Commercial Eviction (TX)

Lexis Practice Advisor

A Lexis Practice Advisor

Practice Note by Karen Hart, Bell Nunnally & Martin LLP

Karen Hart

Bell Nunnally & Martin LLP

This practice note provides an overview of the commercial

eviction process in Texas and explains both unlawful detainer

actions and tenant lockouts. This practice note does not

cover residential evictions and related notices, which have

their own distinct requirements and considerations under

Texas law. Although eviction is a landlord-driven process, this

practice note provides guidance to counsel for both landlords

and tenants.

For guidance on residential eviction in Texas, see Residential

Evictions (TX).

For general guidance on commercial leasing in Texas, see

Commercial Leasing (TX). For commercial lease forms, see

Office Lease Agreement (TX), Office Lease Agreement (Short

Form) (TX), Retail Lease Agreement (TX), and Retail Lease

Agreement (Short Form) (Pro-Landlord) (TX).

Overview

Commercial leases can be long and difficult to follow. Default

provisions, in particular, can be vexing to landlords, tenants,

and lawyers alike. The most important thing a landlord, a

tenant, or a lawyer for either can do is read the lease. For

example, commercial leases often require notice of default

and provide for a cure period. The appropriate written

notices and cure periods under a written lease must be

complied with to meet conditions for actual default and

breach and to ensure that the noticing party is in compliance

with the lease. In addition to contractual lease requirements,

applicable Texas statutory law must also be followed.

Texas landlords have a unique statutory right to lockout their

commercial tenants who are delinquent in paying rent. Some

other jurisdictions do not allow landlords this legal luxury, and

often require formal eviction proceedings to remove tenants,

including commercial occupants. Texas landlords, however,

need to be sure they post the required lockout notices to

avoid violating the law and engaging in a wrongful lockout,

which can result in procedural maneuvering, increased

fees, exposure to liability, as well as the loss of rents and

contractual rights.

Even though Texas landlords have statutory lockout rights,

a lockout may not be feasible or appropriate, and eviction

proceedings may be unavoidable, even in the commercial

context. For example, a tenant may force a landlord into

a forcible detainer lawsuit with a writ of reentry, and the

parties’ rights to possess the premises may have to be

decided through the judicial process.

Tenant Notices

Regardless of whether the landlord plans to commence an

eviction action or institute a tenant lockout, it is important

to comply with all notice requirements imposed by the lease

and/or statute.

Notice of Default and Demand for Payment

After reading the lease and determining contractual notice

requirements, in the face of a default of a lease provision

(e.g., failure to timely pay rent), a landlord typically begins

by providing the tenant with written notice of default.

Commercial leases in Texas often require written notice

of default and a time period (e.g., 10 days, 30 days, etc.) for

cure. However, such notice periods are also negotiable, and a

lease may not contain any notice and cure rights, including for

monetary defaults. If the required notices and cure periods

are not followed, a landlord may set itself up for trouble later

when it decides to lockout or evict a tenant, who may then

have a defense to eviction and potential claims for wrongful

lockout or wrongful eviction against the landlord.

For a sample notice of default, see Notice of Default

(Commercial Eviction) (TX). If the lease has a guarantor, the

guarantor should also be given notice.

Notice of Termination of Tenant’s Right of

Possession or Termination the Lease

If the tenant has defaulted for a failure to pay rent and has

failed to cure, typically the next step is to terminate the

tenant’s right of possession to lay the foundation for a

proper lockout in which notice to vacate may be provided in

the same or separate written correspondence. If the tenant

has abandoned the leased premises, the landlord must still

abide by the lease notice and cure provisions, as applicable,

and then the landlord must decide how to handle the lease,

which will impact the landlord’s ability to seek damages going

forward.

Regardless, under Texas law, landlords have a duty to

undertake reasonable efforts to mitigate their damages. See

Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948

S.W.2d 293, 299 (Tex. 1997); Tex. Prop. Code § 91.006. (“A

landlord has a duty to mitigate damages if a tenant abandons

the leased premises in violation of the lease.”)

Traditionally, under Texas common law, a landlord has four

options for pursuing rent damages in the face of a breaching

tenant. They are:

• The landlord can maintain the lease and sue for rent as it

becomes due.

• The landlord can treat the breach as an anticipatory

repudiation, repossess, and sue for the present value of

future rentals reduced by the reasonable cash market value

of the property for the remainder of the lease term.

• The landlord can treat the breach as anticipatory,

repossess, release the property, and sue the tenant for the

difference between the contractual rent and the amount

received from the new tenant.

• The landlord can declare the lease forfeited (if the lease so

provides) and relieve the tenant of liability for future rent.

See Austin Hill Country Realty, Inc., 948 S.W.2d at 300. Also

see GKG.Net, Inc. v. Mitchell Rudder Props., L.P., 330 S.W.3d

426, 430 (Tex. App. 2010, no pet.).

Commercial leases in Texas often give the landlord the option,

following a tenant default, to terminate the tenants’ right of

possession, terminate the lease, or maintain the lease and

sue for rent as it becomes due, which may include failure to

pay rent or abandonment or both. Thus, under the contract

or the common law, the landlord must choose its course of

action carefully, and it must be mindful of the ramifications

of terminating the lease. If the landlord terminates the

lease or declares the lease forfeited, the tenant’s liability for

future rent may be cut off, reducing the landlord’s future

damages claim under the lease, which may have significant

time remaining on the term at the point of the tenant’s

default. See Austin Hill Country Realty, Inc., 948 S.W.2d at

300. Repossessing the premises and terminating the tenant’s

right of possession (without terminating the lease) works

to preserve the landlord’s claim to future rentals under the

lease, and may be the preferred course, depending on the

situation and the terms of the lease.

For a sample notice of termination of right of possession, see

Notice of Termination of Right of Possession (Commercial

Eviction) (TX). Any lease guarantor should also be copied on

this correspondence.

There may be instances, however, when the parties have

determined that terminating the lease is beneficial, including

based upon the terms of any applicable lease agreement and

available damages formulas that may be specified therein.

The landlord may have a replacement tenant ready, or wish to

simply move on, or it may want to avoid becoming entangled

in a tenant’s looming bankruptcy, for example.

Additional Statutory Notices

Depending upon the type of tenancy created in a given

situation, and in the absence of written contractual

provisions, including specifically for notice of termination,

statutory termination notice provisions may be implicated.

See Tex. Prop. Code § 91.001(e). A monthly tenancy or

a tenancy from month-to-month may be terminated by

the tenant or the landlord giving notice of termination to

the other. Tex. Prop. Code § 91.001(a). If such notice of

termination is provided and the rent pay period is at least

one month, the tenancy then terminates on the later of (1)

the day given in the notice for termination, or (2) one month

after the day on which the notice is given. Tex. Prop. Code §

91.001(b). If the rent-paying period is less than a month, then

the tenancy terminates on the later of (1) the day given in the

notice for termination, or (2) the day following the expiration

of the period beginning on the day on which notice is given

and extending for a number of days equal to the number of

days in the rent-paying period. Tex. Prop. Code § 91.001(c).

If a tenancy terminates on a day that does not correspond

to the beginning or end of a rent-paying period, the tenant is

liable for rent only up to the date of termination. Tex. Prop.

Code § 91.001(d). If there is a written agreement providing a

different notice scheme for termination or providing that no

notice is required, these provisions do not apply, and they do

not apply in the face of a breach of contract. Tex. Prop. Code

§ 91.001(e).

Notice to Vacate

Unless a shorter or longer notice period has otherwise been

contracted, a landlord is required to give a tenant at least

three days’ written notice to vacate before filing a forcible

detainer (or eviction) suit. Tex. Prop. Code § 24.005(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 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.”)

If the lease does not provide for an award of attorneys’ fees

to the landlord, notice to vacate and demand for possession

must be provided to the tenant at least 11 days before

filing suit to evict. Tex. Prop. Code § 24.006. (“[unless fees

are provided by lease], 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 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 10 days before the

date the suit is filed.”)

Notice to vacate should be absolute and unequivocal,

meaning it must clearly state in so many words that the

tenant has to leave the premises. See Johnson v. Golden

Triangle Corp., 404 S.W.2d 44 (Tex. Civ. App. 1966, no writ);

Schecter v. Folsom, 417 S.W.2d 180 (Tex. Civ. App. 1967,

no writ). A notice to “pay up or move out” or a notice of

nonrenewal does not constitute a clear and unequivocal

notice to vacate. Id.

For Texas commercial tenancies, the notice to vacate

originates in the statutory provisions governing forcible

detainer actions in the Texas Property Code. See Tex. Prop.

Code § 24.001 et seq. The notice must be provided in

accordance with the statute, unless otherwise contracted, to

lay the foundation for an eviction suit, if the landlord must

pursue judicial eviction. The statutory provisions governing

commercial tenant lockouts do not address prior notice

requirements, which is in contrast to the statutory notice

requirements for residential tenancies prior to lockout.

Pre-lockout notices for commercial tenancies are not

required by the Texas Property Code, other than the

requirements for forcible detainer actions, which will typically

be necessary if a lockout is insufficient or inappropriate or

if a commercial tenant regains possession through a writ

of reentry. See Tex. Prop. Code § 93.002. The notice to

vacate gives the landlord the choice between lockout and

forcible detainer and eliminates further delay in filing a

forcible detainer suit, if one becomes necessary. The notice

to vacate also permits the tenant to vacate the premises in

an orderly fashion, allowing for the removal of items from

the premises that are not subject to a landlord’s lien or that

the landlord may not have an interest in dealing with, even

if subject to a landlord’s lien. Of course, the notice may also

encourage a tenant to remove property that may be subject

to the landlord’s lien and that may be valuable in applying

against rent and/or damages under the lease. Therefore,

circumstances, and lease requirements, should be evaluated

when drafting and providing a notice to vacate.

For a sample notice to vacate, see Notice to Vacate

(Commercial Eviction) (TX). The notice to vacate may be

provided on its own or along with the termination of the right

of possession notice. As stated, the guarantor, if there is one,

should also be copied.

Commercial Lockouts

As noted above, Texas landlords have a unique statutory right

to lockout their commercial tenants who are delinquent in

paying rent.

Commercial Lockout Notice

Pursuant to the Texas Property Code, a landlord “may

not intentionally prevent a tenant from entering the

leased premises except by judicial process unless the

exclusion results from (1) bona fide repairs, construction,

or an emergency; (2) removing the contents of premises

abandoned by a tenant; or (3) changing the door locks of a

tenant who is delinquent in paying at least part of the rent.”

Tex. Prop. Code § 93.002(c). Significantly, statutory lockouts

are only available to the landlord where a tenant failed to pay

rent; statutory lockouts are not permissible for nonmonetary

defaults. The applicable written lease agreement, if there

is one, should be consulted for remedies available to the

landlord in the face of a nonmonetary default by the tenant.

Many jurisdictions do not allow landlords to change the locks

on delinquent tenants, and often require formal eviction

proceedings in court to remove a commercial tenant from

the premises. As noted, for commercial tenancies in Texas,

the statute does not require pre-lockout notices, but the

Texas Property Code does require posting of notice at the

time of lockout. Pursuant to the statute, written notice must

be posted on the tenant’s front door stating the name and

address or telephone number of the individual or company

from which a new key may be obtained. Tex. Prop. Code §

93.002(f). A new key is only required to be provided during

the tenant’s regular business hours and only if the tenant

pays. Id. All contractual notices of default must also be

provided before taking steps to lockout a tenant. Always

read the lease for any additional or different contractual

requirements or conditions, since the lease will govern to

the extent it conflicts with the statute. Tex. Prop. Code §

93.002(h). (“A lease supersedes this section to the extent

of any conflict.”). For a sample lockout notice see Notice of

Lockout (Commercial Lease) (TX).

