FY 2019 JP Program Evidence

Transcription

1 FY 2019 JP Program Evidence An Educational Endeavor of the Justices of the Peace and Constables Association, Inc. Funded by a grant from the Texas Court of Criminal Appeals

2 Evidence Copyright All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system without prior written permission of the Texas Justice Court Training Center unless copying is expressly permitted by federal copyright law. Address inquiries to: Permissions, Texas Justice Court Training Center, 1701 Directors Blvd, Austin, TX, What is evidence in the courtroom? Testimony from witnesses and documents or items Each party may offer these as their evidence at trial The other party may try to keep them out of evidence by objecting The court decides what should come in after an objection based on the Texas Rules of Civil Procedure and Rules of Evidence

3 When do these rules apply in criminal cases? The Rules of Evidence always apply to a criminal proceeding in a justice court. Code of Criminal Procedure Art The Rules of Evidence do not apply except: when the judge hearing the case determines that a particular rule must be followed to ensure that the proceedings are fair to all parties Texas Rules of Civil Procedure 500.3

4 Where to find the Texas Rules of Evidence Remember, these should be made available at your court! Texas Rules of Civil Procedure (f) First rule of evidence? Only apply the rules when an objection is made!!

5 How do you respond to an objection? Sustained if you agree with the objection and are not going to allow the evidence Overruled if you disagree with the objection and are going to allow the evidence Relevance All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible. Texas Rules of Evidence 402

6 What does relevance mean? Evidence that tends to make a fact more or less likely than it would be without the evidence. The fact should be of consequence in determining the action. Texas Rules of Evidence 401 EXAMPLES (civil case): The make and model of the car the defendant is driving at the time of the accident is relevant to identify which car caused the accident. The amount of the defendant s monthly car payment is not relevant to who caused the accident. (criminal case): A picture of the posted speed limit sign on the stretch of road the defendant was traveling on at the time of the citation is relevant. The music the defendant was listening to is not relevant to determine if he was speeding.

7 Personal Knowledge A witness can only talk about things they have personal knowledge of. They can prove knowledge by their own testimony. This rule does not apply to a witness s expert testimony under Rule 703. Texas Rules of Evidence 602 EXAMPLES (civil case): The defendant in a car accident case testifies that the plaintiff must have been texting during the accident. The defendant thought they saw the plaintiff on their phone. What did the defendant actually see? What does the defendant actually have personal knowledge of?

8 EXAMPLES (criminal case): The law enforcement officer testified that the defendant read a book called How to get out of a speeding ticket. The officer saw it on the front seat of the car. What did the officer actually see? What does the officer actually have personal knowledge of? Authentic & Admissible What s the difference?

9 Authentic: the document/item is what it claims to be; it is reliable Admissible: a document/item meets the evidence rules and should be presented to the jury or judge as evidence Authentication Evidence must be authentic to be admitted. Some examples of authentication: Non expert opinion on handwriting. Opinion about a voice. Evidence About a Telephone Conversation. Texas Rules of Evidence, Rule 901

10 Self authenticating records no one has to prove they are real Certified Copies of Public Records. Official Publications. Newspapers and Periodicals. Trade Inscriptions and the Like. Texas Rules of Evidence 902 Commercial Paper and Related Documents. Business Records Accompanied by Affidavit EXAMPLES (civil case): In a car accident case, the defendant objects to the plaintiff s driver s license and claims that it is a fake. How could the plaintiff authenticate it?

11 EXAMPLES (criminal case): In a speeding case, the defendant objects that signature on the citation is not his. How could the state authenticate it? Judicial Notice A judge can accept a fact as true if it can be accurately and readily determined from a reliable source. The court may take judicial notice on its own but must take judicial notice if a party requests it and the court is given the right information. Texas Rules of Evidence 201

12 EXAMPLES (civil case): The defendant wants the court to take judicial notice of the fact that the car accident on March 17, 2016 happened on a Thursday. What can prove this fact? EXAMPLES (criminal case): The state wants the court to the court to take judicial notice of the fact that rain was predicted during the time of the traffic stop for speeding. What can prove this fact?

13 Judicial Notice Can be done at any stage of the proceeding Civil case: must instruct the jury to accept the noticed fact as true. Criminal case: must instruct the jury that they do not have to accept the noticed fact as true. Can hear arguments against taking judicial notice. Texas Rules of Evidence 201 Unfair Prejudice (often called 403 ) The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice (confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence) Texas Rules of Evidence 403

14 What does that mean? Most evidence is prejudicial to the other side This rule applies to evidence even if it would be admissible if it is too prejudicial Usually it s evidence that is too extreme or distracting EXAMPLES (civil case): In a car accident case, the plaintiff wants to talk about all of the affairs the defendant has had. Would you allow information about the affairs into evidence?

15 EXAMPLES (criminal case): The state wants to use a previous conviction against the defendant in a speeding case. The conviction is for aggravated assault on a child. Would you allow the conviction into evidence? Hearsay Texas Rules of Evidence 801(d)

16 Generally, statements made outside of court are not admissible Those statements are not as reliable as ones made in court, under oath. The hearsay rules consider who said something, why they said it, and the setting in which it was said to determine if the statement is reliable enough to be used in court. According to the Rules of Evidence The following are allowed into evidence under the hearsay rule..

17 Out of court statements can be allowed as evidence if the evidence is just showing that statement was made, not that the statement is true Offering an out of court statement to show that the statement is true is called using the statement for the truth of the matter asserted and is not allowed under the hearsay rule.

18 If the statement is not being used for the truth, it can be admitted into evidence. Example: Officer is explaining why he pulled over a car and says dispatch told him a blue Corvette license ABC 123 was driving erratically. The statement from dispatch CAN be used to show why the officer pulled the car over, but CANNOT be used as proof the car was actually driving erratically. Opposing Party Statement Was made by the party, or Was made by an authorized person or agent on behalf of the party Texas Rules of Evidence 801 (e)(2)

19 EXAMPLES (civil case): In a car accident case, the plaintiff testifies that he heard the defendant say, I was not paying attention to the color of the light. (criminal case): During a traffic stop for speeding, the officer testifies that the defendant told him, I didn t know the speed limit changed when I entered town. By an employee or agent (likely only in civil) A customer sues the owner of an autobody shop for poor work. The employee mechanic told the plaintiff, I think we ordered the wrong part, but it fit, so we used it. The employee s statement can be used against the owner of the autobody shop.

20 Excited Utterance A statement relating to a startling event or condition, made while the person who made the statement was under the stress of excitement that it caused. Texas Rules of Evidence 801 (2) EXAMPLES (civil case): The passenger in a car accident makes a statement 30 minutes after the accident telling law enforcement that the driver of the car (the plaintiff) was texting right before the collision. (criminal case): The passenger of the defendant pulled over for speeding testified that while they were pulled over, a sports car went by quickly and startled the DPS trooper. The trooper said, now there s a car that was definitely speeding.

21 What if it had been several hours since the starting event? Would that impact the hearsay exception? Records of a Regularly Conducted Activity ( Business Records Exception ) Made at or near the time that the event occurred Made by someone with knowledge Kept in the regular course of business Supported by an affidavit (or testimony) and the custodian of the records Texas Rules of Evidence 801 (6)

22 Examples of Business Records An entry in a ledger book showing a payment received. An estimate for work to be performed. A medical record. Public records important because of what cannot be used in a criminal case Public records are allowed into evidence if they include a public officer s activities during a time they had a legal duty to report. But does not include law enforcement reports in a criminal case Why not? Criminal defendant has the right to cross examine witnesses Law enforcement should be able to testify from their own memory Texas Rules of Evidence 801 (8)

23 Credibility of a Witness Impeachment Opinion and reputation for truthfulness Prior crimes Texas Rules of Evidence 404 Impeachment Impeachment means to attack the credibility or believability of a witness The credibility of a witness may be attacked by any party, including the party calling the witness. A party can always try to show that a witness is lying, biased, or wrong Texas Rules of Evidence 607

24 Opinion and Reputation for Truthfulness This is the only quality about a witness that can be criticized. Cannot say they are bad person or immoral. Can only present evidence that a witness is truthful after the character of that witness for truthfulness has been attacked by opinion or reputation evidence. This is an exception to hearsay Texas Rules of Evidence 608 Opinion and Reputation for Truthfulness Generally, cannot use a specific act that a person took ( specific instances of conduct ). Only a prior crime can be used as a specific act. Can use opinion and reputation evidence Texas Rules of Evidence 608

25 Plaintiff: Mr. Smith, do you know Ms. Johnson? Witness: Yes, I do. Plaintiff: How do you know her? Witness: I have known her for 10 years and are neighbors. Plaintiff: How well do you know her? Witness: She is an acquaintance, I do not socialize or do business with her. Plaintiff: Are you aware of her reputation for truthfulness in your community? Witness: Well, I know what everyone thinks of her generally, if that s what you mean. Plaintiff: Yes, please tell us what you understand is her reputation for telling the truth. Witness: She has a reputation as a liar. People in our community do not think she is the sort of person who tells the truth. Plaintiff: Have you heard of any specific times she was not truthful? Objection! Court: Sustained Plaintiff: Have you ever seen Ms. Johnson do anything deceitful? Objection! Court: Sustained. Prior Crimes Shall allow into evidence if: The party gave notice to the other side that they plan to use the conviction The conviction was within the last 10 years The crime was a felony or involved moral turpitude The rule contains an unfair prejudice balancing test Texas Rules of Evidence 609 (a)

26 Crimes and Other Acts Cannot be used to say you did it before, so you did it this time Can only be used for another purpose: motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Highly technical Rarely used in higher courts Almost never expect to use in justice court Texas Rules of Evidence 404 Opinions of Witnesses Expert opinions Lay opinions

27 Expert Witness Many people are experts on topics and can testify to them if it will help determine a fact in the case Only required to have: Knowledge Skill Experience Training Education Scientific knowledge Technical knowledge Texas Rules of Evidence 702 What s an example of an expert witness you may have in a justice court case? Would a mechanic be an expert witness in a case against an autobody shop?

28 Opinion by Lay Witness Lay witness means someone who is not testifying based on special knowledge or training If a person sees or hears something, they should be able to draw a conclusion from it. Should be rationally based on the witness s perception. Helpful to clearly understanding the witness s testimony or to determining a fact at issue. Texas Rules of Evidence 701 What s an example of lay witness testimony? Could a lay witness testify to an emotion?

29 Privileged communications Generally, parties cannot ask for information discussed between an attorney client, doctor patient, or spouses Texas Rules of Evidence 503, 504, & 509 Generally Applicable Evidence Rules for Trial Control of the court Excluding witnesses Refreshing memory

30 Control of the Court Can exercise reasonable control over the trial. Make sure the setting is effective for determining the truth. Avoid wasting time. Set time limits on questing witnesses Protect witnesses from harassment or undue embarrassment. Stop repetitive questions or attempts to pressure the witness into an answer. Texas Rules of Evidence 611. Excluding Witnesses ( sequestration or invoking The Rule ) Can order all witnesses except the parties to leave during testimony. Can do it when a party asks or the court can deicide to it on its own. Exceptions: Someone essential to the party s case (like an expert). The victim in a criminal case, unless the court thinks they could be influenced by other testimony. In civil, the spouse of the party. Texas Rules of Evidence 615 & Texas Rules of Civil Procedure 500.7

31 Refreshing Memory Texas Rules of Evidence 612 Sometimes a witness forgets what happened They can be reminded by reviewing a document or item and then testifying if their memory has been refreshed The other side is entitled to: See the document or item, to cross examine the witness about it, & introduce parts that relate to the testimony of the witness. TJCTC strongly suggests you apply the rules on the following slide and remind the parties before a trial begins that they will be applied in the case

32 Should not be admitted into evidence in civil cases: Settlement negotiations. Offers to pay medical expenses. Existence of liability insurance. A plea of nolo contendere made by the opposing party in a criminal case. Must not be admitted into evidence in criminal cases: Cannot discuss any withdrawn plea of guilty or nolo contendere. Any statement made during plea discussions with a prosecuting attorney (if it did not result in a plea of guilty or nolo contendere). Texas Rules of Evidence 410

33 Let s try some examples! Your gut reaction The Rules of Evidence answer While driving home after an evening drinking at a local bar, the plaintiff passed out at the wheel, ran a red light and was struck by a car driven by the defendant. The plaintiff, under the influence of alcohol, staggered from his car. The defendant, believing that the plaintiff had been injured by the accident, said It s my fault. I was not paying attention. The plaintiff sued the defendant for damages alleging that the defendant was driving negligently. The plaintiff offered the statement above.

34 Defendant objects to hearsay. Should the defendant s statements be admitted? A. No, because the defendant s statement is a settlement offer. B. No, because the plaintiff was really the negligent party. C. Yes, as a statement by an opposing party. Plaintiff sues the defendant for injuries resulting from a car accident. At trial, the plaintiff s witness testified that the defendant ran a red light and then hit the plaintiff s car.

35 Which of the following is the court most likely to allow to impeach the credibility of the witness? A. A record of a juvenile offense. B. A question on cross examination asking whether the witness told the police a different version of the facts. C. A certified copy of a robbery arrest from five years ago for which the witness was acquitted. D. A record of an arrest one week ago for criminal trespass. Prosecutor calls Witness, who testifies that he witnessed the defendant s assault on Victim. Witness will testify that Victim said, Help me, she is killing me! Defense counsel objects.

36 Should the testimony be admitted? A. Yes B. No Thank you!!!

37 FY 2019 JP Program Discovery in Justice Court An Educational Endeavor of the Justices of the Peace and Constables Association, Inc. Funded by a grant from the Texas Court of Criminal Appeals

38 DISCOVERY What is discovery? Exchange of information between parties in a case

39 Parties are entitled to know what information the other side has: What does that mean? What witnesses do they have? What documents do they have? Do they have other items, like pictures, videos, etc.? The purpose of discovery To allow parties to obtain full knowledge of the issues and facts of the lawsuit before trial. West v Solita, 536 SW2d 240 (Tex. 1978) The objective of the Texas discovery rules is to prevent trial by ambush Gutierrez v Dallas ISD, 729 SW2d 691 (Tex.1987)

40 Discovery is different in criminal & civil cases Criminal Discovery Discovery requests are fairly rare in justice court. The defendant usually requests things such as copies of documents or photographs. The state is not required to allow self represented defendants to make copies, but may allow it, or just give copies to the self represented defendants. Code of Criminal Procedure Art (a) & Art (d).

41 What types of things might be asked for in a criminal case? Dashboard camera video tapes Copy of a police report Picture taken of reported damage Discovery requests go to the prosecutor not to the court If you receive a discovery request in a criminal case, forward the request to the prosecutor.

42 When is the court involved in criminal discovery? The state may object to the defendant s discovery request. The court must hold a hearing and decide if the items should be disclosed. Example: if request is not relevant to the case or is something the state does not have. The defendant may request a hearing if the state redacts (blacks out) anything from the documents they do provide. If that happens, the court must hold a hearing and decide at the hearing if the redactions are proper. Code of Criminal Procedure Art (c). Michael Morton Act and Exculpatory Evidence The state must give any exculpatory evidence to the defendant. The defendant DOES NOT have to request this information. Exculpatory evidence is any evidence that could show the defendant is not guilty or would tend to reduce the punishment for the crime. Brady v. Maryland, 373 U.S. 83 (1963); Code of Criminal Procedure Art

43 CIVIL discovery is handled two different ways: Pre Trial Post Judgment There are also two different procedures before and after judgment First, let's look at the types of discovery

44 Types of Discovery Requests for disclosure Requests for admissions Interrogatories Requests for production Depositions Requests for Disclosure Specific requests or questions stated verbatim in the Texas Rules of Civil procedure Approved by the Supreme Court You would not need to decide if it is reasonable and necessary Texas Rules of Civil Procedure, Rule 194 (a) (l)

45 The procedure for requests for disclosure is designed to allow parties basic discovery without objection

46 Plaintiff asks the Defendant to disclose the name, address, and telephone number of any potential parties. Strike it? Allow it? Best Practice Allow it because: It s already been approved by the Supreme Court It is reasonable and necessary

47 Requests for Admission Written requests that the other party admit in writing the truth of any matter relevant to the pending case. Each request for admission should cover only one topic. NOT: Admit you drove a red car and it clearly already had damage to the front bumper These are not questions, but statements. Texas Rules of Civil Procedure Example Admit that you lived at 1234 Elm Street, Lone Star, TX in December 2017.

48 Requests for Admission Narrow information to get the party to admit or deny a fact. Not meant to lead to investigation for more evidence. Mainly to eliminate issues where there is no disagreement. Requests for Admission If a party does not object, they must either admit or deny the fact stated Failure to respond is admitting the fact Texas Rules of Civil Procedure Do not need to be signed under oath Guzman v Carnevsle, 964 sw2d 311 (Tex.App Corpus Christi 1998, no pet.)

49 Requests for Admission If a party doesn t respond, the court can give them another chance to respond. If they still don t respond, the requests are deemed admitted, which means they are taken as true. But remember, you must approve these first. What are some things to consider?

50 You should not approve requests like these: Plaintiff said to defendant: [a]dmit that you were negligent and thereby caused the Plaintiff damages, as alleged in his live pleading. LRT Record Servs., Inc. v. Archer, No CV, 2001 WL , (Tex.App. Dallas Mar. 7, 2001, no pet.) Defendant said to plaintiff: admit [plaintiffs] no longer wish to pursue their cause of action in the above styled and numbered cause In re Estate of Herring, 970 S.W.2d 583, 589 (Tex.App. Corpus Christi 1998, no pet.) A party is not allowed to try to get the other side to admit/deny that they should lose the case, only admit/deny specific facts relevant to the case. Powell v. City of McKinney, 711 S.W.2d 69, 71 (Tex.App. Dallas 1986, writ ref'd n.r.e.); Stelly v. Papania,927 S.W.2d 620 (Tex.,1996).

51 A party can withdraw an answer to an request for admission if: The party shows good cause for the withdrawal or amendment; and The court finds that the parties relying upon the responses and deemed admissions will not be unfairly prejudiced Texas Rules of Civil Procedure, Rule 198 We had a contract. Strike request? Allow it?

52 Best Practices Probably approved. It is a statement of fact as allowed per Texas Rules of Civil Procedure, Rule It is not prohibiting the party from a defense or claim It is not to conclusory Might be conclusory if it said, admit you breached the contract. Work with your group to create a request for admission for this case: Debt claim case where an assignee of a credit card account filed a petition that the Defendant owed $3500 at the time of the last payment made on the account.

53 Interrogatories Written questions that must be answered under oath Can respond by objecting to the interrogatory Purpose is to gather information about the other party s case Example Do you have documents you intend to use at trial? If so, please list them below.

54 Interrogatories Can ask about any matter a matter related to the case An interrogatory may ask if a party takes a specific legal or factual position and may ask them to state the legal theories and to describe in general the factual bases for the party's claims or defenses. Texas Rules of Civil Procedure Interrogatories But interrogatories may not be used to require the responding party to marshal all of its evidence Example: Explain every step you plan to take to prove your case, including each piece of evidence you will be using to support the case Texas Rules of Civil Procedure 197.1

55 Defendant to debt claim plaintiff: Describe your procedure for providing defendant with monthly statements. Strike request? Allow request? Best Practice Could argue both ways May seem overly burdensome to explain internal procedures. Could be very technical, depending on the records keeping system, especially if electronic. But also could be important for the defendant to understand how the plaintiff claims this account belongs to the defendant. Especially if an assignee of debt claim. Would you limit the request in scope?

56 Can always limit the scope if you agree with the subject matter Can limit the time span of the request (example: only for the past 5 years ) or can limit the types of information. It is your choice as the court what to allow. Work with your group to create an interrogatory for the this case: A pick up truck was traveling northbound on a city street. While making a left turn, it was struck by a car traveling southbound on the same street.

57 Requests for production Party can make a request for production or for inspection to inspect, sample, test, photograph and copy documents or physical things within the scope of discovery. The request must be specific about the items so that the party responding knows exactly what the request is for. Texas Rules of Civil Procedure (a) & (b) Be aware: A party cannot be forced to prepare or create a document not in existence or kept in their normal course of business In re Colonial Pipeline Co., 968 SW2d 938 (Tex.1998)

58 Defendant to debt claim Plaintiff: Produce the account agreement, including all amendments to this alleged agreement. Strike this Allow this Best Practices Allow. It is a debt claim case, so the agreement would be a reasonable document for the defendant to review.

59 Work with your group to create a request for production for this case: A woman slipped and fell at a large chain retail store. She claims back pain and medical bills. Depositions See handout!

60 Pre Trial Discovery the process AFTER a lawsuit is filed, but BEFORE a judgment is issued Pre Trial Discovery Discovery is allowed in justice court, but is limited to what the judge considers reasonable and necessary The court is the gatekeeper any request has to be by written motion and approved by the court Texas Rules of Civil Procedure, Rule (a)

61 Pre Trial Discovery Discovery is allowed in justice court, but is limited to what the judge considers reasonable and necessary The court is the gatekeeper any request has to be by written motion and approved by the court Texas Rules of Civil Procedure, Rule (a) This is different from other courts County & district courts do NOT require the court's approval first Those courts have little information that discovery is even happening

62 Discovery procedure in your court: Step 1 Motion for discovery request filed Step 2 Court order issued Step 3 Responding party may object Step 4 Party to respond Step 1: Motion for Discovery Request Filed A party may submit a discovery request at any time that a case is filed, including with the filing Texas Rules of Civil Procedure, Rules 500.9(a) & Rule (a)

63 Step 2: Court Order Issued The court determines what discovery is reasonable and necessary May be some, may be all, may be nothing The court sends a written order, including the right to object Texas Rules of Civil Procedure (a) Step 2: Court Order Issued The Court has broad discretion in determining what to allow and what time frame in which to respond Can use our attached form Can simply mark through sections not approved of and can attach to a signed order Can require the party to re do the discovery per the approved portions as an order and then sign Can find another way as long as it makes it clear what must be answered and by when Texas Rules of Civil Procedure (a)

64 Step 3: Responding Party May Object A hearing may be requested by the responding party after receiving the request for discovery There is no timeframe stated in the rule as to how long the court must wait for the responding party to request a hearing Reasonableness should be used

65 Step 3: Responding Party May Object If a hearing is requested, the court should set it, notice all parties, and hear any concerns If the opposing party does not request a hearing, the court may sign an order granting discovery without a hearing Step 4: Party to Respond A party should respond to the approved discovery order in the time stated by the court A party does not have to respond to discovery that has not been approved by written order of the court. If they do not respond, it cannot be held against them because the discovery was improper. If they do respond, the court may choose to strike the invalid discovery request and exclude the information from the case.

66 What if a Party Fails to Respond? This should be brought to the court s attention by the requesting party as a motion to compel and should be set for hearing Should NOT be brought on the court s own motion Motion to Compel A party s request that the court force the party s opponent to respond to the party s discovery request Black s Law Dictionary

67 Motion to compel A party should request the motion The court should set the hearing within a reasonable amount of time & give notice to both parties Hear the arguments as to why the discovery was not responded to or was not sufficiently responded to You may order a new answer date or modify the discovery requested The court could also apply sanctions Texas Rules of Civil Procedure 500.9(a) The court may use Texas Rule of Civil Procedure as guidance

68 Potential sanctions: Reasonable expenses for having to bring a motion to compel, including attorney fees No more discovery by the disobedient party The fact involved in the discovery dispute will be decided against the disobedient party. Facts that were the subject of the discovery order not allowed into evidence Strike pleadings, dismiss with or without prejudice, or give a default judgment against the disobedient party Contempt (use caution!) Post judgment discovery

69 Post judgment discovery There is no requirement that these requests go through the court The requests may be made to the party directly as long as the requesting party gives them 30 days to respond Post judgment discovery The responding party may object in writing within 30 days The court must hold a hearing to grant or modify the discovery The court would order the party to respond to any discovery the court finds acceptable Texas Rules of Civil Procedure, Rule 500.9(b)

70 Post trial discovery These requests seem very personal because the case is now post judgment and the plaintiff is trying to collect on the judgment. Therefore, the focus in discovery is, do you have money and where is it so I can recover on my judgment? Post trial discovery Interrogatories will often be served asking for assets, property, and money. Depositions are sometimes set. Request for production could also be served. Requests for disclosure and admission would no longer apply. There should be no more discovery about who was wrong, why, or how much money is owed.

71 Post trial discovery Failure to respond can result in an order from the court after a motion to compel. Failure to respond to that order can result in sanctions previously discussed, including contempt. Many of the pre trial discovery sanctions will not apply because the case is over. We again urge caution, restraint, and thoughtfulness in the use of discovery sanctions. Thank You!

72 FY 2019 JP Program Judicial Bench Skills An Educational Endeavor of the Justices of the Peace and Constables Association, Inc. Funded by a grant from the Texas Court of Criminal Appeals

73 Judicial Bench Skills Roadmap for the course How you are viewed as a judge Preparing to take the bench Managing your courtroom Tools for decision making Making good decisions This is a chance to talk judges to judges about doing our best to bring dignity to the bench

74 How do you want the public to describe you as a judge? Bedside manner How you walk What you wear How you handle yourself The public will notice all of this maybe more than the outcomes of the cases

75 How do we present information about the court to the public? Is it explained in court? Is it on your website? Is a handout provided by your staff? Prepare Mentally to take the bench

76 10 common mistakes new judges make and how to avoid them Judicial Edge, The National Judicial College handout Be Approachable There is nothing undignified about being a good listener, a person who explains the neutral principles they are applying, someone who treats each party equally, or someone who speaks in plain language. Judge Catherine Shaffer; President, American Judges Association; Seattle

77 Be Fair Listen more than speak. Do not rush your docket, no matter how busy it is. Take frequent breaks. Be humble. Be kind. Never show anger. Never assume anything before asking questions. Do not be afraid to say, I do not know. Understand that the case before you is the most important case on the planet and treat the people before you in that manner. Judge Louis Schiff; Deerfield Beach, FL

78 Make sure your robe is on before taking the bench Stay away from the phrase In my court It is not your court, it belongs to the people, it will always belong to the people, and you can be replaced. Judge Louis Schiff; Deerfield Beach, FL

79 My tips for taking the bench Prepare factually to take the bench

80 What makes you ready to hear the case? How is your docket set? Do you have an evictions docket or just hear whatever case is set? You need to know what KIND of case you are about to hear What else should you do? Open the file and get familiar with the parties and the pleadings: Read the petition & the answer Review the traffic citation You are not prejudging the case, you are not investigating what happened you are putting yourself in the best spot to make a good decision

81 What else should you do? Who are the people you ll be talking to? Self Represented Litigants? Lawyers? In civil is it a company or individual? In criminal do you have any young defendants? You want to make extra sure young defendants understand court is serious in hopes they do not appear again Do your staff or the bailiff have safety concerns about a party? What else should you do? What are the main legal and factual issues in the case? Go over the elements Get out the code book and look at the law Pull out the deskbook and review the issues Never any shame in double checking before you take the bench

82 Why is this important? It lets you be more patient, because you ve familiarized yourself with the parties It lets you start thinking in the mindset of debt claim or speeding ticket elements If you need a few minutes to look at the file in between hearings or if a particular case file is thick! don t hesitate to take the time you need they can t start without you!

