Tenant Must Pay Rent During Eviction Appeal

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Tenant Must Pay Rent During Eviction Appeal

Often a landlord’s excitement at successfully evicting a non-paying tenant quickly turns to despair and frustration.  This usually happens when the non-paying tenant files an appeal.  Tenant eviction appeals undoubtedly result in delay of the landlord recovering possession of the rental premises. However, appeal should not result in the landlord losing additional rent while the appeal is pending.

To counter the addition of financial insult to injury when a non-paying tenant appeals, the Texas Legislature added Section 24.0053 to the Texas Property Code.  This section, entitled “PAYMENT OF RENT DURING APPEAL OF EVICTION” requires that a tenant evicted for non-payment pays rent while their appeal is pending.

The following are some of the highlights of Section 24.0053 (all emphasis added by the author):

(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….

*Note that the word “shall” makes this determination mandatory.*

The court’s determination shall be in accordance with the terms of the rental agreement  and applicable laws and regulations.

This means that the amount of rent required of the tenant by the justice court cannot be arbitrary. Instead, it should be based upon the amount specified in the parties’ lease agreement.

(a-1) In an eviction suit for nonpayment of rent, if a tenant [timely] files a pauper’s affidavit… or an appeal bond pursuant to the Texas Rules of Civil Procedure, the justice court shall provide to the tenant a written notice at the time the pauper’s affidavit or appeal bond is filed that contains the following information in bold or conspicuous type:

(1) the amount of the initial deposit of rent stated in the judgment that the tenant must pay into the justice court registry;

(2) whether the initial deposit must be paid in cash, cashier’s check, or money order, and to whom the cashier’s check or money order, if applicable, must be made payable;

(3) the calendar date by which the initial deposit must be paid into the justice court registry;

(4) for a court that closes before 5 p.m. on the date specified by Subdivision (3), the time the court closes; and

(5) a statement that failure to pay the required amount into the justice court registry by the date prescribed by Subdivision (3) may result in the court issuing a writ of possession without a hearing.

Despite this statutory requirement, some Justice Courts do not issue judgments that contain the information required by section (a).  If a landlord receives a Judgment of Eviction that does not contain this information, should request that the Justice Court Judge includes it.

Section (a-2) requires that the date by which an initial deposit must be paid into the justice court registry  must be within five (5) days of the date the tenant files the pauper’s affidavit.

If a tenant files an appeal bond (as opposed to an Affidavit of Inability) to appeal an eviction for nonpayment of rent, the tenant must, not later than the fifth day after the date the tenant filed the appeal bond, pay into the justice court registry the amount of rent to be paid in one rental pay period [typically one month’s rent]. If the tenant fails to timely pay that amount into the justice court registry and the transcript has not yet been transmitted to the county court, the plaintiff may request a writ of possession. On request and payment of the applicable fee, the justice court shall issue the writ of possession immediately and without a hearing.

A landlord need not wait until the appeal is finalized before withdrawing rent:

(a-4) On sworn motion and hearing, the plaintiff in the eviction suit may withdraw money deposited in the court registry before the final determination in the case, dismissal of the appeal, or order of the court after final hearing. The county court shall give precedence to a hearing or motion under this subsection.

Moreover, the tenant’s obligation to pay rent during an appeal is ongoing:

(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).

Evictions and eviction appeals are unfortunate parts of life as a landlord. However, an experienced eviction lawyer can help a landlord navigate the tricky waters of tenant appeals.