The point of the statutory lockout notice provision is to

ensure that the tenant knows about the rent delinquency and

where to find a replacement key. If a tenant has actual notice

of how to remedy the situation and/or where to find the key,

the failure to post the notice may be excused, or at least,

claimed damages may not be supportable. See Cole Chem &

Distrib. v. Gowing, 228 S.W.3d 684, 691 (Tex. App. 2005, no

pet.); Zinda v. McCann, 178 S.W.3d 883, 890 (Tex. App. 2005,

pet. denied).

Unlawful Lockout and Right of

Reentry

Failure to provide the required statutory notice and/or

otherwise improperly locking a tenant out of leased premises

may result in procedural wrangling and increased costs for a

landlord, and it may open a procedural avenue for a tenant

to regain possession of the leased premises. With an ex parte

writ of reentry proceeding, a tenant can force their way back

into a space without prior notice. To have the tenant removed

from the premises later will typically require a final hearing

on the tenant’s reentry claims and/or filing suit to evict the

tenant from the premises, as discussed further below.

Unlawful Lockout Claims

Pursuant to the Texas Property Code, if a landlord fails to

post the statutorily required notice and/or wrongfully locks

a commercial tenant out of the leased premises (i.e., lockout

when rent had been paid), a tenant may “(1) either recover

possession of the premises or terminate the lease; and (2)

recover from the landlord an amount equal to the sum of

the tenant’s actual damages, one month’s rent, or $500,

whichever is greater, reasonable attorney’s fees, and court

costs, less any delinquent rents or other sums for which the

tenant is liable to the landlord.” Tex. Prop. Code § 93.002(g)

(emphasis supplied).

If a commercial tenant elects to terminate a lease in the

face of a wrongful lockout, the tenant may escape liability

for potentially significant future rent due under the lease,

reducing the landlord’s ultimate damages claim against the

tenant. As stated in Section 93.002(g), in addition to seeking

damages resulting from a wrongful lockout, a commercial

tenant may also elect to seek to recover the possession of the

premises through a suit for reentry under Section 93.003 of

the Texas Property Code.

Suit for Reentry

The justice court in the precinct in which the premises are

located has exclusive jurisdiction over the suit for reentry.

Tex. Prop. Code § 93.003(b); Kassim v. Carlisle Interests, Inc.,

308 S.W.3d 537, 541 (Tex. App. 2010, no pet.). A claim for

damages for wrongful lockout may be brought along with the

suit for reentry, as long as the claim is within the jurisdictional

limits of the justice court. Tex. Gov’t Code 27.031(a)(1)

(effective until September 1, 2010, “the justice court has

original jurisdiction of (1) civil matters in which exclusive

jurisdiction is not in the district or county court and in

which the amount in controversy is not more than $10,000,

exclusive of interest” and after September 1, 2020, the justice

court will have original jurisdiction over “civil matters in which

exclusive jurisdiction is not in the district or county court

and in which the amount in controversy is not more than

$20,000, exclusive of interest”).

The claim for damages resulting from the wrongful lockout

may be brought separately, and jurisdiction for such a claim

is not limited to the justice courts. See Tex. Prop. Code §

93.003(j) (“This section does not affect a tenant’s right to

pursue a separate cause of action under Section 93.002.”);

see also Warehouse Partners v. Gardner, 910 S.W.2d 19, 27

(Tex. App. 1995, writ denied) (construing similar provisions

under Chapter 92 of the Texas Property Code governing

residential tenancies and stating “We construe these two

sections as permitting a tenant to seek a writ of reentry

in one suit and bring a cause of action for actual damages,

attorney’s fees, and court costs in a second suit.”).

A tenant seeking reentry must file a sworn complaint for

reentry, specifying the facts of the alleged unlawful lockout

by the landlord or the landlord’s agent. The tenant must also

state orally under oath to the justice the facts of the alleged

unlawful lockout, which typically takes place at an ex parte

hearing when the complaint is filed by the tenant and before

it is even served. Tex. Prop. Code § 93.003(b). If the justice

reasonably believes an unlawful lockout has likely occurred,

the justice court may issue, ex parte, a writ of reentry that

entitles the tenant to immediate, but temporary, possession

of the premises, pending a final hearing on the tenant’s sworn

complaint for reentry. Tex. Prop. Code § 93.003(c).

The landlord is entitled to a hearing on the reentry complaint

no later than seven days from the date it requests one. Tex.

Prop. Code § 93.003(e). If the landlord fails to request a

hearing before the eighth day following service of the writ,

court costs may be rendered against the landlord. Tex. Prop.

Code § 93.003(f). The writ must be served on the landlord or

the landlord’s management company, on-premises manager,

or rent collector in the same manner as a writ for possession

for a forcible detainer, and the statute notes that a “sheriff

or constable may use reasonable force in executing a writ of

reentry.” Tex. Prop. Code § 93.003(d).

If the writ of reentry is ignored or disobeyed, the landlord is

subject to contempt proceedings under the statute, which

may include jail time for the person disobeying the writ until

the contempt is purged. Tex. Prop. Code § 93.003(i). An

appeal from the judgment on the reentry complaint may be

appealed as with forcible detainer suits to the county court.

Tex. Prop. Code § 93.003(g); Tex. Civ. Prac. & Rem. Code

§ 51.001(a) (“In a case tried in justice court in which the

judgment or amount in controversy exceeds $250, exclusive

of costs, or in which the appeal is expressly provided by law,

a party to a final judgment may appeal to the county court.”).

Importantly, if a writ of possession is issued in a forcible

detainer suit, it supersedes a writ of reentry. Tex. Prop. Code

§ 93.003(h). Further, a landlord has recourse for actual

damages or $500, whichever is greater, less sums for which

the landlord is liable to the tenant, as against a tenant who in

bad faith files a sworn complaint resulting in a writ of reentry

being served on the landlord or landlord’s agent. Tex. Prop.

Code § 93.003(k).

