Everybody who lives in a rented apartment or house has a contract with some person, and that person is the only one who can evict them. It is necessary to jump through the legal eviction hoops set up by the landlord/tenant laws in Texas to get the roommate out of the house or rental unit. Self-help measures, like changing the lock, are not allowed.
Who Is the Landlord?
Getting rid of a roommate in Texas usually involves one of two typical scenarios. In both, a tenant rents the premises from a landlord and brings in a roommate. If the landlord approves of the roommate, and the roommate pays rent directly to the landlord, they are considered renting directly from the landlord. This is true whether or not the roommate's name is added to the written lease or rental agreement.
However, if the tenant brings in a roommate without running the matter by the landlord, it is another matter. If the roommate is not added to the lease or rental agreement and pays rent to the tenant, not the landlord, then the roommate is renting from the tenant. In this scenario, the tenant is the subtenant's landlord, rather than being a co-tenant to the lease.
Formal Eviction Process Required
It doesn't matter how casually the roommate came to be living in the rental property, once they are established as living there, a self-help eviction is not permitted. The tenant can, of course, request that the roommate leave, but if they refuse, it is illegal to toss their belongings into the street or change the locks. Rather, in Texas, the person in contract with the roommate must start formal eviction proceedings against them. Note that a contract can be oral, rather than written, and formalities are not required.
Anyone living on the property without having signed a lease for a set period of time is considered a month-to-month tenant under Texas law. The first step in getting rid of them is to terminate the tenancy. That means that the person in contract with the roommate – landlord or tenant – informs the roommate that they must vacate by giving them written notice that the tenancy is terminated, or a written "notice to vacate." If they fail to vacate after receipt of the eviction notice, a formal court eviction will be necessary.
Notice to Vacate
The amount of time provided to a roommate in a notice to vacate depends on the reason for the eviction. If the roommate has done nothing wrong, the person in contract can terminate the tenancy with 30 days' notice. The person in contract with them must give them a 30-day notice to terminate/vacate and specify the date on which the tenancy ends. This notice effectively ends the roommate's right to be in the premises as of that date.
If, on the other hand, they are being evicted for non-payment of rent or some breach of the lease agreement, only three days' notice is required. In this case, the person in contract with them must give them a 3-day notice to vacate or fix the issue underlying the notice. For example, if they owe back rent, they must pay up or vacate within three days. Note that under Texas state law, a landlord is not required to first give the tenant the option to fix the violation or pay the rent.
Delivering Notice to Vacate
The notice to vacate in Texas must either be delivered personally or mailed to the roommate return receipt requested. The period to vacate begins when the notice to vacate is delivered, not when it is mailed.
Texas law provides very specific rules for how a notice to vacate must be given. It must be handed to the roommate personally or affixed to the inside of the main entry door if it is also mailed to the roommate. It may also be served by regular mail, certified mail, or registered mail with return receipt.
If the notice is handed personally to the roommate, the time starts running immediately. If it is sent by mail, the time period given to move out starts running once the notice is delivered. If it is attached to the main entrance, the time starts running at that moment, not when the copy in the mail is delivered.
The Eviction Lawsuit
If the roommate moves out when served with the notice, the problem is solved. If not, it is time to file an eviction lawsuit. The person in contract with the roommate should go to the Justice of the Peace Court that serves the county in which the premises are located and fill out the necessary paperwork, including a petition for eviction and a case information sheet.
The exact documents required and the filing fee vary from county to county. A copy of these documents will be served on the roommate by a sheriff or constable.
If the roommate files a response to the eviction petition, the court will schedule a hearing to consider the arguments. If no response is filed, or if the roommate loses the argument in court, the eviction cannot take place until at least 10 days from the filing of the eviction case. If the roommate appeals the decision, there is an additional eight-day hold on the eviction.
The Actual Eviction
The final judgment may come as early as 10 days after the filing of the eviction lawsuit, or it may come after an appeal has been filed and resolved. In any event, when there is a final judgment of eviction against the roommate, the person who filed the eviction suit can proceed with the eviction.
But they still are prohibited from any self-help actions even if they are holding an eviction judgment. Instead, they must request that the judge issue a writ of possession. The writ of possession gives the tenant a maximum of 24 hours to vacate the property.
The constable posts this 24-hour notice on the door of the premises. Then, 24 hours later, they can execute the writ. That means that the constable enters onto the property, removes the roommate, if they are still there, and all of the roommate's property from the rental. At that point, it is permissible to change the locks.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.