Last updated: 5/14/2020

Appealing an Eviction

Suit to Evict: The landlord must deliver to you a written Notice to Vacate with a move-out date. If you don’t move out by the date, the landlord must file an eviction case in Justice Court (the judge is called a Justice of the Peace). A constable will serve you with the lawsuit, and the first page will state the date of the trial. 

No-show/Default: If you don’t appear at the trial, the landlord wins by a default judgment, and six days after the judgment can ask the Justice Court (JC) for an order (Writ of Possession) to remove you. You are then given 24 hours’ notice to vacate posted on the front door by the constable before the sheriff or constable can remove you and your belongings. 

Stay Pending Appeal: If you lose the hearing or there is a default, you can appeal within five days and remain in the property while the appeal is pending, but must pay rent as set forth below if the eviction is for nonpayment of rent. If part of your rent is paid with federal funds (public housing, subsidized housing, Section 8 rental voucher), make sure the JC’s judgment states the amount paid by the government and the amount to be paid by you. If this isn’t correct, you must file a written objection in JC within 5 days of the date of the judgment. This is important because you must deposit your part of the rent while your appeal is pending when the eviction is for nonpayment and you appeal by filing and Affidavit of Inability to Pay. You want it to be what you actually owe. 

Basics of Appealing an Eviction from Justice Court:
Pay attention to deadlines! 

  • Five Calendar Days to Appeal (filed in JC): You have only 5 days to appeal the JC’s decision to the County Court (the next highest court). The 5 days include weekends and holidays. If the deadline falls on a day the JC is closed (or is not open until 5:00PM), you can file the appeal on the next day that the JC is open. If you miss the deadline, the judgment stands and the landlord can get an order (Writ of Possession) to have you and your belongings removed. 

  • Appeal (filed in JC): You can appeal with a (1) bond or (2) cash deposit OR (3) an Affidavit of Inability to Pay. 

    • Appeal Bond or Cash Deposit: A bond is a promise to pay the judgment if you lose the appeal. The amount of the bond is set by the JC, usually at 2-3 times your monthly rent. You can deposit cash or file a bond with the JC. A bond must be signed (guaranteed) by you and one or more people (for example who have assets in Texas) who are approved by the JC. If the eviction is for nonpayment of rent and you file an appeal bond rather than a cash deposit, you must then also pay one rental period’s rent into the JC court registry within 5 days. And you will also have to pay a filing fee for the appeal once it arrives at the County Court. 

    • Affidavit of Inability to Pay: If you can’t afford the bond or a cash deposit, you can file an Affidavit of Inability to Pay (also called a Sworn Statement of Inability to Pay). The JC should provide you a form Affidavit upon request. If you appeal with an Affidavit, you are not responsible for County Court filing fees. If the landlord disagrees with your Affidavit, you must prove in a JC hearing that you cannot afford to pay the cash deposit or file the bond. If you disagree with the JC decision, you can appeal to County Court. 

  • Paying rent into Court Registry: If the eviction is for nonpayment of rent and you appeal with an Affidavit of Inability to Pay, you must pay one rental period’s rent (per the judgment) to the JC within five days of filing your Affidavit, and then you must pay rent every rental period (usually monthly) to the county clerk until your appeal is decided. Pay within 5 days of the date it’s due under the lease; if you are late, your landlord can get a Writ of Possession to have you removed. If you file an appeal bond (not a cash deposit) in a nonpayment of rent eviction, you must pay one rental period’s rent into the JC court registry, but you do not have to pay additional rent into the county court because of the filed appeal bond. 

  • Paying rent: If the eviction is for some reason other than nonpayment of rent, you should continue to pay the rent to the landlord directly to prevent eviction for nonpayment. If the landlord refuses to accept your rent, you should put it aside and not touch it, because you will still owe it. 

  • Written answer: If you didn’t file a written answer to the lawsuit in the JC, you must file one in the County Court within 8 days after the County Court receives your case. The Clerk will send you notice by certified mail. (Check with the Court frequently!) If you don’t file a written answer, the landlord may win by default. Your answer can be a simple hand-written letter asking for a trial and giving the reasons why you shouldn’t be evicted. 

  • Filing fee: (County Court): If you did not appeal with an Affidavit of Inability to Pay, you must pay a filing fee to the County Court within 20 days after receiving notice of the fee. If you can’t afford the filing fee, you can file an Affidavit of Inability to Pay Costs. 

  • Trial on Appeal: Your appeal means you will have a new trial in the County Court. The same evidence you used in JC court (papers, witnesses, photographs) can be presented again. If you have new evidence, you can also present it. The judge will listen first to the landlord's side and then to your side, then make a decision about whether to evict. You also have the right to ask questions of the landlord in court. 

  • If you lose the appeal: You have 10 days to file a supersedeas bond set by the county court if you wish to appeal to the court of appeals and remain in possession. The process is complicated; consult a lawyer immediately to discuss your next steps. 

Find more help from the Texas Tenant Advisor, www.texastenant.org