Eviction suits cannot be filed in the justice court unless there is a landlord-tenant relationship, either expressed or implied.
To begin an action in the Justice Court system, it is recommended that the plaintiff file a Justice Court Petition in writing stating the nature of the Cause of Action, and the damages requested. All forms used to file a petition are found in the Form Downloads section.
Disclaimer: The information contained in this section is NOT purported to be all inclusive. Neither is it intended to serve as legal advice. You are strongly encouraged to consult the actual law, or consult with an attorney for answers to your questions.
Notice to Vacate
If the landlord alleges the tenant is not paying rent, the landlord is required by law to give the tenant a written notice to vacate the premises. This notice can be delivered to the tenant personally with a witness, or to someone at the premises over the age of 16, or affixed to the inside or outside of the main entry door, or mailed by u.s. certified mail.(if the tenant contests the eviction in court the burden is on the landlord to prove that the proper notice to vacate was given.)
Unless your lease specifically states otherwise, the law requires you deliver the written notice, and then wait three full days before filing the eviction with the court. This is a legal requirement which must be met and cannot be overlooked.
If the reason for eviction is because the tenant did not pay rent or violated the lease in some other way justifying eviction, the law requires the notice to state the reason for eviction. If there is a written lease then the lease must be followed for the time period allotted in the lease. The eviction case should not be filed until the notice time has expired.
Filing the Suit
If there is a written lease contract signed by two or more tenants, all of the tenants should be named and served with a citation.
Costs of filing an eviction suit in Smith County is $131.00.
You must file an original petition, a justice court civil information sheet, and service members civil relief act sec. 201(b). In most cases you will be given a date and time to appear in court at the time of filing which must be no less than 10 days and no more than 21 days from the date suit was filed. If you do not receive this information when you file the case the court will advise you at a later date when to appear for your court date.
Once the petition is filed and filing fee accepted, the clerk will issue a citation and give to the constable for service. This citation is the notice to the tenant that you are attempting to evict him.
An eviction suit must be filed in the county and precinct where the defendant resides. (no exceptions).
Going to Court
You must go to court and prove your case by a preponderance of the evidence. Simply filing a suit does not necessarily mean you will win your suit. You should bring all documents and other evidence with you to court in a well-organized fashion. At the hearing, you will have to present evidence to show that you are entitled to possession of the premises.
Writ of Possession
If you win your suit in court, and the mandatory five day appeal period has passed, and the other party is still in the premises, you can file for a writ of possession with the court. A writ of possession is a court order to the constable to place you in possession of the property. The constable will contact the plaintiff and work out a date and time to turn the property over to the landlord. It will be the plaintiff’s responsibility to remove any items of the defendant’s off the premises. The writ of possession will cost you an additional $120.00 fee and may be requested at the JP office where the judgment was rendered. The constable of your precinct can answer your questions in regards to this writ.
How Long Does It Take to Evict Someone?
- From start to finish Approximately 3 weeks.
- 3 days from notice to vacate to filing of the suit.
- 10 - 21 days from filing of the suit to the trial date.
- 5 days to appeal the suit following the hearing required by law.
- 2 days - the Constable is required by law to post a 24 hour vacate notice on the Writ of Possession
- 23 - 28 days is the minimum amount of time to evict someone in any county in Texas. It must also be noted that any eviction suit is subject to appeal to the County Courts at Law.