83 Discuss at your table what you have found helpful before taking the bench You are prepared! Your bailiff announces you. You take the bench now what?

84 How do you open court? Does the bailiff always announces you? Do you welcome everyone? Do you explain what s on the docket for the morning? Do you use a script? Decision Making What makes us worry about making decisions?

85 Making a mistake Appeal court ruling differently Bad public opinion Losing an election Lack of confidence A tough case Other Factors Memory fades Haven t determined the law Can t decide on the facts Lack of time to decide Pressure of caseload Judicial stress

86 Study of an Israeli parole board to see how they made decisions on which prisoners to parole Only ONE of the following prisoners got freedom: Do you suffer from Decision Fatigue? The New York Times, August 17, 2011 Case A (heard at 8:50 a.m.): An Arab Israeli serving a 30 month sentence for fraud. Case B (heard at 3:10 p.m.): A Jewish Israeli serving a 16 month sentence for assault. Case C (heard at 4:25 p.m.): An Arab Israeli serving a 30 month sentence for fraud.

87 There was a pattern to the parole board s decisions, but it wasn t related to the men s ethnic backgrounds, crimes or sentences. It was all about timing Even the wisest people won t make good choices when they re not rested and their glucose is low. They were hungry & tired

88 Good decision making is not a trait of the person, in the sense that it s always there. It s a state that fluctuates. The more choices you make throughout the day, the harder each one becomes for your brain, and eventually it looks for shortcuts Tool to avoid this problem with decision making The HALT Method

89 When you are about to take the bench or during a long docket, ask yourself if you are: Hungry? Angry? Lonely? Tired? What to do? Take a recess Have snacks in your office Drink some water Make a quick call to a loved one Think about some happy plans coming up

90 Tools for Decision Making Make these part of your regular practice Know your community What will the parties expect? Are you urban and have lots of attorneys? Are you rural and have mainly SRLs? Build in some flexibility This never means being less judicial

91 Attorneys in your court They might not know the JP rules in civil cases How do you handle them during docket calls? Letting them go first Set a separate docket for them earlier, so it doesn t make SRLs feel like attorneys have an advantage Attorneys in your court Trial settings attorneys have multiple settings all over the county, maybe all over the state You needs a system: A County agreement first case set gets priority If an attorney is asking for another continuance because they are set in another court that day, know that you can check with other judges is the other case likely to be heard? Attorneys should come to you with this info, but sometimes, they don t prioritize their JP case

92 Stay organized Have a way that your docket is always handled: The clerk knows what information you will want They know when to get your attention for an important fact Have meetings after a docket to see what can be improved and make sure your staff knows their role and they have a chance to offer suggestions to improve The bailiff knows exactly where you want them to stand and how you want documents handled Make sure everyone knows their role so it s like a well oiled machine It will give confidence to the public and give you the ability to focus on the issue before you

93 Stay focused Listen carefully Take notes Write a timeline Note follow up questions to keep interruptions at a minimum Judging credibility You ll need this skill even when a case is not in trial Every time a party appears before you they are looking for a resolution in their favor Don t let your personal feelings or bias interfere Do consider what the party wants & why they want it Is it something the rules or law allows? Is it fair and consistent with other decisions you've taken?

94 Would you believe them? An attorney needs to reset a case Claims they think they will be able to settle the case They say this every time A civil defendant comes in after a default They claim they weren t served They were aware of the case against them What To Do When You Don t Know What To Do STOP and take a recess Continue the case. This should be done VERY RARELY and as a last resort. Take a matter under advisement

95 Do NOT rule on a motion or sign a judgment you do not understand. TAKE YOUR TIME AND GET IT RIGHT. You can also ask parties or attorneys to provide any statute, rule, or caselaw, that they are relying on. Now that court is over for the morning. how do you get off the bench? Do you thank your court staff? Do you tell the public the court is in recess? Do you announce when the next docket will begin? ( We will resume court at 1:30 pm. or Court will be in session tomorrow morning at 9:00am. )

96 Thank you!

97 FY 2019 JP Program Landlord Tenant Law & Scenarios An Educational Endeavor of the Justices of the Peace and Constables Association, Inc. Funded by a grant from the Texas Court of Criminal Appeals

98 Landlord Tenant Law & Scenarios Texas Justice Court Training center Copyright All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system without prior written permission of the Texas Justice Court Training Center unless copying is expressly permitted by federal copyright law. Address inquiries to: Permissions, Texas Justice Court Training Center, 1701 Directors Blvd; Suite 530, Austin, TX,

99 Resources TJCTC Website: Evictions Deskbook (has non eviction landlord tenant topics also) Forms, webinars, etc. Statutes: TRCP: all updatedwith amendments effective febraury pdf Abbreviations PC = Property Code TRCP = Texas Rules of Civil Procedure CPRC = Civil Practice and Remedies Code

100 Reminder Statement of inability to afford payment of court costs Any of the fees (filing, service, etc.) for the cases we will discuss are waived upon the filing of a Sworn Statement of Inability to Afford Payment of Court Costs. Can use the form created by the Texas Supreme Court (on the TJCTC website) or any form that contains the same info. Form must be made available without charge or request. TRCP WRITS OF REENTRY (GETTING BACK IN) & writs of restoration (Getting utilities turned back on) Property Code Chapters 92 & 93 Evictions Deskbook Chapter 9

101 Writs of Restoration PC & (Only Applies To Residential Tenancies) WRITS OF REENTRY Residential: PC & Commercial: PC & Residential vs. Commercial Some of the laws we will discuss in this section apply to commercial tenancies, some apply to residential tenancies, and some apply to both. If you see this picture, the law applies to residential tenancies: If you see this picture, the law applies to commercial tenancies:

102 Purpose Writ of Restoration: Orders a landlord to immediately reconnect utilities that have been unlawfully disconnected. Writ of Reentry: Orders a landlord to immediately allow a tenant to be allowed back into their rental property following an unlawful lockout. A peace officer may use reasonable force to enforce the order. PC ; Contracting Away Rights Residential PC (g); (j) In a residential lease, the tenant s right of re entry cannot be waived. Commercial PC (h) In a commercial lease, the tenant s right of re entry can be waived.

103 Interruption of Utilities Paid Directly by Tenant (residential & commercial) Landlord cannot interrupt ANY utilities paid directly to a utility company unless: bona fide repair construction emergency Note: We will talk later about what remedies a commercial tenant has if landlord doesn t follow this law (since writ of restoration is only for residential tenants). PC (a),(b); (a) Interruption of Utilities Provided by Landlord (residential only) Landlord cannot interrupt water, sewage, gas or electric EVEN IF providedandpaidforbylandlordotherthanfor: Bona fide repair Construction Emergency EXCEPT: Very limited exception where may disconnect electricity only if electric bill specific to tenant s unit and the tenant does not pay bill on time. Lots of requirements that must be met (see PC (h) (r)). PC (b)

104 Lockout of Tenant (residential & commercial) A landlord may not intentionally prevent a tenant from entering the leased premises except by an eviction case unless exclusion is for one of the following: Bona fide repairs, construction or an emergency. Removing the contents of premises abandoned by a tenant. Changing the locks on the door to the individual unit of a tenant who is delinquent in paying at least part of the rent. (See following slides for rules for this option) PC ; Rules for Delinquent Rent Lockout (Residential) Must be included in the lease agreement. Must send an advanced warning notice. 5 days if by mail, 3 days if personally delivered, including amount owed and where it can be paid (during landlord s normal business hours). Must post a notice when locks are changed giving 24 hour access to key. All notices must contain statement in underline or bold that tenant may receive new key even if they do not pay delinquent rent. PC (d)

105 Rules for Delinquent Rent Lockout (Residential) The locks may not be changed: When the tenant or legal occupant is in the dwelling. More than once per rental period. On a day, or the day before a day, when the landlord is not available/office is not open for delinquent rent to be paid. A tenant is still entitled to access to any common areas of the property (pool, gym, etc). PC (e)(e 1),(k) Rules for Delinquent Rent Lockout (Residential) If the tenant calls for the key at any hour, the landlord must arrive within 2 hours with the key EVEN IF THE TENANT STILL HASN T PAID. If the tenant is no longer there, landlord must post another notice on front door stating when they were there, and where a key can be obtained during the landlord s normal business hours. PC (g)

106 Rules for Delinquent Rent Lockout (commercial) Landlord MUST place a written notice on the tenant s front door stating the name, address, and telephone # of the individual or company where a new key may be obtained. The new key is required to be provided only during the tenant s regular business hours and only if the tenant PAYS all of the delinquent rent. PC (f) Larry Landlord and Terry Tenant have a residential lease stating that Larry can disconnect the water if Terry does not pay the water bill for more than 3 months. Terry didn t pay and so Larry disconnected the water. Is this an illegal disconnection? A. Yes B. No

107 Lenny Landlord and Tiffany Tenant have a commercial lease. tiffany has not paid rent. Lenny locked her out and mailed her the required notice. Tiffany tried to get a new key, but lenny refuses to give her one until she pays her rent. Is this an illegal lockout? A. Yes B. No Tenant has 3 options if illegal disconnection or lockout occurs: 1) Terminate the lease (no need for court involvement, but court could end up having to rule on whether termination was lawful later on if landlord sues tenant for breaking the lease). 2) Disconnection: Seek a writ of restoration ordering the landlord to reinstate the utilities (only applies to residential leases). Lockout: Seek a writ of reentry ordering the landlord to allow them back into the premises (residential and commercial). 3) Sue the landlord for money damages (can do this in addition to either of the other 2 options). PC (f); (h); ; ; (g);

108 Suing For Money Damages Should be filed in the county where the property is located & separately from a request for a writ of restoration or reentry. PC Suing For Money Damages May recover sum of: Actual damages. Residential: One month s rent + $1000; additional one month s rent if violation is failure to give a new key after lockout. Commercial: One month s rent OR $500, whichever is greater. Reasonable attorney s fees. Court costs. Less any amount owed by the tenant. PC (f); (h); (g)

109 Procedure for Writs Procedure is exactly the same for both writs. Writ of Restoration = PC Only available in residential. Writ of Reentry = PC ; Same procedure for residential and commercial. Fees Standard civil filing fee usually $46 (check with county auditor if anything in addition to this). Notice/Summons standard civil process service fee (varies by county, contact your auditor/constable for info). Service of writ the standard service fee for service of a writ of possession (varies by county, contact your auditor/constable for info). PC (l); (k); (l)

110 Complaint & Testimony Applicant must file a sworn complaint (with facts) in the precinct where the rental premises are located. Applicant must orally state the facts under oath to the judge. PC (b); (b); (b) Ex Parte Writ Judge determines (ex parte no notice/hearing for landlord) whether they reasonably believe an unlawful disconnection/lockout likely occurred. If no, then the case is over no appeal of denial. If yes, then writ immediately issues, which must order the landlord to immediately rectify the problem, and must tell the landlord of their right to a hearing. PC (c); (c); (c)

111 Service on Landlord After ex parte is issued, it must be served on the landlord or their management company, on premises manager or rent collector, in the same manner as a writ of possession. PC (d); (d); (d) Hearing Landlord has 7 days to request a hearing and the hearing must be held 1 7 days after the request. If they don t request a hearing or if judge determines at hearing that writ was properly issued, court costs may be assessed against the landlord in a judgment. If hearing is held and judge determines writ was not properly issued, writ should be dissolved. PC (e) (f); (e) (f); (e) (f)

112 Appeal Either side may appeal the ruling at the hearing, in the same manner as an eviction appeal. Deadline: 5 days PC (g); (g); (g) What if the landlord fails to comply? If the landlord fails to comply with the writ, tenant may file an affidavit about their failure to comply. Upon receiving the affidavit, court must send a show cause notice for a contempt hearing. PC (i); (i); (i)

113 At Contempt Hearing If landlord didn t comply with writ at first, but has now (ex: didn t turn utilities back on after being served with the writ, but turned them on before the hearing): landlord may be held in contempt and jailed up to 72 hours in jail and/or fined $100. If landlord has still not complied with writ at the time of the show cause hearing (ex: utilities still haven t been turned back on): landlord may be held in contempt and jailed until they comply. PC (i); (i); (i) Effect of Writ of Possession An eviction case could potentially be going on at the same time as a writ proceeding, but separately. Until a writ of possession is issued, they have no effect on each other. If a writ of possession is issued: a writ of reentry or restoration loses its effect. But a writ of reentry or restoration does not lose effect if just a judgment for possession in an eviction suit and no writ of possession yet.

114 Charts are in the Evictions Deskbook and on our Website Joe files a sworn complaint for a Writ of Restoration in your court. The premises where the utilities have been disconnected is in a different precinct, but the landlord s residence is in your precinct. Can you issue the order if all other requirements have been met? A. Yes B. No

115 April files a sworn complaint requesting a writ of reentry and pays the filing fee. What is your next step? A. Notice the landlord and hold a hearing. B. Have the tenant state the facts under oath and consider the complaint and testimony ex parte. C. Consider the complaint ex parte, no need for oral testimony by the tenant. A tenant is upset that you decided not to issue a writ of restoration that they were seeking. Can they appeal your decision not to issue the writ? A. Yes B. No

116 Suzy followed all of the correct procedures to lock Bill out of his apartment after he stopped paying rent on his residential lease. Bill refused to pay the rent and said he never will, so Suzy refused to give him the new key when he asked for it after the lockout. Bill got a writ of reentry from your court to force Suzy to let him back in to the apartment. Suzy refuses to comply until he pays his rent. You may commit Suzy to jail until she complies. A. Yes B. No What if Suzy gets a writ of possession in an eviction case concerning the same premises. Does she still have to comply with the writ of reentry? A. Yes. B. No. C. Need to hold a hearing to determine which writ should be followed.

117 A landlord files an eviction suit and gets a judgment for possession. the same day as the judgment for possession is issued, he shuts off the water and electricity. is the tenant entitled to a writ of restoration? A. Yes. B. No. Use Your Deskbook! The court issues a writ of restoration and the landlord fails to comply. The tenant files the required affidavit with the court. What should be included in that affidavit?

118 Use your Deskbook! A commercial tenant is locked out of their business for failure to pay rent. They are mad about it and file a sworn complaint for reentry. When talking to the judge, they provide false evidence that they paid all of their rent and the landlord still wouldn t give them the new key. Having no reason not to believe the evidence, the judge issues an ex parte writ of reentry, which is then served on the landlord. The landlord requests a hearing and the writ ends up being dissolved; but the landlord is mad that they had to go through all of this for no reason. What, if any, remedies does the landlord have in this situation? Roleplay! What would you do? (You might still wanna refer to your deskbook)

119 Judge: Mr. Tucker, I have reviewed your application for a writ of restoration. I am now going to place you under oath so that you can testify to your concerns. Please raise your right hand, do you solemnly swear to tell the truth, the whole truth and nothing but the truth? Mr. Tucker: I do. Judge: Tell me why we re here. Mr. Tucker: My apartment complex keeps shutting the water on and off. They sent out a notice about repairing the pipes, but it has been going on longer than the notice said the repairs would take. And they didn t start doing it until after I got a little behind in my rent! Judge: REPAIR & REMEDY (GETTING STUFF FIXED) Property Code Chapter 92 TRCP Rule 509 Evictions Deskbook Chapter 10

120 PC Subchapter B ( ); TRCP 509 (Only Applies to Residential Tenancies) What is a repair & remedy case? Where a tenant seeks judicial remedies for a landlord failing to make repairs to a condition: which the landlord had a duty to repair, and which materially affects the health or safety of an ordinary tenant.

121 Contracting Away Rights Generally, no duties or remedies under this topic (all found in PC ) may be waived. Except in certain circumstances see Evictions Deskbook Ch. 10 and statutes for more details (d) (f) when/how a duty or remedy can be waived (b) consequences for violating law PC (c) When Landlord has a Duty to Repair Tenant gives notice of the condition to the person/place where rent is paid (only has to be in writing if required by lease); Tenant is not delinquent in rent at time of notice; and Condition materially affects: Health/safety of ordinary tenant; OR Arises from failure to provide a device to supply hot 120* or more. PC

122 When Landlord has a Duty to Repair Unless caused by normal wear and tear, landlord has NO duty to repair if the condition was caused by: Tenant Occupant Tenant s family/guest/invitees PC Notice Requirement & Timeframe Before Landlord Becomes Liable If the landlord fails to repair in a reasonable time after first notice, tenant must give a second written notice (and cannot be delinquent in rent at time of that notice). Second notice is not required if first notice was written and sent certified mail return receipt requested, registered mail, or other trackable mail service or private delivery service. PC

123 Notice Requirement & Timeframe Before Landlord Becomes Liable Landlord becomes liable to tenant and tenant is entitled to remedies if landlord fails to make diligent effort to repair or remedy in reasonable time after receiving the required written notice. Reasonable time = 7 days unless evidence is provided to show why a different amount of time would be reasonable instead Examples of types of evidence: severity and nature of condition, reasonable availability of materials/labor/utilities. PC Angela has a commercial lease and there are a lot of dangerous problems with the premises. Angela has sent repeated written notices by registered mail of the problems and The landlord refuses to repair any of them. Can Angela bring a repair and remedy case to address the problem? A. Yes B. No

124 The toilets in Billy s apartment are both broken. He hasn t sent anything in writing, but has repeatedly told the management company about the problem by phone. They still haven t fixed them and it has been over 30 days. Is the landlord liable to Billy? A. Yes B. No Amy notified her landlord by phone of a condition that needed to be repaired and then sent a subsequent written notice when the repair was not made. Amy was up to date on her rent when she notified the landlord the first time, but stopped paying when he didn t make the repair. As a result, she was behind in the rent at the time of the subsequent written notice. Is the landlord liable to Amy? A. Yes B. No

125 Remedies Once Landlord is Liable to Tenant Once a landlord is liable (as described in previous slides), tenant has three options: Terminate the lease No court involvement needed to do this, but court could end up having to rule on whether termination was lawful later on if landlord sues tenant for breaking the lease. Repair and Deduct according to PC No court involvement needed to do this, but could potentially come up in an eviction case if a tenant is claiming they don t owe rent because they ve used this remedy. See Evictions Deskbook Ch. 10, Section D for more info on the procedures that must be followed. File Repair and Remedy case in court. PC ; , TRCP 509 Venue and Filing Fee Venue: Case should be filed in county where premises are located. If filed in wrong county, defendant can raise issue by filing motion to transfer venue. Standard civil filing fee: usually $46 (check with county auditor if anything in addition to this). Standard service fee (if service is done by sheriff/constable amount varies by county, contact your auditor/constable for info). PC ; CPRC

126 Petition TRCP provides details on what must be in petition. (Form available on TJCTC website) Address of the premises and the condition in need of repair Info on the management company or rent collector, if applicable Info on the notices given to the landlord about the condition Description of the relief sought, including info on rent reduction Tenant s contact information TRCP Citation and Service Citation: Should immediately issue (form avail. on TJCTC website). Must contain appearance/trial date days from the date petition is filed. When must be served: At least 6 days prior to appearance date. Who may serve: Anyone authorized by (sheriff/constable, process servicer, or person authorized by court order who is 18 years of age or older). Return of service: Must be on file no less than 1 day before appearance day. Alternative Service: Available. See Deskbook Ch. 10 & Rule 509.4(b) for info on how/when. TRCP 509.3; 509.4

127 Representation; Counterclaims & 3 rd Party Claims Parties may represent themselves (pro se), or may appear with an attorney. Unlike eviction cases, authorized agents are not allowed. Just like with small claims and evictions, the court could also (for good cause) allow a person to be assisted by a family member or other individual who is not being paid. No counterclaims or third party claims may be heard in a Repair and Remedy case. TRCP 500.4; Trial If tenant doesn t appear: Judge may dismiss. If landlord doesn t appear: Judge may hear evidence and enter judgment accordingly. Tenant has burden of proof to show landlord didn t make diligent effort. UNLESS they requested in writing an explanation of the delay, and the landlord didn t respond in writing within 5 days. Then landlord has burden to show they DID make diligent effort. TRCP 509.5; PC

128 Judgment If the judge finds that the landlord is liable, a written judgment should be entered. The judge may include in the order: Order directing landlord to take reasonable action to repair or remedy (Not an option if lease was terminated) Order reducing tenant s rent from date of first notice until repairs made (Not an option if lease was terminated) Civil Penalty: One month s rent + $500 Actual damages, court costs, and attorney s fees PC ; ; Judgment Judgment may not exceed $10,000, including attorney s fees. Must be clear, explicit, and in writing. Must be signed, dated, and contain the names of the parties and street address of premises. Must be served on the defendant in open court or as provided in Rule Disobedience is grounds for contempt. TRCP 509.6

129 Appeal Either party may appeal within 21 days of judgment, modification, or denial of motion for new trial. Only need written Notice of Appeal no appeal bond. Once appeal is perfected, the judgment is vacated and justice court may not do anything further on the case, including enforcing the order. TRCP What if Landlord Wins an Eviction Case Against Tenant? Eviction could potentially be going on separately at the same time. If a final judgment for possession is entered, it will vacate an order to repair or remedy a condition. Any monetary award will stay in place. Any rent deduction up to the time of the judgment for possession will stay in place. TRCP 509.9

130 A tenant brings a repair and remedy case against her landlord. The landlord says the tenant is behind in rent. What are the landlord s options? A. File a counterclaim for the unpaid rent in the repair and remedy case. B. Present the rent delinquency as an argument in the repair and remedy case that the landlord is not liable. C. File a separate suit for the unpaid rent claim. D. Both B and C An appeal of a repair and remedy case must be filed: A. Within 5 days (same as an eviction appeal) along with an appeal bond. B. Within 5 days (same as an eviction appeal) but only a notice of appeal is needed. C. Within 21 days along with an appeal bond. D. Within 21 days but only a notice of appeal is needed.

131 Use your Deskbook! A landlord and tenant have a provision in their lease that, except for conditions caused by the negligence of the landlord, the tenant has to pay for any repairs for damage from wastewater stoppages caused by foreign or improper objects in lines that exclusively serve the tenant s dwelling; damage to doors, windows, or screens; and damage from windows or doors left open. Is this provision valid? Roleplay! What would you do? (You might still wanna refer to your deskbook)

132 A repair and remedy petition has been filed with the court. The landlord has been served and the case has been set for trial. You are reviewing the court file to prepare for trial. Information from petition: Thea Whalen claims that the paint has been peeling off of her walls for months and it is just getting worse. She states that she has given her landlord all of the required notices under the law and has been up to date in her rent the whole time. It has been over a month since the last written notice, and the landlord still has not made any repairs. Petitioner is requesting that the landlord be ordered to repair the walls, to have her rent reduced from the date of the first notice until the repairs are made, and for the landlord to pay a civil penalty of $ Is there any additional evidence or information you would need to get at trial? 2. Is this a condition that the landlord has a duty to repair? If the landlord is proved to be liable, can the court grant all of the tenant s requests? WRITS OF RETRIEVAL (GETTING CERTAIN PROPERTY OUT) Property Code Chapter 24A Evictions Deskbook Chapter 9

133 Writs of Retrieval PC Chapter 24A (Only Applies to Residential Tenancies) Purpose & Venue When a person is not permitted into their residence or former residence and needs to retrieve belongings for themselves or their dependents. May petition any justice court in the state to order a peace officer to accompany them to retrieve specific items of personal property that are on the list of allowed types of property. PC 24A.001; 24A.002(a)

134 Allowed Types of Property medical records medicine and medical supplies clothing child care items employment records legal or financial documents copies of electronic records containing legal or financial documents checks, bank info or credit cards in the name of the applicant personal identification documents PC 24A.002(b)(3) Peace Officer Sheriffs, their deputies, constables, and deputy constables. Those reserve deputy sheriffs and constables who hold a permanent peace officer license issued under Chapter 1701, Occupations Code. CCP 2.12(1),(2)

135 Fees Standard civil filing fee usually $46 (check with county auditor if anything in addition to this). Notice/Summons standard civil process service fee (varies by county, contact your auditor/constable for info). Executing writ whatever has been set by the commissioners court. If nothing specific set for this, can charge other writ fee. See Local Gov t Code for info on fees set by commissioners court. Remember: they could also file a Statement of Inability to Pay Court Costs instead of paying the fees. Application Requirements Certify that the current occupant has denied entry to the applicant or poses a clear and present danger of family violence to applicant/dependent; Certify no court order prohibiting contact with the current occupant of the residence exists; PC Ch. 24A.002(b)

136 Application Requirements Describe with specificity the items to be retrieved (and state that they are all allowed types of property) ; Claim the applicant/dependent will suffer personal harm if the items are not obtained promptly; and Include a lease or other documentary evidence that shows the applicant is/was authorized to occupy the residence. PC Ch. 24A.002(b) Bond Before a writ may be issued, applicant must file a bond approved by the JP. The bond is an amount of money that the applicant puts up to protect the occupant in case any property is wrongfully included in the writ. The amount should often be very low since it cannot be waived for indigent applications and the value of the items is usually quite low. Exception: no bond is required if there is a clear and present danger of family violence (testimony by applicant can be enough to demonstrate this) PC Ch. 24A.002(c)

137 Requirements of Bond Have 2 or more good and sufficient non corporate sureties or 1 corporate surety; Be payable to the occupant of the residence; Be in an amount required by the justice (pick an amount that is reasonable and will protect the occupant); and Be conditioned on the applicant paying all damages and costs adjudged against the applicant for wrongful property retrieval. PC Ch. 24A.002(c) Notice and Hearing Sufficient notice AND an opportunity to be heard must be provided to the current occupant before writ may be issued. EXCEPT: May issue ex parte writ (no notice/opportunity to be heard required) if applicant certifies that occupant poses clear & present danger of family violence to applicant/dependent & JP finds immediate and irreparable harm will occur otherwise. For additional info on ex parte writs of retrieval (including how & when court can recess the hearing and call the occupant to tell them that they can bring the property to court or attend the hearing), see p. 67 of the Evictions Deskbook. PC Ch. 24A.002(e)(5),.0021

138 Time of Notice and Hearing No specific guidance as to time required between service of the notice and holding a hearing. TJCTC s position: 24 hours between notice and hearing seems reasonable based on the circumstances and purpose of the statute Notice may be served in person or by posting the notice on the front door of the premises. PC Ch. 24A.002(e)(5) Issue the Writ or Not? A justice court may not issue a writ of retrieval unless: 1) The applicant establishes sufficient evidence of urgency and potential harm to health and safety of any person; and 2) The court finds that: Applicant has been denied entry or there is a family violence danger; No EPO or other order prohibiting contact exists; Applicant is/was authorized to occupy premises; and Notice and opportunity for hearing was provided to the current occupant. PC Ch. 24A.002(e), 24A.002(b)(1)

139 No Appeal If judge denies the writ, the case is over. Applicant may not appeal. Executing the Writ If the court grants the application and issues a writ, a peace officer shall accompany the applicant to the premises and assist them in getting inside and retrieving the items listed in the writ. Only items listed on the writ may be taken! If the current occupant is present, the officer shall provide him or her with a copy of the writ. PC Ch. 24A.003

