v. Belante Friar v. Christopher Blaschke ( 2015 )

ACCEPTED
FILED 13-15-00106-cv
IN THE 13TH COURT OF APPEALS THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI CORPUS CHRISTI, TEXAS
9/9/2015 2:09:33 PM
Dorian E. Ramirez
9/9/15 CLERK
DORIAN E. RAMIREZ, CLERK
BY DTello
NO. 13-15-00106-CV
IN THE COURT OF APPEALS
RECEIVED IN
FOR THE THIRTEENTH JUDICIAL DISTRICT OF
13th TEXAS
COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
9/9/2015 2:09:33 PM
V. BELAFONTE FRIAR DORIAN E. RAMIREZ
APPELLANT Clerk
VS.
CHRISTOPHER BLASCHKE, INDEPENDENT EXECUTOR
APPELLEE
On Appeal from the County Court of
DeWitt County, Texas, Trial Court Cause No. 4524
APPELLANT’S BRIEF
L. MICKELE’ DANIELS & ASSOCIATES
By:__/s/ L. Mickele’ Daniels ____
L. Mickele’ Daniels
TBN: 05374900
Arena Tower One, Suite 580
7322 Southwest Freeway
Houston, Texas 77074
Telephone: (713) 995-4681
Telecopier: (713) 995-4685
Seminole85@peoplepc.com
ATTORNEY FOR APPELLANT
V. BELAFONTE FRIAR
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS……………………………………………...ii
NOTICE OF INTERESTED PARTIES………………………..…….iii
TABLE OF AUTHORITIES…………………………………………..iv
REQUEST FOR ORAL ARGUMENT……………………...............vi
STATEMENT OF JURISDICTION………………………………….vii
STATEMENT OF THE NATURE OF THE CASE………………...viii
STATEMENT OF POINTS OF ERROR…………………………....ix
The trial court erred in awarding judgment of possession to the Appellees even
though the trial court should have abated this lawsuit because a suit involving the
same parties and issues was first filed in the county court and was still pending.
The mere pendency of a suit in the same county court involving the same parties
and issues was a reason to abate the later-filed state court suit, and the later-
filed court should have granted the Appellant’s motion to abate the forcible
detainer when the subject matter of the suits is inherently interrelated.
STATEMENT OF FACTS…………………………………………….x
APPELLANTS POINT OF ERROR ........……………………….....1
CONCLUSION AND PRAYER FOR RELIEF………..…………....5
CERTIFICATE OF SERVICE………………………………………. 6
CERTIFICATE OF COMPLIANCE............................................... 6
APPENDIX…………………………………………………………….7
ii
NOTICE OF INTERESTED PARTIES
Pursuant to Tex. R App. P. 74(a), the following persons are interested
parties:
I. Presiding Judge at Trial
Honorable Daryl L. Fowler (County Court)
II. Appellant:
V. BELAFONTE FRIAR
III. Attorney for Appellee:
Michael A. Johnson (Trial and Appeal)
IV. Attorney for Appellant:
L. Mickele’ Daniels (Trial and appeal)
V. Appellate Court:
Thirteenth Court of Appeals, 13th District of Texas
iii
TABLE OF AUTHORITIES
CASES
STATE CASES
AMC Mortgage Servs., Inc. v. Shields, No. 05-06-01194-CV, 2007 WL 1366048 (Tex.
