New eviction rules include organizational and substantive changes

By John Sepehri, TAA General Counsel

Effective August 31, 2013, there will be a new set of rules governing Justice Court eviction proceedings. While the new rules generally address all the topics in the current rules, they include substantive and organizational changes that owners/operators and their counsel need to understand.

Justice Court rules reorganized

The new rules arise out of legislation that directed the elimination of small claims courts and directed the Texas Supreme Court to write new rules for Justice Courts. The Court responded by classifying all Justice Court civil cases in four categories: small claims, debt claims, remedy or repair, and evictions.

Furthermore, the Court completely reorganized the rules themselves. The current 700 series of rules within the Texas Rules of Civil Procedure (TRCP) are gone. In their place will be 10 sections labeled as the new 500-510 series now located in Part V of the TRCP.  As a general matter, all Justice Court cases are subject to a chunk of these new 500 series rules, sections 500-507. The rules specific to eviction cases can be found in the 510 series of rules at the end of Part V.

The more things change, the more they stay the same

Although the extent of the Court’s major rewrite to the rules of procedure governing the conduct of an eviction in the courtroom should not be understated, it is important to note that many things about evictions will not change.

For example, as in the past, an owner/operator cannot sue for utilities, damages or late charges in an eviction proceeding though these issues may be pursued in separate small claims actions. Chapter 24 of the Property Code, which provides much of the substance for eviction proceedings, also has not changed and will continue to apply in all evictions.

Even many of the headings to the new 500 series of rules in the TCRP are similar (though not identical) to the headings in the soon-to-be-defunct 700 series of rules. Furthermore, the new rules generally address the same topics.

On a more substantive level, many procedures also remain the same. For instance, owners/operators will still be required to file a civil cover sheet and a Serviceman’s Civil Relief Affidavit (in situations where the affidavit is applicable) with each case.

Also, in addition to possession, an owner/operator can join a claim for back rent within the Justice Court’s jurisdiction, which continues to be $10,000. However, operators should note that the Court has clarified that while the jurisdictional limit of the court includes attorney fees, it excludes court costs and interest.

Courts may also continue to grant judgments notwithstanding a jury’s verdict. This applies where the verdict is against the great weight of the evidence or the law.

Finally, as a last example, an owner/operator must still choose the correct precinct in which to file suit, which is the precinct in which the rental property is located. See new Rule 510.3(b).

Significant differences/changes that owners/operators should study

Despite the familiar topics and headings, there are a number of substantive changes that owners/operators need to understand.[1] Some of the more significant are:

  • The timeline for a trial date is slightly different. Whereas before August 31, trial dates have been set based upon the date of service of citation, under the new rules, a trial must be set in between 10 to 21 days from the date an owner/operator files the eviction petition.   See new Rule 510.4 (a)(10). Depending on existing local practices, the new rule may speed up or delay trials.
  • The rules related to Bond for Immediate Possession have changed a good deal. See new Rule 510.5. Under the new rule, when there is a default judgment for the owner and the owner/operator has filed a bond for possession approved by the court, the owner/operator is entitled to immediately obtain a writ of possession after paying any required fees. However, the writ cannot be executed before the seventh day after the Justice Court provides the resident notice that a bond has been filed.  Owners/operators should check with their local Justice Courts concerning those courts providing notice of bond filings to residents.
  • The period during which an owner/operator may obtain execution on a Writ of Possession is no longer indefinite. It now expires after 60 days. See new Rule 510.8 (d)(1). However, it may be extended another 30 days for owners/operators who can show good cause.
  • Owners/operators will need to take greater care in the parties named as defendants who must be served. For example, if there are two residents, such as roommates, both must be named and served if the owner/operator wishes to evict both persons. This is because new Rule 510.3(c) specifically states that “the plaintiff must name as defendants all tenants obligated under the lease residing at the premises whom plaintiff seeks to evict.” Each must be separately served, whether in person or by alternative service.
  • The industry will have more choices concerning representation in eviction proceedings. Under new Rule 500.4 all owners/operators, whether individual or entity, will be able to select authorized non-lawyer representatives to handle all evictions. However, owners/operators should exercise caution in handling non-payment of rent evictions without a lawyer, as those evictions can be the most fact-intensive and complicated, which is why restrictions previously applied. Notably, residents too will be able to utilize any authorized representative to represent them in eviction proceedings.
  • Appeal rules have been modified under new Rule 510.9, including specifically with regard to pauper’s affidavit procedures. Under that rule, residents must file a sworn statement of their inability to furnish a bond (or pay a deposit in lieu of it). This statement must adhere to the requirements of new Rule 502.3(b), which calls for the resident to give information such as his/her identity, nature and amount of governmental entitlement income, nature and amount of employment income, other income, spouse’s income, property, etc. Subject to certain limitations, new Rule 510.9 gives the owner the right to challenge the resident’s claim of pauper status, and details of the challenge requirements are set forth in new Rule 502.3(d). To contest a pauper’s affidavit, the owner must timely make a filing with the court, and it is generally the resident’s burden to prove his/her inability to pay. A resident has a right to appeal a justice court’s finding that the resident is not entitled to pauper status.

These and other topics will be covered in the 2014-2015 TAA REDBOOK and TAA’s upcoming free webinars on the new rules in advance of their effective date. Eviction-related content in the REDBOOK online will be updated by the end of June, and free webinars on the new rules are scheduled July 25 and August 15. Stay tuned!

[1] A comprehensive treatment of changes is beyond the scope of this newsletter article.  However, TAA will soon be providing additional materials including a revision of the REDBOOK coverage of this topic and an educational webinar.