Recent Letter Regarding Court Decision in Eviction Default Judgments

Dear Judges:

You may have received a letter from Austin attorney Russell Sloan concerning a recent decision by the 68th District Court in Dallas County holding that default money judgments (for back rent) in an eviction case following alternative service by posting and mailing the citation are unconstitutional as a violation of due process. Click here to read the letter.

A final order has not yet been entered in this case. We do not expect that to happen until approximately December 17, 2019. Once a final order is entered we would expect the district court’s decision to be appealed to the 5th Court of Appeals in Dallas. Currently, we do not believe this decision, upon entry of a final order, is legally binding on any justice courts other than potentially Precinct 4, Place 1, Dallas County.

We therefore do not believe you are legally required, at this point, to follow this decision and refuse to enter a default judgment for back rent in an eviction case where the citation was served by alternative service by posting and mailing under Rule 510.4(c) and Property Code § 24.0051(a).

We intend to closely monitor this case and any appeal and will keep you informed of any developments.

Very truly yours,
TJCTC

Spotlight: Chief Deputy Clerk Ashly Vicuna from Del Rio

Ashly Vicuna
Chief Deputy Clerk – Val Verde County, Pct. 3

Tell us a bit about yourself
I was born and raised in Del Rio, Tx. I graduated from Del Rio High School in 2007. I started working for Val Verde County in 2013. I married in October of 2015 and had my first and only child in October of 2016. I love to play softball on the weekends and spend time with my family. As of July 2019, I have become the Chief Deputy for our office and am grateful for the opportunity.

What made you decide to become a clerk?
In 2013, while I was in search of a job, I was told there was a position open with the Justice of the Peace office. I applied and thankfully got the job. I have been in the same office and judge ever since.

What is something innovative, interesting or fun your office does?
Our office is like a close family, so we get together for our birthdays and celebrate together. We have monthly celebrations with the other JP offices as well. The JP offices here have all become close with each other and we are always there to help one another.

What is the best part of your job?
The best part of my job is the people I work with. No matter what is put on our plate, we always work together and get the job done.

SPOTLIGHT

We are rolling out a new “Spotlight” series on our blog. Each month, we will post an interview of someone from a justice court or constable office. Here is the first featured Constable.

Don Langford

Constable, Chambers County Precinct 2

1. Tell us a bit about your background.

I have over 42 years experience in law enforcement. I hold a Master Peace Officer, Mental Health Officer, Fire Arms Instructor, and Civil Process certification through TCOLE. I turned 21 at the DPS Academy in Austin where I went through A school 1970. I spent 8 years as a State Highway Patrolman.  In 1974 I received the award of honor for valor by the Anahuac Area Chamber of Commerce. The newly incorporated City of Cove Texas also proclaimed Don Richard Langford Day that year. I was very appreciative and humbled by their actions.

In 1978 I got out of law enforcement and went to work for Exxon. In 1980 while working on a well in Trinity Bay a crew boat driver let his boat get away, and my left leg was crushed below the knee. I lost my left lower leg as a result. In 1981 the late C. E. “Chuck” Morris then Sheriff of Chambers County and a former Highway Patrolman reactivated my commission as an unpaid deputy. Then in 1985 he asked me to be his Chief Deputy. I held this position until I was elected constable in 1990.

I have been married to my beautiful wife Debby for 48 years and have a beautiful and talented daughter, Dolores, that works for an Engineering Firm in Houston. I also have a very talented and avid outdoorsman son, Daniel, who is a construction manager for a major home building company in Houston.

I also have 4 grandchildren that I am very proud of.

My interests include travelling. I have been to most states and over 30 Countries. For my 66th birthday I did a tandem skydive. Two years ago, I bungee jumped off the Kawarau River Bridge in Queenstown New Zealand. I have just recently returned from China where I hiked up and along the Great Wall.

If it is God’s will, I plan on retiring at the end of my term in December 2020. I have had a wonderful and blessed career in law enforcement.

2. What made you decide to become a Constable?

At the time I decided to run for constable I was chief deputy sheriff in Chambers County. I wanted to serve my community in a less volatile atmosphere and on a more personal level.

3. What is something innovative, interesting, or fun your office does?

I have two very fine ladies in the office that are involved in just about every local event, from helping with baccalaureate services, 4-H events, Chicken club, trunk-or-treat and beyond. My fellow mid-county constables and I have also sponsored the local 4-H skeet team.

4. What is the best part about your job?

The absolute very best part of my job is interacting with the people in my community.

Every day I am at the local convenience store at five in the morning drinking coffee, greeting, and visiting with my constituents as they are on their way to work.

 

Legal Board Question of the Month

OCTOBER 2019

QUESTION:

If we have an eviction case that was originally filed as a non-payment of rent case. At trial the Judge grants “possession only.” If the defendant appeals, would they be required to pay the one month’s rent into the court’s registry, even though the judgment was for possession only?

ANSWER:

Yes. If the basis for the eviction was that the tenant did not pay their rent, then it is a non-payment of rent eviction even if the landlord does not ask for back rent or the court does not award back rent.

If it is a non-payment of rent eviction, and the tenant appeals by filing a Statement of Inability to Afford Payment of Court Costs or by filing an appeal bond, then the court must provide the written notice concerning payment of rent and the tenant must deposit one month’s rent into the court registry. See Evictions Deskbook at page 45; Property Code §24.0053.

If the ground for the eviction is something other than non-payment of rent (for example, loud parties late at night or the lease has terminated but the tenant has not vacated the premises), then the tenant is not required to pay rent into the court registry, and the court does not send the notice to the tenant.

What counts is whether the basis for the eviction suit is non-payment of rent, not whether the landlord is seeking to recover back rent or whether back rent was awarded. It is up to the landlord to decide whether he wishes to seek to recover back rent or not in an eviction case. Even if he decides not to do so, if one of the grounds for eviction was non-payment of rent, then the tenant must make the initial deposit of rent into the court’s registry upon appealing by filing a Sworn Statement of Inability to Afford Payment of Court Costs or by filing an appeal bond.

The Deskbooks can be found here.

 

Ignition Interlock Device Bond Condition: When it is Required and When it is Optional

SAVE-A-LIFE-LOGO4

During the 2019 legislative session, a change was made to when a magistrate is required to order an ignition interlock device (IID) as a bond condition. For the offense of DWI with a Child Passenger (the elements of this offense can be found in Section 49.045 of the Penal Code), the IID condition used to only be required if it was a subsequent offense. Now, this condition is required for this offense whether it is a first or subsequent offense. This new law applies to a defendant released on bond on or after 9/1/19 even if the offense was committed before then.

Below is a chart summarizing the current law for when a magistrate must impose an IID bond condition and when it is up to the discretion of the magistrate to decide whether or not to impose it. In the chart, CCP stands for Code of Criminal Procedure, PC stands for Penal Code, and DWI stands for Driving While Intoxicated.

IID Bond Condition Chart

SPOTLIGHT

We are rolling out a new “Spotlight” series on our blog. Each month, we will post an interview of someone from a justice court or constable office. Here is our first one!

Judge Clyde “Bubba” Howse

Justice of the Peace, Medina County Precinct 3

Judge Howse

  1. Tell us a bit about your background.

I was born and raised in the Air Force. I was born at Ft. Clayton, Panama Canal Zone. I have lived in Panama, France, Germany, Belgium, Switzerland, Alabama, Georgia, Louisiana, Tennessee and Texas. I graduated from Winston Churchill High School in San Antonio, Texas. After almost two years at the University of Corpus Christi, I worked in the oil field. When the oil field shut down, I moved to Sherman, Texas where I was the Golf Course Superintendent at the Grayson County Golf Course for 9 years. I took some Turf Science and Pest Control classes at the Golf Course and I was asked to apply to be an Investigator for the Texas Pest Control Board and EPA. I received that job and covered 27 counties in the East Texas area. There were some big changes in the Texas Pest Control Board and EPA, so I went to work for the Grayson County Sheriff’s Office in the Jail. While on vacation in Hondo, Texas I visited with the Sheriff of Medina County and then moved to Medina County and worked with the Medina County Sheriff’s Office as a Jailer and Animal Control Officer for 7 years.