App. –Dallas 2007, no pet.)…………………………………………………2
Aguilar v. Weber, 72 S.W.2d 729, 731 (Tex. App. – Waco 2002)……………..1
Falcon v. Ensignia, 976 S.W.2d 336 (Tex. App. –Corpus Christi 1998)………4
Haith v. Drake, 596 S.W.2d 194, 196 (Tex. App. –Houston [1st Dist.] 1980)…5
Home Sav. Ass’n. v. Ramirez, 600 S.W.2d 911, 913 (Tex. App. Corpus Christi1980 writ
ref’d n.r.e.)………………………………………………………...1
Goggins v. Leo, 849 S.W.2d 373, 375 (Tex. App. –Houston [14th Dist.] 1993,
no writ)………………………………………………………………………………...2
Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 497 (Tex. App. –Houston [14th
Dist.] 2006, no pet.)…………………………………………………2
Martinez v. Daccarett, 865 S.W.2d 161, 163 (Tex. App. Corpus Christi 1993).5
Mitchell v. Armstrong Capital Corp., 911 S.W.2d 169, 171, (Tex.App. – Houston [1st
Dist.], 1995, writ denied)……………………………………………………….2
Murphy v. Countrywide Home Loans, Inc. 199 S.W.3d 441, 445 (Tex. App. – Houston
[1st Dist.] 2006, pet. Denied)……………………………………………..2
Rice v. Pinney, 51 S.W.3d 705, 712 (Tex. App. –Dallas 2001)………………...2
Rodriguez v. Sullivan, 484 S.W.2d 592, 593 (Tex. App. –El Paso 1972)……..4
Space Master Int’l, Inc. v. Porta-Kamp Mfg. Co., 794 S.W.2d 944, 946 (Tex. App.-
Houston [ 1st Dist.] 1990, no writ).....................................................................4
Sparkman v. State, 968 S.W.2d 373, 378 (Tex. App. –Tyler 1997)……………4
Taiwan Shrimp Farm Village Ass’n, Inc. v. U.S.A. Shrimp Farm Dev., Inc., 915 S.W.2d
61, 68 (Tex. App.-Corpus Christi 1996, writ denied).........................................4
Williamson v. Tucker, 615 S.W.2d 881, 885-86 (Tex. App.-Dallas 1981, writ ref’d n.r.e)
...........................................................................................................................4
iv
STATUTES
Vernon’s Ann. Texas Property Code, Art. 24.001 – 24.005
Vernon’s Ann. Texas Rules of Evidence, Rule 902(10)
v
STATEMENT REQUESTING ORAL ARGUMENT
Pursuant to Tex. R App.P. 75(a)(f), Appellant requests oral argument
in this case.
vi
STATEMENT OF JURISDICTION
This court has jurisdiction pursuant to Rule 25.1(a) of the Texas
Rules of Appellate Procedure.
vii
STATEMENT OF THE NATURE OF THE CASE
The Appellee was awarded a judgment for the possession of the real property
owned and possessed by the Appellants in a forcible detainer action in the County
Court before the Honorable Daryl L. Fowler. V. BELAFONTE FRIAR, Appellant appeals
the judgment to the Thirteenth Court of Appeals alleging that the Appellee should not
have been granted the right to possession because there was no final judgment
awarding the Appellee a greater right to possession the Appellant. Appellant filed a
Motion to Abate the proceedings because there was another action filed by the same
Appellee in the County Court involving the same action which had not been finalized but
the motion was overruled and the trial court proceeded to trial and awarded judgment to
the Appellee.
viii
STATEMENT OF POINTS OF ERROR
POINT OF ERROR ONE
The trial court erred in awarding judgment of possession to the Appellees even though
the trial court should have abated this lawsuit because a suit involving the same parties
and issues was first filed in the county court and was still pending. The mere pendency
of a suit in the same county court involving the same parties and issues was a reason to
abate the later-filed state court suit, and the later-filed court should have granted the
Appellant’s motion to abate the forcible detainer when the subject matter of the suits is
inherently interrelated.
ix
STATEMENT OF THE FACTS
This is an appeal from a judgment of possession filed by the Appellee in the
justice court and tried de novo in the County Court of Dewitt County. The justice court
signed a judgment of possession for the Appellee and the Appellant appealed this
matter to the county court of Dewitt County. A trial de novo was had before the
Honorable Daryl L. Fowler in the County Court of Harris County, Texas on or about
February 24, 2015 with the judgment being signed on or about February 25, 2015. The
Appellant filed a Motion to Abate because there was a companion case of the same
parties and same litigation which had not been finalized which was filed prior to the
present action. The trial judge overruled the motion of the Appellant and allowed the trial
to proceed over the objections of the Appellant and consequently signed a judgment of
possession for the Appellee. The Appellant now hereby makes his appeal to this
Honorable Appellate Court.
x
APPELLANT’S POINT OF ERROR
The trial court erred in awarding judgment of possession to the Appellees even
though the trial court should have abated this lawsuit because a suit involving the same
parties and issues was first filed in the county court and was still pending. The mere
pendency of a suit in the same county court involving the same parties and issues was
a reason to abate the later-filed state court suit, and the later-filed court should have
granted the Appellant’s motion to abate the forcible detainer when the subject matter of
the suits is inherently interrelated.
