Tenant Defenses to Evictions in Texas

In Texas, a landlord can evict a tenant for a variety of reasons, including not paying rent on time or violating a portion of the lease or rental agreement. In some cases, a tenant might have cause (legal grounds) to fight the eviction. This article will provide some of the most common legal grounds a tenant can use to fight an eviction in Texas.

How an Eviction Works in Texas

The Texas State Property Code sets out the rules and procedures a landlord must follow when evicting a tenant. First, when the landlord discovers the tenant has either failed to pay rent or violated a portion of the lease or rental agreement, the landlord must give the tenant a three-day Notice to Vacate. If the tenant does not move out within the three-day time period and chooses to fight the eviction, then the landlord will next file a complaint with the Texas Justice Court in the county where the rental unit is located. The court will set a date and time for the hearing and an officer of the law will deliver the complaint to the tenant. Upon receiving the complaint, the tenant will have fourteen days to file an answer to the complaint with the justice court (see Tex. Rules of Civ. Pro. § 502.5). The answer will detail the defenses the tenant wishes to use to fight the eviction lawsuit. The tenant must also appear at the hearing. At the hearing, the judge will decide whether the tenant can stay in the rental unit or move out, based on both the complaint and the answer.

For more information on how evictions work in Texas and for a sample answer form, see the Texas Tenant Advisor website.

Remember that fighting an eviction is not always worth it. It can be a waste of time and money—the losing party often has to pay all the court and attorneys' fees for the winning party, plus it can have a negative effect on your credit rating. If you only need a few more days in the rental unit before moving out, you and your landlord may be able to reach an agreement without going to court. Many communities have free or low-cost mediation services that handle landlord-tenant disputes; local resources are available through the website mediate.com and the American Arbitration Association. The mediation faqs on the Nolo site provide more information on the subject.

Tenant Legal Grounds for Fighting an Eviction in Texas

A tenant may have legal grounds to fight an eviction and stay in the rental unit. Here are some of the most common defenses (procedural and substantive) a tenant may have to try to stop an eviction in Texas.

Landlord Used "Self-Help" Eviction Procedures

A landlord cannot force a tenant out of a rental unit by using such means as changing the locks or turning off the utilities. These types of actions are prohibited by Texas state law (Tex. Prop. Code § § 92.008, 92.0081, 92.009), even if a landlord is justified in evicting a tenant (for example, if the tenant didn't pay rent). The landlord must follow all the procedures set out in the Texas State Property Code. A landlord who engages in these types of "self-help" actions will likely have their case dismissed and have to pay damages to the tenant. See the Nolo article Illegal Eviction Procedures in Texas for more information.

Eviction Notice and/or Service to the Tenant Had Errors

In Texas, landlords must prepare eviction notices according to very specific rules and guidelines. For details, see the Nolo articles Eviction Notices for Lease Violations in Texas and Eviction Notices for Nonpayment of Rent in Texas. If an eviction notice, such as the Notice to Vacate, is missing essential information, such as the date and time the tenant must be out of the rental unit, or service was improper, a judge may dismiss the eviction lawsuit. The landlord can then fix the error and start the process all over again. If the landlord is justified in the eviction, then the tenant will still be forced to leave the rental unit at the end of the eviction lawsuit. This option just gives the tenant more time to remain in the rental unit.

Tenant Has a Legal Justification for Not Paying Rent

There are two main reasons why a tenant may win an eviction lawsuit, even though the tenant has not paid rent.

Tenant Pays Rent Late

In Texas, the landlord can decide whether to accept late rent or evict a tenant. If the landlord chooses to accept late rent, the landlord must notify the tenant in writing that the tenant owes rent, before giving the tenant a Notice to Vacate. If the landlord provides this late rent notice to the tenant, then the Notice to Vacate can give the tenant the option to either pay the rent or move out. If the tenant pays the full amount owed in rent within three days, then the landlord must not proceed with the eviction lawsuit (see Tex. Prop. Code Ann. §24.005(i)).

This option is only available to the tenant if the landlord first notified the tenant in writing that rent is due and owing. The landlord does not have to accept late rent from the tenant and can simply proceed forward with the eviction proceedings without providing this option to the tenant.

