Evictions Case Law Update

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.