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H.B. No. 62
AN ACT
relating to procedures for appealing a residential eviction suit.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 24, Property Code, is amended by adding
Sections 24.0052, 24.0053, and 24.0054 to read as follows:
Sec. 24.0052. TENANT APPEAL ON PAUPER'S AFFIDAVIT. (a) If
a tenant in a residential eviction suit is unable to pay the costs
of appeal or file an appeal bond as required by the Texas Rules of
Civil Procedure, the tenant may appeal the judgment of the justice
court by filing with the justice court, not later than the fifth day
after the date the judgment is signed, a pauper's affidavit sworn
before the clerk of the justice court or a notary public that states
that the tenant is unable to pay the costs of appeal or file an
appeal bond. The affidavit must contain the following information:
(1) the tenant's identity;
(2) the nature and amount of the tenant's employment
income;
(3) the income of the tenant's spouse, if applicable
and available to the tenant;
(4) the nature and amount of any governmental
entitlement income of the tenant;
(5) all other income of the tenant;
(6) the amount of available cash and funds available
in savings or checking accounts of the tenant;
(7) real and personal property owned by the tenant,
other than household furnishings, clothes, tools of a trade, or
personal effects;
(8) the tenant's debts and monthly expenses; and
(9) the number and age of the tenant's dependents and
where those dependents reside.
(b) The justice court shall make available an affidavit form
that a person may use to comply with the requirements of Subsection
(a).
(c) The justice court shall promptly notify the landlord if
a pauper's affidavit is filed by the tenant.
(d) A landlord may contest a pauper's affidavit on or before
the fifth day after the date the affidavit is filed. If the
landlord contests the affidavit, the justice court shall notify the
parties and hold a hearing to determine whether the tenant is unable
to pay the costs of appeal or file an appeal bond. The hearing shall
be held not later than the fifth day after the date the landlord
notifies the court clerk of the landlord's contest. At the hearing,
the tenant has the burden to prove by competent evidence, including
documents or credible testimony of the tenant or others, that the
tenant is unable to pay the costs of appeal or file an appeal bond.
(e) If the justice court approves the pauper's affidavit of
a tenant, the tenant is not required to pay the county court filing
fee or file an additional affidavit in the county court under
Subsection (a).
Sec. 24.0053. PAYMENT OF RENT DURING APPEAL OF EVICTION.
(a) If the justice court enters judgment for the landlord in a
residential eviction case based on nonpayment of rent, the court
shall determine the amount of rent to be paid each rental pay period
during the pendency of any appeal and shall note that amount in the
judgment. If a portion of the rent is payable by a government
agency, the court shall determine and note in the judgment the
portion of the rent to be paid by the government agency and the
portion to be paid by the tenant. The court's determination shall
be in accordance with the terms of the rental agreement and
applicable laws and regulations. This subsection does not require
or prohibit payment of rent into the court registry or directly to
the landlord during the pendency of an appeal of an eviction case
based on grounds other than nonpayment of rent.
(b) If an eviction case is based on nonpayment of rent and
the tenant appeals by filing a pauper's affidavit, the tenant shall
pay the rent, as it becomes due, into the justice court or the
county court registry, as applicable, during the pendency of the
appeal, in accordance with the Texas Rules of Civil Procedure and
Subsection (a). If a government agency is responsible for all or a
portion of the rent under an agreement with the landlord, the tenant
shall pay only that portion of the rent determined by the justice
court under Subsection (a) to be paid by the tenant during appeal,
subject to either party's right to contest that determination under
Subsection (c).
(c) If an eviction case is based on nonpayment of rent and
the tenant's rent during the rental agreement term has been paid
wholly or partly by a government agency, either party may contest
the portion of the rent that the justice court determines must be
paid into the county court registry by the tenant under this
section. The contest must be filed on or before the fifth day after
the date the justice signs the judgment. If a contest is filed, not
later than the fifth day after the date the contest is filed the
justice court shall notify the parties and hold a hearing to
determine the amount owed by the tenant in accordance with the terms
of the rental agreement and applicable laws and regulations. After
hearing the evidence, the justice court shall determine the portion
of the rent that must be paid by the tenant under this section.
(d) If the tenant objects to the justice court's ruling
under Subsection (c) on the portion of the rent to be paid by the
tenant during appeal, the tenant shall be required to pay only the
portion claimed by the tenant to be owed by the tenant until the
issue is tried de novo along with the case on the merits in county
court. During the pendency of the appeal, either party may file a
motion with the county court to reconsider the amount of the rent
that must be paid by the tenant into the registry of the court.
(e) If either party files a contest under Subsection (c) and
the tenant files a pauper's affidavit that is contested by the
landlord under Section 24.0052(d), the justice court shall hold the
hearing on both contests at the same time.
Sec. 24.0054. TENANT'S FAILURE TO PAY RENT DURING APPEAL.
(a) During an appeal of an eviction case for nonpayment of rent, if
a tenant fails to pay rent into the justice court or county court
registry in accordance with the Texas Rules of Civil Procedure and
Section 24.0053, the landlord may file with the county court a sworn
motion that the tenant failed to pay rent as required. The landlord
shall notify the tenant of the motion and the hearing date.
(b) If the county court finds that the tenant has not
complied with the payment requirements of the Texas Rules of Civil
Procedure and Section 24.0053, the county court shall immediately
issue a writ of possession unless on or before the day of the
hearing the tenant pays into the court registry:
(1) all rent not paid in accordance with the Texas
Rules of Civil Procedure and Section 24.0053; and
(2) the landlord's reasonable attorney's fees, if any,
in filing the motion.
(c) If the court finds that a tenant has failed to timely pay
the rent into the court registry on more than one occasion:
(1) the tenant is not entitled to stay the issuance of
the writ by paying the rent and the landlord's reasonable attorney's
fees, if any; and
(2) the county court shall immediately issue a writ of
possession.
(d) A writ of possession issued under Subsection (c) may not
be executed before the sixth day after the date the writ is issued.
(e) In a motion or hearing in county court under Subsection
(a), the parties may represent themselves or be represented by
their authorized agents, who need not be attorneys.
(f) During the appeal of an eviction case, if a government
agency is responsible for payment of a portion of the rent and does
not pay that portion to the landlord or into the justice court or
county court registry, the landlord may file a motion with the
county court requesting that the tenant be required to pay into the
county court registry, as a condition of remaining in possession,
the full amount of each rental period's rent, as it becomes due
under the rental agreement. After notice and hearing, the court
shall grant the motion if the landlord proves by credible evidence
that:
(1) a portion of the rent is owed by a government
agency;
(2) the portion of the rent owed by the government
agency is unpaid;
(3) the landlord did not cause wholly or partly the
agency to cease making the payments;
(4) the landlord did not cause wholly or partly the
agency to pay the wrong amount; and
(5) the landlord is not able to take reasonable action
that will cause the agency to resume making the payments of its
portion of the total rent due under the rental agreement.
SECTION 2. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 62 was passed by the House on May 9,
2005, by a non-record vote.
______________________________
Chief Clerk of the House
I certify that H.B. No. 62 was passed by the Senate on May 25,
2005, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor