Time for Issuing and Executing Writ Of Possession After Eviction Judgment

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19
Mar

Time for Issuing and Executing Writ Of Possession After Eviction Judgment

San Antonio Eviction LawyerI frequently field questions from landlords and property managers about the shelf life of writs of possession. Most inquiries relate to how early a writ can issue following an eviction judgment.* A surprising number of people ask how long after judgment the writ process may be utilized.  This post focuses on the second inquiry.

WHY WAS THE WRIT NOT ISSUED IMMEDIATELY?

The typical scenario involves a Judgment for possession awarded in the landlord’s favor. Entry of the judgment is promptly followed by promises of the tenant to “make things right.”  The landlord gives the tenant “one last chance,” even though they have already gone to court and prevailed. Often, the tenant fulfills the promise for a short time, but eventually defaults again.  The landlord then seeks to obtain a writ of possession based upon the previously-obtained Judgement of Eviction.

In other situations, a tenant promises to move out “within a couple of days.” The landlord (often looking to save the expense of the writ process) forbears from immediately purchasing the writ. Eventually, however, the tenant fails to move out when promised.

No matter the scenario, failure to immediately obtain a writ of possession does not always require a landlord to “start over” by filing a new eviction suit.

HOW LONG AFTER THE EVICTION JUDGMENT CAN THE WRIT PROCESS BE UTILIZED?

Texas Rule of Civil Procedure 510.8 (d) speaks directly to this issue. Subsection (d)(1) provides that a writ of possession “may not issue more than 60 days after a judgment for possession is signed.”  However, the Rule grants discretion to the court to “extend the deadline for issuance to 90 days after a judgment for possession is signed.”

Rule 510.8(d)(2) governs execution of writs, and states: “A writ of possession may not be executed after the 90th day after a judgment for possession is signed.”

Note that the deadline for issuance and execution of writs of possession are calculated from the date that the Justice Court signs the judgment.

ISSUANCE VERSUS EXECUTION

It is important to understand the distinction between ISSUANCE and EXECUTION of a writ of possession.  Issuance is a ministerial act of the clerk of court, characterized by preparing the official writ papers.  The clerk simply prepares the writ once a request is filed and the fee is paid.

Execution is a function performed by law enforcement. It  involves the physical act of delivering the writ of possession to the property / tenant and being present to keep the peace when the landlord removes the tenant’s property. In fact, Texas Property Code section 24.0061(h) expressly authorizes a “sheriff or constable” to “use reasonable force in executing a writ.”

The timeline set-forth in Rule 510.8(d) reveals a built-in “grace period” of 30 days for law enforcement to execute (i.e. physically deliver) the writ, assuming that it is issued on the 60th day following the date that the eviction judgment is signed.

AN EVICTION APPEAL CHANGES EVERYTHING

Keep in mind that, buy operation of Rule 510.8(d)(3), a writ of possession cannot be issued if the Justice Court’s judgment is properly appealed.  “A writ of possession must not issue if an appeal is perfected and, if applicable, rent is paid into the registry, as required by these rules.”

*The particulars of how soon a writ of possession can be issued are the subject of much discussion (and another post on this page). However, Rule 510.8(d)(1) provides that “Except as provided by Rule 510.5, no writ of possession may issue before the 6th day after the date a judgment for possession is signed or the day following the deadline for the defendant to appeal the judgment, whichever is later.” This language echoes Texas Property Code section 24.0061