A person commits a forcible entry and detainer if the person enters the real
property of another without legal authority or by force and refuses to surrender
possession on demand. Tex. Prop. Code, Art. 24.001. Jurisdiction over forcible
detainer actions is expressly given to the justice court of the precinct where the property
is located and, on appeal, to the county court for a trial de novo. See TEX.
PROP.CODE ANN. § 24.004 (Vernon 2000); Aguilar v. Weber, 72 S.W.3d 729, 731
(Tex.App.-Waco 2002, no pet.); Home Sav. Ass'n v. Ramirez, 600 S.W.2d 911, 913
(Tex.Civ.App.-Corpus Christi 1980, writ ref'd n.r.e.). A person who refuses to surrender
possession of real property on demand commits a forcible detainer if the person: (1) is a
tenant or a subtenant willfully and without force holding over after the termination of the
tenant's right of possession; (2) is a tenant at will or by sufferance, including an
occupant at the time of foreclosure of a lien superior to the tenant's lease; or (3) is a
tenant of a person who acquired possession by forcible entry. See TEX. PROP.CODE
ANN. § 24.002(a) (Vernon 2000). A demand for possession must be made in writing by
a person entitled to possession of the property and must comply with the requirements
for notice to vacate under Section 24.005. See TEX. PROP.CODE ANN. § 24.002(b)
(Vernon 2000). If the occupant is a tenant at will or by sufferance, the landlord must give
the tenant at least three days' written notice to vacate before the landlord files a forcible
1
detainer suit unless the parties have contracted for a shorter or longer notice period in a
written lease or agreement. TEX. PROP.CODE ANN. § 24.005(b) (Vernon 2000). The
person entitled to possession must give the occupant oral or written notice to vacate
before the landlord files a forcible entry and detainer suit. TEX. PROP.CODE ANN. §
24.005(d) (Vernon 2000).
The disposition of the case depends on the extent to which a county court has
appellate jurisdiction. The appellate jurisdiction of a statutory county court is confined to
the jurisdictional limits of the justice court, and the county court has no jurisdiction over
an appeal unless the justice court had jurisdiction. Aguilar, 72 S.W.3d at 731. Neither a
justice court, nor a county court on appeal, has jurisdiction to determine the issues of
title to real property in a forcible detainer suit. See Mitchell v. Armstrong Capital Corp.,
911 S.W.2d 169, 171 (Tex.App.-Houston [1st Dist.] 1995, writ denied).
To prevail in a forcible detainer action, a plaintiff is not required to prove title but
is only required to show sufficient evidence of ownership to demonstrate a superior right
to immediate possession. Rice, 51 S.W.3d at 709; Goggins v. Leo, 849 S.W.2d 373,
375 (Tex.App.-Houston [14th Dist.] 1993, no writ). To prevail on a suit for forcible
detainer, the plaintiff must prove it made demand for possession. Tex. Prop. Code Ann.
§ 24.002; AMC Mortgage Servs. Inc. v. Shields, No. 05-06-01194-CV, 2007 WL
1366048, at *1 (Tex. App.-Dallas May 9, 2007, no pet.) (mem. op); Murphy v.
Countrywide Home Loans, Inc., 199 S.W.3d 441, 445 (Tex. App.-Houston [1st Dist.]
2006, pet. denied); Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App.-Houston [14th
Dist.] 1993, no pet.); see Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 497
(Tex. App.-Houston [14th Dist.] 2006, no pet.) (landlord must strictly comply with section
2
24.002 requirements which state that landlord must make written demand for
possession in compliance with section 24.005 requirements for notice to vacate).
