A recent Dallas County Court judgment may change the way tenants who file a pauper’s affidavit appeal evictions. The court does not have the ability to set precedent, but leasing professionals and property managers should be aware of this ruling.
What the Property Code Says
A tenant appealing an eviction based on a pauper’s affidavit is currently required by Texas Property Code §24.0053 to pay into the justice court registry one month’s rent not later than the fifth day after the date the tenant files the affidavit. If the tenant fails to timely pay that amount into the registry and the transcript has not yet been transmitted to a county court, the landlord may request a writ of possession and the justice court must then issue the writ immediately, without a hearing.
For example, a landlord files to evict a tenant because the tenant is not paying the rent, and the tenant wants to appeal the eviction. The current law requires the tenant to pay the court one month’s rent—the appeal costs—within five days of filing a pauper’s affidavit. If the tenant doesn’t pay the money on time, the court can grant the eviction, which directs a constable to seize control of the premises and turn it over to the landlord.
What the Ruling Says
A judgment from a Dallas County Court last week in Hunt v. The Trellis at Lake Highlands & Ben Adamcik, Constable Precinct 3 held that that section of the Texas Property Code is unconstitutional because it violates tenant’s due process rights.
The ruling focused on how issuing the writ of possession prevents the tenant from being able to properly appeal an eviction. The execution of a writ of possession would render a tenant’s appeal of an eviction case baseless, as the tenant would have already been removed from the property. Furthermore, the issuance of the writ in this case is due solely to nonpayment of the one month’s rent, which creates an unreasonable financial barrier. The court noted that “a tenant could be removed from their home and lose their ability to be heard on appeal on the merits before their case is even sent to the County Clerk for assignment” for the appeal.
Basically, the court is saying that it’s unfair for a tenant who claims he can’t pay the rent to be forced to pay the appeal costs to fight an eviction. And, on top of that, when a tenant fails to pay one month’s rent to the court and is evicted, that tenant now has no claim on the property that he is trying to remain in.
This case law is evolving, and Texas REALTORS® will provide further updates accordingly.
Simple… “No pay, No Stay”.. Landlords have rights too… I have Residential and Commercial Rentals.. I contacted my Tenants in March 2021 and explained what we could do… only one tenant deferred 1 month and all have been current since April 2020…
🔥🔥F thats J great B that you stood up for yourself & what you worked hard for
Right there with you. No pay no stay. Run into hard times like many do payment plans. I recently took over a 16 unit portfolio and two residents are more than 3 months behind in rent. I put them on payment plans. The one neglected to pay a dime. She hasn’t paid rent in 10 months. The other made two payments on her $6k balance and stopped responding. I sent letters to both reminding them of the eviction hold off agreement that they signed. Their response was , I’ll just appeal it. File a fee waiver for the bond and… Read more »
An Owner should have the benefit of enjoying the fruits of his labor and not be held hostage to a tenant or indigent that cannot pay their rent. If the government would like to step up and pay that rent until it is fully adjudicated, that might suffice. But, in no instance should the government have the right to mandate anything negating payment. Since the mandate, the right to dictate to private property owners by government has taken an awful turn. If it takes legislation to cure this, then the Republican Party should do it. If it is left to… Read more »
The issue at hand is that the tenant isn’t paying rent. If they don’t pay, the landlord has rights to evict them for a paying tenant. If they cannot pay a one month’s rent to appeal when it was noted that they are not paying the rent and the landlord was justified in evicting them, this could rule out an appeal process that would delay the landlord from getting a non paying tenant out of there. If they didn’t present a clear case in court that they could stay in the property, why make it a lengthier process for the… Read more »
In my 30 years of Property Management I have had four appeals. First three went to county court all paid into registry as required. But I still go the win in county court and they had to pay all legal fees. The last one appealed to county court. Then appealed to district court and tried to appeal it again BUT finally gave up. In the end had they or just taken that money and paid the rent they wouldn’t be needing that fifth chance leasing.BUT I think it goes right back down to processing those applications and contacting previous places.… Read more »
The fact that this lowest court in one county’s decision is being reported here as “evolving law” is inappropriate and misleading at best. The law is not (currently at least) evolving. One judge has taken it upon himself to throw up a flag on a longstanding law. I expect this will be appealed to the Court of Appeals and then overturned, as it should be. The Legislature is the governmental branch who will make or amend law. This isn’t a story and it isn’t a change in law.