140 Executing the Writ Inventory All property must be inventoried by the officer before removal, and the officer must: 1) Provide an inventory list to the occupant (but if the occupant is not present, the officer may leave the list in an obvious place); and 2) File the inventory list with the court. PC Ch. 24A.003 Consequences for Interfering It is a Class B Misdemeanor to interfere with retrieval of personal property under the writ. No contempt of court if occupant interferes order is to the peace officer, not the occupant. Defense: if defendant did not receive a copy of the writ or other notice that the entry or retrieval of property was authorized. Offense could also be committed by the applicant, although less likely (e.g. disruptive behavior) PC Ch. 24A.005

141 Occupant Complaint Why: If occupant alleges that applicant took property not belonging to applicant. Deadline: 10 days after the date of authorized entry. Where: In court that issued writ of retrieval. Hearing: If complaint filed, court shall promptly hold a hearing and rule on ownership of the property. Other options: Small claims lawsuit or other legal remedies. PC Ch. 24A.006 Summary of a Writ of Retrieval Case Person seeking to retrieve property files an application, pays any fees, and posts a bond (bond waived if danger of family violence). Justice court provides notice to the occupant and holds a hearing (may waive notice and hold ex parte hearing if danger of family violence). Justice court issues a writ of retrieval (or denies issuance). Peace officer assists applicant in retrieval of property. Peace officer inventories property. Occupant may file a complaint and have a hearing if property is wrongfully taken. No appeal process. PC Ch. 24A

142 Which of the following people could ask for a writ of Retrieval in your court? A. Brian moved out of his apartment, where his name is on the lease. Your court is in a different county. He needs financial documents and his exgirlfriend won t let him back in to get them. B. Cassie was over at her in laws house for Thanksgiving. At dinner, an argument broke out over politics and the in laws kicked her out. She needs child care items that she left there. C. Brandy works as a mechanic. Her ex roommate won t let her back in to the house where she was living to get the tools of her trade. No constable/sheriff or deputy constable/sheriff is available to accompany the applicant to execute the writ of retrieval. In this case, a municipal peace officer may accompany the applicant. A.True B.False

143 Annie was living with her boyfriend Fred at his apartment. She was not on the lease, but has a sworn statement saying that she lived there. Fred says he didn t exclude her. She has Facebook messages from him saying that she ll be sorry if she shows her face there again. She wants help getting her cell phone and her medicine out of the apartment. Which of the following could you potentially order? A. A writ to retrieve her cell phone and her medicine. B. A writ to retrieve her medicine only. C. Nothing she wasn t on the lease. D. Nothing she wasn t denied entry. Same facts as previous question What if Annie wants to retrieve her selection of Guns N Roses concert T shirts. could she accomplish this with a writ of retrieval? A. Yes B. No C. Probably Not

144 Use your Deskbook! You issue a writ of retrieval. When the constable is executing the writ, the occupant is not home and so he gets the landlord to open the door. Could the landlord be liable if the applicant wrongfully takes property that belongs to the occupant? Roleplay! What would you do? (You might still wanna refer to your deskbook)

145 Judge: I have an application for a Writ of Retrieval from Randy Sarosdy. Mr. Sarsody, are you ready? Mr. Sarosdy: Yes. Judge: I see that the respondent was given notice of the hearing and is not present. Mr. Sarosdy, I see you certified that the current occupant has denied you entry and you have provided a copy of your cell phone bill that was addressed to the residence in question. I also see that you have certified that there is no court order prohibiting contact with the occupant and that you have claimed you will suffer personal harm if the items are not returned to you shortly. On the list of items you are requesting, you have listed some medications, a check book, and your laptop. Is that everything? Mr. Sarosdy: Yes Judge: OTHER LANDLORD TENANT ISSUES Property Code Chapters 54, 92, & 93 Evictions Deskbook Chapters 7, 11 15

146 Distress Warrants A Commercial landlord has a lien on a tenant s property to secure payment of rent (automatically created by the lease). Lien = ability to recover the amount owed from the proceeds of the sale of the property. A distress warrant is a way of protecting the landlord s interest in the tenant s property until the landlord can foreclose on the lien. For more information, see: Evictions Deskbook Ch. 13 Property Code Chapter 54 Texas Rules of Civil Procedure Small Claims Cases PC Ch. 92 (residential) & 93 (commercial) contain additional rights and remedies for both landlords and tenants beyond what has already been discussed These rights and remedies may give rise to lawsuits that may be heard by justice courts as small claims cases On the following slides, any reference to liability or being able to bring a case is talking about a small claims case Venue: The county where all or part of the property is located, unless a specific statute sets a different venue. PC , Ch. 92, 93

147 Security Deposits: Residential Tenancies Before move in: If a tenant pays a security deposit in advance but never occupies the residence, the landlord may not keep the security deposit if a replacement tenant is found who occupies the residence on or before the original lease start date. If the landlord has to find a replacement tenant, the landlord may keep the lease cancellation fee or actual expenses, including a reasonable amount for the landlord s time. PC Security Deposits: Residential Tenancies After move out: A landlord must refund a security deposit (other than what they are entitled to keep) within 30 days of the tenant moving out. If the tenant has provided a forwarding address in writing, the landlord must send the deposit to the tenant. If the tenant has not provided a forwarding address, the tenant is still entitled to the deposit, but it becomes the tenant s responsibility to pick it up. The tenant s claim to the security deposit takes priority over any creditor. PC ,.107

148 Security Deposits: Residential Tenancies Keeping some or all of the security deposit: Before returning a security deposit, the landlord may deduct money for damages and charges the tenant is liable for under the lease or as a result of breaching the lease. A landlord cannot keep any money to cover normal wear and tear. PC Security Deposits: Residential Tenancies Keeping some or all of the security deposit: If the landlord keeps some or all of the security deposit, the landlord must give a written description and itemized list of all deductions to the tenant. EXCEPT: A description and itemized deductions list does not have to be given to the tenant if: The tenant owes rent when he/she moved out, & There is no controversy over the amount of rent owed. PC

149 Security Deposits: Residential Tenancies Security deposit in lieu of last month s rent: A tenant can t refuse to pay some or all of their last month s rent on the grounds that the security deposit can be used to cover the unpaid rent amount. A tenant who does this acts in bad faith. If the landlord sues, the tenant can be liable to the landlord for 3 times the amount of rent owed and the landlord s attorney s fees. PC Security Deposits: Residential Tenancies Bad faith retention of the security deposit: A landlord who fails to return a security deposit or provide an itemized list of deductions within 30 days is presumed to have acted in bad faith. Proving that retention of any part of the security deposit was reasonable is up to the landlord. If a landlord withholds a security deposit in bad faith, the tenant may file a small claims lawsuit for: 3 times the amount of the deposit + $100 & Attorney s fees PC

150 Security Deposits: Residential Tenancies Bad faith retention of the security deposit: A landlord who, in bad faith, doesn t provide an itemized list of deductions: Forfeits the right to withhold any portion of the deposit, Forfeits the right to bring suit for damages to the premises, and Is liable for the tenant s attorney s fees. PC Security Deposits: Commercial Tenancies The landlord s and tenant s rights and obligations concerning a security deposit for a commercial lease are similar to those for a residential lease. The difference: the landlord has 60 days, rather than 30 days, to return the tenant s security deposit after the tenant moves out. PC , Ch. 93

151 Security Deposits: More Info Evictions Deskbook Chapter 11 Residential: PC Commercial: PC Early Lease Termination by Tenant An active duty servicemember with written notice IF enters military service, is permanently relocated, or is deployed for more than 90 days and provides a copy of the orders. Termination is effective 30 days after the next rent payment due date. For more info, see Evictions Deskbook Ch. 7(E). A victim of family violence with 30 days written notice IF provides a copy of a temporary injunction, temporary ex parte order, or protective order signed by a judge. For more info, see Evictions Deskbook Ch. 15(C).

152 Early Lease Termination by Tenant A victim or a parent/guardian of a victim of sexual assault, aggravated sexual assault, indecency with a child, sexual performance by a child, continuous sexual abuse of a child, or an attempt at any of the preceding offenses with 30 days written notice IF the offense takes place during the preceding 6 months at the residence and the tenant provides documentation of the assault or a copy of a protective order signed by a judge. For more info, see Evictions Deskbook Ch. 15(C). Additional Topics not Covered in this Presentation See Evictions Deskbook, especially Chapters See Property Code Chapters 92 & 93

153 A residential tenant has not paid rent for 3 months. The landlord has now asked the court for a distress warrant so they can take possession of the tenant s property as security for the rent that is owed. Should the court issue the distress warrant? A. Yes. B. No. Tenant gets his security deposit back but it s for $500 less than the amount he paid. The landlord includes a note that says Here s your deposit. I kept some money to re paint the walls because they haven t been painted since you moved in. Did the landlord follow the proper procedure to be able to keep some of the tenant s security deposit? A. Yes He told him why he was keeping the money B. Yes Normal wear and tear is something a landlord can deduct money for C. No The note does not count as an itemized deduction D. No Normal wear and tear is not something a landlord can deduct money for E. No The note does not count as an itemized deduction and normal wear and tear is not something a landlord can deduct money for

154 A victim of family violence may terminate their lease immediately with written notice if they provide their landlord with a copy of a protective order signed by a judge. A. True B. False Use Your Deskbook! A residential tenant has filed a case alleging the landlord retained her security deposit in bad faith. The deposit was $4,000. Tenant is asking for $12,100 in damages plus attorney s fees. Does the justice court have jurisdiction to hear the case?

155 Roleplay! What would you do? (You might still wanna refer to your deskbook) Amber Myers is a landlord and has filed a small claims suit against her former tenant. The tenant filed an answer, but did not show for trial. Amber is now in front of the judge at the trial and has already been sworn in. Judge: I see the defendant filed an answer but has not appeared today. Mrs. Myers, you may go ahead and present your evidence. Mrs. Myers: My tenant s lease was ending so instead of paying rent the last month, he said I should just use his security deposit. But the rent was $1,000 and the security deposit was only $300. I have here with me evidence of the missed payment, a copy of the lease, and the receipt for the security deposit. I m asking for a judgment against the defendant for $4,000. [Plaintiff gives documentary evidence to judge]. Judge:

156 QUESTIONS?

157 Evictions Deskbook Excerpts CHAPTER 9: WRITS OF RETRIEVAL, RE-ENTRY, AND RESTORATION A. Writ of Retrieval What is a Writ of Retrieval? What Must an Application Show? What Items May be Retrieved? Bond Required Unless Waived by Judge When may the Judge Issue the Writ of Retrieval? How is the Writ Executed? Hearing Requested by Occupant Fees Forms B. Writ of Re-Entry What is a Writ of Re-Entry? Landlord s Lockout Rights for a Residential/Manufactured Home Tenant Landlord s Lockout Rights for a Commercial Tenant Writ of Re-Entry Procedures Landlord s Failure to Comply with Writ of Re-entry Bad Faith Filing of Sworn Complaint for Re-entry Writ of Re-Entry Flow Chart Forms C. Writ of Restoration What is a Writ of Restoration? Interruption of Utility Service Writ of Restoration Landlord s Failure to Comply with Writ of Restoration Bad Faith Filing of Sworn Complaint for Writ of Restoration Writ of Restoration Flow Chart Forms CHAPTER 10: REPAIR AND REMEDY CASES A. Landlord s Duty to Repair or Remedy Conditions of the Premises B. Modification or Waiver of Landlord s Duty to Repair or Remedy C. Landlord s Liability for Failure to Repair or Remedy Conditions D. Tenant s Remedies against Landlord Lease Termination Tenant s Repair and Deduct Remedies Repair and Remedy Suit under Rule E. Repair and Deduct Remedies in Manufactured Home Tenancies F. Forms CHAPTER 11: SECURITY DEPOSITS A. Residential and Manufactured Home Leases B. Commercial Leases

158 CHAPTER 9: WRITS OF RETRIEVAL, RE-ENTRY, AND RESTORATION A. Writ of Retrieval 1. What is a Writ of Retrieval? A writ of retrieval is an order from a justice court authorizing a person to enter their residence or former residence, accompanied by a peace officer, to retrieve specific items of personal property when the current occupant is denying the person entry. Property Code 24A.002(a). 2. What Must an Application Show? An application for a writ of retrieval must: a. Certify that the applicant is unable to enter the residence because the current occupant of the residence has either denied the applicant access to the residence or poses a clear and present danger of family violence to the applicant or the applicant s dependent; b. Certify that the applicant is not the subject of a protective order under the Family Code, an Emergency Protective Order, or another court order prohibiting entry to the residence, or otherwise prohibited by law from entering the residence; c. Allege that the applicant or the applicant s dependent requires personal items located in the residence that are only of the type listed below in Section 3; d. Describe the items to be retrieved with specificity; and e. Allege that the applicant or the applicant s dependent will suffer personal harm if the items are not retrieved promptly. COMMON PITFALL Include a lease or other documentary evidence that shows the applicant is currently or was formerly authorized to occupy the residence. Property Code 24A.002(b). 3. What Items May be Retrieved? A writ of retrieval may only be used to retrieve certain specific items of personal property listed in the Property Code. The items must fall into one of the following categories: a. Medical records. b. Medicine and medical supplies. c. Clothing. d. Child-care items. e. Legal or financial documents. f. Checks or bank or credit cards in the name of the applicant. g. Employment records. 65

159 h. Personal identification documents. i. Copies of electronic records containing legal or financial documents. Property Code 24A.002(b)(3). If the property that the applicant wishes to retrieve does not fall within one of these categories, the person may be able to obtain it by filing a small claims case for the recovery of personal property, but not by filing an application for a writ of retrieval. Rule Bond Required Unless Waived by Judge Before a judge may issue a writ of retrieval, the applicant must execute a bond: in an amount required by the judge; payable to the occupant of the residence; with two or more good and sufficient non-corporate sureties or one corporate surety authorized to issue bonds in Texas; and conditioned on the applicant paying all damages and costs ordered against the applicant for wrongful property retrieval. Property Code 24A.002(c). The applicant must deliver the bond to the judge issuing the writ for the judge s approval and the bond must be filed with the justice court. Property Code 24A.002(d). The judge may waive the bond requirement when issuing an ex parte writ of retrieval. Property Code 24A.0021(b). Issuance of an ex parte writ of retrieval is discussed below in Section 5.b. 5. When may the Judge Issue the Writ of Retrieval? Ordinarily, a writ of retrieval may be issued only after notice and an opportunity for a hearing is provided to the occupant. However, in some circumstances a judge may issue an ex parte writ of retrieval without providing notice and a hearing to the occupant. Each situation is discussed below. a. Following Notice to the Occupant and an Opportunity for a Hearing If there is sufficient evidence of urgency and potential harm to the health and safety of any person, and after sufficient notice to the current occupant and an opportunity to be heard, a judge may issue a writ of retrieval authorizing the applicant to enter the residence accompanied by a peace officer and retrieve the property listed in the application if the judge finds that: 1. The applicant is unable to enter the residence because the current occupant of the residence has denied the applicant access to the residence to retrieve the personal property of the applicant or the applicant s dependent; 66

160 2. The applicant is not the subject of a protective order under the Family Code, an Emergency Protective Order, or another court order prohibiting entry to the residence; 3. There is a risk of harm to the applicant or the applicant s dependent if the items listed in the application are not retrieved promptly; 4. The applicant is currently or was formerly authorized to occupy the residence according to a lease or other documentary evidence; and 5. The current occupant received notice of the application and was provided an opportunity to appear before the court to contest the application. Property Code 24A.002(e). The statute does not say how much notice to the occupant is sufficient; this is up to the judge taking into account the applicant s urgent need for the items to be retrieved. The judge may allow the occupant to be heard by telephone in order to expedite the process. The statute also does not say how notice should be delivered, but it should be done in a way that is most likely to make sure that the person does get notice, while also moving the case forward quickly. b. Temporary ex Parte Writ of Retrieval A judge may issue a writ of retrieval without providing notice and a hearing to the occupant if the judge finds at a hearing on the application that: 1. The conditions listed in Paragraphs (1) (4) in Section 5.a. above are met; 2. The current occupant poses a clear and present danger of family violence to the applicant or the applicant s dependent; and 3. The personal harm to be suffered by the applicant or the applicant s dependent will be immediate and irreparable if the application is not granted. Property Code 24A.0021(a). A temporary ex parte writ of retrieval must state the period during which it is valid, which may not be more than five days. Property Code 24A.0021(d). As noted above, the judge may waive the bond requirement when issuing a temporary ex parte writ of retrieval. Property Code 24A.0021(b). Before issuing a temporary ex parte writ of retrieval, the judge may recess the hearing on the application and notify the current occupant by telephone that the current occupant may attend the hearing or bring to the court the personal property listed in the application. The judge must reconvene the hearing before 5:00 p.m. that day regardless of whether or not the current occupant attends the hearing or brings the personal property to the court. Property Code 24A.0021(c). 67

161 6. How is the Writ Executed? If a writ of retrieval is granted, a peace officer must accompany and assist the applicant in making the authorized entry and retrieving the personal property listed in the application. Property Code 24A.003(a). If the current occupant is present at the time of the entry, the peace officer must provide the occupant with a copy of the writ authorizing the entry and retrieval. Property Code 24A.003(b). Before removing the property from the residence, the applicant must give the property to the peace officer who must create an inventory listing the items taken from the residence. The officer must give a copy of the inventory to the applicant and the occupant, if there, or leave a copy for the occupant in a conspicuous place in the residence if the occupant is not there. The officer must file the original inventory with the court. Property Code 24A.003(c). A person commits an offense (a Class B misdemeanor) if the person interferes with a person or a peace officer entering a residence and retrieving personal property under the authority of a writ of retrieval. It is a defense to prosecution if the person did not receive a copy of the writ or other notice that the entry and retrieval was authorized. Property Code 24A.005. A landlord who permits or facilitates entry into a residence under a writ of retrieval is not civilly or criminally liable for an act or omission that arises in connection with permitting or facilitating the entry. Property Code 24A Hearing Requested by Occupant The occupant may file a complaint, not later than the 10 th day after the date of the authorized entry, in the court that issued the writ alleging that the applicant took property belonging to the occupant or the occupant s dependent. The court must promptly hold a hearing on the complaint and rule on the disposition of the disputed property. Property Code 24A Fees An applicant requesting a writ of retrieval must pay the standard filing fee in a civil case ($46 in most counties). Many counties have also set a fee for execution of a writ of retrieval under Local Government Code (ranging from $85 to $200). An applicant who cannot afford the fees may file a Statement of Inability to Afford Payment of Court Costs. 68

162 9. Forms Numerous forms relating to writs of retrieval may be found on the TJCTC website by clicking on the Evictions and Landlord-Tenant button at the following link: B. Writ of Re-Entry 1. What is a Writ of Re-Entry? A writ of re-entry is an ex parte order requiring a landlord to let a tenant back into the premises after the landlord has locked the tenant out in violation of Section of the Property Code (for a residential tenant) or Section of the Property Code (for a commercial tenant). If the tenant has a manufactured home tenancy under Ch. 94 of the Property Code, the same rights and procedures will apply as for a residential tenant. This is because the provisions in Ch. 92 apply to relationships between landlords and tenants of residential rental property, and a lot in a manufactured home community could be considered residential rental property. Property Code A landlord may exercise lockout rights and also pursue an eviction case at the same time. The rights of a landlord or a tenant in an eviction suit are not affected by the writ of reentry procedures. Property Code (m), (m), (l). 2. Landlord s Lockout Rights for a Residential/Manufactured Home Tenant When May Lockout: A landlord has a right to lock out a residential tenant in certain situations but this right is quite limited and subject to important statutory protections for the tenant. This is in contrast to a landlord s right to lock out a commercial tenant, which is much more extensive and discussed in the Section 3 below. 69

163 A landlord may not intentionally prevent a residential tenant from entering the leased premises except by judicial process unless the exclusion results from: bona fide repairs, construction, or an emergency; removing the contents of premises abandoned by a tenant (see page ); or changing the door locks on the door to the tenant s individual unit of a tenant who is delinquent in paying at least part of the rent. Property Code (b). Procedures for Lockout for Delinquent Rent: A landlord may not change the door locks, or otherwise intentionally prevent a tenant from entering the leased premises based on delinquent rent UNLESS: the landlord s right to change the locks because of the tenant s failure to timely pay rent is placed in the lease; the tenant is delinquent in paying all or part of the rent; and the landlord has mailed (at least 5 days before locks changed) or hand-delivered or posted on the inside of the tenant s main entry door (at least 3 days before locks are changed) a written notice stating: o o o o the earliest date the landlord proposes to change the door locks; Property Code (d). the amount of rent the tenant must pay to prevent changing of the door locks; the name and street address of the individual to whom, or the location of the on-site management office at which, the delinquent rent may be discussed or paid during the landlord s normal business hours; and in underlined or bold print, the tenant s right to receive a key to the new lock at any hour, regardless of whether the tenant pays the delinquent rent. REMOVAL OF FIXTURES A landlord (of either a commercial or a residential tenant) also may not remove a door, window, or attic hatchway cover or a lock, latch, hinge, hinge pin, doorknob, or other mechanism connected to a door, window, or attic hatchway cover from premises leased to a tenant or remove furniture, fixtures, or appliances furnished by the landlord from premises leased to a tenant unless the landlord removes the item for a bona fide repair or replacement. Property Code (a), (b). A landlord also may not change the locks if the tenant is delinquent in paying the rent: when the tenant or any other legal occupant is in the dwelling; more than once during a rental payment period; or on a day, or on a day immediately before a day, on which the landlord or other designated individual is not available, or any on-site management office is not open, for the tenant to pay the delinquent rent. Property Code (e), (k). 70

164 A landlord who changes the locks of a tenant may not prevent the tenant from entering a common area of residential rental property (like a gym, pool area, etc.). Property Code (e-1). COMMON PITFALL Notice and Procedures for Tenant to Get the New Key: A landlord who changes the door locks of a tenant must provide the tenant with a key to the changed lock on the dwelling whether or not the tenant pays the delinquent rent. Property Code (f). If a landlord changes the door lock of a residential tenant who is delinquent in paying rent, the landlord must place a written notice on the tenant s front door stating: an on-site location where the tenant may go 24 hours a day to obtain the new key or a telephone number that is answered 24 hours a day that the tenant may call to have a key delivered within two hours after calling the number; the fact that the landlord must provide the new key to the tenant at any hour, regardless of whether or not the tenant pays any of the delinquent rent; and the amount of rent and other charges for which the tenant is delinquent. Property Code (c). If a landlord comes to a tenant s dwelling in a timely manner in response to a tenant s call and the tenant is not present to receive the key to the changed lock, the landlord must leave a notice on the front door of the dwelling stating the time the landlord arrived with the key and the street address to which the tenant may go to obtain the key during the landlord s normal office hours. Property Code (g). Remedies (Other than the Writ of Re-entry) if Lock Out Procedures Are Not Followed: If a landlord violates this statute, the tenant may: either recover possession of the premises or terminate the lease; and recover from the landlord a civil penalty of one month s rent plus $1,000, actual damages, court costs and reasonable attorney s fees in an action to recover property damages, and/or actual expenses, or civil penalties, less any delinquent rent or other sums for which the tenant is liable to the landlord. Property Code (h). In addition to these remedies, if the landlord does not provide the tenant with a key after changing the door locks even if the tenant does not pay the delinquent rent the tenant may recover an additional civil penalty of one month s rent. Property Code (i). COMMON PITFALL No Waiver of Rights/Remedies: These rights and remedies may not be waived for a residential tenant (unlike for a commercial tenant). Section (j) provides: A provision of a lease that purports to waive a right or exempt 71

165 a party from a liability or duty under this section is void. This means that a tenant cannot agree in a lease to waive any of the rights or remedies. Any agreement of this nature is not valid. 3. Landlord s Lockout Rights for a Commercial Tenant When Landlord May Lock Out: A landlord may not intentionally prevent a commercial tenant from entering the leased premises except by judicial process unless the exclusion results from: bona fide repairs, construction, or an emergency; removing the contents of premises abandoned by a tenant (see page ); or changing the door locks of a tenant who is delinquent in paying at least part of the rent. Property Code (c). Procedures for Lockout for Delinquent Rent: But the rights of a commercial tenant who has been locked out because he is delinquent in paying rent are far less extensive than the rights of a residential tenant. If a landlord locks out a commercial tenant who is delinquent in paying rent, the landlord must place a written notice on the tenant's front door stating the name and the address or telephone number of the individual or company from which a new key may be obtained. KEY POINT But the new key is required to be provided only during the tenant's regular business hours and only if the tenant pays the delinquent rent. Property Code (f). As discussed above, this is not the case with a residential tenant who is entitled to a new key even if he remains delinquent in paying the rent. See page 71. Remedies (Other than the Writ of Re-entry) if Lock Out Procedures Not Followed: If a landlord violates this statute, the tenant may: either recover possession of the premises or terminate the lease; and recover from the landlord an amount equal to the tenant's actual damages, one month's rent or $500, whichever is greater, reasonable attorney's fees, and court costs, less any delinquent rents or other sums for which the tenant is liable to the landlord. Property Code (g). COMMON PITFALL May Waive Rights/Remedies: Unlike a residential tenant, a commercial tenant may waive their rights and remedies for a wrongful lockout by agreeing to something different in the lease. Section (h) provides: A lease supersedes this section to the extent of any conflict. 72

166 4. Writ of Re-Entry Procedures KEY POINT If a landlord has locked out a residential tenant in violation of Section , or a commercial tenant (who has not waived their rights or remedies for unlawful lockouts) in violation of Section , the tenant may recover possession of the premises through the issuance of an ex parte writ of reentry. Property Code ; (a). The procedures for issuance of and a hearing on a writ of re-entry are exactly the same for a commercial tenant and a residential tenant. The procedures are also identical to those for issuance of a writ of restoration for a residential tenant. Sworn Statement and Testimony: The tenant must file a sworn complaint for re-entry with the justice court in the precinct in which the rental premises are located, stating the facts of the alleged unlawful lockout. The tenant must also state orally under oath to the judge the facts of the alleged unlawful lockout. Property Code (b); (b). Issuing Ex Parte Writ: If the judge reasonably believes an unlawful lockout has occurred, the judge may issue ex parte a writ of re-entry that entitles the tenant to immediate and temporary possession of the premises, pending a final hearing on the tenant's sworn complaint for re-entry. Property Code (c); (c). The writ of re-entry must be served on the landlord or the landlord's management company, on-premises manager or rent collector in the same manner as a writ of possession in an eviction suit. A sheriff or constable may use reasonable force in executing a writ of re-entry. Property Code (d); (c). If the judge denies the ex parte writ, the decision is final. There is no method for appealing this decision. Hearing: The landlord is entitled to a hearing on the tenant's sworn complaint for re-entry. The writ of re-entry must notify the landlord of the right to a hearing. The hearing must be held not earlier than the first day and not later than the seventh day after the date the landlord requests a hearing. Property Code (e); (e). If the landlord fails to request a hearing before the eighth day after service of the writ of re-entry on the landlord, a judgment for court costs may be rendered against the landlord. Property Code (f); (f). A party may appeal from the court's judgment at the hearing on the sworn complaint for re-entry in the same manner as in an eviction suit. Property Code (g); (g). 73

