By: Bonnen H.B. No. 3551
A BILL TO BE ENTITLED
AN ACT
relating to certain procedures concerning forcible entry and
detainer actions.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 24.005(a), (b), and (c), Property Code,
are amended to read as follows:
(a) If the occupant is a tenant under a written lease or oral
rental agreement, the landlord must give a tenant who defaults or
holds over beyond the end of the rental term or renewal period at
least one day's [three days'] written notice to vacate the premises
before the landlord files a forcible detainer suit, unless the
parties have contracted for a shorter or longer notice period in a
written lease or agreement. A landlord who files a forcible
detainer suit on grounds that the tenant is holding over beyond the
end of the rental term or renewal period must also comply with the
tenancy termination requirements of Section 91.001.
(b) If the occupant is a tenant at will or by sufferance, the
landlord must give the tenant at least one day's [three days']
written notice to vacate before the landlord files a forcible
detainer suit unless the parties have contracted for a shorter or
longer notice period in a written lease or agreement. If a building
is purchased at a tax foreclosure sale or a trustee's foreclosure
sale under a lien superior to the tenant's lease and the tenant
timely pays rent and is not otherwise in default under the tenant's
lease after foreclosure, the purchaser must give a residential
tenant of the building at least 30 days' written notice to vacate if
the purchaser chooses not to continue the lease. The tenant is
considered to timely pay the rent under this subsection if, during
the month of the foreclosure sale, the tenant pays the rent for that
month to the landlord before receiving any notice that a
foreclosure sale is scheduled during the month or pays the rent for
that month to the foreclosing lienholder or the purchaser at
foreclosure not later than the fifth day after the date of receipt
of a written notice of the name and address of the purchaser that
requests payment. Before a foreclosure sale, a foreclosing
lienholder may give written notice to a tenant stating that a
foreclosure notice has been given to the landlord or owner of the
property and specifying the date of the foreclosure.
(c) If the occupant is a tenant of a person who acquired
possession by forcible entry, the landlord must give the person at
least one day's [three days'] written notice to vacate before the
landlord files a forcible detainer suit.
SECTION 2. Sections 24.0052 (a) and (d), Property Code, are
amended to read as follows:
(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 third [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.
(d) A landlord may contest a pauper's affidavit on or before
the third [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 third [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.
SECTION 3. Section 24.0053(c), Property Code, is amended to
read as follows:
(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 third [fifth]
day after the date the justice signs the judgment. If a contest is
filed, not later than the third [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.
SECTION 4. Section 24.0054(d), Property Code, is amended to
read as follows:
(d) A writ of possession issued under Subsection (c) may not
be executed before the third [sixth] day after the date the writ is
issued.
SECTION 5. Section 24.006(a), Property Code, is amended to
read as follows:
(a) Except as provided by Subsection (b), to be eligible to
recover attorney's fees in an eviction suit, a landlord must give a
tenant who is unlawfully retaining possession of the landlord's
premises a written demand to vacate the premises. The demand must
state that if the tenant does not vacate the premises before the
fifth [11th] day after the date of receipt of the notice and if the
landlord files suit, the landlord may recover attorney's fees. The
demand must be sent by registered mail or by certified mail, return
receipt requested, at least five [10] days before the date the suit
is filed.
SECTION 6. Sections 24.0061(b), (c), and (d), Property
Code, are amended to read as follows:
(b) A writ of possession may not be issued before the third
[sixth] day after the date on which the judgment for possession is
rendered unless a possession bond has been filed and approved under
the Texas Rules of Civil Procedure and judgment for possession is
thereafter granted by default.
(c) 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 24 [48] hours after the
entry of the judgment.
(d) 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 12 [24] hours after the warning is
posted; and
(2) when the writ 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.
SECTION 7. Section 24.007, Property Code, is amended to
read as follows:
Sec. 24.007. APPEAL. A final judgment of a county court in
an eviction suit may not be appealed on the issue of possession
unless the premises in question are being used for residential
purposes only. A judgment of a county court may not under any
circumstances be stayed pending appeal unless, within five [10]
days of the signing of the judgment, the appellant files a
supersedeas bond in an amount set by the county court. In setting
the supersedeas bond the county court shall provide protection for
the appellee to the same extent as in any other appeal, taking into
consideration the value of rents likely to accrue during appeal,
damages which may occur as a result of the stay during appeal, and
other damages or amounts as the court may deem appropriate.
SECTION 8. The changes to law made by this Act apply only to
a forcible entry and detainer action in which the notice to vacate
is given on or after the effective date of this Act. A forcible
entry and detainer action in which the notice to vacate is given
before the effective date of this Act is governed by the law as it
existed immediately before the effective date of this Act, and that
law is continued in effect for that purpose.
SECTION 9. This Act takes effect September 1, 2009.