JP “Paupers” Writs of Possession Raises Hosts of Questions


             The legislature recently amended the Texas Property Code to authorize the justice courts to issue writs of possession, if the tenant fails to pay an “initial deposit of rent” into the justice court registry within five days of the date a tenant files a pauper’s affidavit.  If the justice court has not yet forwarded the transcript and original papers to the county court, the justice court may issue a writ of possession without a hearing.  The new legislation is similar to that of previous legislation giving county courts the authority to grant writs of possession for failure to pay monies to the registry of the courts.

             At first blush, this appears to be a substantial victory for landlords in their quest to quickly regain possession of their property without regard to any appeal.  As of the writing of this article, I believe the new legislation raises a host of issues that do not appear to be addressed by any legislation or court rules.  Getting immediate possession of the property may not be a “quick fix” to the eviction.

             Granting the landlord with possession of property before a judgment on appeal raises all kinds of questions.  For example, assuming a landlord is able to obtain quick possession of its property in the justice court (because the tenant did not pay the initial required deposit), and assuming the landlord immediately relets the property to a third party, what happens if the landlord loses on appeal of the case in the county court?  I am not certain that the law provides that a new tenant can be divested of his occupancy.  If a landlord succeeds in obtaining quick possession of the premises before a trial on appeal of the case, is the issue of possession simply moot?  If possession is already lost by the tenant, is the county court restricted from even addressing the issue of possession?  What if the tenant was improperly evicted in the justice court by the landlord?  Is the tenant not otherwise entitled to an appeal?  Does an appeal otherwise continue to the county court?  The statute does not end the appeal for any interim writs of possession ordered by any of the courts.

             If a landlord can get possession of its property before any appeal in a county court, why should the landlord bother to prosecute any appeal and incur legal expenses, if it already has possession of its property?  After getting possession of its property before any appeal is taken to the county court, can a landlord simply dismiss its suit?  What is the effect of a nonsuit or dismissal of the eviction suit?  Assuming the landlord gets possession of its property before any trial can be held in a county court on appeal, I believe that a landlord has a right to dismiss its suit and not prosecute the case on any appeal.  While I believe some county courts may attempt to restrict the dismissal of such cases, I believe such actions by the courts would be erroneous.  Nevertheless, dismissal of the suit prior to any ultimate ruling on the issue by the county court can result in potential litigation and liability against landlords who wrongfully evict their tenants, even though they succeed in the justice court.

             Regardless of whether a tenant properly posts money into the registry of the court, assuming the tenant has otherwise properly appealed as a pauper, the case will be set for trial as an appeal (tried de novo) in the county court.  Once the case is appealed, the legal effect of the justice court judgment is nullified as if there was never any such judgment.  A final determination and judgment by the county court in favor of the landlord preclusively establishes liability against the tenant, and in my view, typically shields the landlord from any liability on wrongful eviction claims as well as claims for conversion and trespass.  However, I believe there is no such protection for a landlord who prematurely dismisses the eviction suit before obtaining a county court judgment.  If a tenant decides to subsequently challenge the actions of the landlord in dispossessing the tenant, the costs of defending such claims and the potential exposure to liability can be substantial.  Therefore, the landlord should be aware that an improperly dispossessed tenant (for example, the notice to vacate was not properly served), can subject itself to liability and separate litigation on claims that relate to the handling of the eviction in the justice court.  Finally, court costs for the tenant’s appeal can be taxed against the landlord upon the dismissal of its suit as court costs are taxed to the party that dismisses its case.  The landlord could be made to pay all of the filing fees required to have been paid by the tenant if the tenant had not been granted pauper’s status.

             In sum, I believe there will be a host of issues to be addressed and resolved by the courts because of the recent changes allowing the justice courts to order possession of property because of a tenant’s failure to pay rents into the registry of the court.  No doubt, this may have a substantial effect on the eviction process and how landlords choose to handle their cases.  In the end, may simply be easier to wait for the county courts to grant a judgment before obtaining a writ of possession.

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