In the instant case, as a matter of law for subject-matter jurisdiction, the trial court
should have found that the county court did not have jurisdiction to address whether
Appellant or the Appellee had a right of immediate possession to the residence because
there was a pending action which had to be determined the finality of a judgment
awarding the real property to the Appellee in a prior action. Appellant does not believe
a right to immediate possession was ever established but instead a genuine title dispute
was raised in the county court. Specific evidence of a title dispute is required to raise an
issue of a justice court's jurisdiction. See Rodriguez v. Sullivan, 484 S.W.2d 592, 593
(Tex. App.-El Paso 1972, no pet.). (We observe that when the parties in a buyer-seller
relationship dispute whether the buyer has fully performed as required under a contract
for deed, the justice court is denied jurisdiction to ascertain which party has the right of
immediate possession to the property in question). With the Appellant having presented
specific evidence to raise a genuine title dispute, the jurisdiction of the county court was
at issue. Falcon v. Ensignia, 976 S.W.2d 336 (Tex. App.-Corpus Christi 1998, no pet.)
(emphasis added) (citing Sparkman v. State, 968 S.W.2d 373, 378 (Tex. App.-Tyler
1997, pet. ref'd)). The justice court should have abated this lawsuit because a suit
involving the same parties and issues was first filed in the county court and was still
pending. However, the justice court granted judgment to the Appellee and forced
Appellant and the Appellee to try this action de novo in the county court of Dewitt
County. The Appellant filed and moved for the county court to abate the proceedings
but was overruled by the county court. The mere pendency of a suit in the same county
3
court involving the same parties and issues is a reason to abate the later-filed state
court suit, and the later-filed court must grant the motion to abate the state court action
when the subject matter of the two suits is inherently interrelated. Taiwan Shrimp Farm
Village Ass’n, Inc. v. U.S.A. Shrimp Farm Dev., Inc., 915 S.W.2d 61, 68 (Tex. App.-
Corpus Christi 1996, writ denied); see Space Master Int’l, Inc. v. Porta-Kamp Mfg. Co.,
794 S.W.2d 944, 946 (Tex. App.-Houston [ 1st Dist.] 1990, no writ); Williamson v.
Tucker, 615 S.W.2d 881, 885-86 (Tex. App.-Dallas 1981, writ ref’d n.r.e). The same
parties, however, were still in the Dewitt County Court under Cause No. 113457A when
the forcible detainer had been filed and was being heard by the same court but a
different judge in that same dispute. That matter had not been finalized because it was
on appeal from the judgment of the County Court. Therefore, the Dewitt County Court
should have abated plaintiff’s forcible detainer action until the matter involving the
parties in that prior proceeding had been fully finalized. In that prior proceeding,
Appellee as Plaintiff, and the Executor of the Decedent’s estate sued Appellant as
Defendant to rescind the granting of a warranty deed of 17.7 acres (same property in
the forcible detainer action) to Defendant (Appellant) by Mary Anna Majefski, Decedent.
Because the county court suit had been filed first and those matters were not resolved,
and the subject matter between the two suits were inherently interrelated, the county
court should have abated the forcible detainer proceeding until the first matter filed in
the county court cause of action had been resolved. The county court could not
determine the greater right to possession in favor of the Appellee when there was no
final judgment awarding the property to the Appellee. When there is specific evidence of
a title dispute, that is all that is required to raise an issue of a justice court's jurisdiction.
4
See Rodriguez v. Sullivan, at 593. The justice court and the county court did not have
jurisdiction over this matter and the case should have been abated pending the finality
of the prior action. However, both courts overruled the Appellant’s motion and issued a
reversible judgment.
Because the justice court and county court would be required to determine the issue
of title to resolve the right to immediate possession, the trial court should have
concluded they lacked jurisdiction to consider this case and reversed the decision of the
justice court. See Aguilar, 72 S.W.3d at 735; Mitchell, 911 S.W.2d at 171; Am.
Spiritualist Ass'n, 313 S.W.2d at 125. See also Rice v. Pinney, 51 S.W.3d 705, 712
(Tex.App.-Dallas 2001, no pet.); Martinez v. Daccarett, 865 S.W.2d 161, 163-64
(Tex.App.-Corpus Christi 1993, no pet.); Home Sav. Ass'n v. Ramirez, 600 S.W.2d 911,
913-14 (Tex.Civ.App.-Corpus Christi 1980, writ ref'd n.r.e.); Haith v. Drake, 596 S.W.2d
194, 196 (Tex.Civ.App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.).
