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Ely
Ely, Counselor at Law
Category: Legal
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My tenant owe me 2 months rent. I got the eviction order but

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My tenant owe me 2 months rent. I got the eviction order but he filed the affidavit of pauper. I did not contest the appeal. Tenant did not deposit deposit the rent money. Court is forwarding the case to the county court. My question is can tenant stay on my property without paying the rent until case is pending? Is there any way I can get the posession of the property so I can rent it again and don't fall behind in mortgate payment.
Submitted: 4 years ago.
Category: Legal
Expert:  Ely replied 4 years ago.
Hello and thank you for the opportunity to assist you. Please remember that there might be a delay between your follow up questions and my answers because I may be helping other customers or taking a break.

First of all, the pauper's affidavit is simply an affidavit for him to not pay court fees, claiming poverty. However, what you undoubtedly meant to say is that he filed an Appeal Bond.

But the question remains - can he stay on the premises? The Harris County JP Court site explains it the best: If the eviction proceeding was for nonpayment of rent, a tenant who appeals by way of an affidavit stating the appellant's inability to pay costs or file a bond, is entitled to stay in possession of the premises during the pendency of the appeal if (1) within five (5) days of the date of filing the pauper's affidavit, the tenant pays to the justice court one rental period's rent, and (2) during the appeal process, the tenant pays to the county court rent within five (5) days of the due date under the rental agreement.

If the tenant fails to pay the rent as required during the appeal process, the landlord may gain possession of the property. Rule 749b, Texas Rules of Civil Procedure
.

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Customer: replied 4 years ago.

Tenant did not deposit the rent and bond payment. Do I need to wait until the case goes to Denton county? If not how can I gain possession of the property. Rule 749b, Texas Rules of Civil Procedure? I don't want to fall behind the mortgate payment.

 

Expert:  Ely replied 4 years ago.
Since they did not pay said bond, you may indeed gain possession. You can file for a Writ of Possession to have the constable come out and kick them out:

A writ of possession may not be issued before the sixth (6th) day after the date on which the judgment for possession is rendered.

The court shall notify a tenant in writing of a default judgment for possession by sending a copy of the judgment to the premises by first class mail not later than 48 hours after the entry of the judgment.

The writ of possession shall order the officer executing the writ to:

1. post a written warning of at least 8-1/2 by 11 inches on the exterior of the front door of the rental unit notifying the tenant that the writ has been issued and that the writ will be executed on or after a specific date and time stated in the warning not sooner than 24 hours after the warning is posted; and

2. when the writ of possession is executed:

(A) deliver possession of the premises to the landlord;

(B) instruct the tenant and all persons claiming under the tenant to leave the premises immediately, and, if the persons fail to comply, physically remove them;

(C) instruct the tenant to remove or to allow the landlord, the landlord's representatives, or other persons acting under the officer's supervision to remove all personal property from the rental unit other than personal property claimed to be owned by the landlord; and

(D) place, or have an authorized person place, the removed personal property outside the rental unit at a nearby location, but not blocking a public sidewalk, passageway, or street and not while it is raining, sleeting, or snowing.

The writ of possession authorizes the officer, at the officer's discretion, to engage the services of a bonded or insured warehouseman to remove and store, subject to applicable law, part or all of the property at no cost to the landlord or the officer executing the writ.

The officer may not require the landlord to store the property.

The writ of possession must contain notice to the officer that under Section 7.003, Civil Practice and Remedies Code, the officer is not liable for damages resulting from the execution of the writ if the officer executes the writ in good faith and with reasonable diligence.

(h) A sheriff or constable may use reasonable force in executing a writ under this section.

See Section 24.0061, Texas Property Code.


In short, you do not have to wait for the case to go to Denton County. If in 6 days after eviction they do not move, the Writ can have them kicked out by reasonable force.

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you seek clarification or more information, I encourage you to use the REPLY button and I’d be more than happy to answer to your satisfaction – really – don’t be shy! There is no fee for follow up questions before or after accepting, should you wish to continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated.
Customer: replied 4 years ago.
if i need further assitance, how would I be able to contact you?
Expert:  Ely replied 4 years ago.
Simply by coming back to this link:

http://www.justanswer.com/law/5zkxm-tenant-owe-months-rent-eviction-order.html

I will be here should you need be. If I am not online when you follow up, I will gladly answer as soon as I am.

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you seek clarification or more information, I encourage you to use the REPLY button and I’d be more than happy to answer to your satisfaction – really – don’t be shy! There is no fee for follow up questions before or after accepting, should you wish to continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated.
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Customer: replied 4 years ago.
I called the justice of peace and clerk told me that I cannot get the writs of possion until appeal is pending. She told me that if I still want to go head, I can file it, but I will not get it. I am confuse and frustrated.
Expert:  Ely replied 4 years ago.
Hello,

You have a judgment with the JP court, correct?
Customer: replied 4 years ago.

Yes, I do have the judgement in my favor. Tenant failed to pay the bond. He filed the affidavit of pauper due to his job loss. He did not deposit the bond. I did not contest the appeal. He failed to deposit the rent in the court. My case was in justice of peace in Roanoke but since tenant failed to deposit the rent and I did not contest the appeal, justice of peace forwarded my case to the Denton county.

 

Does the writs of possion need to be approved by the justice of peace?

Expert:  Ely replied 4 years ago.
Review Rule 749b, Texas Rules of Civil Procedure.

Yes, you may take possession of the premises by filing a Writ of Possession if they do not move out after 6 days after eviction judgment, and they do not file said bond.

At least, this is what the rules say. I am going off from what you are telling me. Do not listen to the clerk for they are not instructed in law. Just go there, file it, and request a hearing. Period. If they will not help you, ask for someone else who will. Yes, the Writ has to be okay'd by the Court.

Please review this link:
http://www.jp.hctx.net/evictions/filing.htm

I hope you found my answer helpful, and if so please do not forget to click ACCEPT. This is the only way for me to get credit for my work – I receive no credit for my time with you unless you actually press ACCEPT, even if you already have a subscription. If you seek clarification or more information, I encourage you to use the REPLY button and I’d be more than happy to answer to your satisfaction – really – don’t be shy! There is no fee for follow up questions before or after accepting, should you wish to continue the conversation. If you feel that I went an extra step to help you, a bonus in the form of another accept or an “add on” (available after you accept) is truly appreciated.
Customer: replied 4 years ago.

After talking to you today, I went to the Justice of peace but they did not allow me to file the wirts of possession. They still have the file but they told me that they will send the file to Denton county and Denton county court will respond to me. I guess, I have to wait until new year.

Expert:  Ely replied 4 years ago.
I see, and I am sorry. In this case, the county court should allow you to file the Writ, then, if the JP Court did not. Again, you have the right to do so:

http://www.jp.hctx.net/evictions/filing.htm

I am sorry you are stuck in this procedural hassle.

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