167 COMMON PITFALL If Writ of Possession Issued in Meantime: If a writ of possession is issued, it supersedes the writ of re-entry. Property Code (h); (h). This means that the tenant will not be allowed back in to the premises, and the landlord now has possession of the premises as a result of the writ of possession. 5. Landlord s Failure to Comply with Writ of Re-entry Grounds for Contempt: If the landlord or the person on whom a writ of re-entry is served fails to immediately comply with the writ or later disobeys the writ, it is grounds for contempt of court under Government Code Property Code (i); (i). Affidavit and Hearing: If the writ is disobeyed, the tenant may file an affidavit stating the name of the person who has disobeyed the writ and describing the acts or omissions that show how they disobeyed. On receipt of the affidavit, the judge must issue a show cause order directing the person to appear on a designated date and show cause why he should not be held in contempt of court. Property Code (i); (i). If Disobeyed at First, but Started Complying Before Hearing: If the judge finds that the person has directly or indirectly disobeyed the writ, but complied with the writ after receiving the show cause order, the judge may find the person in contempt and assess punishment under Government Code (c) (fine of up to $100 and/or up to three days in jail). Property Code (i); (i). If Still Disobeying the Writ: If the judge finds that the person has directly or indirectly disobeyed the writ (and is still not complying), the judge may commit the person to jail without bail until the person complies with the writ or otherwise purges himself of the contempt in a manner and form as the justice may direct. Property Code (i); (i). So basically, the person can stay in jail until they do as ordered. Fees: The fee for filing a sworn complaint for re-entry is the same as for filing a civil action in justice court. The fee for service of a writ of re-entry is the same as for service of a writ of possession. The fee for service of a show cause order is the same as for service of a civil citation. Property Code (l). 74

168 The judge may defer payment of the tenant's filing fees and service costs for the sworn complaint for re-entry and writ of re-entry (to be determined and taxed against the appropriate party later), but court costs may be waived only if the tenant files a Statement of Inability to Afford Payment of Court Costs. Property Code (l); (l). Pursuing Other Remedies: These procedures do not affect a tenant's right to pursue a separate cause of action under Property Code (residential) or (commercial), which entitles the tenant to recover damages and civil penalties, reasonable attorney s fees and court costs. Property Code (j); (j). 6. Bad Faith Filing of Sworn Complaint for Re-entry If a tenant files a sworn complaint for re-entry in bad faith resulting in a writ of re-entry being served on the landlord, the landlord may recover from the tenant in a separate cause of action: actual damages; one month's rent or $500, whichever is greater; reasonable attorney's fees and court costs; less any sums for which the landlord is liable to the tenant. Property Code (k); (k). 75

169 7. Writ of Re-Entry Flow Chart Here is a flowchart for a writ of re-entry: START HERE Tenant files a sworn complaint with a justice court alleging that an unlawful lockout has occurred. Civil filing fees must be paid or a sworn statement of inability to pay costs must be filed, unless the JP allows the tenant to defer the costs. Does the landlord allow the tenant to reenter the leased premises? N Y Justice of the Peace place tenant under oath. Tenant states the facts of the alleged unlawful lockout to the JP. The writ must be served on the landlord in the same manner as a writ of possession in an eviction suit. Service fees must be paid at this time unless the tenant has filed an SSIP or the JP allows the tenant to defer the costs. After considering the complaint and the tenant s statement, does the JP reasonably believe the landlord locked the tenant out of the leased premises in violation of Section , Property Code? Y The justice court may issue, ex parte, a writ of reentry. N A writ of reentry may not be issued. Notes 1. Writs of reentry are issued ex parte. Do not contact the landlord. 2. In this chart, landlord may refer to a landlord, a management company, an on-premises manager, or a rent collector. 3. TJCTC recommends reviewing Section carefully before issuing a writ of reentry. 4. Do not award damages to the tenant. The tenant may file a separate action against the landlord to recover damages. 5. If a hearing on the tenant s complaint and a contempt hearing are both necessary, the hearings may be held on the same day. 6. Do not award damages to the landlord. The tenant may file a separate action against the tenant to recover damages. Has a writ of possession been issued? Y The writ of possession supersedes the writ of reentry. Did the landlord request a hearing on the tenant s sworn complaint within 8 days after the writ was served? N Y The justice court must hold a hearing not earlier than the first day and not later than the 7 th day after the landlord s request. The justice court may render a judgment for court costs and attorney s fees against the landlord. N Writ of Reentry Flowchart Created by the Texas Justice Court Training Center 2015 TJCTC Did the tenant file an affidavit describing the disobedient acts and the person who committed those acts? N The court may not hold the landlord in contempt. The landlord may be committed to jail, without bail, until the contempt is purged. Does the justice court find that the writ was properly issued? Y N The justice court shall dissolve the writ, and may render a judgment for court costs (if the JP allowed the tenant to defer the costs) and attorney s fees against the tenant. Y N N The justice court shall issue a show-cause order directing the landlord to appear and show cause for disobedience. Service fees are owed unless and SSIP has been filed or the JP allows the tenant to defer the costs. Does the court find that the landlord disobeyed the writ? Y Did the landlord comply with the writ after receiving the justice court s showcause order? Y The justice of the peace may assess a fine of up to $100 and/or order the defendant to be confined in jail for up to 3 days. The justice court s judgment may be appealed. Rule of the Texas Rules of Civil Procedure governs the appeal process. 8. Forms Forms relating to writs of re-entry may be found on the TJCTC website by clicking on the Evictions and Landlord-Tenant button at the following link: 76

170 C. Writ of Restoration 1. What is a Writ of Restoration? A writ of restoration is an ex parte writ ordering a landlord who has interrupted (shut off) utility service to a residential tenant in violation of Section of the Property Code to restore the utility service. A writ of restoration is NOT available in commercial tenancies. COMMON PITFALL If the tenant has a manufactured home tenancy under Ch. 94 of the Property Code, the same rights and procedures will apply as for a residential tenant. This is because the provisions in Ch. 92 apply to relationships between landlords and tenants of residential rental property, and a lot in a manufactured home community could be considered residential rental property. Property Code Interruption of Utility Service When May Landlord Shut Off Utilities: A landlord (or his agent) may not interrupt (shut off) or cause the interruption of utility service paid for directly to the utility company by a residential tenant unless the interruption results from: bona fide repairs, construction, or an emergency. Property Code (a). A landlord also may not interrupt or cause the interruption of water, wastewater, gas, or electric service furnished to a residential tenant by the landlord as an incident of the tenancy or by other agreement unless the interruption results from: bona fide repairs, construction, or an emergency. Property Code (b). COMMERCIAL TENANT A landlord of a commercial tenant also may not interrupt or cause the interruption of utility service paid for directly to the utility company by a tenant unless the interruption results from bona fide repairs, construction, or an emergency. Property Code (a). However, there is no writ of restoration procedure for a commercial tenant as there is for a residential tenant. 77

171 Remedies (Other than the Writ of Restoration): If a landlord (or his agent) violates this statute, the tenant may: Either recover possession of the premises or terminate the lease; and Recover from the landlord: o the tenant s actual damages; o one month s rent or $500, whichever is greater; o reasonable attorney s fees and court costs; o less any delinquent rents or other sums for which the tenant is liable to the landlord. Property Code (f). COMMON PITFALL No Waiver of Rights or Remedies: These rights and remedies may not be waived by a residential tenant. A provision of a lease that purports to waive a right or exempt a party from a liability or duty under this section is void. Property Code (g). This means that a tenant cannot agree in a lease to waive any of the rights or remedies. Any agreement of this nature is not valid. 3. Writ of Restoration KEY POINT If a landlord has shut off utility service in violation of Section , a residential tenant may obtain relief through the issuance of an ex parte writ of restoration. Property Code (a). The procedures for issuance of a writ of restoration are identical to those for issuance of a writ of reentry. Sworn Statement and Testimony: To obtain the writ the tenant must file a sworn complaint with the justice court in the precinct in which the rental premises are located, specifying the facts of the alleged unlawful utility disconnection by the landlord (or his agent). The tenant must also state orally under oath to the judge the facts of the alleged unlawful utility disconnection. Property Code (b). Issuing Ex Parte Writ: If the judge reasonably believes an unlawful utility disconnection has occurred, the judge may issue ex parte a writ of restoration of utility service that entitles the tenant to immediate and temporary restoration of the disconnected utility service pending a final hearing on the tenant's sworn complaint Property Code (c). The writ of restoration must be served on the landlord or the landlord's management company, onpremises manager or rent collector in the same manner as a writ of possession in a forcible detainer action. Property Code (d). 78

172 If the judge denies the ex parte writ, the decision is final. There is no method for appealing this decision. Hearing: The landlord is entitled to a hearing on the tenant's sworn complaint for restoration of utility service. The writ of restoration must notify the landlord of the right to a hearing. The hearing must be held not earlier than the first day and not later than the seventh day after the date the landlord requests a hearing. Property Code (e). If the landlord fails to request a hearing on the tenant's sworn complaint for restoration of utility service before the eighth day after service of the writ of restoration on the landlord, a judgment for court costs may be rendered against the landlord. Property Code (f). A party may appeal from the court's judgment at the hearing on the sworn complaint for restoration of utility service in the same manner as in a forcible detainer suit. Property Code (g). If Writ of Possession Issued in Mean Time: If a writ of possession is issued, it supersedes the writ of restoration. Property Code (h). This means that the landlord does not have to turn any utilities back on, and now has possession of the premises as a result of the writ of possession. 4. Landlord s Failure to Comply with Writ of Restoration Grounds for Contempt: If the landlord or the person on whom a writ of restoration is served fails to immediately comply with the writ or later disobeys the writ, it is grounds for contempt of court under Government Code Property Code (i). Affidavit and Hearing: If the writ is disobeyed, the tenant may file an affidavit stating the name of the person who has disobeyed the writ and describing the acts or omissions that show how they disobeyed. On receipt of the affidavit, the judge must issue a show cause order directing the person to appear on a designated date and show cause why he should not be held in contempt of court. Property Code (i). If Disobeyed at First, but Started Complying Before Hearing: If the judge finds that the person has directly or indirectly disobeyed the writ, but complied with the writ after receiving the show cause order, the judge may find the person in contempt and assess punishment under Government Code (c) (fine of up to $100 and/or up to three days in jail). Property Code (i). 79

173 If Still Disobeying the Writ: If the judge finds that the person has directly or indirectly disobeyed the writ (and is still not complying), the judge may commit the person to jail without bail until the person complies with the writ or otherwise purges himself of the contempt in a manner and form as the justice may direct. Property Code (i). So basically, the person can stay in jail until they do as ordered. Fees: The fee for filing a sworn complaint for restoration is the same as for filing a civil action in justice court. The fee for service of a writ of restoration is the same as for service of a writ of possession. The fee for service of a show cause order is the same as for service of a civil citation. Property Code (k). The judge may defer payment of the tenant's filing fees and service costs for the sworn complaint for re-entry and writ of re-entry (to be determined and taxed against the appropriate party later), but court costs may be waived only if the tenant files a Statement of Inability to Afford Payment of Court Costs. Property Code (k). 5. Bad Faith Filing of Sworn Complaint for Writ of Restoration If a tenant files a sworn complaint for restoration in bad faith resulting in a writ of restoration being served on the landlord, the landlord may recover from the tenant in a separate cause of action. actual damages; one month's rent or $500, whichever is greater; reasonable attorney's fees and court costs; less any sums for which the landlord is liable to the tenant. Property Code (j). 80

174 6. Writ of Restoration Flow Chart Here is a flow chart for a writ of restoration: START HERE Tenant files a sworn complaint with a justice court alleging that an unlawful utility disconnection has occurred. Civil filing fees must be paid or a sworn statement of inability to pay costs must be filed, unless the JP allows the tenant to defer the costs. Does the landlord reconnect utility service? N Y Justice of the Peace place tenant under oath. Tenant states the facts of the alleged unlawful utility disconnection to the JP. The writ must be served on the landlord in the same manner as a writ of possession in an eviction suit. Service fees must be paid at this time unless the tenant has filed an SSIP or the JP allows the tenant to defer the costs. After considering the complaint and the tenant s statement, does the JP reasonably believe the landlord interrupted utility service in violation of Section , Property Code? Y The justice court may issue, ex parte, a writ of restoration of utility service. N A writ of restoration of utility service may not be issued. Notes 7. Writs of restoration are issued ex parte. Do not contact the landlord. 8. In this chart, landlord may refer to a landlord, a management company, an on-premises manager, or a rent collector. 9. TJCTC recommends reviewing Section carefully before issuing a writ of restoration. 10.Do not award damages to the tenant. The tenant may file a separate action against the landlord to recover damages. 11.If a hearing on the tenant s complaint and a contempt hearing are both necessary, the hearings may be held on the same day. 12.Do not award damages to the landlord. The tenant may file a separate action against the tenant to recover damages. Has a writ of possession been issued? Y The writ of possession supersedes the writ of restoration. Did the landlord request a hearing on the tenant s sworn complaint within 8 days after the writ was served? N Y The justice court must hold a hearing not earlier than the first day and not later than the 7 th day after the landlord s request. The justice court may render a judgment for court costs and attorney s fees against the landlord. N Writ of Restoration Flowchart Created by the Texas Justice Court Training Center 2015 TJCTC Did the tenant file an affidavit describing the disobedient acts and the person who committed those acts? N The court may not hold the landlord in contempt. The landlord may be committed to jail, without bail, until the contempt is purged. Does the justice court find that the writ was properly issued? Y N The justice court shall dissolve the writ, and may render a judgment for court costs (if the JP allowed the tenant to defer the costs) and attorney s fees. Y N N The justice court shall issue a show-cause order directing the landlord to appear and show cause for disobedience. Service fees are owed unless and SSIP has been filed or the JP allows the tenant to defer the costs. Does the court find that the landlord disobeyed the writ? Y Did the landlord comply with the writ after receiving the justice court s showcause order? Y The justice of the peace may assess a fine of up to $100 and/or order the defendant to be confined in jail for up to 3 days. The justice court s judgment may be appealed. Rule of the Texas Rules of Civil Procedure governs the appeal process. 7. Forms Forms relating to writs of restoration may be found on the TJCTC website by clicking on the Evictions and Landlord-Tenant button at the following link: 81

175 CHAPTER 10: REPAIR AND REMEDY CASES Landlords have a duty under Subchapter B of Chapter 92 of the Property Code to repair or remedy certain conditions in residential rental property. If a landlord violates this duty, a tenant has certain non-judicial and judicial remedies, including repair and deduct remedies and filing a suit under Rule 509 of the Texas Rule of Civil Procedure to enforce the landlord s duty to repair and remedy a condition materially affecting the health or safety of an ordinary tenant. Rule Nearly identical duties and remedies exist for manufactured home communities under Subchapter D of Chapter 94 of the Property Code, with a couple of important differences. There are no equivalent duties or remedies for commercial tenancies. COMMON PITFALL A. Landlord s Duty to Repair or Remedy Conditions of the Premises KEY POINT Duty to Repair: A landlord must make a diligent effort to repair or remedy a condition that: materially affects the physical health or safety of an ordinary tenant; or arises from the landlord s failure to provide and maintain in good operating condition a device to supply hot water at a minimum temperature of 120 degrees IF: o the tenant specifies the condition in a notice to the person or place where rent is normally paid (must be in writing only if the lease is in writing and requires written notice; otherwise the tenant may give oral notice); and o the tenant is not delinquent in the payment of rent at the time of the notice. Property Code (a),(d). Unless the condition was caused by normal wear and tear, a landlord does not have a duty to repair or remedy a condition caused by: the tenant; a lawful occupant in the tenant s dwelling; a member of the tenant s family; or a guest or invitee of the tenant. Property Code (b). 82

176 A landlord also does not have to furnish: utilities from a utility company if the utility lines of the company are not reasonably available; or security guards. Property Code (c). If Premises are totally or Partially Unusable: If the premises are totally unusable for residential purposes after a casualty loss (like hurricane, fire, etc.) and the loss is not caused by the tenant or the tenant s family member, guest or invitee, then either the landlord or the tenant may terminate the lease by giving written notice to the other at any time before the repairs are completed. Property Code (b). If the premises are partially unusable after a casualty loss (like smoke, hail, etc.) and the loss is not caused by the tenant or the tenant s family member, guest or invitee, then the tenant is entitled to a proportionate reduction in rent (but only on a judgment of a county or district court). But a landlord and a tenant may agree otherwise in a written lease. Property Code (c). Closing of Rental Premises: A landlord has the option of closing rental premises at any time by giving written notice by certified mail, return receipt requested, to the tenant and the local health office and building inspector stating that he is terminating the tenancy and will no longer use the unit for residential purposes or will demolish it. Property Code (a). If a landlord chooses to do this, he may not allow re-occupancy or reconnection of utilities by separate meter within six months after the date the tenant moves out. Property Code (b)(2). If the landlord closes the rental unit after receiving a notice to repair, and the tenant moves out on or before the end of the rental term, the landlord must: pay the tenant s actual and reasonable moving expenses; refund a prorated portion of the tenant s rent from the date the tenant moves out; and if otherwise required, return the tenant s security deposit. Property Code (d). A landlord who fails to pay the amounts due to the tenant or who allows re-occupancy or utility reconnection sooner than six months, is liable to the tenant for an amount equal to the total of one month s rent plus $100 and attorney s fees. Property Code (e). 83

177 B. Modification or Waiver of Landlord s Duty to Repair or Remedy A landlord and tenant may mutually agree for the tenant to repair or remedy, at the landlord s expense, any condition of the dwelling, regardless of whether it materially affects the health or safety of an ordinary tenant. Property Code (g). A landlord and tenant may also agree for the tenant to repair, at the tenant s expense, any condition that materially affects the physical health or safety of an ordinary tenant but only IF all of the following conditions are met: At the beginning of the lease term the landlord owns only one rental dwelling; At the beginning of the lease term the dwelling is free from any condition which would materially affect the physical health or safety of an ordinary tenant; At the beginning of the lease term the landlord has no reason to believe that any condition materially affecting the physical health or safety of an ordinary tenant is likely to occur or recur during the tenant s lease term or during a renewal or extension; The lease is in writing; The agreement for repairs by the tenant is either underlined or printed in boldface in the lease or in a separate written addendum; The agreement is specific and clear; and The agreement is made knowingly, voluntarily and for consideration. Property Code (g), (e). A landlord and tenant may also agree that, except for conditions caused by the negligence of the landlord, the tenant has a duty to pay for repairs of the following conditions: Damage from wastewater stoppages caused by foreign or improper objects in lines that exclusively serve the tenant s dwelling; Damage to doors, windows or screens; and Damage from windows or doors left open. Property Code (f). Such an agreement must be in writing, underlined or printed in boldface, specific and clear, and made knowingly, voluntarily and for consideration. Property Code (f). And it cannot affect the landlord s duty to repair or remedy, at the landlord s expense, wastewater stoppages or backups caused by deterioration, breakage, roots, ground conditions, faulty construction, or malfunctioning equipment. Property Code (f). A landlord who knowingly violates Section by contracting orally or in writing with a tenant to waive the landlord s duty to repair under Subchapter B of Chapter 92 is liable to the tenant for: actual damages; 84

178 a civil penalty of one month s rent plus $2,000; and reasonable attorney s fees. Property Code (b). C. Landlord s Liability for Failure to Repair or Remedy Conditions KEY POINT Liability: A landlord is liable to a tenant for not repairing or remedying conditions of the premises (for which the landlord has a duty to repair) if: The condition was not an insured casualty loss; Except for normal wear and tear; the condition was not caused by the tenant (or a lawful occupant or tenant s family member, guest, or invitee); The tenant has given the landlord notice to repair or remedy the condition by giving the notice to the person or place where rent is normally paid; The condition materially affects the physical safety or health of an ordinary tenant; The tenant either sent the notice by certified mail, return receipt requested, or registered mail, or gave the landlord a second written notice after he had a reasonable time to repair and remedy the condition following the first notice; The landlord has had a reasonable time to repair or remedy the condition after receiving the tenant s notice; The landlord has not made a diligent effort to repair or remedy the condition after receiving the tenant s notice; and The tenant was not delinquent in the payment of rent at the time any required notice was given. Property Code Time for Repair: What is a reasonable time for a landlord to repair or remedy a condition? The Property Code states that there is a rebuttable presumption that seven days is a reasonable time. Property Code (d). This means that the default is seven days unless evidence is provided as to why it should be a different amount of time. Factors that must be considered are: the date on which the landlord received the tenant s notice, the severity and nature of the condition, and the reasonable availability of materials and labor and of utilities from a utility company. Property Code (d). A landlord is deemed to have received the notice when the landlord or the landlord s agent or employee has actually received the notice or when the U.S. Postal Service has attempted to deliver the notice to the landlord. Property Code (c). 85

179 If a condition results from an insured casualty loss, such as fire, smoke, hail or explosion, the period for repair does not begin until the landlord receives the insurance proceeds. Property Code (a). Burden of Proof COMMON PITFALL Tenant: If the tenant files a court case, the tenant generally has the burden of proof. This means that the tenant has to prove that the landlord failed to make a diligent effort to repair or remedy a condition (that he had a duty to repair) in a reasonable amount of time from receiving notice. Landlord: But the burden moves to the landlord and he has to prove that he DID make a diligent effort to repair in a reasonable time (or that a reasonable time for repair has not elapsed) IF: the landlord received a written demand from the tenant for an explanation for delay in performing a duty to repair or remedy a condition; and did not provide the written explanation for delay on or before the 5 th day after receiving the demand. Property Code Remedies: If a landlord is liable to the tenant for failing to repair or remedy conditions of the premises as provided in Section , then the tenant has certain specified remedies some of which are nonjudicial and some of which are judicial. These remedies are discussed below. D. Tenant s Remedies against Landlord A tenant to whom a landlord is liable for failure to repair or remedy a condition that materially affects the physical health or safety of an ordinary tenant under Property Code (b) has the following remedies: Terminate the lease; Have the condition repaired or remedied and deduct the cost of the repair from a subsequent rent payment according to Section (without the necessity of judicial action); and Obtain judicial remedies according to Section and Rule 509 of the Texas Rules of Civil Procedure. Property Code (e). A lease must contain language in underlined or bold print that informs the tenant of these remedies. Property Code (g). 86

180 1. Lease Termination A tenant who elects to terminate the lease: Is entitled to a prorated refund of rent from the date of termination or the date the tenant moves out, whichever is later. May deduct the tenant s security deposit from the tenant s rent without the necessity of a lawsuit or may obtain a refund of the security deposit. May NOT pursue the remedies under Section (a)(1) and (2) (an order directing the landlord to make repairs or remedy a condition or an order reducing rent due to the condition). Property Code (f)(1)-(3). 2. Tenant s Repair and Deduct Remedies a. General Procedures If the landlord is liable to the tenant under Section (b) for failing to repair or remedy a condition, the tenant may have the condition repaired or remedied and may deduct the cost from a subsequent rent payment if he follows certain procedures. How Much and How Often: The tenant s deduction may not exceed the amount of one month s rent under the lease or $500, whichever is greater. Property Code (a) and (b). Repairs and deductions may be made as often as necessary so long as the total repairs and deductions in any one month do not exceed one month s rent or $500, whichever is greater. Property Code (c). Conditions: The tenant may have repairs made under Section only if all of the following conditions have been met: The landlord has a duty to repair which has not been waived by the tenant in a written lease. (See Modification or Waiver of Landlord s Duty to Repair or Remedy section above); GOVERNMENT SUBSIDIZED RENT If the tenant s rent is subsidized by a government agency, the deduction limitation of one month s rent is based on the fair market rent for the dwelling and not the rent that the tenant pays. The fair market rent is to be determined by the governmental agency subsidizing the rent, or in the absence of such a determination, it is to be a reasonable amount of rent under the circumstances. Property Code (b). 87

181 The tenant has given notice to the landlord as provided in Section (b)(1), and if required, a second notice as provided in Section (b)(3), stating the tenant intends to repair or remedy the condition and containing a reasonable description of the repair or remedy to be done; and One of the following events has occurred: o The landlord has failed to remedy the backup or overflow of raw sewage or flooding from broken pipes or natural drainage inside the tenant s dwelling; o The landlord has agreed in the lease to provide potable water to the dwelling and water service has totally ceased; o The landlord has agreed in the lease to furnish heating or cooling equipment which is producing inadequate heat or cooled air and the landlord has been notified in writing by the local housing, building or health official (or other official having jurisdiction) that the lack of heat or cooling materially affects the health or safety of an ordinary tenant; or o The landlord has been notified in writing by the appropriate local housing, building or health official (or other official having jurisdiction) that the condition materially affects the health or safety of an ordinary tenant. Property Code (d). Timeline for Making Repairs: If the above conditions are met, then the tenant may have repairs made: Immediately following the tenant s notice of intent to repair if the condition involves sewage or flooding as referred to in Section (d)(3)(A); Three days after the tenant s notice of intent to repair if the condition involves cessation of potable water as referred to in Section (d)(3)(B) or inadequate heating or cooling as referred to in Section (d)(3)(C); Seven days after the tenant s notice of intent to repair if the condition involves something else and affects the physical health or safety of an ordinary tenant as referred to in Section (d)(3)(D). Property Code (e). COMMON PITFALL Limits on who may make the Repairs and What Repairs may be Made: Repairs must be made by a company, contractor or repairman listed in the yellow or business pages of the telephone directory or in the classified advertising section of a newspaper of the local city or county or an adjacent county at the time of the tenant s notice of intent to repair. Property Code (f). Unless the landlord and tenant agree otherwise in accordance with Section (g), repairs may not be made by the tenant, the tenant s immediate family, the tenant s employer or employees, or a company in which the tenant has an ownership interest. Property Code (f). 88

182 If a building contains two or more dwelling units, repairs may not be made to the foundation or loadbearing structural elements. Property Code (f). b. Landlord s Affidavit of Delay KEY POINT Requirements of Affidavit: A tenant must delay contracting for repairs on their own under Section if, before the tenant contracts for the repairs, the landlord delivers to the tenant an affidavit: Signed and sworn to under oath by the landlord or his authorized agent; Summarizing the reasons for the delay and the diligent efforts made by the landlord up to the date of the affidavit to get the repairs done; Stating facts that show that the landlord has made and is making diligent efforts to repair the conditions; and Contain dates, names, addresses and telephone numbers of contractors, suppliers, and repairmen contacted by the owner. Property Code (a) and (b). Length of Delay and Grounds for Affidavit: Such an affidavit may delay repairs by the tenant for: 15 days if the landlord s failure to repair is caused by a delay in obtaining necessary parts for which the landlord is not at fault; 30 days if the landlord s failure to repair is caused by a general shortage of labor or materials following a natural disaster such as a hurricane, tornado, flood, extended freeze or widespread windstorm. Property Code (c). Affidavits on any other grounds are unlawful and, if used, are of no effect. Property Code (d). A landlord may file subsequent affidavits provided that the total delay of the repair or remedy extends no longer than six months from the date the landlord delivers the first affidavit to the tenant. Property Code (d). Delivery of Affidavit: The affidavit must be delivered by personal delivery to the tenant, by certified mail, return receipt requested, to the tenant, or by leaving the affidavit inside the dwelling in a conspicuous place if notice in that manner is authorized in a written lease. Property Code (e). Good Faith Requirement: An affidavit must be submitted in good faith and after delivery of the affidavit the landlord must continue diligent efforts to repair or remedy the condition. There is a rebuttable presumption 89