Eviction Suits

If a lockout is insufficient or inappropriate, or if the tenant

succeeds in obtaining a writ of reentry, it may be necessary

for a landlord to file an eviction suit to resolve possession of

the commercial premises. Under the Texas Property Code,

eviction suits encompass (1) suits for forcible entry and

detainer, and (2) suits for forcible detainer. Tex. Prop. Code

§§ 24.001, 24.002. Procedures for eviction suits in Texas

are the same regardless of whether eviction is sought based

upon a tenant’s monetary default (e.g., failure to pay rent) or

a tenant’s nonmonetary default of a lease agreement.

Forcible Entry and Detainer

Forcible entry and detainer occurs when a person acquires

possession of real property without any legal authority and/

or by force and refuses to surrender possession. Tex. Prop.

Code § 24.001(a)–(b). Suit for forcible entry and detainer

is typically brought as against a trespasser by a party who

has the right of possession and typically does not involve a

landlord-tenant relationship. Tex. Prop. Code § 24.001.

Forcible Detainer

Thus, to evict an existing commercial tenant, a commercial

landlord should file a forcible detainer suit. Pursuant to the

Texas Property Code, “a person who refuses to surrender

possession of real property on demand commits a forcible

detainer if the person:

• Is a tenant or a subtenant willfully and without force

holding over after the termination of the tenant’s right of

possession

• Is a tenant at will or by sufferance, including an occupant

at the time of foreclosure of a lien superior to the tenant’s

lease –or–

• Is a tenant of a person who acquired possession by forcible

entry”

Tex. Prop. Code §24.002.

Demand for possession must be made in writing and must

comply with the statutory notice to vacate requirements

discussed above. Tex. Prop. Code §§ 24.002(b) and 24.005.

Tenant at Will

A tenant at will is one who holds possession of a premises

by permission of an owner, but without a fixed term. Pandey

v. Lee, 880 S.W.2d 164, 169 (Tex. App. 1994, writ denied)

(holding owner established landlord/tenant relationship as

matter of law when record title owner of premises gave

defendants right to possession by delivering premises keys

to them and defendants were in possession of premises,

and issue of whether occupancy obtained pursuant to lease

agreement or agreement for sale was irrelevant). The Texas

Supreme Court has defined a tenant at will as “a holdover

tenant who ‘holds possession with the landlord’s consent but

without fixed terms (as to duration or rent).’” Coinmach Corp.

v. Aspenwood Apartment Corp., 417 S.W.3d 909, 915 (Tex.

2013) (quoting Black’s Law Dictionary 1604 (9th ed. 2009)).

Because tenants at will remain in possession with their

landlords’ consent, their possession is lawful, but it is for no

fixed term, and the landlords can put them out of possession

at any time. Id.

Tenant at Sufferance

Once a tenant’s right to possession has been terminated by

the landlord, the tenant ceases to be either a tenant at will

or for term, and therefore becomes a tenant at sufferance.

See ICM Mortgage Corp. v. Jacob, 902 S.W.2d 527, 530

(Tex. App. 1994, writ denied) (“A tenant at sufferance is one

who wrongfully continues in possession of property after his

right to possession has ceased and does not assert a claim

to superior title.”). The defining characteristic of a tenancy at

sufferance is the lack of the landlord’s consent to the tenant’s

continued possession of the premises. Coinmach Corp., 417

S.W.3d at 915; see also Tuttle v. Builes, 572 S.W.3d 344, 354

(Tex. App. 2019, no pet.).

Jurisdiction in the Justice Courts

The justice courts have exclusive jurisdiction over forcible

detainer actions. Tex. Prop. Code § 24.004 (“A justice court

in the precinct in which the real property is located has

jurisdiction in eviction suits. Eviction suits include forcible

entry and detainer and forcible detainer suits.”). The

statutory forcible detainer proceedings are there to provide

landlords with a fast, simple, and inexpensive method to

regain possession of property from a tenant who refuses to

relinquish possession. See Marshall v. Housing Auth., 198

S.W.3d 782, 787 (Tex. 2006).

Immediate Possession, Rather Than Title,

Determined

A forcible detainer action is the procedure used to determine

the right to immediate possession of real property if there

is no unlawful entry. Hong Kong Dev., Inc. v. Nguyen, 229

S.W.3d 415, 433 (Tex. App. 2007, no pet.). Forcible detainer

suits solely resolve possession of the premises in question

and do not resolve title issues concerning the property.

Tex. R. Civ. P. 510.3(e); Coinmach Corp., 417 S.W.3d at 919;

Villalon v. Bank One, 176 S.W.3d 66, 70 (Tex. App. 2004, pet.

denied).

To prevail in a forcible detainer action, the plaintiff is not

required to prove title, but is required to show sufficient

evidence of ownership to demonstrate a superior right of

possession. Villalon, 176 S.W.3d at 70; see also Goggins v.

Leo, 849 S.W.2d 373, 377 (Tex. App. 1993, no writ); Powelson

v. U.S. Bank Nat’l Ass’n, 125 S.W.3d 810, 811 (Tex. App. 2004,

no pet.).

If the resolution of a title dispute is necessarily intertwined

with the issue of possession, so that the right of possession

depends upon it, possession may not be adjudicated without

determining title. Dormady v. Dinero Land & Cattle Co.,

61 S.W.3d 555, 557 (Tex. App. 2001, pet. dism’d w.o.j.). The

justice court does not have jurisdiction to determine title,

however, and only the district court can do so. However, a

forcible detainer action is cumulative, and not exclusive of

other remedies, including suit to try title and for damages.

Id.; Tex. Prop. Code § 24.008 (“An eviction suit does not bar

a suit for trespass, damages, waste, rent, or mesne profits.”).

Concurrent actions may be maintained in different courts,

but if the resolution of the title dispute is a prerequisite

to determining immediate possession, the justice court is

deprived of jurisdiction. Salaymeh v. Plaza Centro, LLC, 264

S.W.3d 431, 435 (Tex. App. 2008, no pet.).

The existence of a landlord-tenant relationship provides

a basis for the court to determine the right to immediate

possession without resolving the question of title. Villalon,

176 S.W.3d at 71. Only when the right to possession depends

upon the resolution of a question of title, is the justice court,

and the county court on appeal, deprived of jurisdiction.

Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171

(Tex. App. 1995, writ denied); Jelinis, LLC v. Hiran, 557 S.W.3d

159, 166–67 (Tex. App. 2018, pet. denied) (finding that “a

justice court is not deprived of jurisdiction merely by the

existence of a title dispute; it is deprived of jurisdiction only if

resolution of a title dispute is a prerequisite to determination

of the right to immediate possession.”).

Importantly, because available remedies are cumulative, a

judgment concerning possession in a forcible detainer suit

will not bar later suits on other claims or issues the justice

court could not decide under collateral estoppel or res

judicata. Lopez v. Sulak, 76 S.W.3d 597, 606 (Tex. App. 2002,

no pet.); see also Tex. Civ. Prac. & Rem. Code § 31.004(a),

(b). Notably, given the overall limited preclusive effect of

judgments in forcible detainer suits, a judgment awarding

possession will not shield a landlord from a tenant’s later

claim for wrongful eviction in a subsequent suit. See Tex.

Prop. Code § 24.008.

Prerequisites to Filing Forcible

Detainer Action (Notice

to Vacate and Demand for

Possession)

As discussed above, notice to vacate must be provided in

accordance with the Texas Property Code before a forcible

detainer suit to evict a tenant is filed. By statute, the notice to

vacate is considered a demand for possession as required by

Section 24.002 governing forcible detainer actions. Tex. Prop.

Code § 24.005(h).

Unless a shorter or longer notice period has otherwise been

contracted, a landlord is required to give the tenant at least

three days’ written notice to vacate before filing a forcible

detainer suit. Tex. Prop. Code § 24.005(a). Demand for rent

may be included in the notice to vacate. Tex. Prop. Code §

24.005(i).

To Secure Landlord’s Recovery of Attorney’s

Fees

In the absence of a lease providing for an award of attorney’s

fees to the landlord, notice to vacate and demand for

possession must be provided to the tenant at least 11 days

before filing suit to evict. Tex. Prop. Code § 24.006(a). If a

three-day notice to vacate is provided, and the tenant secures

reentry, to ensure recovery of fees, in the absence of a lease

providing for recovery of fees, a second 11-day notice may be

needed.

Section 24.006 provides an avenue for a prevailing landlord

or, notably, a prevailing tenant to recover attorney’s fees

and court costs in an eviction proceeding. Tex. Prop. Code

§ 24.006. Section 24.006(b) provides that “If the landlord

provides the tenant notice under Subsection (a) or if a

written lease entitles the landlord to recover attorney’s

fees, a prevailing landlord is entitled to recover reasonable

attorney’s fees from the tenant.” Tex. Prop. Code § 24.006(b).

Section 24.006(c) goes on to provide that “If the landlord

provides the tenant notice under Subsection (a) or if a

written lease entitles the landlord or the tenant to recover

attorney’s fees, the prevailing tenant is entitled to recover

reasonable attorney’s fees from the landlord. A prevailing

tenant is not required to give notice in order to recover

attorney’s fees under this subsection.” Tex. Prop. Code §

24.006(c). Section 24.006(d) states that a prevailing party

(landlord or tenant) is entitled to recover all costs of court.

Tex. Prop. Code § 24.006(d). A landlord that does not prevail

in the eviction proceedings it initiated against a tenant may

be surprised to find that it is subject to statutory liability for

the tenant’s attorneys’ fees and court costs.

Manner of Delivery

The notice to vacate must be given in person or by mail

at the premises in question. Notice in person may be by

personal delivery to the tenant or any person residing at

the premises who is 16 years of age or older, or personal

delivery to the premises and affixing the notice to the inside

of the main entry door. Notice by mail may be by regular

mail, by registered mail, or by certified mail, return receipt

requested, to the premises in question. Tex. Prop. Code §

24.005(f). Generally, the notice period is calculated from the

day on which the notice is delivered; thus, personal delivery

or posting is advisable, in addition to mailing the notice to the

tenant. Tex. Prop. Code § 24.005(g).

Alternatively, if the dwelling has no mailbox and has a

keyless bolting device, alarm system, or dangerous animal

that prevents the landlord from entering the premises to

leave the notice to vacate on the inside of the main entry

door, or if the landlord reasonably believes that harm to any

person would result from personal delivery to the tenant or a

person residing at the premises, or from personal delivery to

the premises by affixing the notice to the inside of the main

entry door, the landlord may securely affix the notice on the

outside of the main entry door. In this case, the notice must

be in a sealed envelope on which is written the tenant’s name,

address, and in all capital letters, the words “IMPORTANT

DOCUMENT” or substantially similar language. Further, not

later than 5 p.m. of the same day, a copy of the notice must

also be mailed to the tenant by depositing it in the mail in

the same county in which the premises in question is located.

Tex. Prop. Code § 24.005(f-1). Notice is considered in this

instance to be delivered the date the envelope is affixed to

the outside of the door and is deposited in the mail. Tex. Prop.

Code § 24.005(f-2).

Petition for Forcible Detainer,

Citation, and Alternate Service

On August 31, 2013, Texas implemented amended rules of

civil procedure governing justice courts in Texas. Tex. R. Civ. P.

500 et seq. Specifically, the justice court rules govern eviction

or forcible detainer actions in Texas, over which justice courts

maintain exclusive jurisdiction. Tex. R. Civ. P. 500–507 and

Tex. R. Civ. P. 510 et seq.; Tex. Prop. Code § 24.004. The

amendments to the justice court rules, including the eviction

rules, contained clarifications of existing procedures and case

law developments that were designed to improve the justice

court experience.

Petition

The requirements for a petition for forcible detainer or

eviction are specified in Tex. R. Civ. P. 502.2 and 510.3. The

petition for eviction must be sworn to by the plaintiff and

must contain:

• A description, including the address, if any, of the premises

that the plaintiff seeks possession of

• A description of the facts and the grounds for eviction

• A description of when and how the notice to vacate was

delivered

• The total amount of rent due and unpaid at the time of

filing, if any –and–

• A statement that attorney’s fees are being sought, if

applicable

Tex. R. Civ. P. 510.3.

