When a tenant fails to pay rent, the landlord understandably may want the tenant to move out. If the tenant continues to stay on the property without paying rent, the landlord may need to pursue an eviction. Some tenants may choose to withhold rent because of problems on the property. Regardless of the reason for nonpayment of rent, the tenant and landlord should both understand the process of eviction specified by the Texas Property Code.
Texas Property Code
The Texas Property Code contains the state's eviction laws under Chapter 24, "Forcible Entry and Detainer." The chapter sets forth the required procedures to evict a tenant for a variety of reasons, including nonpayment of rent. The chapter also identifies the proper court for eviction as the justice court serving the precinct where the property is located. For nonpayment-of-rent complaints, section 24.053 allows the court to set an amount of back rent to be paid by the tenant upon judgment in the landlord's favor.
Rent Withholding in Texas
A tenant may decide to withhold rent if the landlord does not fix certain problems or poor living conditions on the property. Rent withholding may be viewed as nonpayment of rent for eviction purposes. Accordingly, the State Bar of Texas advises against rent withholding except under limited circumstances. The tenant may need to first conduct repairs and deduct the costs from the next month's rent, with proper notice to the landlord, as permitted by Texas law. The tenant may also need to obtain a court order for rent withholding. Without these circumstances, the tenant may incur court-ordered penalties for rent withholding if the landlord takes legal action. These consequences might include monetary penalties, the possibility of eviction based on nonpayment and responsibility for the landlord's legal fees.
Landlord's Right to Pursue Eviction
When a tenant fails to pay rent, the landlord has a right to start the eviction process, also known as a "forcible entry and detainer" (FED) lawsuit. The landlord must first post a written notice asking the tenant to vacate the property. If the tenant does not move out within the specified time period, the landlord can file the complaint to start the FED lawsuit. The complaint must state the reason for eviction -- for example, nonpayment of rent. The tenant will receive a notice with a time and date for an eviction trial in a justice of the peace court. The parties may choose to hire lawyers or seek help from a legal-aid organization. Both parties present evidence at the trial and the court decides whether to issue a judgment for eviction. If the landlord's lawsuit succeeds, the tenant will need to move out unless both parties agree to payment of back rent allowing the tenant to remain on the property.
Tenant's Defenses to Eviction
When a landlord starts eviction proceedings after nonpayment of rent, the tenant has a right to present any relevant defenses allowed by Texas law. The Texas RioGrande Legal Aid organization warns, however, that the courts do not often look favorably on nonpayment defenses based on hardship -- these excuses include illness, job loss or unexpected expenses such as a broken-down car. The justice of the peace will consider other procedural and substantive defenses to the eviction. Procedural defenses highlight the lack of proper steps required by the Texas Property Code, while substantive defenses focus on retaliation, discrimination and duplicity by the landlord.