183 (assumption that can be proven wrong) that the landlord acted in good faith and with continued diligence for the first affidavit; but for subsequent affidavits, the landlord has the duty of pleading and proving good faith and continued diligence. If the landlord violates his obligations with respect to an affidavit of delay, he is liable to the tenant for all judicial remedies under Section except that the civil penalty under Section (a)(3) is one month s rent plus $1,000 rather than one month s rent plus $500. Property Code (f). c. Landlord s Remedy for Tenant Violation of Repair and Deduct Remedy If a tenant withholds rent, causes repairs to be performed, or makes rent deductions for repairs in violation of Subchapter B of Chapter 92 of the Property Code, the landlord may recover actual damages from the tenant. Property Code If the landlord notifies the tenant in writing of the illegality of the tenant s withholding of rent or proposed repair and the penalties under Subchapter B, and the tenant proceeds to withhold rent or causes repairs to be performed or makes rent deductions for repairs in bad faith violation of Subchapter B, then the landlord may recover a civil penalty from the tenant of one month s rent plus $500. Property Code The landlord s notice must be in writing and may be delivered in person, by mail or by delivery to the premises. Property Code Repair and Remedy Suit under Rule 509 a. Available Judicial Remedies KEY POINT A tenant s judicial remedies against a landlord who is liable under Section include: An order directing the landlord to take reasonable action to repair or remedy the condition; An order reducing the tenant s rent from the date of the first repair notice until the condition is repaired or remedied in proportion to the reduced rental value resulting from the condition; A judgment against the landlord for a civil penalty of one month s rent plus $500; A judgment against the landlord for the amount of the tenant s actual damages; and Court costs and attorney s fees, excluding any attorney s fees for a cause of action for damages relating to a personal injury. Property Code (a). Justice courts have jurisdiction in actions to enforce tenant s judicial remedies, including ordering a landlord to take reasonable action to repair or remedy a condition that materially affects the physical health or safety of an ordinary tenant under Subchapter B of Chapter 92. Property Code (c). 90

184 A justice court may not award a judgment including an order of repair that exceeds $10,000, excluding interests and court costs. Property Code (e). b. Contents of the Petition A repair and remedy suit begins by the filing of a written petition with the court. The petition must include the following: The street address of the residential rental property; A statement indicating whether the tenant has received in writing the name and business address of the landlord and landlord s management company; To the extent known, the name, business street address, and telephone number of the landlord and the landlord s management company, on-premises manager and rent collector serving the residential rental property; Information concerning any notices the tenant gave to the landlord requesting that the condition be repaired or remedied, including the date of the notice, the name of the person to whom or place where it was given, whether the lease is in writing and requires written notice, whether the notice was in writing or oral, whether it was given by certified mail, return receipt requested, or registered mail, and whether the rent was current or had been timely tendered at the time notice was given; A description of the property condition materially affecting the health or safety of an ordinary tenant that the tenant seeks to have repaired or remedied; A statement of the relief requested by the tenant, including an order to repair or remedy a condition, a reduction in rent, actual damages, civil penalties, attorney s fees, and court costs; If the petition includes a request to reduce the rent, the amount of rent paid by the tenant, the amount of rent paid by the government, if known, the rental period and when the rent is due, and the amount of the requested rent reduction and when it should begin; A statement that the total relief requested does not exceed $10,000, excluding interest and court costs but including attorney s fees; and The tenant s name, address and telephone number. Rule 509.2(a). The tenant must provide the court with copies of the petition and any attachments for service on the landlord. Rule 509.2(b). A petition substantially in the form issued by the Supreme Court is sufficient. A suit may not be dismissed due to a defect in the petition unless the tenant is given an opportunity to correct the defect and does not promptly correct it. Rule 509.2(c). 91

185 A copy of the petition form issued by the Supreme Court is available on the TJCTC website. For more information, see page 98. c. Citation and Appearance Date KEY POINT After the petition is filed the judge must immediately issue a citation directed to the landlord and commanding him to appear before the judge not less than ten days nor more than 21 days after the petition is filed. Rule The appearance date is the trial date. The landlord may, but is not required to, file an answer before the appearance date. Rule d. Service of the Citation Service and Return: The citation may be served by a sheriff, constable or other person authorized by Rule 501.2, (a private process server or other person authorized by the court), by delivering it to the landlord at least six days before the appearance date. The citation must be issued, served, and returned in like manner as ordinary citations from a justice court. Rule 509.4(a). Alternative Service: First Alternative Method: If the petition does not include the landlord s name and business street address, or if the person serving the citation is unable to serve it successfully by delivering it to the landlord after making diligent efforts on at least two occasions, then the person serving the citation must serve it by delivering a copy of it, along with the petition and any attachments, to: The landlord s management company if the tenant has received written notice of the name and business street address of the landlord s management company; or The landlord s authorized agent for service of process, which may be the landlord s management company, on-premises manager or rent collector serving the residential property. Rule 509.4(b)(1). Second Alternative Method: If the person serving the citation is unable to serve it successfully by delivering it to the landlord s management company or authorized agent, after making diligent efforts on at least two occasions, then he must execute and file in the justice court a sworn statement: Stating that he made diligent efforts to serve the citation on at least two occasions at all available business street addresses of the landlord and on the landlord s management company, on premises manager and rent collector; and 92

186 Providing the times, dates and places of each attempted service. Rule 509.4(b)(2). The judge may then authorize the person to serve the citation by: Delivering a copy of the citation, petition and any attachments to someone over the age of 16 at any business street address listed in the petition, OR if no one answers the door at a business street address: o Placing the citation, petition and attachments through a door mail chute or under the front door; or o Affixing them to the front door or main entry to the business street address; Within 24 hours of delivery to the premises, mailing a copy of the citation, petition and attachments to the landlord at the landlord s business street address by first class mail; and Noting on the return of citation the date of delivery to the premises and the date of mailing. Rule 509.4(b)(2). The delivery and mailing to the business street address must occur at least six days before the appearance date. At least one day before the appearance date, a return of service must be filed with the court that issued the citation. It is not necessary for the tenant to request any of the alternative service methods authorized by Rule Rule 509.4(b)(2). e. Representation of Parties COMMON PITFALL Parties may represent themselves or be represented by an attorney. Unlike an eviction case, a party may not be represented by an authorized agent. Rule f. Trial A repair and remedy case must be docketed and tried as other cases. Rule 509.5(a). And the rules expressly provide that the judge may develop the facts of the case in order to ensure justice. Rule 509.5(a). If the tenant appears at trial and the landlord has been served and fails to appear at trial, the justice may proceed to hear the evidence. And if the tenant establishes that he is entitled to recover, the judge must render judgment against the landlord in accordance with the evidence. Rule 509.5(b). On the other hand, if the tenant fails to appear for trial, the judge may dismiss the suit. Rule 509.5(b). A party may file a motion for a continuance of the trial of a repair and remedy case under Rule 503.3(b) and the judge for good cause, may postpone the trial for a reasonable time. 93

187 g. Judgment Limit of Judgment: A judgment may be rendered against the landlord for failure to repair or remedy a condition at the residential rental property if the total judgment does not exceed $10,000 (excluding interest and court costs but including attorney s fees). Property Code (e); Rule 509.6(a). Attorney s Fees and Court Costs: A party who prevails in a repair and remedy suit may recover the party s court costs and reasonable attorney s fees as allowed by law. Rule 509.6(a). Contents of Judgment: The judgment must be in writing, signed and dated, and must include the names of the parties and the street address of the residential rental property where the condition is to be repaired or remedied. Rule 509.6(b)(1). The judgment may: 1. order the landlord to take reasonable action to repair or remedy the condition; 2. order a reduction in the tenant s rent, from the date of the first repair notice, in proportion to the reduced rental value resulting from the condition until the condition is repaired or remedied; 3. award a civil penalty of one month s rent plus $500; 4. award the tenant s actual damages; and 5. award court costs and attorney s fees, excluding any attorney s fees for a cause of action for damages relating to a personal injury. Rule 509.6(b)(2). KEY POINT If the judge orders the landlord to repair or remedy a condition, the judgment must include in reasonable detail: 1. the actions the landlord must take to repair or remedy the condition; and 2. the date when the repair or remedy must be completed. Rule 509.6(b)(3). If the justice orders a reduction in the tenant s rent, the judgment must state: 1. the amount of the rent the tenant must pay, if any; 2. the frequency with which the tenant must pay the rent; 3. the condition justifying the reduction of rent; 4. the effective date of the order reducing rent; 5. that the order reducing rent will terminate on the date the condition is repaired or remedied; and 94

188 6. that on the day the condition is repaired or remedied, the landlord must give the tenant written notice, served in accordance with Rule 501.4, that the condition justifying the reduction of rent has been repaired or remedied and the rent will revert to the rent amount specified in the lease. Rule 509.6(b)(4). Service of Judgment on Landlord: The judgment may be served on the landlord in open court or by any means provided in Rule at: An address listed in the citation: The address listed on any answer; or Such other address as the landlord provides to the court in writing. Unless the judge serves the landlord in open court or as provided in Rule 501.4, the sheriff, constable, or other authorized person who serves the landlord must promptly file a certificate of service in the justice court. Rule 509.6(c). Landlord Failure to Comply: If the landlord fails to comply with an order to repair or remedy a condition or reduce the tenant s rent, it is grounds for citing the landlord for contempt of court under Government Code Rule 509.6(d). h. No Counterclaims COMMON PITFALL Counterclaims and suits against third parties are not permitted in repair and remedy cases. A compulsory counterclaim may be brought in a separate suit and any potential causes of action, including a compulsory counterclaim, that are not asserted because of this rule are not precluded. Rule i. Appeal Deadline: Either party may appeal the decision of the justice court by filing a written notice of appeal with the justice court within 21 days after the date the judge signs the judgment. Rule 509.8(a). If the judgment is amended in any respect, any party has the right to appeal within 21 days after the date the judge signs the new judgment in the same manner as an appeal of an original judgment. Rule 509.8(a). COMMON PITFALL No Appeal Bond: An appeal bond is not required in a repair and remedy case. Rule 509.8(b). Instead, the appeal is considered perfected with the filing of a notice of appeal. Rule 509.8(b); Property Code (f). 95

189 Judgment May Not Be Enforced: The timely filing of a notice of appeal stays (stops) the enforcement of any order to repair or remedy a condition or reduce the tenant s rent, as well as any other actions. Rule 509.8(c). Filing Fee in County Court Must Be Paid To Maintain Perfected Appeal: The appellant must pay the costs on appeal to a county court in accordance with Rule 143a. Rule 509.8(d). This means that if they do not pay the county court filing fee, their appeal will be deemed not perfected and the justice court judgment will be valid again. See page 48 for more information. Trial de Novo: The appeal is by trial de novo. A trial de novo is a new trial in which the entire case is presented as if there had been no previous trial. An appeal of a judgment of a justice court takes precedence in the county court and may be held at any time after the eighth day after the date the transcript is filed in the county court. Rule 509.8(e); Property Code (f). j. Effect of Judgment for Possession in Eviction Case If the landlord is awarded a final judgment for possession of the residential rental property, any order to repair or remedy a condition is vacated and unenforceable. Note that this is NOT the same thing as a writ of possession, which may only be requested after a judgment has been entered. Rule

190 k. Flow Chart Here is a flow chart in a repair and remedy case under Rule 509: Tenant files a petition with JP Court TRCP (contents of petition) Repair & Remedy Counterclaims are not permitted (TRCP 509.7) Citation IMMEDIATELY issued TRCP 509.3(a) Trial (appearance) date should be no less than 10 days nor more than 21 days from date filed (TRCP 509.3(b)) Citation Service & Return TRCP 509.4(a) Prepare case for Trial Court Receives Request for Alternative Service TRCP 509.4(b)(2) Court Grants Request for Alternative Service TRCP 509.4(b)(2)(A) If landlord fails to appear, judge may proceed and render judgment TRCP 509.5(b)(1) Both parties appear, judge may develop facts TRCP 509.5(b)(1) If tenant fails to appear for trial, judge may dismiss TRCP 509.5(b)(2) Landlord may be held in contempt for failure to comply with court order TRCP 509.6(d) Judgment TRCP 509.6(a) [Granted/Denied] Either party may appeal decision within 21 days TRCP If landlord has judgment & writ of possession, an order to repair under this section is vacated & unenforceable TRCP E. Repair and Deduct Remedies in Manufactured Home Tenancies KEY POINT A tenant of a manufactured home lot has repair and deduct remedies under Chapter 94 that are essentially identical to the repair and deduct remedies for a residential tenant under Chapter 92 (with several important differences). Compare Property Code with Property Code In a nutshell a landlord may be liable to a tenant if the tenant gives proper notice to the landlord to repair or remedy a condition that materially affects the health or safety of an ordinary tenant, the landlord has had a reasonable time to repair or remedy the condition but has not made a diligent effort to do so, and the tenant was not delinquent in the payment of rent at the time any required notice was given. Property Code (b). 97

191 If the landlord is liable to the tenant for failing to repair or remedy a condition, then the tenant may: Terminate the lease; Have the condition repaired or remedied and deduct the cost from a subsequent rent payment in accordance with the requirements of Section ; and Obtain judicial remedies under Section , including: o An order directing the landlord to repair or remedy the condition (only a district or county court may order this), o An order reducing the tenant s rent until the condition is repaired or remedied, o A judgment against the landlord for a civil penalty of one month s rent plus $500, o A judgment against the landlord for the tenant s actual damages, and o Court costs and attorney s fees. Property Code (e) and The requirements for a tenant to establish the right to exercise any of these remedies are discussed in detail above. COMMON PITFALL Differences from Repair and Remedy for Residential Tenants: Rule 509 only applies to a repair and remedy case brought under Chapter 92 (residential tenancies), and not to a case brought under Chapter 94 (specific to manufactured home tenancies). Rule In a manufactured home case a justice of the peace may not order the landlord to take reasonable action to repair or remedy the condition. Property Code (c). Only a county or district court may make such an order in a manufactured home case. Property Code (c). F. Forms Forms relating to repair and remedy cases may be found on the TJCTC website by clicking on the Repair and Remedy button at the following link: 98

192 CHAPTER 11: SECURITY DEPOSITS A. Residential and Manufactured Home Leases KEY POINT Subchapter C ( Security Deposits ) of Chapter 92 of the Property Code, applies to all residential leases. Property Code Subchapter C ( Security Deposit ) of Chapter 94 of the Property Code, applies specifically to all manufactured home leases. These two subchapters are nearly identical to each other. A residential tenant who is improperly denied a refund of his security deposit may bring a suit in justice court (provided the amount in controversy falls within the justice court s jurisdiction) to recover the security deposit and civil penalties and attorney s fees. Definition (Property Code ; ): A security deposit is any advance of money (other than a rental application deposit or an advance payment of rent) that is intended primarily to secure performance under a lease of a dwelling or lot that has been entered into by a landlord and a tenant. SECURITY DEPOSIT SUIT A security deposit suit must be filed as a separate cause of action from an eviction suit filed by a landlord since a tenant may not file a counterclaim in an eviction suit. Hanks v. Lake Towne Apartments. This means that a security deposit serves as potential compensation for a landlord in the case that a tenant fails to pay rent or is liable for other damages under the lease or for breaching the lease. Refund Required: A landlord must keep accurate records of all security deposits. Property Code ; (b). The landlord must refund a security deposit to the tenant on or before the 30th day after the date the tenant moves out (but only if the tenant gives the landlord a written statement of the tenant s forwarding address). Property Code (a), (a), (a), A requirement in a lease that a tenant give advance notice that they are moving out (typically 30 or 60 days) as a condition for refunding the security deposit, is effective only if the requirement is underlined or printed in conspicuous bold print in the lease. Property Code (b); (b); Minor v. Adams. (The statute indicates that the notice must be both conspicuous and in bold print (or underlined) and where it was neither underlined nor in bold print it was not effective). 99

193 Retention/Deduction (Property Code , ): Before returning the security deposit, the landlord may deduct damages and charges for which the tenant is legally liable under the lease or as a result of breaching the lease. The landlord may not retain any portion of the deposit to cover normal wear and tear. COMMON PITFALL If the landlord retains all or part of the security deposit, he must give the balance (if any) to the tenant and a written description and itemized list of all deductions; unless the tenant owes rent when he moves out and there is no dispute concerning the amount of rent owed. Property Code (c), (c). Retention/Deduction If Tenant Fails to Move In (Property Code , ): If a tenant fails to move into a dwelling/lot as planned according to a lease, and the landlord secures a replacement tenant, the landlord may retain and deduct from a security deposit or rent prepayment either: A sum agreed to in the lease as a lease cancellation fee; or The actual expenses incurred by the landlord in getting the replacement tenant, including a reasonable amount for the landlord s time in securing the replacement. But the landlord may not retain the security deposit or rent prepayment if: Either the tenant or the landlord gets a replacement tenant satisfactory to the landlord; and The replacement tenant occupies the dwelling on or before the date that the lease was supposed to start. Tenant May Not Withhold Rent (Property Code , ): A tenant may not withhold payment of any portion of the last month's rent on grounds that the security deposit is security for unpaid rent. A tenant who does this is presumed to have acted in bad faith. A tenant who in bad faith violates this statute is liable to the landlord for three times the rent wrongfully withheld and the landlord's reasonable attorney's fees in a suit to recover the rent. Landlord Liability (Property Code , ): A landlord who in bad faith retains a security deposit in violation of the statute is liable for: $100; three times the portion of the deposit wrongfully withheld; and the tenant's reasonable attorney's fees in a suit to recover the deposit. 100

194 A landlord who in bad faith does not provide a written description and itemized list of damages and charges in violation of the statute: forfeits the right to withhold any portion of the security deposit or to bring suit against the tenant for damages to the premises; and is liable for the tenant's reasonable attorney's fees in a suit to recover the deposit. In an action brought by a tenant, the landlord has the burden of proving that the retention of any portion of the security deposit was reasonable. A landlord is presumed to have acted in bad faith (but could provide evidence that it was not bad faith) if: The landlord does not (on or before the 30 th day after the tenant moved out) either: o Return the security deposit in full; or o Provide a written description and itemization of deductions If Security Deposit Was Not Required By Lease (Property Code ): If a security deposit was not required by a residential lease and the tenant is liable for damages and charges on surrender of the premises, the landlord must notify the tenant in writing of the landlord's claim for damages before the landlord reports the claim to a consumer reporting agency or third-party debt collector. If a landlord does not provide the notice to the tenant, the landlord forfeits the right to collect damages from the tenant. But a landlord is not required to provide the notice to the tenant if the tenant did not give the landlord the tenant's forwarding address. Note that this section does not appear in Ch. 94 for manufactured home leases. B. Commercial Leases KEY POINT Refund Required: The landlord s and tenant s rights and obligations concerning a security deposit for a commercial lease are similar to those for a residential lease except that the landlord has 60 days, rather than 30 days, to return the tenant s security deposit after the date the tenant surrenders the premises. Property Code But the landlord is not obligated to return a security deposit, or give a tenant a written description of damages and charges, until the tenant gives the landlord a written statement of the tenant s forwarding address. Id

195 Retention/Deduction: As with a residential lease, the landlord may deduct damages and charges for which the tenant is legally liable under the lease or damages and charges that result from a breach of the lease, A landlord may not retain any portion of a security deposit to cover normal wear and tear. Normal wear and tear means deterioration that results from the intended use of the commercial premises, including breakage or malfunction due to age or deteriorated condition, but it does not include deterioration that results from negligence, carelessness, accident, or abuse of the premises, equipment, or chattels by the tenant or by a guest or invitee of the tenant. Property Code If the landlord retains all or part of a security deposit, he must give the tenant the balance (if any) and a written description and itemized list of all deductions. Again, a landlord is not required to give the tenant a description and itemized list of deductions if the tenant owes rent when the tenant moves out and no dispute exists concerning the amount of rent owed. Property Code (c). Tenant s and Landlord s Liability: A commercial tenant s liability for wrongfully withholding the last month s rent, and a commercial landlord s liability for wrongfully refusing to either return a tenant s security deposit or provide a written description and itemized list within 60 days after the date the tenant moves out are the same as for residential leases. Property Code , ; EDG Property Management, Inc. v. Ratnani. 102

196 FY 2019 JP Program Civil Procedure II Part I An Educational Endeavor of the Justices of the Peace and Constables Association, Inc. Funded by a grant from the Texas Court of Criminal Appeals

197 Civil Procedure Part II Managing Civil Cases Enforcement of Civil Judgments Resources Civil Deskbook Self Represented Litigant Info Packets (tjctc.org/srl) Legal Question Board Civil Practice & Remedies Code Texas Rules of Civil Procedure

198 What We Will Cover Pretrial Hearings & ADR Agreed Judgments Judgments for Personal Property Writs of Sequestration & Special Writs Enforcement of Money Judgments Abstracts and Executions Review Writs of Garnishment Turnover Orders & Receivers Judgment Dormancy, Revival, & Death Collection of Unpaid Judgments Foreign Judgments Pretrial Hearings & ADR Controlling Civil Caseflow

199 What is a Pretrial Hearing? A pretrial hearing (or pretrial conference) is a separate hearing before trial to give the judge and the parties a chance to identify and address any issues that may need to be dealt with at trial. Both parties should appear at the hearing (the judge may allow electronic/telephonic appearance if desired.) When Can the Court Have a Pretrial Hearing? Once all parties have appeared (meaning the defendant or defendants have filed answers), The court may set a case for a pretrial conference or hearing. This can be done on any party s request Or on the court s own motion The court must not schedule a pretrial conference in an eviction case if it would delay trial. Rule 503.4

200 There are many reasons why it can help your civil cases flow more efficiently to hold pretrial hearings. These include: Dealing with discovery issues Clarification of pleadings Identifying key witnesses Determining a need for an interpreter Scheduling court dates Reducing confusion for self represented litigants Settling the case Referring the case for ADR Why Should I Hold a Pretrial Hearing? Discovery As covered earlier this week, discovery is the exchange of information between parties before trial. Often self represented litigants are unaware of how discovery works. A pretrial hearing can get everyone on the same page. Rule 503.4(a)(1), 500.9

201 Clarification of Pleadings Rule The defendant s answer may state that the wrong person or entity is being sued (for example, suing an employee or owner of a business instead of the business) The plaintiff s petition may not be clear as to the cause of action (reason for the lawsuit) or what damages the plaintiff is seeking. Witnesses, Evidence, Interpreters, & Trial Setting It can be useful to ask parties if there are any witnesses who are needed for trial. If so, the court can issue a subpoena to require them to be at trial, if necessary. See Rule for more about subpoenas. The court can determine trial dates that work for the court and all parties This will reduce requests for continuances (postponements) Appointment of interpreters if needed See P of the Civil Deskbook for more info on interpreters

202 Parties may stipulate, or agree, to certain facts or documents. For example, they may both agree that there was a contract, and are just arguing over who didn t honor their end of the deal. This simplifies the trial by eliminating the need for specific evidence or witnesses. Witnesses, Evidence, Interpreters, & Trial Setting Explanation of the Process Court procedures can be very intimidating for selfrepresented litigants. Explaining the timeframe and process can make people much more at ease. For example, if the case will be a jury trial, explain the voir dire process (more on this later this week!) Many people who lose their case in court still feel satisfied with the process if they feel heard. Remember our SRL packets at

203 Settlement and ADR Often parties are able to work out the case with some time to sit and discuss settlement options. You must not participate in or even listen to the settlement discussion or pressure the parties to settle. If it will be beneficial, you may order mediation or other ADR. What is ADR? Alternative dispute resolution, or ADR, is a method of resolving a civil case without actually holding a trial. Examples include mediation and arbitration.

204 Mediation: What is It? Mediation is a tool used to hopefully settle a lawsuit. An independent 3 rd party (the mediator) discusses the case with the parties, sometimes separately, sometimes together. The mediator tries to help the parties find common ground and a mutually acceptable compromise. Mediation: When Should I Order It? Sometimes lawsuits, especially in justice court, are mainly about someone wanting to get their day in court to say what a bad person the other side is. These lawsuits are less likely to settle, since the only way the party can get what they really want is to have a trial.

205 The mediator is paid a fee, which the parties will generally split. Some areas have low or no cost mediation services available. (For example, the Mediation Clinic at UT Law School) If those options aren t available, the cost of mediation compared to the money being asked for in the lawsuit may keep mediation from being a reasonable option. Mediation: When Should I Order It? Mediation: When Should I Order It? The cases where mediation is most effective are cases that are money based instead of spite based, with mediation available at a reasonable cost.

206 Rank the Cases Mediation At your table, discuss and rank the cases from best to worst to send to mediation, with 1 being the best, and 4 being the worst: Eviction case where the plaintiff alleges the defendant is 3 months behind in rent Debt claim case where the plaintiff is asking for $7200 and the defendant s answer says they agree they had the credit card, but that $7200 is way more than they should owe Small claims case where Randy paid Amber $3700 to paint his house but he says she didn t paint it correctly. Amber has filed a counterclaim stating she was owed a $1000 bonus on the contract if she completed work by April 1. Small claims case where a neighbor s tree fell on the plaintiff s car and caused $975 in damage. The petition says the tree that I told that idiot time and again was dead finally fell on my car that they were jealous of from the day I bought it. Arbitration Arbitration is a process, where a 3 rd party (the arbitrator) hears the facts of the case and makes an order that is binding on the parties. You would then create and sign a judgment reflecting this order. We don t recommend sending a case for arbitration unless it is a dispute over a contract that specifically allows for or requires arbitration.

207 Other ADR Some courts have begun working with online dispute resolution systems, which allow parties to negotiate through a software chat program. Benefits of online programs include: Ease for the parties to participate Lower costs for ADR What to Say and How to Say It When discussing settlement at a pretrial hearing, which of the following would be acceptable to say: How much have they offered you? You should take it, that s a good deal! OK, tell me the strengths and weaknesses of your case and I will tell you what I think would be fair. Would you be willing to drop your case if they paid you $2500 today? Often, parties are more satisfied after a settlement rather than a trial. After a trial, one person is really happy and one is really mad. With a settlement, sometimes everyone gets what they want.

208 Agreed Judgments Agreed Judgments From time to time, especially after mediation or pretrial hearings, you will receive agreed judgments where the parties agree to a certain resolution of their case. Just because a party (or an attorney) sticks something in your face does not mean you have to sign it! You can only sign an agreed judgment that you have legal authority to issue.

