside of the main entry door; or by delivering it in person to a resident who’s at least 16 years old.
The notice to vacate must spell out the reason for the eviction. Unless the lease specifies a different time period, the notice to vacate must give them at least 3 days to move out.
If you do decide to go forward with the eviction, you’ll file the forcible detainer suit with the Justice of the Peace in the county where the property’s located; pay a filing fee (which will be different in each county); and pay another fee to have a server formally deliver the documents to your tenant, notifying them of the lawsuit and directing them to appear in court.
If you win at the hearing and the appeal (if there is one)—or if the tenant doesn’t appeal but also doesn’t move out—the next step is for the landlord to file for a writ of possession. The writ cannot be issued until at least 5 days after the judgment to evict. At that point, a sheriff’s deputy or constable will post a note on the door giving the tenant 24 hours to vacate, or they’ll be forcibly removed by law enforcement.
At that point, you can remove all of the tenant’s belongings, under the supervision of law enforcement. However, if it is snowing, raining, or sleeting, you will have to wait until the weather improves.
Where can I learn more about the Texas eviction process?
Texas Property Code, Title 4, Chapter 24: Forcible Entry and Detainer
Texas Realtor’s evictions resource
Texas Tenant Advisor’s evictions resource
Disclaimer: The materials on this database provide general information related to the law and are intended to provide a layman’s summary of the law. The information provided does not constitute legal advice and the manager of this database is not a law firm. These materials are intended, but cannot be promised or guaranteed to be current, complete or up-to-date. All of the information offered are intended for general informational purposes only. You should not act or rely on any of the information contained on this database without first seeking the advice of a qualified attorney.