The Rental Unit is Uninhabitable

The Texas State Property Code informs landlords and tenants of the responsibilities landlords have to keep a rental unit safe and habitable. Landlords have a responsibility to repair anything in a rental unit that affects the physical health or safety of a tenant, such as raw sewage backing up into the apartment or lack of heat. However, the tenant must first inform the landlord in writing that the rental unit has a health or safety problem and the tenant must be fully paid up in rent. Then the landlord has no more than seven days to fix the problem (see Tex. Prop. Code Ann. § 92.052 and 92.056).

If the landlord does not fix the problem, then the tenant can repair the problem and deduct from the rent the amount of money required for repairs (see Tex. Prop. Code Ann. § 92.056 and 92.0561 and Texas Tenant Rights to "Repair and Deduct"). If the landlord proceeds with an eviction because a tenant did not pay the full amount of rent in this situation, then the tenant can use as a defense that the rental unit was legally uninhabitable.

Landlord Is Retaliating Against the Tenant for Exercising a Legal Right

In Texas, a landlord cannot evict a tenant for exercising a legal right. The Texas Property Code §92.331 details the specific instances where landlords cannot evict a tenant:

1. The tenant, in good faith, tries to exercise a right allowed to the tenant under the lease, municipal ordinance, or federal or state statute. For example, if the lease allows the tenant to have one cat in the rental unit, then the landlord cannot evict the tenant for keeping one cat as a pet in the rental unit.

2. The tenant gives the landlord notice that a repair needs to be made in the rental unit.

3. The tenant complains to a government agency to enforce building or housing codes.

If a landlord evicts a tenant for exercising one of these rights, the tenant can use this as a defense against the eviction. For more information, see the Nolo article Texas State Laws Prohibiting Landlord Retaliation.

Landlord Has an Illegal Discriminatory Reason for Evicting the Tenant

Under the federal Fair Housing Act and the Texas Fair Housing Act, a tenant cannot be discriminated against for race, religion, gender, national origin, familial status (including children under the age of 18 and pregnant women), and disability. A landlord cannot evict a tenant based on any of these characteristics. If a landlord does evict a tenant in violation of the federal Fair Housing Act or Texas Fair Housing Act, the tenant can use this as a defense against the eviction. The Texas Workforce Commission provides more information on the federal Fair Housing Act and the Texas Fair Housing Act. Also see the Nolo article Housing Discrimination Prohibited by State and Local Law for more on laws prohibiting discrimination against tenants.

Tenant Resources for Fighting an Eviction in Texas

For more information on tenants' rights, see the articles available at TexasTenant.org, a site maintained by the Texas Low Income Housing Information Service that includes useful advice on tenant defenses to evictions in Texas. The Texas Attorney General also has several articles regarding tenant rights available online. Tenants who live in federally assisted housing should check out the tenant resource page at HUD.gov.

Also, check out your specific county court resources. Understanding how each county court operates is essential for tenants challenging an eviction lawsuit. Some county courts provide sample legal forms and other information regarding how to proceed in an evictions case, such as the Dallas County Justice Court and the Harris County Justice Court.

When to Hire an Experienced Tenants' Lawyer

If your case is complicated or the landlord has already hired a lawyer, it is probably best for you to do the same. A lawyer can handle the whole case or to give you advice on how to best stop the eviction. A lawyer can also let you know how likely you are to win your case. You may especially want to hire an attorney if you are confident of your case and your lease or rental agreement entitles you to attorney fees if you win in court.

For advice on finding a good lawyer, see the Nolo article How to Find an Excellent Attorney. Also check out Nolo's Lawyer Directory for Texas lawyers who specialize in landlord-tenant law.

Texas has several legal aid options available as well for those who qualify, including Legal Aid of Northwest Texas and Lone Star Legal Aid.

More Information on Evictions and Terminations

For more articles on the subject, see the Evictions and Terminations section of Nolo.com. If you want to learn about how tenant bankruptcy affects an eviction, see the Nolo article Bankrupt Tenants.

For more information on tenant rights, see Every Tenant's Legal Guide, by Janet Portman and Marcia Stewart (Nolo).