The petition for eviction must also meet the requirements

of Rule 502.2, which generally requires that a petition filed

before justice courts must contain (as applicable):

• The name of the plaintiff

• The name, address, telephone number, and fax number (if

any) of the plaintiff’s attorney (if applicable), or the address,

telephone number, and fax number(if any) of the plaintiff

• The name, address, and telephone number (if known) of the

defendant

• The amount of money the plaintiff seeks (if any)

• A description and claimed value of any personal property

the plaintiff seeks

• A description of any other relief requested

• The basis for the plaintiff’s claim against the defendant –

and–

• If the plaintiff consents to email service of the answer and

any other motions or pleadings, a statement consenting to

email service and email contact information

Tex. R. Civ. P. 502.2. For a sample petition, see Petition for

Forcible Detainer (Commercial Eviction) (TX).

Rule 510.3 clarifies that a claim for rent, within the justice

court’s current jurisdictional limit, may be included with the

eviction suit. Tex. R. Civ. P. 510.3(d). Rule 501.3 also further

clarifies that the justice court should adjudicate possession

only and not title issues and that counterclaims and third-

party claims are not permitted in eviction suits:

Only Issue. The court must adjudicate the right to actual

possession and not title. Counterclaims and the joinder

of suits against third parties are not permitted in eviction

cases. A claim that is not asserted because of this rule

can be brought in a separate suit in a court of proper

jurisdiction.

Tex. R. Civ. P. 510.3(e).

Citation

When the petition is filed, the justice court must immediately

issue citation (similar to a summons). The citation is served on

the defendant with a copy of the petition and must:

• Be styled “The State of Texas”

• Be signed by the clerk under seal of court or by the judge

• Contain the name, location, and address of the court

• State the date of filing of the petition

• State the date of issuance of the citation

• State the file number and names of parties

• State the plaintiff’s cause of action and relief sought

• Be directed to the defendant

• State the name and address of the attorney for the plaintiff,

or if the plaintiff does not have an attorney, the address of

the plaintiff

• State the day the defendant must appear in person for trial

at the court issuing the citation, which must not be less

than 10 days nor more than 21 days after the petition is

filed

• Notify the defendant that if the defendant fails to appear in

person for trial, judgment by default may be rendered for

the relief demanded in the petition

• Inform the defendant that, upon timely request and

payment of a jury fee no later than three days before the

day set for trial, the case will be heard by a jury

• Contain all warnings required by Chapter 24 of the Texas

Property Code –and–

• Include the following statement: “For further information,

consult Part V of the Texas Rules of Civil Procedure,

which is available online and also at the court listed on this

citation.”

Tex. R. Civ. P. 510.4(a).

Thus, the trial should be set for no less than 10 days and not

more than 21 days after the petition is filed.

The warning notices required by Chapter 24 of the Texas

Property Code that must be included on the citation are as

follows:

(1) FAILURE TO APPEAR FOR TRIAL MAY RESULT IN

A DEFAULT JUDGMENT BEING ENTERED AGAINST

YOU.

(2) on the first page of the citation in English and in

Spanish in conspicuous bold print:

SUIT TO EVICT

THIS SUIT TO EVICT INVOLVES IMMEDIATE

DEADLINES. A TENANT WHO IS SERVING ON

ACTIVE MILITARY DUTY MAY HAVE SPECIAL RIGHTS

OR RELIEF RELATED TO THIS SUIT UNDER FEDERAL

LAW, INCLUDING THE SERVICEMEMBERS CIVIL

RELIEF ACT (50 U.S.C. APP. SECTION 501 ET SEQ.),

OR STATE LAW, INCLUDING SECTION 92.017, TEXAS

PROPERTY CODE. CALL THE STATE BAR OF TEXAS

TOLL-FREE AT 1-877-9TEXBAR IF YOU NEED HELP

LOCATING AN ATTORNEY. IF YOU CANNOT AFFORD

TO HIRE AN ATTORNEY, YOU MAY BE ELIGIBLE FOR

FREE OR LOW-COST LEGAL ASSISTANCE.

Tex. Prop. Code § 24.0051.

Service / Alternate Service

The citation may only be served by a sheriff or constable,

unless otherwise authorized by written court order. The

constable, sheriff, or other person authorized by written

court order receiving the citation, must execute it by

delivering a copy with a copy of the petition attached to the

defendant, or by leaving a copy with a copy of the petition

attached with some person, other than the plaintiff, over the

age of 16 years, at the defendant’s usual place of residence,

at least six days before the day set for trial. At least one day

before the day set for trial, the constable, sheriff, or other

person authorized by written court order must complete and

file a return of service. Tex. R. Civ. P. 510.4(b); see Tex. R. Civ.

P. 501.3. Thus, citation must be served on the defendant by

only a sheriff, constable, or another court-ordered authorized

person, at least six days before the trial date and a completed

return of service must be filed at least one day before the

trial date.

Alternative service by delivery of citation to the leased

premises may be available if service is unsuccessful as

provided by Rule 510.4(b) and if:

• The petition lists all home and work addresses of the

defendant that are known to the plaintiff and states that

the plaintiff knows of no other home or work addresses

of the defendant in the county where the premises are

located. –and–

• The constable, sheriff, or other person authorized files a

sworn statement that it has made diligent efforts to serve

such citation on at least two occasions at all addresses

of the defendant in the county where the premises are

located, stating the times and places of attempted service.

The court may authorize alternative service to the premises

upon its prompt consideration of a foregoing sworn

statement, and the plaintiff is not required to file a motion

for alternative service. If the court authorizes alternative

service, the constable, sheriff, or other authorized person, at

least six days before the day set for trial (1) deliver a copy

of the citation with a copy of the petition attached to the

premises by placing it through a door mail chute or slipping

it under the front door, or if neither method is possible, the

officer may securely affix the citation to the front door or

main entry to the premises; and (2) deposit in the mail a copy

of the citation with a copy of the petition attached, addressed

to defendant at the premises, and sent by first class mail.

