79R348 AJA-F

By:  McClendon                                                    H.B. No. 62 



A BILL TO BE ENTITLED

AN ACT

relating to authorizing a procedure for an appeal by pauper's 
affidavit of a residential eviction suit based on nonpayment of 
rent.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:                        
	SECTION 1.  Chapter 24, Property Code, is amended by adding 
Section 24.0052 to read as follows:
	Sec. 24.0052.  TENANT APPEAL ON PAUPER'S AFFIDAVIT. (a)  If a 
tenant in a residential eviction suit based on nonpayment of rent 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 fifth day after the date the judgment is signed, an 
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.
	(b)  If the affidavit is contested by the landlord within the 
time prescribed by the Texas Rules of Civil Procedure, the justice 
court shall hold a hearing and rule on the matter not later than the 
fifth day after the date the landlord's notice of contest is 
received by the clerk.  At the hearing, the tenant has the burden to 
prove by competent evidence other than the affidavit the tenant's 
inability to pay the costs of appeal or file an appeal bond.
	(c)  If the justice court determines that the tenant is 
unable to pay the costs of appeal or file an appeal bond and the 
tenant intends to stay in possession of the premises during the 
pendency of the appeal, the tenant shall tender rent to the justice 
court or county court registry, as applicable, in accordance with 
the Texas Rules of Civil Procedure.  If the tenant pays only a 
portion of the rent for the premises and a governmental agency is 
responsible for the remainder of the rent under an agreement with 
the landlord, the tenant is required to tender only that portion of 
the rent for which the tenant is liable under the lease agreement.
	(d)  If, on or before the fifth day after the date the justice 
signs the judgment, a party to the suit files a motion with the 
justice court disputing the amount of rent to be tendered into the 
court registry under Subsection (c), the justice court shall, on or 
before the fifth day after the date the motion is filed, hold a 
hearing and determine the amount owed in accordance with the terms 
of the lease agreement and applicable law.  If the landlord contests 
the tenant's affidavit under this section, a motion described by 
this subsection must be made at or before the hearing on the 
contest, and the justice court shall hold the hearing on the motion 
at the same time as the hearing on the contest.  The justice court's 
decision may be appealed to the county court by the landlord or the 
tenant not later than the fifth day after the date of the decision.  
If a motion is filed under this subsection, the tenant is not 
required to pay the disputed portion of the rent into the court 
registry until the fifth day after the date of the justice court's 
decision or, if an appeal of the decision is filed, until the fifth 
day after the date the county court makes a final determination.
	(e)  If the justice court approves the affidavit, the tenant 
is not required to pay the county court filing fee or file an 
additional affidavit under Subsection (a).
	(f)  If a tenant fails to timely tender rent to the justice 
court or county court registry in accordance with the Texas Rules of 
Civil Procedure, the landlord may file a sworn motion of nonpayment 
with the county court, and on a showing of the nonpayment to the 
judge, the county court shall issue a writ of possession.  If the 
county court finds that the tenant has not complied with Subsection 
(c) and the amount of rent is not in dispute under Subsection (d), 
the county court may issue a writ of possession immediately.  An 
attorney is not required to file a motion or show nonpayment under 
this subsection.
	(g)  During the appeal, if a governmental agency is 
responsible for payment of a portion of the rent and does not pay 
that portion to the landlord or into the justice court or county 
court registry, the landlord may file a motion with the county court 
requesting that the tenant be required to pay the full amount of the 
rent into the county court registry as a condition of remaining in 
possession.  After notice and hearing, the court may grant the 
motion only if the landlord:
		(1)  shows good cause;                                                 
		(2)  did not cause the agency to cease making the 
payments; and      
		(3)  is not able to take an action that will cause the 
agency to resume making the payments or to otherwise pay all or part 
of the rent.
	SECTION 2.   This Act takes effect September 1, 2005.