Update on Eviction Default Judgment Case

Dear Judges:

This is an update of our post on The Docket on November 27, 2019 concerning the decision by the 68th District Court in Dallas County holding that default money judgments for back rent in an eviction case, where the citation was served by posting and mailing to the premises, are unconstitutional as a violation of due process.

The district court entered a final judgment in the case on December 20, 2019, which may be viewed here: Simmons v Jones.   An appeal filed by the Attorney General relating to jurisdictional issues is pending in the Fifth Court of Appeals.

The question you may have is whether you are legally required to follow the District Court’s 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. We believe the answer to this question is no. The 68th District Court’s decision is only binding with respect to the single plaintiff in that case and the court did not enter any injunctive relief directed to any justice court. We therefore believe you should continue to follow the existing law and procedure with respect to alternative service by posting and mailing as set forth in Rule 510.4(c) and Property Code § 24.0051(a).

We will continue to monitor these issues and keep you informed of any further developments.

Very truly yours,

TJCTC

December Spotlight – Hon. Mark Russo, Justice of the Peace, Rockwall County Pct. 3

Tell us a bit about yourself
I am originally from Canton, Ohio, and the rock singer Marilyn Manson was my neighbor (I believe the water is safe.) I have degrees in Culinary and Broadcasting.  For 20 years, I have also been a pro wrestler, worked in Radio and TV, as well as been involved in historic preservation. I am married to Nicole and have two amazing boys Alex and Lincoln.

In 2008 I was elected to Rockwall City Council and was selected as Mayor Pro-Tem in 2011. I then ran in 2012 for Justice of the Peace and won. I have been involved in JPCA and TAC since being elected and believe I get the weirdest cases TJCTC has ever heard of (Right Thea?!!). I have also served on various committees throughout the state.

Personally, I may be the most energetic and creative person you will ever meet. Truly passionate and I love people and making a difference in people’s lives. Every day should be an adventure!

What made you decide to become a Justice of the Peace?
I ran for a newly created Justice of the Peace position. Every aspect of this job energizes me. The Justice of the Peace position in Rockwall County is very diverse. Every day is different. This job allows me to be able to utilize different facets of my talents and challenges me every day! I enjoy coming up with out of the box solutions.

What is something innovative, interesting or fun your office does? During Christmas we honor the twelve days of Christmas and sometimes the Elf on the Shelf attacks the office.

What is the best part of your job?
The best part of my job is being able to make a difference in people’s lives. Every moment and interaction can have a positive impact on someone. I have found that I can make a big difference by taking a little extra time on the bench. It’s great to have a job you can love every day.

What makes a good judge? A positive attitude, humility, and willingness to be a good listener.

Legal Board Question of the Month

November 2019

Q. If a plaintiff comes in and asks if an address is in our precinct and we look it up and let them know which precinct it’s in, is that considered giving legal advice?

A. No, assisting a person in determining whether or not an address is in your precinct is not giving legal advice; it is giving factual information.  One way to do this is to help the person look up the address on a map showing the precinct boundaries or in some counties you can enter an address in a database and it will state which precinct that address is in. A court may assist a person in obtaining this factual information.

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