209 Examples You should not sign an agreed judgment unless you are sure both parties actually agree. You cannot issue a judgment that is over your jurisdictional limit (be aware of mere passage of time issues, see Civil Deskbook P. 6). You cannot issue a judgment that contains injunctive relief (ordering a party to do or not do certain things, like you must send a notice to Experian that the debt is resolved ) You cannot issue a judgment that mandates a certain payment schedule ( defendant agrees to pay $1000 on April 25 th and the remaining $1500 by June 1 st ). Any judgment you issue must contain a post judgment interest rate. This rate is the rate agreed upon in a contract, if any. If no agreement, then it is the rate published on the OCCC website (5.5% as of 3/15/19). This can change monthly so be sure and check regularly! Examples

210 What if I Get an Agreed Judgment That I Can t Sign? You would need to remove any objectional terms of the judgment, such as a payment plan, and include any required terms of the judgment, such as post judgment interest. You would then need to verify that the parties still agree to the judgment. Likely a hearing will be required for this. What if I Get an Agreed Judgment That I Can t Sign? You can inform the parties that they can agree to other terms (such as payment plans or specific actions to take) in a contract between themselves, but that if they don t comply, a new lawsuit on that contract would be required, not a contempt hearing on your judgment.

211 Judgments for Personal Property WRITS OF SEQUESTRATION & SPECIAL WRITS Suits for Personal Property Small claims cases may include suits seeking possession of personal property as long as that property is worth less than $10,000. Personal property includes items such as televisions, cars, animals, portable storage buildings, etc. It does not include real property such as land and immovable buildings.

212 Writs of Sequestration Rule 696 When a party is suing for possession of personal property, they may file an application for a writ of sequestration. This writ is an order for a piece of property to be held in the custody of the court until the court decides who should own it. This prevents the property from being lost, stolen, sold, damaged, or destroyed. For Example Bronson has possession of a World Series of Poker bracelet. Phil sues him, claiming that it is actually Phil s bracelet and he wants it back. Phil sues Bronson for possession of the bracelet. Phil is worried that Bronson will hide the bracelet, or possibly sell it, keeping him from ever getting possession. Phil applies for a writ of sequestration to have the constable take the bracelet and hold it, to make sure nothing happens to it. After the trial, the constable will deliver the bracelet to either Phil or Bronson, depending on how the court rules.

213 Writs of Sequestration Bond Rule 698 Since the writ of sequestration is filed pre judgment, the plaintiff must put up a bond to protect the defendant, in case the defendant is deprived of the property but the court later determines the defendant is entitled to possession. Writs of Sequestration Bond Rule 698 Remember that a bond is money or a promise to pay money that a party puts up as a guarantee that they won t take certain actions. The judge has discretion to determine the bond amount. Often you won t have a whole lot of information to go off of, other than the petition and the application. Information that could be considered could include the value of the property, and any possible monetary loss the defendant would suffer by being without the property

214 Writs of Sequestration Execution and Service of the Writ Rule 699, 700a The constable (or sheriff) takes the property into custody. Occasionally, this can be very difficult (portable buildings, animals, etc.) The writ is then served on the defendant in any of the ways that a civil citation may be served, or may be served informally under Rule Writs of Sequestr ation Replevy Bond Rule 701 Once the property is seized, the defendant has 10 days to post a replevy bond. This is a bond that allows the defendant to keep the property in their custody. If anything happens to the property, the plaintiff would get paid damages from this bond. The bond amount is determined by the judge.

215 If the defendant doesn t post a replevy bond within 10 days, the plaintiff then may post the replevy bond, and hold the property until the trial. They cannot simply then dismiss their suit and walk away with the property. This replevy bond is necessary if the plaintiff wants to hold the property, otherwise the court may not allow the plaintiff to hold the property before the judgment. Writs of Sequestration Plaintiff Replevy Bond Rule 708 Judgment for Personal Property After a trial in a case involving personal property, a judgment will be rendered awarding the property to either the plaintiff or the defendant. Additionally, other money damages, as well as court costs, could be awarded in the judgment.

216 Judgment for Personal Property A judgment for personal property must also contain a determination of that property s value. This determination is made by the jury in a jury trial and the judge in a bench trial. More info on how to calculate this value in damages section. Judgment for Personal Property The judgment orders the defendant to turn over that property to the plaintiff. If the property is lost, stolen, etc., then the creditor can recover the value of the property like they would any other monetary judgment. The judgment needs to be very specific so that the defendant knows what property (shouldn t say TV or car ).

217 Special Writ Rule Rule says that to enforce judgments for possession of property, the court may issue a special writ for the seizure and delivery of this property. What is a special writ? Some courts use a form called writ of possession confusing because of eviction cases. Others use a writ of execution for specific articles. TJCTC s form is titled special writ for seizure and delivery of property since that s what the rule says. The title isn t important as long as the writ directs the constable or sheriff to do what Rule says.

218 Special Writ Rule The writ should order the constable to go out and seize the specific item of personal property and deliver it to the judgment creditor (winning plaintiff.) If the item is lost, stolen, or destroyed, the judgment creditor will have to pursue the monetary value of the item, using the remedies discussed in the next section. The special writ does not authorize a constable to seize and sell other items.

219 Your Turn! Fill out the judgment for specific articles and special writ for this case: Thea Whalen recovers from Jessica Foreman a crimson 1963 Corvette Stingray, valued at $9600. Court costs were in the amount of $126. Thea had an attorney but Jessica did not.

220 CAUSE NO. IN THE JUSTICE COURT PLAINTIFF v. PRECINCT NO. DEFENDANT COUNTY, TEXAS JUDGMENT FOR PLAINTIFF FOR SPECIFIC ITEMS (BENCH TRIAL) On the day of, 20, the above styled and numbered cause was tried. Plaintiff appeared in person by attorney: Defendant appeared in person by attorney: No jury was demanded, and trial was to the bench. The judge having heard the evidence and testimony of the parties believes that the Plaintiff proved the allegations of the petition, and finds: 1. For the Plaintiff; 2. Defendant possesses the following described property of Plaintiff ; 3. The assessed the value of said property is $ ; and 4. There are additional damages to the Plaintiff to be $ ; it is therefore ORDERED that Plaintiff recover from Defendant the above described property. If the property cannot be found, then the Plaintiff shall recover from Defendant, the value of the property as assessed and set out above. The Plaintiff shall also recover any further sum of damages assessed with interest at the rate of % compounded annually from this date. ISSUED AND SIGNED this the day of, 20. JUSTICE OF THE PEACE, PRECINCT COUNTY, TEXAS

221 CAUSE NO. IN THE JUSTICE COURT PLAINTIFF v. PRECINCT NO. DEFENDANT COUNTY, TEXAS SPECIAL WRIT TO ENFORCE JUDGMENT FOR PERSONAL PROPERTY THE STATE OF TEXAS TO ANY SHERIFF OR ANY CONSTABLE WITHIN THE STATE OF TEXAS: GREETINGS WHEREAS, on the day of 20, in the Justice Court of Precinct, County, Texas, the Plaintiff in the above styled cause recovered a judgment against Defendant as follows: Judgment for specific personal property of: with a monetary value of $. YOU ARE COMMANDED: To seize from the Defendant and deliver to the Plaintiff the above described personal property, pursuant to Rule of the Texas Rules of Civil Procedure. HEREIN FAIL NOT, and make return showing how you executed this writ to this Court within days. ISSUED AND SIGNED this the day of, 20. JUSTICE OF THE PEACE, PRECINCT COUNTY, TEXAS

222 A Judgment for Money is Signed, Now What? Abstracts of Judgment Writs of Execution and Garnishment Turnover Orders & Receivers Most Common Methods of Judgment Enforcement Abstracts of judgment and writs of execution are the two most common tools used to enforce civil judgments. Those tools were covered in Stage II, but we will briefly review them here.

223 Abstracts of Judgment Abstract of Judgment Prop. Code What is an abstract of judgment? A document that records facts about a judgment, that is placed in county records. What does an abstract of judgment do? Creates a lien on real property (second home, land, investment property). This means that if defendant sells the property, the buyer would be notified of the judgment and the defendant would have to pay the judgment with the profits of the sale.

224 Abstract of Judgment Timing and Costs When can a party get an abstract of judgment? Can be requested by judgment creditor as soon as the judgment is final. The abstract must be issued when requested, even though if there is an appeal the abstract is now worthless since the judgment is no longer in effect. There is a $5 abstract fee per abstract The party can get multiple abstracts, since they will need to file one with the county clerk in each county where they want to create a lien on property of the judgment debtor. How is the Abstract Prepared? It is prepared by the court clerk. The clerk fills it in with whatever information is provided to them. The clerk does not research additional information. Attorneys can create and file their own abstracts with the county clerk, without your court being involved.

225 Writs of Execution Writ of Execution Rule 621 What is a writ of execution? An order from the court to a constable or sheriff to seize the judgment debtor s property and sell it to pay off the judgment. Certain items of property are exempt, meaning they cannot be seized and sold. See P. 85, Civil Deskbook

226 Writ of Execution How Does it Work? Judgment debtor files an application for a writ of execution (normally must be at least 30 days after judgment) There is a $5 per page writ fee The writ is returnable to the court in 30, 60, 90 days at the option of the plaintiff Can only be issued from a court with jurisdiction over the judgment Then What? If the court finds the requirements are met, the court signs the writ The clerk will attach a copy of the bill of costs This is a list of all the court costs that the judgment creditor has paid, such as filing fees & service fees Now it goes to the constable's office for them to execute

227 The clerk must enter in the docket: Execution Docket Rule Time when the writ of execution was issued. To whom it was directed and delivered. The amount of the debt, damages and costs. When the writ is returned, the clerk must note the return in the docket and show the manner in which it was executed. Writs of Garnishment

228 Writ of Garnishment Rule 658 What is a writ of garnishment? An order from the court to a 3 rd party who has some of the judgment debtor s assets to turn those assets over to the judgment creditor. The assets must be non exempt. The 3 rd party is called the garnishee, and is usually a bank. Note garnishments are almost always filed post judgment. For info on the limited situation where they are filed pre judgment, see P. 88 of the Civil Deskbook Important Note on Garnishment Many people think of garnishment as something that happens with someone s paycheck or wages. In wage garnishment, a person s wages are intercepted before they ever get delivered to the employee, and given to the person who is entitled to the garnishment. In Texas, you cannot garnish wages for civil judgments. But once the paycheck is deposited into a bank account, that money is now subject to garnishment.

229 Garnishment Example Becky sues Ronda for $7,500 and wins. Ronda doesn t pay the judgment. Satisfying a judgment by using writs of execution can be difficult, because of how much property is exempt, so Becky has been unable to get her judgment paid that way. Ronda doesn t own real property, so Becky has no real use for an abstract of judgment. But, Becky discovers that Ronda has a bank account with $10,000 in it. Becky can use a writ of garnishment to have the bank ordered to turn $7,500 (plus any costs of the garnishment) over to her to satisfy the judgment. Writ of Garnishment Step 1 Application for the Writ The judgment creditor s application for a writ of garnishment must be supported by an affidavit. The affidavit must state that there is a judgment and that the defendant doesn t have enough assets subject to execution to satisfy the judgment. The law is unclear, but TJCTC believes that the court would charge the standard civil filing fee for this filing. Check with your county auditor for your county s policy and be consistent.

230 APPLICATION FOR WRIT OF GARNISHMENT Writ of Garnishment Step 2 Issuance of the Writ Rule 659, A The garnishment is docketed as a new case, with the judgment creditor as the plaintiff and the garnishee as the defendant. The court will issue two separate packets: The writ of garnishment itself, which is served on the garnishee, and must be served just like a citation, and served by a constable or sheriff The notice of the garnishment, which is served on the judgment debtor, can be served informally as described by Rule 21a, and by anyone who can serve a regular citation (including private process servers)

231 Garnishment Step 3 Service on the Defendant Along with notice of the garnishment, the actual writ must be served on the defendant, and it must contain the warning listed in Rule 663a. Additionally, the application for the writ must be included, along with any affidavits filed, and any other orders of the court. Service of the Writ Rule 659, A The writ orders the garnishee to hold any assets that they have belonging to the judgment debtor, and to file an answer stating what assets, if any, they have that belong to the judgment debtor. The judgment debtor must not be served with the garnishment notice before the garnishee is served with the writ. Why not?

232 Writ of Garnishment Step 4 Garnishee Answer or Default Rule If the garnishee doesn t answer by the Monday after 10 days have expired, a default judgment may be entered against the garnishee! Table exercise: Garnishee is served on Friday, March 15 th. When is the answer due?

233 If the garnishee does answer, either side may file an answer disputing their answer. So if they say we don t have anything the judgment creditor can answer and say yes you do. Or if they say we have these assets the judgment debtor could answer and say those aren t actually my assets. Writ of Garnishment Dispute of the Garnishee s Answer Rule Writ of Garnishment Step 5 Judgment Based on Garnishee s Answer Rule If no one disputes the garnishee s answer, a judgment is rendered based on that answer. This will either be a judgment ordering the assets turned over to the judgment creditor, or a judgment discharging the garnishee if they have no assets that belong to the judgment debtor.

234 Judgment on writ of garnishment Judgment discharging garnishee

235 Writ of Garnishment Step 6 Trial After Garnishee s Answer Disputed Rule If the garnishee s answer is disputed, a full trial must be held to determine what assets belonging to the judgment debtor, if any, the garnishee has. All the normal trial rules would apply, such as ability to request a jury trial, etc. Turnover Orders & Receivers

236 What is the Turnover Statute? CPRC : A court may aid a judgment creditor by: Ordering a judgment debtor to turn over non exempt property to a Constable or Sheriff to satisfy a judgment; or Appoint a receiver with authority to take possession of non exempt property, sell it, and pay the proceeds to the judgment creditor. More on receivers coming up! 1. The judgment debtor has nonexempt property that may be used to satisfy the judgment. 2. The court that the application was filed in is a court of jurisdiction, which means either: The court that issued the judgment, or A court where a foreign judgment has been domesticated (more on this soon!) What Needs to be Shown for a Turnover Order?

237 Up to the court whether to hold a hearing or notify the judgment debtor of the application. Why might you notify them? Why might you not notify them? Court can order the defendant to turnover any non exempt assets to the judgment creditor. Can also appoint a receiver to pursue collection of the judgment. Turnover Order What Happens Next? Up to the court what duties and obligations the receiver has Some proposed orders are VERY broad! Others just tell the receiver to take property and sell it to satisfy the judgment. Cannot order receiver fees up front Could conditionally grant the fees, with a requirement to show they earned them afterward Appointing a Receiver What Happens Next?

238 Broad vs. Limited Receiverships See the handout packet for examples of broad receivership appointments, and more limited appointments. At a recent workshop, there was a panel discussion among individuals involved in the collection industry, on both the creditor and debtor sides. The next slide covers some areas of consensus among most of the attorneys and judges involved regarding best practices for receiverships, especially in justice court.

239 Civil Deskbook, P Webinar on Turnovers/Receivers resources.org/legal/webinar archive/webinararchive.asp For More Info on Turnover Orders & Appointing Receivers POP QUIZ TIME! Fill out the blanks with the correct answer. 1) Lincoln gets a judgment against Tom. He knows Tom has a lakehouse on Lake Travis. In order to be able to get money from the sale of the lakehouse to pay the judgment, Lincoln needs a. 2) Jalen is suing Sam for a trophy that Jalen says belongs to him. If Jalen wants to make sure Sam doesn t hide the trophy or smash it into pieces, Jalen could get a. 3) Seth wins a judgment against Braun, and finds out in post judgment discovery that Braun has money in the bank. If Seth wants to get that money, he needs a. 4) Kevin wins a judgment against Daniel. Daniel owns valuable pieces of hemp art. In order for that art to be seized and sold, and the money given to Kevin, he should get a. 5) George wins a judgment against Al. Al has some property in a lockbox, and won t allow the constable to look inside during execution. What kind of order could George get to force Al to let the constable take the property?.

240 How Long Can Judgments Be Enforced? A judgment is good for 10 years after it is issued. If the 10 year clock gets down to zero without a writ of execution being issued, the judgment cannot be enforced, and is called a dormant judgment. How Long Can Judgments Be Enforced? When a writ of execution is issued, it resets the clock, and the judgment is now good for 10 years from that date. This can happen over and over again! Only writs of execution reset the clock, not garnishments, abstracts, or anything else!

241 How Long Can Judgments Be Enforced? A dormant judgment can be revived within 2 years of going dormant. The process to revive the dormant judgment is called a scire facias. If the judgment remains dormant for 2 years, it is now dead and may not be revived. Writ of Scire Facias A writ of scire facias, sometimes called scary faces, is an order by the court for the judgment debtor to come in and show good cause why the judgment should not be revived. The court doesn t issue this on its own, only on request by the judgment creditor.

242 Good Cause After the hearing, the judgment will basically always be revived. Good cause to not revive it would not include things like I can t afford to pay or Wow, this is pretty old! The only acceptable reasons to not revive the judgment would be if you determined the judgment was actually dead rather than dormant, if the court didn t have jurisdiction over the judgment, or if the judgment debtor provided proof that they have already paid the judgment in full. Judgment Deadline Calculation Table Exercise A judgment is issued on October 29, If no writ of execution is ever issued, when would it go dormant? When would it die? Now, say instead the judgment creditor gets a writ of execution on September 1, 2019 and an abstract of judgment on January 15, Assuming nothing else happens, when would it go dormant? When would it die?

243 Payment of Unclaimed Judgments Civil Practice & Remedies Code Sec Payment of Unclaimed Judgments There is a process available for judgment debtors who either cannot locate the judgment creditor to pay the judgment, or for situations where the judgment creditor refuses to give a release of judgment. Maybe they sued for $10,000 and got $2,000 and won t sign off unless they are paid $10,000.

244 Unclaimed Judgments Notification of the Judgment Creditor The debtor must first attempt to notify the judgment creditor by sending a letter by registered or certified mail to all last known addresses. If the judgment creditor does not respond by the 15th day after letter was sent, the debtor may file an affidavit with the court describing when and how the notice was sent. Unclaimed Judgments Judgment Creditor Doesn t Respond If the judgment creditor doesn t respond, the judgment debtor may pay the amount owed into the registry of the court that rendered the judgment. Funds deposited with the court must be held in the clerk s trust fund account. Payment must be in full. Debtor must prepare a recordable release of judgment to be executed by the judge or clerk. A release of judgment is a document, usually issued by the judgment creditor upon payment, that says the judgment debtor is released from the judgment debt.

245 Unclaimed Judgments Judgment Creditor Refuses to Issue Release If the judgment creditor refuses to issue a release of judgment, the court has to hold a hearing to determine if a release of judgment should be allowed. At the hearing, the court should have the debtor prepare a release for the court to sign if the court finds that the creditor accepted payment but refused to issue a release. The court should allow the judgment to be paid into the registry if the creditor refused payment. Once the judgment is paid into the registry, the court should sign a release of judgment prepared by the debtor. Foreign Judgments

246 What is a Foreign Judgment? Despite the name, a foreign judgment is not a judgment from another country, it is a judgment from another state. Sometimes, a party that received a judgment in another state will want to file that judgment with a Texas court. This process is called domesticating the judgment. Why Would Someone Domesticate a Judgment? Imagine that your court renders a judgment for the plaintiff for $5,000. The defendant has no property in Texas, but has a fleet of pickups in Oklahoma City, worth $7,500 each. Could a writ of execution order the sale of those trucks? No. The plaintiff would need relief from an Oklahoma court to order the seizure and sale of those trucks. Now imagine that instead it is the opposite, where the $5,000 judgment was in Oklahoma and the trucks are in Austin, TX. That is when the plaintiff in the Oklahoma case would attempt to domesticate their foreign judgment in a Texas court, in order to have the trucks seized and sold.

247 How Does it Work? Ch. 35, CPRC The party seeking to file the judgment has to pay the standard civil filing fee (or a Statement of Inability) Sec , CPRC They also must file an affidavit showing the name and last known address of the judgment debtor and the judgment creditor. They must mail notice of the filing of the foreign judgment to the judgment debtor and file proof of mailing of the notice with the clerk of the court. This notice must include the name and address of the judgment creditor and if the judgment creditor has an attorney in this state, the attorney's name and address. Then What? Ch. 35, CPRC On receipt of proof of the required mailing, the clerk of the court shall make a note of the mailing in the docket. The judgment creditor may now use the court to enforce the judgment in any of the ways we have described (execution, abstract, garnishment, turnover order), just as if the court had originally rendered the judgment.

248 Receivership Panel Areas of Consensus Amendment: property does not need to be property that cannot be readily attached or levied on by ordinary legal process. 2. Evidence: The judgment creditor does need to submit some evidence that the judgment debtor has non exempt property that will be the subject of the order. This may be done with an affidavit. 3. Appointment of a Receiver: This is discretionary. The statute does say the judgment creditor is entitled to the aid of the court but it goes on to say the court has three options (one of which is appointment of the receiver). 4. Order to Defendant: Court may not order defendant to turn over property directly to the plaintiff. 5. Duties of Receiver: Should be limited and the bond should be nominal. 6. Allowing Receiver to Collect Cash on Hand: This is a bad idea. 7. Opening Mail and Locking Defendant Out: This is a bad idea. These measures are not appropriate for recovering small judgments such as the ones issued by justice courts; possibly appropriate for larger judgments. 8. Receiver s Fee: Should not be set automatically up front; but could be set at 25% conditionally and subject to later proof by the receiver that the work performed and the results justify that fee.

249 Receivership Panel Debt Collector s Position 1. Ex Parte Order: this is appropriate; it is in place of a writ of garnishment; so it should be ex parte so the debtor does not empty their bank account. 2. Evidence in Support of Application: an affidavit that there is a bank account is sufficient. 3. Is it Injunctive Relief: Rule permits a justice court to issue this order. 4. Turnover Property to Constable: this usually doesn t work; need a receiver instead. 5. Appointment of a Receiver: court should grant this request; the creditor is entitled to the court s aid. 6. Receiver who is an Attorney: should not be required to post a bond. 7. Award of Fee to Receiver: say what the fee will be up front (e.g. 25%) but subject to proof after the work is done that it is reasonable.

250 Receivership Panel Judgment Debtor s Position 1. Notice: judgment debtor should receive notice; matter of due process. 2. Evidence: an affidavit of a bank account is not sufficient. 3. Turnover Orders: this is injunctive relief so justice court cannot order them. 4. Constables: but if they could do so, ordering property to be turned over to a constable is a good first step; constables are better than receivers; receivers can be problematic. 5. Appointment of a Receiver: court should just say no; creditors can use garnishment instead. 6. Receiver s Duties: if they are broad a bond is needed to protect the consumer. 7. Receiver s Fees: they are entitled to be paid but the fee should be paid by the debt collector not the debtor; this is up to the court.

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257 Receivership Panel Areas of Consensus Amendment: property does not need to be property that cannot be readily attached or levied on by ordinary legal process. 2. Evidence: The judgment creditor does need to submit some evidence that the judgment debtor has non exempt property that will be the subject of the order. This may be done with an affidavit. 3. Appointment of a Receiver: This is discretionary. The statute does say the judgment creditor is entitled to the aid of the court but it goes on to say the court has three options (one of which is appointment of the receiver). 4. Order to Defendant: Court may not order defendant to turn over property directly to the plaintiff. 5. Duties of Receiver: Should be limited and the bond should be nominal. 6. Allowing Receiver to Collect Cash on Hand: This is a bad idea. 7. Opening Mail and Locking Defendant Out: This is a bad idea. These measures are not appropriate for recovering small judgments such as the ones issued by justice courts; possibly appropriate for larger judgments. 8. Receiver s Fee: Should not be set automatically up front; but could be set at 25% conditionally and subject to later proof by the receiver that the work performed and the results justify that fee.

258 Receivership Panel Debt Collector s Position 1. Ex Parte Order: this is appropriate; it is in place of a writ of garnishment; so it should be ex parte so the debtor does not empty their bank account. 2. Evidence in Support of Application: an affidavit that there is a bank account is sufficient. 3. Is it Injunctive Relief: Rule permits a justice court to issue this order. 4. Turnover Property to Constable: this usually doesn t work; need a receiver instead. 5. Appointment of a Receiver: court should grant this request; the creditor is entitled to the court s aid. 6. Receiver who is an Attorney: should not be required to post a bond. 7. Award of Fee to Receiver: say what the fee will be up front (e.g. 25%) but subject to proof after the work is done that it is reasonable.

259 Receivership Panel Judgment Debtor s Position 1. Notice: judgment debtor should receive notice; matter of due process. 2. Evidence: an affidavit of a bank account is not sufficient. 3. Turnover Orders: this is injunctive relief so justice court cannot order them. 4. Constables: but if they could do so, ordering property to be turned over to a constable is a good first step; constables are better than receivers; receivers can be problematic. 5. Appointment of a Receiver: court should just say no; creditors can use garnishment instead. 6. Receiver s Duties: if they are broad a bond is needed to protect the consumer. 7. Receiver s Fees: they are entitled to be paid but the fee should be paid by the debt collector not the debtor; this is up to the court.

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266 FY 2019 JP Program Civil Procedure II: Causes of Action & Calculation of Damages An Educational Endeavor of the Justices of the Peace and Constables Association, Inc. Funded by a grant from the Texas Court of Criminal Appeals

267 Civil Procedure II: Causes of Action & Calculation of Damages Civil Deskbook O Connor s Texas Causes of Action Texas Rule of Civil Procedure 508 Resources Debt Claims Case Checklist

268 Definitions & Intro Debt Claim Cases Contracts Torts / Other Civil Cases What We Will Cover Calculation of Damages Attorney s Fees Interest How Do You Decide a Case at Trial? Easy to get bogged down in noise What should you be listening for? How do you know what is important? How do you decide what questions to ask?

269 Some Helpful Definitions Injury Includes both bodily injury and economic injury. Damages Money a party receives based on their cause of action. Actual or Proximate Cause This means the defendant s action resulted in the injury. Cause can be actual cause where the action directly caused injury, or proximate cause meaning the action started a chain of events that resulted in the injury. To be a proximate cause, the action has to be a but for cause, meaning but for the action the injury wouldn t have occurred. Also, the injury must be a foreseeable outcome of the action. If the idea of proximate cause has your head spinning, don t worry: you re not alone! Bill runs a red light and his car strikes a car driven by Jan. Bill running the red light is the actual cause of Jan s damage and injuries. After Bill strikes Jan s car, it slides into Norah who is walking down the street, breaking her leg. Bill running the red light is the proximate cause of Norah s broken leg. When the ambulance is taking Norah to the hospital, the ambulance driver crashes, breaking Norah s arm. This injury was not a foreseeable result of Bill s action of running the light, so Bill running the red light was not a proximate cause of Norah s broken arm. Understanding Proximate Cause

270 Causes of Action Remember previously we have discussed elements of the offense, which are the things that the state must prove for someone to be guilty of a criminal offense. In civil cases, there will be elements of the case that must be proven as well, but instead of elements of the offense, they are elements of the cause of action. Less likely to be clearly spelled out in statute than criminal elements are O Connor Causes of Action is a great resource! Break it Down and Make it Simpler EXAMPLE of a difficult rule The tort of intentional infliction of emotional distress exists if the defendant acted with either extreme or outrageous conduct and intended to cause severe emotional distress to plaintiff or behaved with reckless disregard to emotional state of plaintiff and the acts were the actual or proximate cause of the distress and severe emotional distress actually occurred.