  1. What made you decide to become a Judge?

I have been very interested in Law Enforcement and the Law for many years. I was getting a warrant for an animal seizure from Judge George Ernst, Justice of the Peace Pct. 3, and he told me that he would be retiring after 28 years in office and told me I should run for his office. After much prayer, I ran and won. I took office January 2011 and I am on my third term.

  1. What is something innovative, interesting, or fun your office does?

The four Justice of the Peace offices (Clerks and Judges) in Medina County have a quarterly meeting to discuss office issues, law changes, and how to handle these changes. We invite other offices that might be involved with these same issues or changes. We have had conversations about Mental Health and Magistration, Inquests, Courtesy Letters, and Video Magistration, to name a few. We have had Rebecca Glisan from TJCTC come and talk about the Bond Conditions on DWI Magistration. We have invited Pretrial Services, the Department of Public Safety, the Medina County Sheriff’s Office, jail staff, deputies, Net Data (JP software), MVBA ( collection agency), the Chief of Police from the towns in Medina County, MHDD (Mental Health staff), the County Judge, the Auditor, and other elected officials to come to these meetings and be a part of our conversation. These are informal meetings where everyone can voice their opinions. They are very good trainings and informative meetings.

  1. What is the best part about your job?

The best part of my job is the people I work with. I have the best clerks in the state. I am blessed to have a good working relationship with the other JPs and their clerks. We have good county officials to work with. I enjoy serving the people of Medina County.

Legal Board Question of the Month

We are going to start posting a noteworthy legal board question and answer each month. Below is our first one!

QUESTION:

I have a plaintiff asking for a Writ of Execution after 10 years. The plaintiff is claiming that the 10 year period is extended by three years due to a bankruptcy filing after the judgment was entered. Does a bankruptcy filing toll the 10 year judgment period? Judgment was entered 3/19/08, bankruptcy was filed 8/11/09 and dismissed on 8/1/12. The debt is still due and owing as it was not discharged in the bankruptcy.

ANSWER:

The Texas Court of Appeals addressed this issue in the recent case of Cade v. Stone, 2013 WL 3009853 (Tex. App.—Corpus Christi, June 13, 2013, no pet.) and expressly held that the pendency of a bankruptcy proceeding tolls the 10 year life span of a Texas judgment. The court held: “[W]here ‘a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.’” After considering 11 U.S.C. § 108, the court noted that, “[a]pplicable nonbankruptcy law [i.e., Texas common law] … provides that [the applicable statute of limitations] w[as] suspended during the time that Cade was prohibited from executing on the judgment due to the automatic bankruptcy stay.” The court concluded: “Accordingly, the time during which the automatic bankruptcy stay was in effect is not “counted against [Cade] in determining” when the applicable statute of limitations (i.e., section 34.001 of the civil practice and remedies code) operated to bar execution on the 1993 domesticated judgment, and, in turn, when the time period for reviving that judgment expired.”

See also HSBC Bank USA, N.A. as Trustee for Merrill Lynch v. Crum, 907 F.3d 199 (5th Cir. 2018); Baker Atlas v. Cheruvathur, 8 Wash. App.2d 1070 (Wash. App. May 20, 2019).

Under this case authority, the plaintiff is correct and the period of the bankruptcy should be added to the ten-year period in which the judgment remains valid. That is precisely the holding of Cade v. Stone.

However, in this case, the plaintiff is still within the two year period in which he could file a writ of scire facias or an action of debt to revive the judgment even if it had become dormant.  So even if the bankruptcy case had not tolled the ten-year period for enforcing the judgment, he would still be able to do so through those means.

Fees and Costs Clarification

Many courts have expressed confusion about the changes to the State Traffic Fine and when it goes into effect. The $20 increase (from $30 to $50) should be applied to all offenses that occur on or after September 1, 2019. It is important to make sure that any update to the software system that your court uses is implementing this change correctly.

You can find more details on the TJCTC Fees & Costs Cheat Sheet.

Also note that there was a typo on the first version of the Cheat Sheet that was emailed out, regarding the effective date of the Time Payment Reimbursement Fee changes. The most updated version can be found at the link below.

TJCTC Legal Department

Click here to download the Fees and Costs Cheat Sheet

or visit our Legislative Update webpage for more information.