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.