The constable, sheriff, or other person authorized by written

court order must note on the return of service the date the

citation was delivered and the date it was deposited in the

mail. Tex. R. Civ. P. 510.4(c).

Possession Bond

The plaintiff may, at the time of filing the petition or at any

time prior to final judgment, file a possession bond to be

approved by the judge in the probable amount of costs of suit

and damages that may result to defendant in the event that

the suit has been improperly instituted, and conditioned that

the plaintiff will pay defendant all such costs and damages

that are adjudged against plaintiff. Tex. R. Civ. P. 510.5(a). The

court must notify a defendant that the plaintiff has filed a

possession bond. Tex. R. Civ. P. 510.5(b). The notice must be

served in the same manner as service of citation and must

inform the defendant that if the defendant does not file

an answer or appear for trial, and judgment for possession

is granted by default, an officer will place the plaintiff in

possession of the property on or after the seventh day after

the date defendant is served with the notice.

If judgment for possession is rendered by default and a

possession bond has been filed, approved, and served, a writ

of possession must issue immediately upon demand and

payment of any required fees. Tex. R. Civ. P. 510.5(c). The writ

must not be executed before the seventh day after the date

the defendant is served with notice. Id. If the defendant files

an answer or appears at trial, no writ of possession may issue

before the sixth 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. Tex. R. Civ. P.

510.5(d).

Answer, Default, and Trial

An eviction case is docketed and tried as other cases. Tex.

R. Civ. P. 510.7(a). No eviction trial may be held less than six

days after service under Rule 510.4 has been obtained. Id.

The defendant must appear for trial on the day set for trial

in the citation. The defendant may, but is not required to, file

a written answer with the court on or before the day set for

trial in the citation. Tex. R. Civ. P. 510.6(a). If the defendant

fails to appear at trial and fails to file an answer before the

case is called for trial, and proof of service has been filed in

accordance with Rule 510.4, the allegations of the complaint

must be taken as admitted and judgment by default rendered

accordingly. If a defendant who has answered fails to appear

for trial, the court may proceed to hear evidence and render

judgment accordingly. Tex. R. Civ. P. 510.6(b). When a default

judgment is signed, the clerk must immediately mail written

notice of the judgment by first class mail to the defendant

at the address of the premises. Tex. R. Civ. P. 510.6(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 48 hours after the entry of

the judgment. Tex. Prop. Code § 24.0061(c).

Any party may file a written demand for trial by jury by

making a request to the court at least three days before the

trial date. The demand must be accompanied by payment of

a jury fee or by filing a sworn statement of inability to pay the

jury fee. If a jury is demanded by either party, the jury will be

impaneled and sworn as in other cases, and, after hearing the

evidence, it will return its verdict in favor of the plaintiff or

the defendant. If no jury is timely demanded by either party,

the judge will try the case. Tex. R. Civ. P. 510.7.

The parties may represent themselves or be represented by

their authorized agents or attorneys in eviction proceedings

in justice court. Tex. R. Civ. P. 500.4; Tex. Prop. Code §

24.011. It should also be noted that corporations or other

entities do not need to be represented by an attorney in an

eviction proceeding in justice court. Tex. R. Civ. P. 500.4; Tex.

Gov’t Code § 27.031(d).

Judgment and Writ of

Possession

Where a jury has returned a verdict, the judge may render

judgment on the verdict or, if the verdict is contrary to the

law or the evidence, judgment notwithstanding the verdict. If

the judgment is in favor of the plaintiff, the judge must render

judgment for the plaintiff for possession of the premises,

costs, delinquent rent as of the date of entry of judgment, if

any, and attorney’s fees if recoverable by law. Tex. R. Civ. P.

510.8; Tex. Prop. Code § 24.0061(a). In awarding judgment

of possession in favor of the plaintiff, the judgment should

order the clerk to issue a writ of possession upon demand

by the plaintiff. The writ of possession, as discussed below,

directs a sheriff or constable to enforce the court’s judgment

of possession and empowers the serving officer to remove

the defendant from the premises accordingly, if the defendant

refuses to voluntarily relinquish possession as ordered by the

court. Tex. R. Civ. P. 510. A writ of possession must not issue

if an appeal is perfected and, if applicable, rent is paid into the

registry, as required. Significantly, no motion for a new trial

may be filed. Tex. R. Civ. P. 510.8. If the judgment is in favor

of the defendant, the judge must render judgment for the

defendant against the plaintiff for costs and attorney’s fees if

recoverable by law.

Except as provided by Rule 510.5, no writ of possession

may issue before the sixth 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.

Tex. R. Civ. P.510.8; Tex. Prop. Code § 24.0061(b) (“A writ

of possession may not be issued before the sixth day after

the date on which the judgment for possession is rendered,

unless a possession bond has been filed and approved and

judgment for possession is thereafter granted by default.”).

A writ of possession may not issue more than 60 days after

a judgment for possession is signed. For good cause, the

court may extend the deadline for issuance to 90 days after a

judgment for possession is signed. Tex. R. Civ. P. 510.8.

Pursuant to the writ of possession, the officer executing

the writ must post a written warning of at least 8 1/2 by

11 inches on the exterior of the front door of the premises

notifying the tenant that the writ has been issued and will be

served on or after a specific date and time stated not sooner

than 24 hours after the warning is posted. Upon execution of

the writ, the officer will deliver the premises to the landlord,

instruct the tenant and all persons claiming under the tenant

to leave, and if they fail to comply, physically remove them,

and instruct the tenant to remove or allow the landlord to

remove all personal property from the unit. Tex. Prop. Code §

24.0061(d).

Pursuant to the writ, the officer may also place, or have an

authorized person place, the removed personal property

outside the premises at a nearby location, but not blocking

a public sidewalk, passageway, or street and not while it is

raining, sleeting, or snowing, except as allowed in a portable,

closed container, provided by a municipality without charge,

into which removed person property may be placed. Tex.

