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Evictions in Texas During The COVID-19 Pandemic

Eviction Under Normal Circumstances

In Texas, eviction is controlled by a combination of Texas law, United States law, county ordinances, and the terms of the agreement (if any) between the landlord and the tenant.  This means that the eviction process depends on a lot of different factors, and the procedure for evicting a tenant can change dramatically depending on the facts of the case.

However, for simplicity sake, this article will examine a scenario where (1) there was a written lease between the landlord and the tenant, (2) the leased property was residential – as opposed to commercial – property (such as a single-family home or apartment), (3) the tenant violated a provision in the lease that allowed the landlord to terminate the tenant’s possession of the property (such as failing to pay rent), (4) the tenant does not cure the lease violation at any point during the process, (5) the tenant does not appeal the eviction judgment, (6) the tenant does not file bankruptcy, and (7) the tenant is not otherwise protected by any other federal law related to eviction, including the provisions of the CARES Act.

Given the foregoing assumptions, a landlord can expect to go through the following steps in order to evict a tenant in Texas.

Step 1: Notice to Vacate / Demand for Possession

When a landlord wants to evict a tenant, the first step in the process is giving a tenant a notice to vacate and/or making a demand for possession of the property.  The law requires the landlord to give this notice before filing an eviction suit, and the requirements under Texas law are very particular as to both (1) what is contained in this notice and (2) how the notice is delivered to the tenant.  It is important for a landlord to give proper notice, otherwise, a landlord faces having a judge deny the landlord an eviction judgment later on in the process, forcing the landlord to have to come back to this step and start the process all over again.

Step 2: Wait The Required Amount Of Time

After a landlord gives notice to the tenant, the law requires the landlord to wait a certain period of time before proceeding with the eviction.  This waiting period is intended to give the tenant a chance to comply with the landlord’s notice to vacate, potentially cutting off the need to proceed any further in the eviction process.  The waiting period is typically three days, but potentially less if the landlord and tenant have agreed to a shorter period of time, and potentially more depending on the method of delivery of the notice.  If, after the waiting period has expired, the tenant still has not vacated the premises, then the landlord can move on to the next step.

Step 3: Eviction Lawsuit

The next step for the landlord after giving the tenant notice and waiting the required period of time is to file an eviction lawsuit in the Justice of the Peace Court (typically referred to as the “JP Court”).  After the landlord files the lawsuit, the Court will set a date for the trial, which, depending on the Court’s docket, could be sooner (within a few weeks after the landlord files suit) or later (a month or more after the landlord files suit).  In practice, a trial date approximately 3 weeks after the landlord files the case would not be atypical.

If the tenant still has not vacated the premises by the time the trial date comes around, the Court will hold a trial, and allow both the landlord and the tenant to put on evidence.  After both sides have had a chance to present their case, the Court will decide whether the landlord is entitled to possession of the property and if so, will enter a judgment for possession in favor of the landlord.

Step 4: Writ of Possession

Once the landlord has a judgment for possession from the JP Court, the next step is to obtain a writ of possession.  The writ of possession is what, ultimately, will allow the landlord to actually evict the tenant.  However, while a judgment for possession entitles a landlord to a writ of possession, under Texas law the landlord typically has to wait until the sixth day after the JP Court enters the judgment for possession before the landlord can actually get the writ of possession.  Once the landlord has waited the 6 days, however, they can get the writ of possession, and with the writ in hand, the landlord is ready to move on the next step – the actual eviction.

Step 5: Eviction

After obtaining the writ of possession, the next step is to actually evict the tenant.  In order to do that, the landlord needs to schedule a date with the local constable to be present for the landlord’s eviction of the tenant.  This will depend on the constable’s availability, which will delay the eviction until the constable has an available time to attend the eviction.  As a practical matter, this often pushes the eviction out approximately a week.  However, once the landlord has this all set up, on the scheduled eviction day the constable shows up to make sure that the eviction occurs peacefully, and the landlord can then evict the tenant.

Summary Timeline For Eviction

While the schedule for all of the foregoing is not set in stone, it would not be unreasonable for a landlord to see the following timeline for the eviction process:

  • Step 1: The landlord gives the tenant notice to vacate. This can usually take place immediately after the tenant breaches the lease.
  • Step 2: Landlord waits the required amount of time, likely somewhere between 1-5 days, depending on the facts of the case
  • Step 3: The landlord files an eviction lawsuit in JP Court, and the JP Court sets a date for the trial of the case, which could be approximately 3 weeks after the landlord filed the eviction case.
  • Step 4: Assuming the landlord wins the eviction trial, the landlord waits 6 days, and then can get a writ of possession.
  • Step 5: The landlord schedules a date with the constable for eviction, which, under normal circumstances, could be somewhere in the range of 5-7 business days. The landlord then carries out the eviction

Adding all of the foregoing together, this leads to a total of somewhere between a month and a half to two months.

Changes To Eviction During the COVID-19 Pandemic

All of the foregoing assumes normal circumstances.  However, as a result of the COVID-19 pandemic, multiple authorities have issued directives that affect the eviction timeline.

For example, at the state level, the Texas Supreme Court has entered several orders restricting various parts of the eviction process.  As of this writing, the latest relevant Texas Supreme Court order is the Texas Supreme Court’s NINTH EMERGENCY ORDER REGARDING THE COVID-19 STATE OF DISASTER, dated April 6, 2020, which generally halts all residential eviction cases until after April 30, 2020, and suspends constables from enforcing writs of possession on residential properties until after May 7, 2020.  As a result, a landlord will not be able to get a trial scheduled on a residential eviction case until after April 30, 2020, and even when the landlord to eventually gets a writ of possession, the landlord will not be able to actually carry out the eviction until after May 7, 2020.

Further, in addition to the Texas Supreme Court’s directives, local counties around the state are also issuing their own orders affecting eviction proceedings within their jurisdiction.  For example, on March 18, 2020, Dallas County issued an order which “advises the Dallas County Justices of the Peace to suspend eviction hearings and writs of possession for at least the next 60 days to prevent renters from being displaced.”

In addition, over and above the foregoing authorities, some individual JP Courts have been creating the equivalent of their own COVID directives by simply not setting hearings on eviction trials.  For example, the author of this article has made multiple calls to inquire about getting an eviction trial set for a client, and at least one JP Court that the author has spoken with has stated that it will not even begin to set eviction trials until May 20, 2020, which, as of the time of this writing is approximately a month away.

All of the foregoing obviously negatively affect a landlord’s ability to evict a non-paying tenant from a rental property.  In addition, while landlords are planning ahead based on this, they should also keep in mind that there is no guarantee that the foregoing suspensions are the last that we will see, as the COVID crisis is an ongoing crisis, and the various jurisdictions may extend these dates even further in response to the ongoing pandemic.

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