Part VII. Rules Relating to Special Proceedings
Rule 735. Foreclosures Requiring a Court Order
Rule 736 provides the procedure for obtaining a court order, when required, to allow foreclosure of a lien containing a power of sale in the security instrument, dedicatory instrument, or declaration creating the lien, including a lien securing any of the following:
a home equity loan, reverse mortgage, or home equity line of credit under article XVI, sections 50(a)(6), 50(k), and 50(t) of the Texas Constitution;
a tax lien transfer or property tax loan under sections 32.06 and 32.065 of the Tax Code; or
a property owners association assessment under section 209.0092 of the Property Code.
A Rule 736 order does not alter any foreclosure requirement or duty imposed under applicable law or the terms of the loan agreement, contract, or lien sought to be foreclosed. The only issue to be determined in a Rule 736 proceeding is whether a party may obtain an order under Rule 736 to proceed with foreclosure under applicable law and the terms of the loan agreement, contract, or lien sought to be foreclosed.
A Rule 736 order is not a substitute for a judgment for judicial foreclosure, but any loan agreement, contract, or lien that may be foreclosed using Rule 736 procedures may also be foreclosed by judgment in an action for judicial foreclosure.
Rule 736. Expedited Order Proceeding
Where Filed. An application for an expedited order allowing the foreclosure of a lien listed in Rule 735 to proceed must be filed in a county where all or part of the real property encumbered by the loan agreement, contract, or lien sought to be foreclosed is located or in a probate court with jurisdiction over proceedings involving the property.
Style. An application must be styled In re: Order for Foreclosure Concerning [state: propertys mailing address] under Tex. R. Civ. P. 736.
When Filed. An application may not be filed until the opportunity to cure has expired under applicable law and the loan agreement, contract, or lien sought to be foreclosed.
Contents. The application must:
Identify by name and last known address each of the following parties:
Petitioner - any person legally authorized to prosecute the foreclosure;
Respondent - according to the records of the holder or servicer of the loan agreement, contract, or lien sought to be foreclosed;
for a home equity loan, reverse mortgage, or home equity line of credit, each person obligated to pay the loan agreement, contract, or lien sought to be foreclosed and each mortgagor, if any, of the loan agreement, contract, or lien sought to be foreclosed;
for a tax lien transfer or property tax loan, each person obligated to pay the loan agreement, contract, or lien sought to be foreclosed, each mortgagor, if any, of the loan agreement, contract, or lien sought to be foreclosed, each owner of the property, and the holder of any recorded preexisting first lien secured by the property;
for a property owners association assessment, each person obligated to pay the loan agreement, contract, or lien sought to be foreclosed who has a current ownership interest in the property.
Identify the property encumbered by the loan agreement, contract, or lien sought to be foreclosed by its commonly known street address and legal description.
Describe or state:
the type of lien listed in Rule 735 sought to be foreclosed and its constitutional or statutory reference;
the authority of the party seeking foreclosure, whether as the servicer, beneficiary, lender, investor, property owners= association, or other person with authority to prosecute the foreclosure;
each person obligated to pay the loan agreement, contract, or lien sought to be foreclosed;
each mortgagor, if any, of the loan agreement, contract, or lien sought to be foreclosed who is not a maker or assumer of the underlying debt;
as of a date that is not more than sixty days prior to the date the application is filed:
if the default is monetary, the number of unpaid scheduled payments,
if the default is monetary, the amount required to cure the default,
if the default is non-monetary, the facts creating the default, and
if applicable, the total amount required to pay off the loan agreement, contract or lien;
that the requisite notice or notices to cure the default has or have been mailed to each person as required under applicable law and the loan agreement, contract, or lien sought to be foreclosed and that the opportunity to cure has expired; and
that before the application was filed, any other action required under applicable law and the loan agreement, contract, or lien sought to be foreclosed was performed.
For a tax lien transfer or property tax loan, state all allegations required to be contained in the application in accordance with section 32.06(c-1)(1) of the Tax Code.
Conspicuously state:
that legal action is not being sought against the occupant of the property unless the occupant is also names as a respondent in the application; and
that if the petitioner obtains a court order, the petitioner will proceed with a foreclosure of the property in accordance with applicable law and the terms of the loan agreement, contract, or lien sought to be foreclosed.
Include an affidavit of material facts in accordance with Rule 166a(f) signed by the petitioner or the servicer describing the basis for foreclosure and, depending on the type of lien sought to be foreclosed, attach a legible copy of:
each notice required to be mailed to any person under applicable law and the loan agreement, contract, or lien sought to be foreclosed before the application was filed and proof of mailing of each notice; and
for a tax lien transfer or property tax loan:
the property owner=s sworn document required under section 32.06(-1) of the Tax Code; and
the taxing authority=s certified statement attesting to the transfer of the lien, required under section 32.06(b) of the Tax Code.