271 Make it Bite Sized Cause of action of intentional infliction of emotional distress exists IF: the defendant acted with extreme conduct OR outrageous conduct AND intended to cause severe emotional distress to plaintiff OR behaved with reckless disregard to emotional state of plaintiff AND the acts were the actual or proximate cause of the distress AND severe emotional distress actually occurred. Once you answer each individual decision point, your conclusion becomes clear, and answering single questions is much easier: Did the defendant act with extreme conduct, yes or no? Did the defendant act with outrageous conduct, yes or no? If you answer both of these no, then the plaintiff hasn t proven an element of the cause of action and so they can t recover damages for it. If you answer either question with yes (since it is an OR, not an AND), move to the next step. If you get all the way through, plaintiff can recover, if not, they cannot. Simple as that! Making the Case Simpler

272 But Wait?! If the answers to those questions determine how I must rule on a cause of action, isn t that taking away my judicial discretion? I m a judge, not a robot or kiosk! No! Because every judge will see things differently on the individual questions. Judges can have different answers to the question Did the defendant act with outrageous conduct? but can t have different answers to the question Does the plaintiff win if they prove their cause of action? Have a cheat sheet of the elements of the offense or cause of action on the bench and make notes as to which elements you have heard evidence on Practice Tips Make a flowchart/checklist if necessary to ensure the right result Can you take the day off with a jury trial, since this is all their job anyway? Why or why not?

273 Debt Claim Cases Filing the Case The plaintiff only has a debt claim case if they are suing for debt AND if they are one of the following: Debt collector or collection agency Assignee of a claim Financial institution Person or entity primarily engaged in the business of lending money at interest

274 Filing the Case TJCTC has modified its petition to help prevent plaintiffs and courts from mislabeling cases. We also feel it is not legal advice to answer what type of case a plaintiff has or what type of petition they need. The petition needs to comply with Rules and We covered what this means in Stage 2, and it is also reviewed on P. 12 of the Civil Deskbook and the Debt Claim Checklist Note also that a Civil Case Information Sheet is no longer required, effective February 26, But what if a debt claim petition doesn t comply with the rules? The Petition

275 The Rules are silent on petitions that are missing required items. TJCTC Recommendation: Issue citations on all petitions filed, even if they are missing requirements If the defendant answers, proceed. / They may file a motion to have the plaintiff amend or clarify if they want to get additional information. TRCP If the defendant doesn t answer, we recommend not granting default judgments on petitions that don t comply with the Rules. The Petition Remember the general rule in debt claim cases: This is not the rule in most small claim cases. If the defendant does not file an answer or otherwise appear by the answer date, the judge should render a default judgment without a hearing upon plaintiff s proof of the amount of damages. See the / information from Stage 2, and P of the Civil Deskbook for a full review of default judgment procedures Default Judgment (Rule 508.3)

276 What is Proof of Amount of Damages? The plaintiff has to show, by testimony or by submitting documents: A. that the account or loan was issued to the defendant and the defendant is obligated to pay it; B. that the account hast been closed or the defendant breached the terms of the account or loan agreement; C. what the amount due on the account or loan as of a date certain after all payment credits and offsets have been applied is; and D. that the plaintiff owns the account or loan and, if applicable, how the plaintiff acquired the account or loan. What Documents Can I Consider? At trial, the rules of evidence don t apply, so you can consider whatever you feel is credible and relevant. For default judgment, you can only consider documents that are proven up by the plaintiff, which means there must be a sworn statement accompanying the document as required by Rule

277 All requirements for a default judgment also apply in debt claim cases Default Judgment Proper service Return on file for 3 days, excluding day of return and day of judgment Statement of last known address SCRA affidavit Additionally, the court must immediately send notice of the judgment to the defendant If the Defendant Answers *Dismissal for Want of Prosecution Pretrial Conference or Mediation could be helpful. Be aware of DWOP* issues, as these cases can drag on. What if the defendant s answer admits the debt? Sometimes you will never get a return of citation. Sometimes the plaintiff won t submit proof of damage, the defendant doesn t answer, and the plaintiff doesn t request a default hearing. Sometimes the plaintiff wants constant continuances, as they are working on settling the case. Plaintiff may request summary disposition, see Civil Deskbook P. 45

278 Statute of Limitations Debt Claim Cases The statute of limitations in a case for debt is four years. Current caselaw says you start the clock on the four years when dealings between the parties stop. Usually, that will mean from the last charge made or payment sent by the defendant. If the case is outside the statute of limitations, the plaintiff cannot have a judgment, even if the defendant doesn t bring that up, and even if the defendant never appears. Contracts

279 What is a contract? Most simply, it s an agreement between two or more parties (either people or organizations) which the law recognizes and will enforce. It may require a party to do something, or may require them not to do something (often phrased as must refrain from doing something.) Do All Contracts Have to Be Written? A common misconception is that a contract must always be in writing. However, most contracts can be oral. Having an oral contract does make it much more difficult to prove terms of a contract at trial! What are some ways that a party might be able to prove the existence of an oral contract?

280 Statute of Frauds Texas Law does require that some contracts be in writing in order to be enforceable. The list, found at Section of the Business & Commerce Code, includes leases longer than one year and any contract which cannot be performed within one year of the date of making the agreement There are two types of contracts, express and implied. An express contract is a written or oral agreement that demonstrates the existence of the agreement and its terms. In an implied contract, the existence of the agreement and its terms are inferred from the conduct of the parties. Express vs. Implied Contracts

281 Express or Implied? Amber tells Randy that for $ plus the cost of paint, she will paint Bronson s office walls burnt orange. Randy accepts. He types up the agreement and both Amber and Randy sign it. This contract is: Express or Implied? Express or Implied? Darby agrees to lease her house in Las Vegas to Bronson for two weeks. Bronson agrees to pay Darby $ in rent. No written lease is signed. The contract is: Express or Implied?

282 Express or Implied? Steve goes to the doctor and asks to have his blood pressure checked. After telling Steve he eats too much BBQ, the doctor asks for $ Steve owes this money based on a contract that is: Express or Implied? How a Contract is Created First a person or a company, who we will call the offeror, makes an offer. Generally speaking, if the offer is accepted by the person or company to whom the offer is made (the offeree), a contract is created. Therefore, offer and acceptance are the two main (but not the only) ingredients necessary to form a contract. Even if we have a valid offer and acceptance, the contract is not necessarily enforceable. (More on that later.)

283 The Offer: Three Ingredients to Make it Binding 1. Intent The offeror must intend for the offer to be legally binding. If the offer is intended as a joke, an invitation to negotiate, or is made only as a result of the excitement or anger of the offeror, then the offer won t create a binding obligation if accepted. 2. Communication of the Offer The offer must be delivered to the receiving party. If it is never received, there is no acceptance or mutual assent. 3. Definite Terms Clearly defined terms are required to establish the parties intention. An offer remains open after it has been extended unless one of the following occurs: Rejection by the offeree Revocation, or withdrawal, of the offer before it s accepted Death, incapacity, or insanity of either party Destruction of the subject matter Expiration of a specified or reasonable time Counteroffer with different terms How Long Does the Offer Last?

284 Acceptance of the Offer A party can accept an offer by communicating their acceptance, or by beginning performance in some cases. An offer may communicate how it must be accepted. If so, that is the only valid way to accept the offer. A risk of beginning performance without communication is that the offer may have been withdrawn before you begin performance. The mailbox rule makes an acceptance valid when it is deposited in the mail (revocation valid when received.) Valid Offer and Acceptance? Thea offers Bronson $ to paint her office green and gold. Bronson says No, but I ll paint it crimson and cream for $ Bronson has: 1. Modified and accepted the offer 2. Made a counteroffer 3. Terrible taste in paint colors 4. Bad negotiating skills

285 Valid Offer and Acceptance? Say Thea says No, thanks, Bronson, I don t like crimson and cream. Bronson says OK, no problem, and comes in on the weekend and paints Thea s office green and gold. Does Thea owe Bronson $100? Why or why not? Has Bronson now accepted Thea s original offer? Valid Offer and Acceptance? Bob offers ABC Tree Trimming $ to remove two trees from his yard. He says he s not in a hurry, but would like it done as soon as possible. ABC doesn t respond to Bob s . Six months later, Bob comes home and finds the trees removed and a bill for $ taped to his front door. Was the offer still valid? What question do you have to answer to determine that?

286 Rebecca offers Sonya $ to prepare her 2019 federal income tax returns. Rebecca s letter states that her offer must be accepted by April 1. Sonya mails a letter accepting the offer on March 27. Rebecca receives the letter on April 2. Did Sonya accept the offer before it expired? What if Rebecca s offer says acceptance must be received by April 1 to be valid? What if Rebecca didn t say it must be received by April 1, but did mail a letter on March 28 telling Sonya never mind and Sonya receives that letter on March 31? Valid Offer and Acceptance Four Ingredients of an Enforceable Contract All contracts, whether express or implied, are enforceable only if the following factors are present: Mutual assent Consideration Legal capacity Legality

287 Ingredient 1: Mutual Assent Any contract must be entered into freely and with an intent to be bound by its terms. Mutual assent can be viewed as the agreement and is often called the meeting of the minds. Therefore, both the offer and acceptance must be free, knowing, and voluntary. While offer and acceptance usually show mutual assent, it is possible to have an offer and acceptance without mutual assent. Mutual Assent We don t expect people to be bound by unintended promises, promises made in response to force, or promises that arise out of mistakes about the facts. We DO expect parties to follow through on intended promises so that the reasonable expectations of all parties are met.

288 Things Which Affect Mutual Assent Duress The use of force, threat of force, or mental stress can create duress. Undue Influence An abuse of a relationship of trust by the trusted person, causing the other party to act against his or her own free will. Fraud or misrepresentation A misrepresentation of information or terms or the inducement of another party by deceit. Mutual mistake Where both parties are mistaken about the subject matter of the contract. Amber helps her elderly and wealthy Grandmother around the house and with her finances. Grandma has dementia. Grandma s other grandchildren discover that Grandma has contracted to pay Amber s Yard Service $4, per month for mowing the lawn. Is this a valid contract? Mutual Assent?

289 Mutual Assent? Rebecca has a collection of Michael Kors purses. Jessica sees her carry them at work and is very jealous. Jessica offers Rebecca $1000 for that sparkly one with the bedazzled cross. Jessica means one that she saw Rebecca carrying, but Rebecca can t remember which Jessica has seen, and thinks she means a different one with silver bedazzles instead of pink. Rebecca responds Sure, it s a deal. Is there an offer and acceptance? Is there mutual assent? Ingredient 2: Consideration Consideration is the value that parties are to give or receive from each other under the contract. This can either be a promise or performance, and usually takes the form of money, property or services given or received. If an agreement is not made for consideration, no enforceable contract exists.

290 Consideration Past consideration is not valid. Any goods or services to be exchanged must be exchanged at or after the time of contract formation. A pre existing duty does not count as consideration. Consideration? Thea offers to stain and seal Travon s deck if Travon will paint Thea s back porch. Travon agrees. Was the agreement made for consideration?

291 Consideration? Jeff paints Laura s house for $1, Laura isn t satisfied, and complains to Jeff. Jeff says, well, I ll paint your barn for free, but he never does. Laura has to hire Angie to paint her barn for $ instead. Laura then sues Jeff for the $ Was there consideration for Jeff s promise to paint the barn? Consideration? Amy is stressed out with wedding planning and is complaining to her mom about it. Her mom says Let me send you $1,000 to help ease your stress. Amy s mom didn t send the money. Was there consideration?

292 Travon hires Bronson to mow his yard each week for six months for a total of $1, After two weeks, Travon says: you re doing a great job; keep it up and I ll pay you an extra $ At the end of six months, Travon doesn t pay Bronson the $ bonus. Was there consideration for Travon s promise? Consideration? Ingredient 3: Legal Capacity You must have the power and authority to enter into a contract. Legal capacity means capacity that is approved by law. A person or entity who does not have legal capacity to enter into a contract will not be bound by the terms of the contract.

293 What Affects Legal Capacity? Mental Capacity If you are mentally incompetent, or under the influence of drugs or alcohol, you lack the requisite capacity to contract. Guardians may contract for wards. Legal Age Usually 18 years of age. Contract entered into by minors are voidable, but may be enforceable if for necessities. Authority to act All parties must have authority to act. This comes into play when persons sign for others or for companies. Legal Capacity Al and Bronson play golf. Bronson shoots his worst round in years. After the round, Bronson has eight shots of Fireball cinnamon whiskey. Al says Hey, I ll buy that new driver from you from $20, you obviously can t hit it anyway. The driver cost $500 when purchased. Bronson says OK. Binding contract?

294 Nic buys a new state of the art Virtual Reality machine for $2000. His wife Jessica gets annoyed because he won t do anything other than play on the VR machine. She offers to sell it to Travon for $400 and Travon accepts. Binding contract? Legal Capacity Ingredient 4: Legality The subject matter must not be illegal in light of statute or public policy (e.g., crimes, obstruction of justice, usury). I will pay you $5000 not to testify in this case. I will deliver you 8 ounces of marijuana for $1700. Such contracts are unenforceable, and the offeror and offeree may be subject to criminal penalties.

295 Elements of a Contract Case In order to recover in a contract suit, the plaintiff will have to show: 1. The existence of a valid and enforceable contract. This is where the things we have discussed so far come into play, such as offer and acceptance, mutual assent, consideration, legal capacity, and legality of the contract. 2. The plaintiff performed their obligation under the contract or were excused from doing so (for example, because the defendant breached.) 3. That the defendant breached the contract. The defendant didn t live up to their end of the agreement. 4. The breach caused the plaintiff economic injury. Can be actual/proximate cause, as long as damages are foreseeable. Deciding if There Was a Breach Once you have gone through the steps we have covered to establish that there was a contract, the next decision you must make is whether the defendant breached the contract. Sometimes the defendant will file a counterclaim, saying that in fact it is the plaintiff who has breached the contract. In a case like this, both parties may stipulate, or agree, that there was a contract. If so, we can ignore the previous steps on mutual assent, consideration, etc., and jump right to this question. Remember the benefits of pretrial hearings!

296 Deciding if There Was a Breach Information that you use to decide if there was a breach could include: The contract language itself Testimony regarding any discussion between the parties Testimony regarding the conduct of the parties Defenses to Breach of Contract Include Standing (wrong plaintiff) Fraud or Duress Mistake Impossibility (contract couldn t be performed) Unconscionability (contract was legally unfair) Modification

297 Other Ways to Recover Contract Cases There are a few ways where a plaintiff can recover damages in a case that looks like a contract case, but the plaintiff is missing one or more of the elements of the cause of action. These include: Promissory Estoppel Quantum Meruit Promissory Estoppel The Elements This is also caused detrimental reliance. The plaintiff can recover if: The defendant made a promise to the plaintiff; The plaintiff reasonably relied on the promise which caused them harm; The reliance was foreseeable by the defendant; and Enforcing the promise avoids an injustice.

298 Promissory Estoppel What s it Look Like? Remember earlier when Amy s mom promised to send $1,000 to help with her wedding? Now imagine that Amy relied on that promise and paid for an open bar rather than a cash bar, and would not have done that if not for her mom s promise. Should Amy be able to enforce the $1,000 promise now? Quantum Meruit The Elements This is also caused unjust enrichment. The plaintiff can recover if: Valuable services or materials were provided to the defendant; The defendant accepted the service or materials; and The defendant had reasonable notice that the plaintiff expected compensation.

299 Quantum Meruit What s it Look Like? Jessica asks Randy to help her with some legal contract drafting. She says Let me know afterwards how much time you spend on the work, and I ll take care of you. After performing the work, Randy sends her an invoice saying he did 5 hours of work and billing her $1,000. She refuses to pay, saying they never decided a price. Was there mutual assent, and therefore a contract? Can Randy recover under unjust enrichment? Statute of Limitations Contract Cases The statute of limitations in a contract case (as well as the related cases discussed) is four years. The parties can contract for a different statute of limitations, but it cannot be for less than two years. If the case is outside the statute of limitations, the plaintiff cannot have a judgment, even if the defendant doesn t bring that up, and even if the defendant never appears.

300 Tort Cases Something that is NOT a breach of contract but a party can recover money for under civil law Generally, damage to someone s property or economic harm/bodily injury to the person What is a Tort? Purpose: Deter wrongful conduct, make injured parties whole

301 Keep in Mind Self represented litigants may not know the legal term for their cause of action. They don t have to know the magic words. Your job is to determine what happened and award damages if appropriate. Many behaviors can be punished civilly, criminally, or both. (For example, the O.J. Simpson case) Again, it is not up to you to decide if the person should pursue a civil case or if a prosecution should occur. Process the case that has been filed with you. Do not advise someone what to file or whether to file. Intentional Torts vs. Negligence There are two main categories of tort cases. Intentional torts are actions that a party does on purpose (or sometimes recklessly) that cause damage to property or injury to a person. Negligence is when a party causes damage or injury, not on purpose, but instead by not being careful enough with the actions they take (or fail to take).

302 The action was taken to intentionally cause the damage or injury or knowing that it is substantially certain to be caused. When is an Action an Intentional Tort? Can transfer intent from intended target to actual target. Bronson is at the OU Texas football game, becomes enraged, and wants to throw his flask at the referee. Bronson is a horrendous athlete and so instead he beans a fan four rows in front of him, causing injury. Even though the intent was to hit the referee, the intent is transferred to the fan, making this still an intentional tort. Assault/Battery Conversion Types of Intentional Torts Trespass to Chattels (personal property) or Land False Imprisonment Intentional Infliction of Emotional Distress

303 What is Assault/ Battery? Civil assault is: 1) a harmful touching causing bodily injury; 2) an offensive or provocative touching; or 3) causing apprehension (fear) of an imminent harmful touching. O Connors uses assault to refer to all of these actions, rather than differentiate between assault and battery, and we will here as well. What is Assault? The touching doesn t have to be direct contact. So for example, if Dale intentionally rams an empty parked car that then slides into a person injuring them, that would be a harmful touching and Dale could be liable for assault.

304 Assault Causing Bodily Injury The Elements 1. Defendant acted intentionally, knowingly, or recklessly. 2. Contact with the plaintiff s body or something attached to it. 3. Plaintiff suffered injury as a result. If the injury was not a direct result, but instead was a consequential result, the plaintiff must prove foreseeability, meaning the defendant should have known that this injury was a reasonably likely outcome of their conduct. For example, Johnny finds a snowball on the ground and throws it at Susie s head to flirt. There was a rock inside the snowball and Susie s head is busted open. Was that foreseeable? Assault by Threat of Bodily Injury The Elements 1. Defendant acted intentionally or knowingly. 2. Defendant threatened plaintiff with imminent bodily injury. Imminent means that it is on the verge of happening, not at some vague future time. 3. Plaintiff suffered injury as a result The plaintiff must prove foreseeability, meaning the defendant should have known that this injury was a reasonably likely outcome of their conduct. Injury includes apprehension of bodily injury.

305 Assault by Offensive Physical Contact The Elements 1. Defendant acted intentionally or knowingly. 2. Contact with the plaintiff s body or something attached to it. 3. Defendant had knowledge that the plaintiff would find the contact offensive or provocative. 4. Plaintiff suffered injury as a result The plaintiff must prove foreseeability, meaning the defendant should have known that this injury was a reasonably likely outcome of their conduct. Injury includes personal indignity. Justice court civil filings that would be considered assault could include: Bronson is stopped in traffic on I 35 and gets out of his car and screams through the window of the car in front of him move or you re a dead man! no contact, but apprehension of imminent bodily injury. The OU Texas flask throwing debacle from earlier, which caused bodily injury. Jeff is in line at Chick Fil A. He gets annoyed with someone who is not paying attention and is standing in the way and slaps their cell phone out of their hand. This is an offensive/provocative contact. How Does Assault Get Filed in Justice Court?

306 What is Conversion? Conversion is when someone takes another person s personal property and uses it without permission. Conversion The Elements 1. The plaintiff owned, possessed, or had the right to possess the property. 2. The property was personal property, such as a car or domesticated animal. 3. The defendant exercised control over the property wrongfully. The defendant could have obtained the property legally, but then doesn t use it lawfully, such as a constable keeping someone s property they picked up on a writ of execution rather than selling it. 4. The plaintiff suffered damage loss of value or loss of use

307 Justice court civil filings that would be considered conversion could include: Randy has a very expensive and fancy triathlon bicycle. His neighbor has a junky old ten speed. His neighbor takes Randy s bicycle without permission, and Randy doesn t have the bicycle for his Kona Ironman race, so he has to go purchase another one. He sues the neighbor for the cost of the bike. April has a ranch with 1200 cattle. Travon has a neighboring ranch and leaves a gate open and some of her cattle go onto his ranch. She asks him to return them and he says that will be too much work to separate them and that these things just happen. How Does Conversion Get Filed in Justice Court? What is Trespass? Trespass is using someone s land or personal property without permission. Trespass to chattels is what it is called when it is personal property. This is very similar to conversion, previously discussed. Trespass to real property is what it is called when it is land.

308 Trespass to Land The Elements 1. The plaintiff owned or had a lawful right to possess the real property. 2. The defendant made a physical, intentional, voluntary, and unauthorized entry onto the property. 3. The plaintiff suffered an injury to their right of exclusive possession. Justice court civil filings that would be considered trespass could include: Hatfield has a tree on his property. Birds nest in the tree and make unwelcome deposits on the immaculately restored T Bird of his neighbor, McCoy. McCoy comes onto Hatfield s land and cuts down the tree. Gorton has a pond on his land, where he raises fish and sells them. Tyson comes onto his land without permission and fishes the pond. How Does Trespass Get Filed in Justice Court?

309 What is False Imprisonment? False imprisonment is detaining a person without legal authority to do so. False Imprisonment The Elements 1. The defendant willfully detained plaintiff. 2. The detention was without the consent of the plaintiff. It is not necessary for the plaintiff to have verbally resisted to be without consent. 3. There was no legal authority for the detention. Shopkeepers, employers, peace officers have the authority to make limited detentions. If the detention is longer than necessary, this can eliminate the legal authority. 4. The plaintiff suffered injury, which may include physical or mental injuries such as humiliation and shame.

310 Justice court civil filings that would be considered false imprisonment could include: Thea cannot find her autographed copy of O Connor s Causes of Action. She believes that someone in the office took it. She orders that no one can leave the office until someone turns over the book. Judge Roderayge is cut off in traffic. She follows the person until they stop and then orders them to come to her court and explain why they shouldn t be held in contempt. Note that you have judicial immunity against false imprisonment IF acting in good faith within the scope of your judicial capacity. Is Judge Roderayge in her official capacity? How Does False Imprisonment Get Filed in Justice Court? What is Intentional Infliction of Emotional Distress? A rare cause of action where a defendant acts in an extreme or outrageous manner intentionally to cause emotional distress in the plaintiff.

311 Intentional Infliction of Emotional Distress The Elements 1. The plaintiff must be a person, not a business or company. 2. The defendant must have acted intentionally or recklessly. Primary risk of the conduct must be emotional distress, not physical injury. 3. The plaintiff suffered severe emotional distress. 4. The defendant s conduct was extreme or outrageous. Not enough to be rude or insensitive. 5. The conduct caused the distress. 6. No other cause of action gives a remedy. Most of the time when a plaintiff files a claim for emotional distress, either the distress will not be severe enough or the conduct will not be extreme or outrageous enough to allow recovery: One court recently had someone file because the defendant respondent to plaintiff s Yelp review saying mean things about the plaintiff. Similar filings about mean postings or messages on Facebook or other social media often fall well short. Cases finding extreme/outrageous conduct have involved acts like sexual harassment and death threats. How Does Intentional Infliction of Emotional Distress Get Filed in Justice Court?

312 Defenses to Intentional Torts May Include Consent Self Defense or Defense of Others Necessity Authority of Law Discipline Justification Negligence

313 What is Negligence? Negligence is a very common cause of action in justice court (even though many of the people filing the cases may not know to use that word.) At its base level, a negligence cause of action is saying that the defendant caused injury to the plaintiff by either: Doing something that they shouldn t have done, or Failing to do something that they should have done. Negligence The Elements 1. The defendant had a legal duty to act in a certain way toward the plaintiff. 2. The defendant breached that duty. 3. The breach caused injury to the plaintiff.

314 Negligence Element 1 Duty Duty can be created by a relationship between the parties. For example, attorney client, accountant client, parent child. A general duty exists to use ordinary care to avoid foreseeable risk of injury to others. There is not a general duty to provide aid or protect others, unless there is a special relationship. Civil and criminal laws create statutory duties as well. You have a duty to stop at a red light. Negligence Scenario Duty The location: a local bar. Amanda is drunkenly juggling beer bottles. Bob is walking back from the bathroom into the path of the bottles. Chris sees this, and says nothing. A bottle lands on Bob s head, knocking him unconscious. Dan and Elizabeth see this and provide no medical assistance. Dan is a lawyer, and Elizabeth is a doctor. Bob sues Amanda, Chris, Dan, and Elizabeth. Who, if anyone, had a duty toward Bob in this scenario?

315 Negligence Element 2 Breach In each situation where a person has a duty to another, they have what is called a standard of care. If they fail to meet this standard, they have breached their duty. Normally, the standard is ordinary care, which is what an ordinary prudent person would have done (or not done) in that situation. Negligence Element 2 Breach Situations where a different standard other than ordinary care may apply include: Potential breach by a professional such as an attorney or a physician. The professional is held to the standard of an ordinarily prudent professional would have done in that situation, rather than a non professional. Common carriers and handlers of dangerous commodities are also held to a higher standard of care.

316 Negligence Element 2 Breach When determining what an ordinary prudent person would do, the defendant s age, experience, intelligence, and knowledge are taken into consideration. Violation of a statute is considered negligence per se, meaning the act is negligent on its face. The defendant may be able to provide a defense to this by showing that it was necessary to violate this law for example, speeding to rush someone having a heart attack to the hospital. Negligence Element 3 Causation In negligence cases, the breach must be the actual or proximate cause of the plaintiff s injury. As discussed before, there is a two part test for proximate cause: Cause in fact If the negligence was a substantial factor in the injury and whether the injury would have otherwise occurred. but for test discussed earlier Foreseeability A person of ordinary intelligence should have anticipated the danger caused by the negligence.

317 Understanding Proximate Cause A prison guard fails to search an inmate, which is a job responsibility. The inmate stabs the magistrate on duty with a screwdriver they smuggled in. Did the prison guard have a duty? Did the guard breach that duty? Was that breach a proximate cause of the magistrate s injury? Was the negligence a substantial factor in the injury? Would the injury have occurred without the negligence? Would a prison guard of ordinary intelligence foreseen a risk of this injury? A very common category of negligence cases are premises liability cases these are cases where someone sues not based on the defendant s actions, but on the condition of a premises that the defendant was responsible for. Standard slip and fall cases are in this category. In these cases, the duty varies depending on who the potential plaintiff is and their relationship with the defendant. Duty Premises Liability Cases

318 Duty Premises Liability Cases There are three potential statuses that a plaintiff in a premises liability case can have and each have different duties owed to them: Invitee Entered the premises with express or implied knowledge and for mutual benefit. Licensee Entered the premises with permission but only for the licensee s convenience or on business for someone other than defendant. Trespasser Enters the premises without lawful right or consent, for their own purposes or out of curiosity. Invitee Defendant owes the duty to use ordinary care to keep premises in a reasonably safe condition, including inspection of the premises. Must protect or warn of known risks. Duty Premises Liability Cases Licensee Defendant owes a duty to use ordinary care to protect the licensee from hidden dangers known to the defendant. Trespasser Defendant owes a duty to not injure them willfully, wantonly, or with gross negligence (consciously disregarding reasonable care.)