CONCLUSION AND PRAYER FOR RELIEF
Based upon the above factual and legal arguments with the supporting
authorities, Appellants feel that there was reversible error committed during the course
of the trial, whereby the trial court rendered judgment of possession to the Appellee to
which the Appellants ask this Appellate Court to reverse.
WHEREFORE, PREMISES CONSIDERED, Appellant pray that the Honorable
Court reverse the decision of the county court and send this matter back to the court for
instructions consistent the ruling in this appeal.
5
Respectfully submitted,
L. MICKELE' DANIELS & ASSOCIATES
By: Daniel~
Is/ L. Mickele'
L. Mickele' Daniels
TBN: 05374900
Arena Tower One, Suite 580
7322 Southwest Freeway
Houston, TX 77074
Telephone: (713) 995-4681
Telecopier: (713) 995-4685
Seminole85@peoplepc.com
A ITORNEY FOR APPELLANT
V. BELAFONTE FRIAR
CERTIFICATE OF SERVICE
This is to certify that copies of the above-entitled and numbered Appellant's Brief
has been served on the attorney of the Appellee, by delivery of a true copy to them in
person via the efile electronic filing system, facsimile and/or U.S. Certified Mail, return
receipt requested on the 8th day of September, 2015, properly addressed as follows:
Michael A. Johnson
121 S. Main, Suite 201
Victoria, TX 77902
(361) 485-0465 FAX
Is/ L. Mickele' Daniels
L. Mickele' Daniels
CERTIFICATE OF COMPLIANCE
This is to certify that copies of the above-entitled and numbered Appellant's Brief is a
computer generated document which is in full compliance with the word limit of the
Texas Rules of Appellate Procedure Rule 9.4(i)(3) and that the number of words in said
document is 2,802.
Is/ L. Mickele' Daniels
L. Mickele' Daniels
6
Appendix
7
APPENDIX TABLE OF CONTENTS
CORRECTED JUDGMENT .................................................. i
TEXAS PROPERTY CODE,§ 24.001- 0005 .......................... ii
8
Cause No. 4524
...--.....
. _
CHRISTOPHER BLASCHKE § IN THE COUNTY COURT
INDEPENDENT EXECUTOR OF THE §
ESTATE OF MARY ANNA MAJE;FSKI §
~KELMANN,DECEASED §
§
Plaintiff §
§
v. § OF
§
V. BELAFONTE FRIAR §
§
Defendant § DeWITT COUNTY, TEXAS
CORRECTED JUDGMENT
The Judgment entered by this Court in this matter on February 24, 2015, is hereby
withdrawn and the Court orders the Clerk to file this Corrected Judgment in its place.
On February 23, 2015, the Court, on appeal from Justice Court by trial de novo, heard the
Petition for Forcible Detainer brought by Christopher Blaschke, Independent Executor of the
.~.
Estate of Mary Anna Majefski Winkelmann, Deceased, against V. Belafonte Friar, Defendant.
1. Plaintiff Christopher Blaschke, Independent Executor of the Estate of Mary Anna M~efski
Winkelmarm, Deceased, appeared in person and by and through his attorney of record.
2. Defendant V. Belafonte Friar appeared in person and by and through his attorney of record.
3. The Court determined that it had proper jurisdiction over the cause and that venue was
proper.
.~.
4. The Court finds that this is a suit for forcible detainer relating to certain real property
comprised of 17.7 acres of land, more or less, and located at 782 U.S. Hwy 77 A N, Cuero, Texas
77954. The Court further finds that Plaintiffs action for forcible detainer arises as a result of a
judgment entered in Case No. 11347A; Christopher Blaschke Independent Executor of the Estate
of Mary Anna Majeftki Winkelmann. Deceased vs. Belafonte Friar; In the County Court of Law,
DeWitt County, Texas.
5. The Court finds that this case was originally filed in the Justice Court of DeWitt County,
Texas, Precinct 1 and a judgment was entered.