All filing, citation, mailing, service, and other court costs and fees are costs of court and must be paid by petitioner at the time of filing an application with the clerk of the court.
Issuance.
When the application is filed, the clerk must issue a separate citation for each respondent named in the application and one additional citation for the occupant of the property sought to be foreclosed.
Each citation that is directed to a respondent must state that any response to the application is due the first Monday after the expiration of 38 days from the date the
citation was placed in the custody of the U.S. Postal Service in accordance with the clerk=s standard mailing procedures and state the date that the citation was placed in the custody of the U.S. Postal Service by the clerk.
Service and Return.
The clerk of the court must serve each citation, with a copy of the application attached, by both first class mail and certified mail. A citation directed to a respondent must be mailed to the respondent=s last known address that is stated in the application. A citation directed to the occupant of the property sought to be foreclosed must be mailed to Occupant of [state: property=s mailing address] at the address of the property sought to be foreclosed that is stated in the application.
Concurrently with service, the clerk must complete a return of service in accordance with Rule 107, except that the return of service need not contain a return receipt. For a citation mailed by the clerk in accordance with (b)(1), the date of service is the date and time the citation was placed in the custody of the U.S. Postal Service in a properly addressed, postage prepaid envelope in accordance with the clerk=s standard mailing procedures.
The clerk must only charge one fee per respondent or occupant served under this rule.
No discovery is permitted in a Rule 736 proceeding.
Generally. A respondent may file a response contesting the application.
Due Date. Any response to the application is due the first Monday after the expiration of 38 days from the date the citation was placed in the custody of the U.S. Postal Service in accordance with the clerk=s standard mailing procedures, as stated on the citation.
Form. A response must be signed in accordance with Rule 57 and may be in the form of a general denial under Rule 92, except that a respondent must affirmatively plead:
why the respondent believes a respondent did not sign a loan agreement document, if applicable, that is specifically identified by the respondent;
why the respondent is not obligated for payment of the lien;
why the number of months of alleged default or the reinstatement or pay off amounts are materially incorrect;
why any document attached to the application is not a true and correct copy of the original; or
proof of payment in accordance with Rule 95.
Other Claims. A response may not state an independent claim for relief. The court must, without a hearing, strike and dismiss any counterclaim, cross claim, third party claim, intervention, or cause of action filed by any person in a Rule 736 proceeding.
The court must not conduct a hearing under this rule unless a response is filed. If a response is filed, the court must hold a hearing after reasonable notice to the parties. The hearing on the application must not be held earlier than 20 days or later than 30 days after a request for a hearing is made by any party. At the hearing, the petitioner has the burden to prove by affidavits on file or evidence presented the grounds for granting the order sought in the application.
If no response to the application is filed by the due date, the petitioner may file a motion and proposed order to obtain a default order. For the purposes of obtaining a default order, all facts alleged in the application and supported by the affidavit of material facts constitute prima facie evidence of the truth of the matters alleged.
The court must grant the application by default order no later than 30 days after a motion is filed under (a) if the application complies with the requirements of Rule 736.1 and was properly served in accordance with Rule 736.3. The petitioner need not appear in court to obtain a default order.
The return of service must be on file with the clerk of the court for at least 10 days before the court may grant the application by default.
The court must issue an order granting the application if the petitioner establishes the basis for the foreclosure. Otherwise, the court must deny the application.
An order granting the application must describe:
the material facts establishing the basis for foreclosure;
the property to be foreclosed by commonly known mailing address and legal description;
the name and last known address of each respondent subject to the order; and
the recording or indexing information of each lien to be foreclosed.
An order granting or denying the application is not subject to a motion for rehearing, new trial, bill of review, or appeal. Any challenge to a Rule 736 order must be made in a suit filed in a separate, independent, original proceeding in a court of competent jurisdiction.
An order is without prejudice and has no res judicata, collateral estoppel, estoppel by judgment, or other effect in any other judicial proceeding. After an order is obtained, a person may proceed with the foreclosure process under applicable law and the terms of the lien sought to be foreclosed.
If a respondent provides proof to the clerk of the court that respondent filed bankruptcy before an order is signed, the proceeding under this rule must be abated so long as the automatic stay is effective.
A proceeding or order under this rule is automatically stayed if a respondent files a separate, original proceeding in a court of competent jurisdiction that puts in issue any matter related to the origination, servicing, or enforcement of the loan agreement, contract, or lien sought to be foreclosed prior to 5:00 p.m. on the Monday before the scheduled foreclosure sale.
Respondent must give prompt notice of the filing of the suit to petitioner or petitioner=s attorney and the foreclosure trustee or substitute trustee by any reasonable means necessary to stop the scheduled foreclosure sale.