Yes. How ridiculous is that? If a tenant cannot pay the rent then why would he have to pay one month’s rent to the court registry? I am a Landlord’s agent and lease houses as a property manager and will certainly file a forcible detainer on a tenant who does not pay the rent within 10 days of the due date. However, I cannot see the reasoning behind that ruling of the code.
I’ve been in Texas for 16 years and the way I look at it they can file the fee waiver for the bond to be able to appeal. But if they have the money for the rent into the court registry the. They should have just paid rent.
I love my Dallas but UNBELIEVABLE. This is absurd and will be abused, it will not stand. They’re essentially saying there wouldn’t be any evictions, ever without an appeals process which could take MONTHS.
I was in a meeting yesterday at ABOR regarding Property Code and tenants rights. There is a potential change the City is attempting to make which would allow tenants have up to 21 days to pay past due rent before an eviction could be filed. The tenant would have to be in contact with the landlord within 14 days to work out arrangements, if they fail to do so the landlord can start eviction on the 15th day. ABOR’S Public Policy Team for Leasing and Property Management is not on board with this.
Thanks for sharing, Late fees would still apply correct?
Tenants who don’t pay rent are costing the landlord lots of money. By the time we get to court the tenants have already gotten free rent of at least 2 months. The pauper’s affidavit gives the tenants even more free rent. This is certainly not fair to landlords who are not necessarily wealthy people to begin with. Non paying tenants can cause an owner/landlord to loose their property. This ruling should not be made into law.
“…nonpayment of the one month’s rent, which creates an unreasonable financial barrier…”
But isnt the whole purpose of occupying a property you dont own in exchange for MONEY the entire business agreement?
Since when are landlords required to provide costly services for free?
This is really unfair to the property owners. This judge is increasing the suffering and loss of the landlord. Homeowners pay property taxes. There is no let down on that. If owners don’t pay taxes, their properties are foreclosed. When a renter fails to pay and gets judgement against him or her, it is really hard to make sense that another appeal process is allowed to the extent that it causes more pain and losses for the owners.
This article needs correction. The whole point of the Pauper Affidavit is due to the fact that the Tenant cannot afford to pay the Appeal Bond, which is normally one month of rent. I believe that the timelines for the article in some way may be valid in a certain scenario that needs to be corrected to avoid incorrect info.
obviously you are not a Landlord, if they can’t pay they can move to a shelter temporarily, couch surf or move in with family
If you’re in a strong rental market you might look into going month to month That way you can give 30 day notice to vacate for any reason. That should eliminate their ability to file a paupers affidavit. Worked for me for an eviction during Covid. Tenant had no standing according to the district judge because it was a month to month lease. I no longer extend any of my leases, they all go month to month. Check with your legal council to see what they think.
Even on month to month leases in Texas they do not require a 30 day notice before eviction can be filed. It’s four days after it’s posted outside main entry door sealed envelope addresses to the residents. Mailed first class and certified return receipt. Also, I charge every single one of my residents Admin fee when I have to send them an eviction notice and a $75 trip charge. Only way full 30 day. Notice is required is if there was never a lease for that resident. Which happens far more times than not. I think that we should be… Read more »
This is wrong in so many ways. Our investors/owners already have suffered quite a bit. Tenants are leaving homes so bad the make ready’s are ridicules’. Half the appeals the people lie on the pauper’s affidavit. The tenants have already gotten at least 2 to 3 months of non payment and now it could be at least 5 to 6 months. Unreal….
Does the mortgage wait for the landlord to receive the rent? How about the insurance? Or Tax? The tenant is staying there, they couldn’t win the court and they are getting another chance to buy more time by appealing if they are not able to pay the rent why do they have to live in someone else’s home.
Tenants rights ???
What about the the Financial burden on the Landlord ??? What about the Landlord’s rights?? Isn’t it UNFAIR FOR THE LANDLORD TOO. An Appeal is because they cannot pay, so why does the tenant get to buy more time?
Not sure If you have ever had an appeal eviction or eviction by jury but you’re right Tenant shouldn’t get more time but they do. If the home owner is listed as an LLC or corp or partnership they have to have a lawyer in county court for appeals otherwise it gets tossed out and they resident gets to stay and you have to do it all over again.
What about fairness for the the landlord who has a mortgage to pay?
This is TEXAS what about the rights of the Landlord? If they cannot afford rent they need to move, Landlords still have mortgages, insurance, taxes, and maintenance to pay. How can nonowner rights trump owner rights? The quicker a new tenant who can pay rent is in possession of the home the quicker Landlords can stop the bleeding of their money from Tenants refusing to pay.