Eviction Appeals

After the hearing is held by the Justice of the Peace, either party may appeal and you should be prepared for that reality...

Either party may appeal from a final judgment in an eviction case (also known as a "forcible  detainer  action"), and no motion for new trial is required.  The appeal is to the county court (or county court at law) of the county in which the judgment is rendered.

The appeal is  perfected by one of two methods. First, it is perfected by the filing of an appeal bond with the justice court within five days after the judgment is  signed. The five-day bond requirement of Civil Procedure Rule 749 controls in a forcible detainer  case.  Failure to file the appeal bond within the requisite five days deprives the county court of jurisdiction to review the justice court‘s action. Handing the appeal bond to the justice  constitutes "filing with the justice."

The bond is to be  approved by the justice of the peace, payable to the adverse party, and conditioned that the appealing party will prosecute the appeal with effect or  pay all costs and damages that may be adjudged against him or her. The justice should set the amount of the bond based on the items enumerated in Civil Procedure Rule 752 as damages that may be pleaded  and proved on the retrial of the case in the county court. A form for the bond is contained  in Civil Procedure Rule 750. Use of this form is not mandatory, but the bond must  substantially comply with Civil Procedure Rule 750.  Most Justice Courts provide you with a form.   A county  court, sitting as the appellate court, has authority to amend the appeal bond  to cure any defect of either form or substance if the appellant has filed  "any sort of instrument that is intended to be a bond and to invoke appellate jurisdiction."

Within five days following filing of the appeal bond, the  appealing  party must give notice to the adverse party as provided in Civil Procedure Rule 21a.  No judgment may be  taken  by default against the adverse party in the court to which the case has  been  appealed without a showing of substantial compliance with this rule.

An alternative method of perfecting the appeal is by filing  and  obtaining approval of a pauper’s affidavit. This method may be used if the tenant is unable to pay the  appeal costs or file a bond. The affidavit must be filed within five days  after the judgment is signed and must state the appellant‘s inability to pay  costs, or any part of the costs, or to give security. It may be contested  within five days of filing and notice to the opposing party.  The affidavit  will be considered approved on any one of the following occurrences: (1) the pauper’s affidavit is  not contested by the other party; (2) the pauper‘s affidavit is contested by the other party and, on hearing, the justice determines that it is approved;  or (3) on a hearing by the justice disapproving of the pauper’s affidavit, the appellant appeals to the county judge who then, after a hearing, approves the pauper‘s affidavit.

A tenant who has appealed by filing a pauper’s affidavit  in a forcible detainer case based on nonpayment of rent may be entitled to possession of the premises during the pendency of the appeal. However,  possession is allowed to the tenant only if the tenant pays into the justice  court registry one rental period‘s rent within five days of filing the  affidavit and continues to pay rent into the registry as it becomes due within five days of the due date.

When the appeal is perfected by the filing of an appeal bond  or approval  of a pauper’s affidavit, further proceedings in the justice court  are  suspended. The justice will forward a transcript of the proceedings to the  clerk of the court having jurisdiction of the appeal. After the transcript is filed for eight days, the case is subject to trial at any time. If the defendant filed no written answer in  the justice court, and fails to file a written answer in the county court  within eight days after the transcript is filed, judgment may be entered  against the defendant by default.

At trial, the parties are entitled to plead, prove, and  recover damages  shown to have been suffered for withholding or defending  possession of the  premises during the pendency of the appeal. The damages may  include, but are  not limited to, loss of rentals and reasonable attorney‘s fees in the justice  and county courts, as well as court costs. Attorney’s fees  may be awarded only if the requirements of Property Code Section 24.006,  concerning the  requirement of a written demand to vacate or a lease provision  for attorney‘s  fees. Damages may be  awarded only  to the prevailing party.

Judgment against the appellant should also be against the  sureties on  the appeal bond.

Following the judgment of the county court, any needed writ of  possession or execution will be issued by the county clerk. Issuance of a writ of possession may not be suspended or superseded in any case by further  appeal  unless the premises in question are being used as the principal  residence of a  party.

A final judgment of a county court in a forcible entry and  detainer  suit, or in a forcible detainer suit, may not be appealed on the  issue of  possession unless the premises in question are being used for  residential  purposes only. The county court judgment may not be stayed pending appeal unless the  appellant files a supersedeas bond in an amount set by the county court within 10 days of the signing of the judgment. In setting the supersedeas bond, the  county court must 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 that may occur as a result of the stay during  appeal, and any other appropriate damages or amounts.  

Email:  Darrell W. Cook

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