6. A Notice of Appeal to County Court was filed by Defendant.
7. No jury was requested.
8. Having reviewed the evidence, and heard the evidence and arguments, the Court is of the
opinion that the petition has been proven.
9. It is therefore ORDERED, ADJUDGED AND DECREED that Christopher Blaschke,
Independent Executor of the Estate of Mary Anna Majefski Winkelmann, Deceased, shall receive
judgment for possession of the premises and costs in the amount of $116.00. The Court further
2
orders that a Writ of Possession will be granted ordering the Sheriff of DeWitt County, Texas, or
the Constable of Precinct I of DeWitt County, Texas, to place Christopher Blaschke, Independent
Executor of the Estate of Mary Anna Majefski Winkelmann, Deceased, in possession of the
premises.
I 0. The Court further orders that the Writ of Possession shall not issue until the expiration of
ten days from the date this judgment is signed.
11. The Court sets the amount of the supersedeas bond in this matter at $50,000.00.
3
PROPERTY CODE
TITLE 4. ACTIONS AND REMEDIES
CHAPTER 24. FORCIBLE ENTRY AND DETAINER
Sec. 24.001. FORCIBLE ENTRY AND DETAINER. (a) A person commits a
forcible entry and detainer if the person enters the real property of another without legal
authority or by force and refuses to surrender possession on demand.
(b) For the purposes of this chapter, a forcible entry is:
(1) an entry without the consent of the person in actual possession of the
property;
(2) an entry without the consent of a tenant at will or by sufferance; or
(3) an entry without the consent of a person who acquired possession by
forcible entry.
Acts 1983, 68th Leg., p. 3514, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts
1989, 71st Leg., ch. 688, Sec. 1, eff. Sept. 1, 1989.
Sec. 24.002. FORCIBLE DETAINER. (a) A person who refuses to surrender
possession of real property on demand commits a forcible detainer if the person:
(1) is a tenant or a subtenant wilfully and without force holding over after
the termination of the tenant's right of possession;
(2) is a tenant at will or by sufferance, including an occupant at the time
of foreclosure of a lien superior to the tenant's lease; or
(3) is a tenant of a person who acquired possession by forcible entry.
(b) The demand for possession must be made in writing by a person entitled to
possession of the property and must comply with the requirements for notice to vacate
under Section 24.005.
Acts 1983, 68th Leg., p. 3514, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts
1985, 69th Leg., ch. 200, Sec. 1, eff. Aug. 26, 1985; Acts 1989, 71st Leg., ch. 688, Sec.
2, eff. Sept. 1, 1989.
Sec. 24.003. SUBSTITUTION OF PARTIES .. If a tenancy for a term expires
while the tenant's suit for forcible entry is pending, the landlord may prosecute the suit in
the tenant's name for the landlord's benefit and at the landlord's expense. It is
immaterial whether the tenant received possession from the landlord or became a
tenant after obtaining possession of the property.
Acts 1983, 68th Leg., p. 3515, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts
1985, 69th Leg., ch. 891, Sec. 1, eff. Aug. 26,1985.
Sec. 24.004. JURISDICTION; DISMISSAL. (a) Except as provided by
Subsection (b), a justice court in the precinct in which the real property is located has
jurisdiction in eviction suits. Eviction suits include forcible entry and detainer and
forcible detainer suits. A justice court has jurisdiction to issue a writ of possession
under Sections 24.0054(a), (a-2), and (a-3).
(b) A justice court does not have jurisdiction in a forcible entry and detainer or
forcible detainer suit and shall dismiss the suit if the defendant files a sworn statement
alleging the suit is based on a deed executed in violation of Chapter 21A, Business &
Commerce Code.
Acts 1983, 68th Leg., p. 3515, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts
1985, 69th Leg., ch. 891, Sec. 1, eff. Aug. 26, 1985; Acts 1997, 75th Leg., ch. 1205,
Sec. 1, eff. Sept. 1, 1997.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 958 (H.B. 1111), Sec. 1, eff. January 1, 2012.
