Evictions trials at the Justice Court level are typically brief; leaving most defendants feeling like they were not given a fair chance to tell the judge their side of the case or develop a defense. While this seems unfair, it is usually because the defendant didn't understand the rules that the judge is following. The most important rules a defendant needs to know can be found in Texas Rule of Civil Procedure 510 and Texas Property Code Chapters 24(eviction generally), 92(residential tenancies), 93(commercial tenancies) and 94(manufactured home tenancies). One of the most common mistakes tenants make is withholding rent to force landlord to perform repairs; this is a critical mistake because the condition of the premises is not a defense in a non-payment of rent case.
A typical docket-call in Justice Court in Bexar County, Texas has 25-100 cases. For obvious reasons, the judge cannot devote more than a few minutes, on average, to any specific case. The judge's role is to determine which party has the superior right to possession of the premises. The judge will typically ask the plaintiff the cause for eviction, whether it be non-payment of rent, lease violations or holdover. A defendant will then typically have about a minute to explain to the judge why they shouldn't be evicted. It is critical that you be able to articulate your defense clearly and concisely to the judge.
Retainer agreements typically require payment up front and in full.
Eviction appeals consist of a trial de novo in county court. What this means is that the parties will conduct a trial in front of the assigned county court judge as if it is the first time the case is being heard. The critical difference is that the Rules of Evidence now apply. Retainer agreements for appeals may be available on payment plans.
Many eviction cases, even where the tenant has done something for which they can be evicted, can be won simply because the landlord does not follow the rules governing the eviction process. But, even if the landlord doesn't follow the rules, a tenant won't prevail if the tenant doesn't know what or how to give that information to the judge.
Firm representation in eviction cases and appeals is limited to Bexar County, Texas; geographic exceptions are on a case by case basis.
Pursuant to Texas Property Code 92.011 a landlord shall accept cash rental payments unless the lease agreement stipulates that payments must be made in some other form. If the landlord fails to give written receipts for cash rental payments or record the amount of cash payments and date of payment in a log book, tenant shall have a claim for the greater of one month's rent or $500.00 per violation; additionally, attorney fees and court costs are recoverable if the tenant prevails in any lawsuit.
Pursuant to Texas Property Code 92.052 a landlord has a duty to repair or remedy conditions materially affecting the health or safety of the ordinary tenant. There are requirements to meet for a tenant to even compel a landlord to do repairs. A tenant must be current on rent and give two written notices or one written notice by certified mail before a landlord even has a duty to make repairs. When the tenant has met those requirements and the landlord fails to make repairs, the tenant has several options including filing a lawsuit against the landlord. The tenant can stay in the property and sue the landlord to force repairs and allowable damages or vacate the property and sue the landlord for allowable damages. Tenants should not undertake any actions concerning failure to repair or remedy without consulting a lawyer.
The most common mistake landlords make is refusing to give the tenant a key after a lockout. The relevant statute is Texas Property Code 92.0081. Lockouts can only be performed pursuant to the law and, in cases where the lockout is for non-payment of rent, landlord's right to lockout must be included in a written lease. Removal of property and lockouts are a minefield for landlords, if the landlord doesn't strictly follow the requirements of Texas Property Code 92.0081, tenants can sue the landlord for damages. Typical errors by landlords include failing to give tenant a key upon request, removing doors or windows to force tenant to pay rent, changing locks when there is no written lease or when the lease does not give the landlord the right to change locks, preventing tenants from accessing common areas, failing to give pre-lockout notice, failing to give post lockout notice.
A landlord has a duty to give an accounting of deductions from a deposit and return any balance owed the tenant within 30 days of move out. A failure to give an accounting creates a presumption that the landlord acted in bad faith. A tenant must take certain actions to preserve the value of any potential claim; they must give a forwarding address for purposes of returning deposit(certified mail is best), should document the condition of the premises at the time of move out with photos.
The relevant statute is Texas Finance Code chapter 392. Landlords often resort to collection techniques which are prohibited by the Texas Finance Code; while chapter 392 provides a laundry list of prohibited collection tactics, a general rule of thumb is that if its rude, abusive, shocking, or scary, it is likely prohibited. Violations of the Texas Property Code or other statutes, threatening to, or actually harming a tenant or tenant's property, demanding sexual favors, sexual assault and misrepresenting the amount of the debt owed are all prevalent among landlords violating Texas Finance Code chapter 392.
Pursuant to Texas Property Code Chapter 92, there are several instances that permit a tenant to terminate their lease without liability due to domestic violence, sex offenses, stalking, military orders, death, lockout, and failure to repair. Due to demand, our firm does not offer free consultations on these cases. Our firm charges a flat fee of $350.00 for consultation, and if tenant retains the firm to send a letter, there is typically an additional charge of $300.00-$450.00.
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