319 Negligence vs. Premises Liability The status of the plaintiff is relevant in premises liability cases but not other negligence cases. If the plaintiff was injured due to ongoing activity, the case is a negligence case. If they were injured due to a condition of the defendant s premises while not on the defendant s premises, the case is a negligence case. Defendant s rotten tree falls down onto the plaintiff s car in the plaintiff s driveway. Plaintiff wasn t on defendant s property, so case is if defendant was negligent in maintenance of the tree. Defenses to Negligence Include: Contributory Negligence by Plaintiff Release Agreement Assumption of the Risk (hit by a foul ball) Act of God Unavoidable Accident Limitations

320 Statute of Limitations Tort Cases The statute of limitations in a tort case (both intentional torts and negligence) is two years. The statute in some cases does not start running until a party is aware or should have been aware of the tort. If the case is outside the statute of limitations, the plaintiff cannot have a judgment, even if the defendant doesn t bring that up, and even if the defendant never appears. Other Civil Cases & Issues DEED RESTRICTION CASES PARENT/CHILD LIABILITY CASES WITH NO REAL CAUSE OF ACTION

321 Deed Restriction Cases What is a Deed Restriction Case? A deed restriction is a written agreement that affects real property in a subdivision. A lawsuit may be brought whenever someone is violating these agreements. Justice courts have jurisdiction to hear these cases, but not to enter an order making the defendant stop violating the deed restriction. Gov t Code Sec

322 So What Can I Do Then? If you find the defendant violated the deed restriction, you can assess a civil penalty of $200 per day for every day that the violation continues. Prop. Code Sec (c). You have jurisdiction to do this, even if the total amount exceeds $10,000. Gov t Code Sec Cases Without Causes

323 When the Petition Has No Cause of Action Remember that the parties don t have to know the specific names of causes of action. If the petition only alleges a cause of action that justice courts don t have jurisdiction over (such as slander, defamation, or divorce), you should dismiss the case without request from the other side. If the petition alleges multiple causes of action, but one is defamation, you would dismiss the defamation claim, and proceed on the others. When the Petition Has No Cause of Action If the petition alleges something that isn t a valid cause of action, such as the description earlier of they said a mean thing to me on Yelp, the court doesn t dismiss it on its own motion. Instead, the defendant could file a motion for summary disposition. Or, the case could go to trial if they don t make that motion, and the defendant will win.

324 When the Petition Has No Cause of Action If the plaintiff files a petition with allegations of bad conduct by the defendant, you need to determine if a valid cause of action does exist that matches the allegation. For example, what if a lawsuit for plagiarism was filed? Is there a possible cause of action for that? What injury could the plaintiff have based on the plagiarism? Parent Child Liability

325 Child Liability Contracts People under 18 generally cannot enter into binding contracts, except for necessaries. What would be examples of necessaries? If someone does enter into a contract that is not for necessaries, and they are under 18, that is a voidable contract, which means the minor (but not the other party) can cancel the contract. So Jerry offers 14 year old Hermione $50 to wash his car. Hermione fails to do so, and he has to pay Ginny $100 to do it. Hermione can void the contract, and Jerry can t recover from Hermione. However, if Hermione washes the car, Jerry is not allowed to void the contract, and if he doesn t pay, she could sue him and recover the $50. Child Liability Intentional Torts Children are liable for their own intentional torts. There is no bright line minimum age at which they are responsible.

326 Child Liability Intentional Torts A parent is not liable for a child s intentional tort, though they may be liable for the parent s own negligence that allowed the child to take that action. For example, Mike lets his 14 year old daughter Monroe take the car out for a spin. She hits Maryse with the car on purpose. Maryse could file suit against Monroe for assault and against Mike for negligence. Child Liability Negligence A child under the age of 5 cannot be negligent as a matter of law. A child between the ages of 5 and 14 is held to a child s standard of care remember we vary the standard of care based on the actor. However, if a child is acting as an adult they are held to an adult standard of care. This would happen when the child is engaging in adult activities such as operating a car or boat or other activity placing the general public in danger. A child over the age of 14 is held to an adult s standard of care, unless it is shown that the child should not be held to that standard based on disability or other reason.

327 Suits By and Against Children A child cannot file a lawsuit. They must have an adult file it for them as next friend. A child (someone under 18) may not be sued in their own name. The parent would be named as defendant and would represent the child s interest. This is separate from a parent being sued for the parent s own liability as discussed earlier. Here the judgment would be against the child if the plaintiff proved the case, not the parent. The child must be served with the citation of the suit. See Rules 44 and 173; CPRC Sec Calculation of Damages

328 Damages are one of the main elements of ANY civil case What are Damages? Same burden as all of the other elements plaintiff must prove by a preponderance of the evidence You should develop the facts of the case and ask questions designed to determine the amount of damages. Plaintiff may have a valid cause of action, but no damages Determine and identify the cause of action Different causes of action have different types and measures of damage available This information is provided in O Connor s Causes of Action Damages Step 1

329 Damages Step 2 Once you have determined what the cause of action is, and what damages are available, you must determine: What type of damages are being sought? What is the appropriate method of measurement? What proof has been offered from each side? What other questions should you ask of the parties or witnesses? Compensatory Damages Punitive or Exemplary Damages Types of Damages Court Costs Attorney s Fees Pre Judgment Interest Post Judgment Interest

330 Compensatory Damages, Sometimes Called Actual Damages Main idea Put plaintiff back in the position where they would have been IF NOT FOR defendant s conduct. These damages compensate the plaintiff for their loss. Can be economic (medical bills, lost wages, property), or non economic (pain & suffering, mental anguish, etc.) Compensatory Damages Do not include the costs of coming to court in actual or compensatory damages. Lost income from work can be awarded if the work is missed due to the injury, but not lost income for the day that the party comes to court. Travel costs to court are not recoverable.

331 Punitive or Exemplary Damages These are damages that are awarded, not to compensate the plaintiff, but instead to punish, or make an example out of, the defendant. Goal is to punish the defendant for its bad action, as well as deter any future parties from engaging in the same bad behavior. Notable examples include McDonald s being forced to pay punitive damages in the hot coffee case and Ford being forced to pay punitive damages when they knew of the Ford Pinto explosion danger. Court Costs/Fees The winning party is entitled to recover the costs involved with the case, such as filing fees, service fees, jury fees, interpreter fees if appropriate, etc. They do not have to request this explicitly, the Rules of Civil Procedure say the court must award costs. TRCP 505.1(d)

332 Attorney s fees are awardable in certain causes of action, and not others. If they are awardable, you award reasonable and necessary attorney s fees. Attorney s Fees Unlike court costs, the plaintiff does have to specifically request attorney s fees, and must prove they are reasonable and necessary, either with affidavits or live testimony from the attorney. To determine if the fees are reasonable and necessary, look at hours worked, and rate charged. If those numbers are reasonable and necessary, the fees are as well. Attorney s Fees This may result in a reasonable attorney s fee award that seems large compared to the amount in controversy. If I am owed $1000, it may take an attorney several hours at $200/hr to pursue my case. If this isn t allowed, I may never recover my $1000. Again remember, you ve already decided that the hours worked are reasonable, and the rate charged is reasonable.

333 Attorney s Fees The court should not make awards based on a percentage of the judgment. Often, attorneys will have a contract with their client that awards the attorney a percentage of the judgment. These contracts are usually in tort cases, where the court may not award attorney s fees. The court awards the judgment to the party, and the attorney collects from them. Attorney s Fees The court must not award attorney s fees based on an average case basis. For example, usually these cases take 5 hours at $250 an hour, so just award me $1250 per case. This is not fair, because a defendant whose case took 3 hours is paying extra fees because of a completely unrelated case.

334 Pre Judgment Interest This is interest that begins accruing on the plaintiff s damages when the injury occurs. The reason this exists is to encourage settlements and discourage delays in litigation. The award of pre judgment interest compensates the plaintiff for not being able to have the use of their money. It is only awarded on actual damages, not exemplary damages, court costs, or attorney s fees. It is calculated as simple interest (meaning it accrues only on the principal and not on accrued interest) and is the same rate as post judgment interest. All money judgments must include an interest rate that apply to the judgment. Finance Code Sec Unless a contract specifies otherwise (with a maximum of 18%), the court should use the rate located at: Currently 5.5% as of March 2019, changes monthly, so court needs to check it. Post Judgment Interest

335 Available Damages CONTRACTS Compensatory Damages Attorney s Fees Pre Judgment Interest (if specified in the contract) Court Costs & Post Judgment Interest (available in all cases) Punitive Damages are not available. Measure of Compensatory Damages CONTRACTS The main idea of compensatory damages in a contract case is to give a party the benefit of their bargain by placing them in the economic position they would have been in if the contract had been performed. They include loss of value and consequential losses, which are losses that naturally flow from the breach of the contract and were foreseeable by the parties.

336 Willie agrees to purchase 2000 widgets from Widgets R Us for $2 each. In the contract, he specifies that he uses those widgets to create WidgetSpinners, and he is having a WidgetSpinner convention where he will sell the spinners for $10 each. Compensatory Damage Scenario CONTRACTS Widgets R Us breaches and provides 0 widgets. If Willie has to pay $3 each for widgets, what are his compensatory damages? What if no other widgets are available, so he has no WidgetSpinners at the convention? Do his lost profits flow from the breach of contract? If so, would he recover $10 x 2000? If not, how much? Damage Calculation Issues CONTRACTS Many contracts contain clauses that specify what the amount of damages will be in the event of the breach. These are called liquidated damage clauses, and they fall under compensatory damages. Parties cannot recover compensatory damages for inconvenience or delay, unless there is a specific clause in the contract stating that there is a certain time by which the work must be complete. This is called a time is of the essence clause.

337 Damage Calculation Scenario CONTRACTS Audrey hires Red Pool Company to build a pool in her backyard. The contract is signed February 1 and Red Pool says it should take about 3 months. Audrey agrees to pay $8,000. Red Pool hits delay after delay and finally Audrey fires them on July 5th, without having paid them any money. Audrey now hires Blue Pool for $7,700 and they complete the pool on October 1 st. Audrey files suit against Red Pool seeking damages for missing the whole summer with no pool. What are her damages? Available Damages INTENTIONAL TORTS Compensatory Damages (personal injury and property damage) Punitive/ Exemplary Damages Court Costs/Post Judgment Interest (available in all cases). Pre Judgment Interest (personal injury or property damage cases only, not on economic damage cases) Attorney s Fees are not available in intentional tort cases.

338 Available Damages NEGLIGENCE Compensatory Damages (personal injury and property damage) Punitive/ Exemplary Damages (Gross Negligence only) Court Costs/Post Judgment Interest (available in all cases). Pre Judgment Interest (personal injury or property damage cases only, not on economic damage cases) Attorney s Fees are not available in negligence cases. Damage Calculation Issues PUNITIVE DAMAGES Punitive damages are available if the defendant acted with malice (intent to harm the plaintiff) or gross negligence (defendant was aware of an extreme degree of risk but disregarded that risk) How do you decide what amount of punitive damages is appropriate? How much is sufficient to punish the defendant for what they did, and put other actors on notice that they should not engage in that behavior?

339 Damage Calculation Issues CONTRIBUTORY NEGLIGENCE In negligence cases, the finder of fact (judge or jury) must assign a percentage of responsibility to each party. If the plaintiff is more than 50% responsible, they recover $0, due to what is called contributory negligence. If the plaintiff is less than 50% responsible, they recover against the defendant the percentage of their damages that the defendant is responsible for. So if damages are $5,000 and the jury finds the defendant 40% responsible and the plaintiff 60%, how much does the plaintiff get? What if they flip those percentages? Compensatory Damages Property Damage In both negligence and intentional tort cases, a party may seek to recover compensatory damages for property damage. These damages can include: Valuation Damages Market Value Replacement Value Sentimental Value Repair Damages Loss of Use Damages

340 Damage Calculation Issues Personal Property How to calculate sentimental value? Similar to pain/anguish, the plaintiff offers testimony and the finder of fact decides what an appropriate and reasonable value would be. Generally unavailable for common household goods or clothing. Available on items such as heirlooms, rare items, or irreplaceable items such as pictures, etc. How to decide what measure to use out of market value, replacement value, or repair costs? Generally, the lowest value that still makes the plaintiff whole, placing them back where they were before the tort happened. Imagine if I took this glass and smashed it against the wall. The Omni Southpark scoops up all the pieces and sends them to a worldfamous glass craftswoman in Florence, Italy. She reconstitutes the shards back into this glass, good as new. The Omni files suit against me for the cost of this service, $8,500. Reasonable and fair? Why or why not? What is a better measure of damages?

341 Compensatory Damages Personal Injury In both negligence and intentional tort cases, a party may seek to recover compensatory damages for personal injury. These damages can include: Physical pain (past and future) Mental anguish (past and future) Disfigurement or physical impairment Medical expenses Loss of earning capacity Loss of consortium (love & protection) unlikely in justice court Pain & Suffering / Mental Anguish? Yes, you CAN award pain and suffering and/or mental anguish damages. These damages are very difficult to accurately gauge and put a number on. Each finder of fact (judge or jury) may find a different answer on the same facts.

342 Pain & Suffering The idea is to compensate the person for the pain they endured. Medical bills cover economic damages, but not the actual pain. In the OU Texas flask example, if they didn t get medical treatment, their only actual damages are the pain they suffered. How to decide how much? How much would someone have to be paid to willingly endure the pain? How much to let Mike Tyson punch you full force? You can look at the other damages in the case to get a feel for what the person endured (broken glasses, stitches, etc.) The person can testify as to the pain they suffered. Mental Anguish The idea is to compensate the person for the mental pain they endured. Can be awarded if there is either a traumatic bodily injury or If offered direct evidence of the nature and severity of the mental anguish, and how it disrupted the plaintiff s daily routine. Must be more than just being mad or upset, something traumatic. again rare in justice court, because significant trauma will usually incur other damages that are more than $10,000. How to decide how much? How much would someone have to be paid to willingly endure the pain? What disruptions did the mental anguish cause?

343 Ross and Rachel break up. Rachel s new boyfriend Joey works at H E B. Joey detains Ross when Ross is leaving the store, saying they have video proof that he is shoplifting and demands that he apologize and confess. The interrogation goes on for several hours, with Joey threatening that Ross will never leave if he doesn t confess, and that he is going to go to jail for a long time. / Ross sues for the intentional tort of false imprisonment, and could likely recover mental anguish damages. Mental Anguish Case Example Questions?

344 Debt Claims Citation & Default Checklist Civil Deskbook Chapter 4, Sections C & M; TRCP 501, 502.5, 503.1, 503.6, 508 CITATION (Must check all boxes) Issue Citation Promptly When a Petition is Filed and Filing Fee is Paid/Statement of Inability is Filed o Required contents of citation See DB Chapter 4, Section (C)(1) o Upon request, separate/additional citations must be issued o Must keep a copy in the court file Deliver Citation for Service as Directed by the Plaintiff Choose one: o Service by sheriff/constable service fee set by the commissioners court or Statement of Inability. o Service by court clerk (by mail) actual cost of mailing the documents or Statement of Inability. o Service by private process server no fee is charged by the court/county. DEFAULT JUDGMENT (Pick option that applies, then must check all boxes under that option) Option 1 Defendant HAS NOT Filed an Answer or Otherwise Appeared All Information Required by TRCP is in Petition see DB Chapter 4, Section (A)(2) Answer Deadline Has Passed End of the 14 th day after service (or 42 nd day if service by publication) Note: If last day is weekend, holiday or day where court closes before 5, deadline is next business day. Proper Service (may hold a hearing to determine this even if a hearing is not otherwise required) o Citation and copy of petition/all documents filed with petition has been served on defendant. Plaintiff must provide enough copies to be served on each defendant if more than one. If not, clerk may make copies and charge plaintiff copying cost. o Proof of service has been on file for at least 3 days, not counting day of filing or day of judgment. The Return of Service must meet certain requirements, including describing who was served and the date & manner of service See DB Chapter 4, Section (C)(4). o Citation was served by one of the following: Sheriff/constable, certified private process server, court clerk (if served by registered or certified mail), or a person 18 or older authorized by the court. Note: No one who is a party or interested in the outcome of the suit may serve the citation. o Citation was served in one of the following ways: Primary Method In person delivery; OR Registered/certified mail, restricted delivery, return receipt/electronic return receipt requested Alternative Service May be requested by plaintiff/person serving if primary methods don t work. Request must include sworn statement describing methods attempted and stating defendant s usual place of business or residence, or other place where they can probably be found. If court allows alternative service, defendant must be served by first class mail to the defendant at a specified address and also either by leaving a copy at defendant s residence/other place they can probably be found with any person who is at least 16 years old; or by any other method that the court finds is reasonably likely to provide the defendant with notice of the suit. Service by Publication- See DB Chapter 4, Section (C)(3)(e) for details on this option. Last Known Address of Defendant Filed before or at time of judgment

345 Military Affidavit Filed Choose one: o If not in military may proceed. o If unable to determine may require plaintiff to post a bond. o If in the military default may not be entered until certain procedures are followed see DB Chapter 4, Section (M)(3). Plaintiff Has Provided Proof of Damages (liability does not have to be proven) choose one: o Once answer deadline has passed, judge must promptly render judgment for plaintiff upon proof of damages & should do so without a hearing (unless need one to determine if service is proper) if: A proper sworn statement with evidence of the damages is attached to the petition and served on defendant or submitted to the court after defendant fails to answer by answer date; and The evidence shows: That the account/loan was issued to the defendant and they are obligated to pay it; That the account was closed or the defendant breached the terms of the agreement; The amount due as of a date certain after all credits/offsets have been applied; That plaintiff owns the account/loan; AND How plaintiff acquired the account (if applicable). If documentary evidence is included, it must be attached to a sworn statement made by plaintiff, prior holder of debt, original creditor, or representative of any of these, and must swear to the following: Documents were kept in the regular course of business; It was the regular course of business for an employee or representative with knowledge of the act recorded to make the record or to transmit information to be included in such record; The documents were created at or near the time or reasonably soon thereafter; AND The documents attached are the original or exact duplicates of the original o If above option does not apply: Plaintiff must request hearing (orally or in writing). Plaintiff must appear and provide evidence of its damages (may appear electronically or by phone with court s permission). If plaintiff proves its damages, judge must render judgment for plaintiff for amount proven. Note: If plaintiff does not prove its damages, judgment must be rendered for defendant even if they are not present. Option 2 Defendant HAS Filed an Answer or Appeared (even if was AFTER answer deadline) Trial Was Set with 45 Days Notice and Defendant Did Not Appear Court Heard Evidence on Liability AND Damages and Found That Plaintiff Proved Their Case Note: If plaintiff does not prove their case, judgment must be rendered in favor of defendant even if they are not present. Court could also choose to postpone case instead of proceeding. If plaintiff fails to appear for trial, judge may either postpone or dismiss the suit. NOTICE TO DEFENDANT OF DEFAULT JUDGMENT (Must check all boxes) Immediately Mail Written Notice of Judgment to Defendant Choose one: o If defendant hasn t answered send to the last known address filed by the plaintiff. o If defendant has answered send to best available address (could be where defendant was served or an address provided in defendant s answer). Note in Docket That Notice of Judgment Was Sent and Where It Was Sent To

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349 FY 2019 JP Program Criminal Jury Trial Scenario and Activity An Educational Endeavor of the Justices of the Peace and Constables Association, Inc. Funded by a grant from the Texas Court of Criminal Appeals

350 Voir Dire Part I Better known as jury selection Resources Code of Criminal Procedure Chapters 33, 35, 45 Government Code Ch. 62, 573 Trial Procedure Deskbook & Criminal Deskbook at

351 How many jurors? All criminal juries in justice court are made up of six (6) jurors. Code of Criminal Procedure 33.01(a) Government Code General Juror Qualifications Handout

352 Exemptions from Jury service Handout Excuses The Court can excuse a party who they believe has a sufficient excuse. The Court cannot excuse a prospective juror for an economic reason without both parties being present and approving the release of that juror for that reason.

353 De selection vs. Selection Jurors aren t really picked Strike, you are out! Peremptory Challenges/Strikes Each side can strike three (3) people from the jury pool without telling the court a reason Batson Challenge either side can argue that the other has used preemptory strikes to eliminate otherwise eligible jurors because of race, ethnicity, or sex This is discussed further in the Trial Procedure Deskbook

354 Strike, you are out! Challenge/Strike for Cause A request that a prospective juror be struck, meaning removed or dismissed, because there is a specific reason to believe the person can t be fair, unbiased, or capable of serving as a juror Things that the parties can t ask: Repetitious questions Irrelevant or immaterial questions Commitment Questions a party can t try to make a potential juror commit to a verdict based on facts other than something that would prove they were not impartial. EXAMPLES: If I proved all of the elements of the offense beyond a reasonable doubt, could you convict? If the Defendant refused a breath test, would you convict?

355 Common Challenges for Cause Unfair bias for/against law enforcement Personal relationship with one of the parties that creates bias/prejudice Experience with the justice system that creates bias/prejudice Sovereign citizens couldn t find anyone guilty Can t hear/see Witness in this case Related to party within 3d degree consanguinity or affinity (Government Code Ch. 573) Can t consider full range of punishment Others? Voir Dire Part II Scenarios

356 Administer the Oath to the Jury Panel You, and each of you, do solemnly swear that you will make true answers to such questions as may be propounded to you by the court, or under its directions, touching on your service and qualification as a juror, so help you God. Code of Criminal Procedure Art Does Anyone Know Deputy Sarosdy?

357 Can the prosecutor or defendant ask? Has anybody here ever attended AA? Anyone ever had one beer and walked home? Who thinks public intoxication law is stupid? Who doesn t agree with being arrested for public intoxication? 1

358 Who has had a bad experience with law enforcement? 2 Who will promise me that if they only believe i had 2 beers, they won t find me guilty? 3

359 Peremptory Strikes by Each Party: Prosecutor: JURORS 1, 3, 6 Defendant: JURORS 8, 9, 10 (All women) AM1 Prosecutor Makes Batson Challenge What do you do???

360 Slide 20 AM1 Amber Myers, 2/19/2019 Defendant says: so my strikes don t count?! How do you respond???

361 Administer Oath to Jury "You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God". Code of Criminal Procedure Art Written Jury Instructions Handout

362 FY 2019 JP Program Civil Jury Trial Scenario and Activity An Educational Endeavor of the Justices of the Peace and Constables Association, Inc. Funded by a grant from the Texas Court of Criminal Appeals

363 Civil Trials Copyright All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system without prior written permission of the Texas Justice Court Training Center unless copying is expressly permitted by federal copyright law. Address inquiries to: Permissions, Texas Justice Court Training Center, 1701 Directors Blvd., Suite 530, Austin, TX, Before Taking the Bench What is this case about? Should I read the pleadings? What is each side asking for? Is there anything I need to know before the trial? What should I not do?

364 Control of the Courtroom The court should exercise reasonable control over the presentation of evidence and examination of witnesses. TRE 611 Court may apply it under Rule 500.3(e) How should the court maintain control? Control of the Courtroom

365 Right to a Jury Trial Either party is entitled to a jury trial. But the party must file a written demand for a jury no later than 14 days before the date the case is set for trial. And pay a jury fee of $22. Rule 504.1(a) and (b) A demand for a jury may be included in a pleading (a petition, answer or counterclaim). If the demand is not timely, then the right to a jury trial is waived unless the late filing is excused by the judge for good cause. Rule 504.1(a) Right to a Jury Trial

366 Continuance A party may file a motion requesting that the trial be postponed. The motion must state why a postponement is necessary. The judge, for good cause, may postpone any trial for a reasonable time. Rule 503.3(b) Pretrial Conference Remember: The court may hold a pretrial conference at the request of either party, or on its own, in any case once the parties have appeared (the defendant has filed an answer). Issues for a pretrial conference: Discovery Amendment or clarification of pleadings Admission of facts or documents

367 Pretrial Conference Limitation on the number of witnesses Identification of any facts the parties agree on Mediation Possibility of settlement Trial dates Interpreters Any other issue the court believes is appropriate Rule 503.4(a) SRL Packets What are they? Self Represented Litigation Packets Information packets and forms you can give to parties who are not represented by a lawyer in your court to help them understand what they have to do. They are available at this page on the TJCTC website: RL

368 SRL Packets The Rules of Evidence do not apply to cases in justice court: unless the judge decides that a particular rule must be followed to ensure the proceedings are fair to all parties; or unless specifically provided by law or the rules of civil procedure. Rule 500.3(e)

369 Examples of where you would apply the Rules of Evidence: Offers of Settlement; Liability insurance. How to rule: I will give it the weight to which it is entitled. The objection is overruled. The objections is sustained. You do not need to explain your ruling; just rule and move on. What if There are Legal Issues? If you are aware of them before trial: Search the TJCTC Legal Board for similar questions Post a question on the TJCTC Legal Board Call TJCTC Check with another judge Do an online search to find some authority If you become aware of them at trial: Take a recess and do the above if possible Use your common sense!

370 What if there are Legal Issues? Is it always enforceable? What is a hold harmless clause? A term of an agreement in which one of the parties agrees not to hold the other one responsible for any loss, damage or legal liability. No! It must be CONSPICUOUS! That means it must be in ALL CAPS or bold or underlined or marked in some way to call attention to it. What if there are Legal Issues? What is an independent contractor? A person who performs services for an entity free from the control of the entity paying for the services. An independent contractor works under his own name, uses his own equipment, and manages the details of the work. An employee works under the control of their employer. What counts is what they actually do, not what is in a contract between the entity and a third party (for example, a customer).

371 Judge to Develop the Case In order to develop the facts of the case, a judge may question a witness or party and may summon any person or party to appear as a witness when the judge considers it necessary to ensure a correct judgment and a speedy disposition. Rule Judgment for Plaintiff

372 Judgment for Defendant Judgment: Offsetting Claims

373 Trial Deskbook Civil Deskbook Resources Rules , Texas Rules of Civil Procedure Civil Practice and Remedies Code Legal Board Questions Questions?

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377 From: Sent: To: Subject: Diamond, Nellie Thursday, September 1st, 8:27 AM May, April RE: Fluffy's Continental Cut Hi April, I have Fluffy booked and ready to go on September 24 th for her September continental cut. Thanks! Nellie Owner, Diamond in the Ruff From: May, April <aprilmay@gmail.com> Sent: Thursday, September 1, 2018 To: Diamond, Nellie <diamondintheruff@gmail.com> Subject: Fluffy's Continental Cut Dear Nellie, Fluffy is getting ready for her upcoming turn in the Best in Show pageant so we need her to get the poodle continental clip like the photo below from her last showing at a dog show. I ll be bringing her in on Thursday for this month s cut. Thanks! Sincerely, April May 1

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384 Fluffy before being groomed Fluffy after being groomed

385 Example of Fluffy with a continental cut at her last dog show