Acts 2011, 82nd Leg., R.S., Ch. 1242 (S.B. 1320), Sec. 3, eff. September 1,
2011.
Acts 2013, 83rd Leg., R.S., Ch. 161 (S.B. 1093), Sec. 22.002(28), eff.
September 1, 2013.
This section was amended by the 84th Legislature. Pending publication of the current
statutes, see S.B. 1367, 84th Legislature, Regular Session, for amendments affecting
this section.
Sec. 24.005. NOTICE TO VACATE PRIOR TO FILING EVICTION SUIT. (a) If
the occupant is a tenant under a written lease or oral rental agreement, the landlord
must give a tenant who defaults or holds over beyond the end of the rental term or
renewal period at least three days' written notice to vacate the premises before the
landlord files a forcible detainer suit, unless the parties have contracted for a shorter or
longer notice period in a written lease or agreement. A landlord who files a forcible
detainer suit on grounds that the tenant is holding over beyond the end of the rental
term or renewal period mus;t also comply with the tenancy termination requirements of
Section 91.001. \
(b) If the occupant i$ a tenant at will or by sufferance, the landlord must give the
tenant at least three days' wi:itten notice to vacate before the landlord files a forcible
detainer suit unless the parties have contracted for a shorter or longer notice period in a
written lease or agreement. If a building is purchased at a tax foreclosure sale or a
trustee's foreclosure sale under a lien superior to the tenant's lease and the tenant
timely pays rent and is not otherwise !n default under the tenant's lease after
foreclosure, the purchaser must give a residential tenant of the building at least 30 days'
written notice to vacate if the purchaser chooses not to continue the lease. The tenant
is considered to timely pay the rent under this subsection if, during the month of the
foreclosure sale, the tenant pays the rent for that month to the landlord before receiving
any notice that a foreclosure sale is scheduled during the month or pays the rent for that
month to the foreclosing lienholder or the purchaser at foreclosure not later than the fifth
day after the date of receipt of a written notice of the name and address of the
purchaser that requests payment. Before a foreclosure sale, a foreclosing lienholder
may give written notice to a tenant stating that a foreclosure notice has been given to
the landlord or owner of the property and specifying the date of the foreclosure.
(c) If the occupant is a tenant of a person who acquired possession by forcible
entry, the landlord must give the person at least three days' written notice to vacate
before the landlord files a forcible detainer suit.
(d) In all situations in which the entry by the occupant was a forcible entry
under Section 24.001, the person entitled to possession must give the occupant oral or
written notice to vacate before the landlord files a forcible entry and detainer suit. The
notice to vacate under this subsection may be to vacate immediately or by a specified
deadline .
(e) If the lease or applicable law requires the landlord to give a tenant an
opportunity to respond to a notice of proposed eviction, a notice to vacate may not be
given until the period provided for the tenant to respond to the eviction notice has
expired.
(f) The notice to vacate shall be given in person or by mail at the premises in
question. Notice in person may be by personal delivery to the tenant or any person
residing at the premises who is 16 years of age or older or personal delivery to the
premises and affixing the notice to the inside of the main entry door. Notice by mail
may be by regular mail, by registered mail, or by certified mail, return receipt requested,
to the premises in question. If the dwelling has no mailbox and has a keyless bolting
device, alarm system, or dangerous animal that prevents the landlord from entering the
premises to leave the. notice to vacate on the inside of the main entry door, the landlord
may securely affix the notice on the outside of the main entry door.
(g) The notice period is calculated from the day on which the notice is
delivered.
(h) A notice to vacate shall be considered a demand for possession for
purposes of Subsection (b) of Section 24.002.
(i) If before the notice to vacate is given as required by this section the landlord
has given a written notice or reminder to the tenant that rent is due and unpaid, the
landlord may include in the notice to vacate required by this section a demand that the
tenant pay the delinquent rent or vacate the premises by the date and time stated in the
notice.
Acts 1983, 68th Leg., p. 3515, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts
1985, 69th Leg., ch. 891, Sec. 1, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 688, Sec.
3, eff. Sept. 1, 1989; Acts 1997, 75th Leg., ch. 1205, Sec. 2, eff. Sept. 1, 1997.