Prop. Code § 24.0061(d), (d-1). The municipality may remove

the container from the location and dispose of the contents

by any lawful means if the owner of the removed personal

property does not recover the property from the container

within a reasonable time after the time the property is placed

in the container. Tex. Prop. Code § 24.0061(d-1).

The writ of possession will authorize 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. Tex. Prop. Code §

24.0061(e). The officer may not require the landlord to store

the property. Tex. Prop. Code § 24.0061(f).

A sheriff or constable may use reasonable force in executing a

writ of possession. Tex. Prop. Code § 24.0061(h).

Appeal

Either party to a forcible detainer action may appeal the

final judgment entered by the justice court. Tex. R. Civ. P.

510.9(a). The appeal is to the county court (or county court

at law) of the county in which the judgment is rendered

and is perfected by (1) filing an appeal bond or making a

cash deposit with the justice court within five days after the

judgment is signed, or (2) filing and obtaining approval of

a Statement of Inability to Afford Payment of Court Costs

within five days after the judgment is signed. Tex. R. Civ. P.

510.9 (a), (f). Within five days of filing a bond or making a

cash deposit, an appellant must serve written notice of the

appeal on all other parties. Tex. R. Civ. P. 510.9(d).

The justice court judge will set the amount of the bond or

cash deposit to include the items enumerated in Rule 510.11.

The bond or cash deposit must be payable to the appellee

and must be conditioned on the appellant’s prosecution of its

appeal to effect and payment of any judgment and all costs

rendered against it on appeal. Tex. R. Civ. P. 510.9(b). Rule

510.11 addresses items that may be recoverable as damages

by the prevailing party on appeal, which include lost rentals

and attorney’s fees. Tex. R. Civ. P. 510.11.

County Court Proceedings

following Appeal

When an appeal has been perfected, the justice court judge

must stay all further proceedings on the judgment and must

immediately send to the clerk of the county court a certified

copy of all docket entries, a certified copy of the bill of costs,

and the original papers in the case together with any money

in the court registry. Tex. R. Civ. P. 510.10(a). The county clerk

must docket the case and must immediately notify the parties

of the date of receipt of the transcript and the docket number

of the case. The notice must advise the defendant that it must

file a written answer in the county court within eight days if

one was not filed in the justice court. Importantly, the case

must be tried de novo in the county court. A trial de novo is a

new trial in which the entire case is presented as if there had

been no previous trial. The trial, as well as any hearings and

motions, is entitled to precedence in the county court. Tex. R.

Civ. P. 510.10(b).

An eviction case appealed to county court is subject to trial

at any time after the expiration of eight days after the date

the transcript is filed in the county court. If the defendant

has filed a written answer in the justice court, it must be

taken to constitute the defendant’s appearance and answer

in the county court and may be amended as in other cases. If

the defendant made no answer in writing in the justice court

and fails to file a written answer within eight days after the

transcript is filed in the county court, the allegations of the

complaint may be taken as admitted and judgment by default

may be entered accordingly. Tex. R. Civ. P. 510.12.

At the trial in the county court, in addition to the issue of

possession and any unpaid rent claims within jurisdictional

limits of the justice court, the parties are permitted to plead

and prove their damages, if any, suffered for withholding or

defending possession of the premises during the pendency

of the appeal. Tex. R. Civ. P. 510.11; Garza v. Chavarria,

155 S.W.3d 252, 255, 258 (Tex. App. 2004, no pet.) (stating

appellate jurisdiction of county court at law confined to

the jurisdictional limits of the justice court); Color Tile, Inc.

v. Ramsey, 905 S.W.2d 620, 622 (Tex. App. 1995, no writ)

(same). Such damages under Rule 510.11 include loss of

rentals during the pendency of the appeal and reasonable

attorneys’ fees as provided under Section 24.006 of the Texas

Property Code. Tex. R. Civ. P. 510.11. Unlike unpaid rent

claims, damages under Rule 510.11 are not limited to the

jurisdiction cap of the justice court. Volume Millwork, Inc. v.

West Houston Airport Corp., 218 S.W.3d 722, 727–28 (Tex.

App. 2006, pet. denied). Only the prevailing party is entitled

to damages and cost, and if a bond has been posted, the

prevailing party is entitled to recover against the sureties,

where applicable. Tex. R. Civ. P. 510.11. Following judgment,

a writ of possession or execution or both are issued by the

county court, and the sheriff or constable executes same. Tex.

R. Civ. P. 510.13.

A writ of possession shall not be suspended or superseded

by appeal from the judgment in the county court, unless

the premises are being used as the principal residence of

a party. Significantly, for commercial evictions, the issue

of possession is finally decided at the county court and is

not subject to appeal to the court of appeals. See Tex. Prop.

Code § 24.007; Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d

415, 431 (Tex. App. 2007, no pet.). An appeal on issues other

than possession may be appealed, as provided by the Texas

Property Code as follows:

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Karen Hart, Partner, Bell Nunnally & Martin LLP

Karen Hart is a business attorney with over 17 years of experience litigating commercial disputes. Karen counsels clients on real estate and

landlord-tenant matters as well as various contract and business disputes. She is a tireless advocate for her clients, providing guidance on

business legal matters, such as lease, purchase and sale, brokerage and property management disputes, specific performance claims, commercial

evictions, lis pendens, lien and bond claims, lien priority disputes, promissory note claims, commercial foreclosures, bankruptcy claims,

professional ethics and liability matters, bills of review, confidentiality, non-competition and non-solicitation agreements and related disputes

and injunctive proceedings, and business tort claims, including tortious interference with contracts and business relationships, civil theft, fraud,

and misappropriation of trade secret claims.

With a growing global client base, Karen also handles international dispute resolution, including international litigation, arbitration, and

mediation. Karen uses creative pre-litigation negotiation and risk management techniques to keep her clients out of court. She also employs

innovative asset investigation and preservation and judgment enforcement tactics, including domestications and international enforcement of

judgments and arbitral awards.

This document from Lexis Practice Advisor

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A judgment of a county court may not under any

circumstances be stayed pending appeal unless, within

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.

Tex. Prop. Code § 24.007.