Within ten days of filing suit, the respondent must file a motion and proposed order to dismiss or vacate with the clerk of the court in which the application was filed giving notice that respondent has filed an original proceeding contesting the right to foreclose in a court of competent jurisdiction. If no order has been signed, the court must dismiss a pending proceeding. If an order has been signed, the court must vacate the Rule 736 order.
If the automatic stay under this rule is in effect, any foreclosure sale of the property is void. Within 10 business days of notice that the foreclosure sale was void, the trustee or substitute trustee must return to the buyer of the foreclosed property the purchase price paid by the buyer.
The court may enforce the Rule 736 process under chapters 9 and 10 of the Civil Practices and Remedies Code.
A conformed copy of the order must be attached to the trustee or substitute trustee=s foreclosure deed.
The Supreme Court of Texas may promulgate forms that conform to this rule.
Rules 735 and 736 have been rewritten and expanded to cover property owners= associations assessment liens, in accordance with amendments to chapter 209 of the Property Code. Rule 735.1 makes the expedited procedures of Rule 736 available only when the lienholder has a power of sale but a court order is nevertheless required by law to foreclose the lien. Rule
735.2 makes clear that Rule 736 is procedural only and does not affect other contractual or legal rights or duties. Any lien which can be foreclosed under Rule 736 may also be foreclosed in an action for judicial foreclosure, as Rule 735.3 states, but no lienholder is required to obtain both a Rule 736 order and a judgment for judicial foreclosure. The requirement of conspicuousness in Rule 736.1(d)(5) has reference to section 1.201(b)(10) of the Business and Commerce Code.
Notes and Comments: the note, original recorded lien, or pertinent part of a property owners= association declaration or dedicatory instrument establishing the lien, and current assignment of the lien, if assigned;
Rule 756. Petition
The plaintiff's petition shall state:
The names and residence, if known, of each of the other joint owners, or joint claimants, of such property.
The share or interest which the plaintiff and the other joint owners, or joint claimants, of same own or claim so far as known to the plaintiff.
The land sought to be partitioned shall be so described as that the same may be distinguished from any other and the estimated value thereof stated.
Rule 757. Citation and Service
Upon the filing of a petition for partition, the clerk shall issue citation for each of the joint owners,
or joint claimants, named therein, as in other cases, and such citations shall be served in the manner and for the time provided for the service of citations in other cases.
Rule 758. Where Defendant Is Unknown or Residence Is Unknown
If the plaintiff, his agent or attorney, at the commencement of any suit, or during the progress thereof, for the partition of land, shall make affidavit that an undivided portion of the land described in plaintiff's petition in said suit is owned by some person unknown to affiant, or that the place of residence of any known party owning an interest in land sought to be partitioned is unknown to affiant, the Clerk of the Court shall issue citation for publication, conforming to the requirements of Rules 114 and 115, and served in accordance with the directions of Rule 116. In case of unknown residence or party, the affidavit shall include a statement that after due diligence plaintiff and the affiant have been unable to ascertain the name or locate the residence of such party, as the case may be, and in such case it shall be the duty of the court trying the action to inquire into the sufficiency of the diligence so stated before granting any judgment.
Rule 759. Judgment Where Defendant Cited by Publication
When the defendant has been duly cited by publication in accordance with the preceding rule, and no appearance is entered within the time prescribed for pleadings, the court shall appoint an attorney to defend in behalf of such owner or owners, and proceed as in other causes where service is made by publication. It shall be the special duty of the court in all cases to see that its decree protects the rights of the unknown parties thereto. The judge of the court shall fix the fee of the attorney so appointed, which shall be entered and collected as costs against said unknown owner or owners.
Rule 760. Court Shall Determine, What
Upon the hearing of the cause, the court shall determine the share or interest of each of the joint owners or claimants in the real estate sought to be divided, and all questions of law or equity affecting the title to such land which may arise.
Rule 761. Appointment of Commissioners
The court shall determine before entering the decree of partition whether the property, or any part thereof, is susceptible of partition; and, if the court determines that the whole, or any part of such property is susceptible of partition, then the court for that part of such property held to be susceptible of partition shall enter a decree directing the partition of such real estate, describing the same, to be made in accordance with the respective shares or interests of each of such parties entitled thereto, specify in such decree the share or interest of each party, and shall appoint three or more competent and disinterested persons as commissioners to make such partition in
accordance with such decree and the law, a majority of which commissioners may act.
Rule 762. Writ of Partition
The clerk shall issue a writ a partition, directed to the sheriff or any constable of the county, commanding such sheriff or constable to notify each of the commissioners of their appointment as such, and shall accompany such writ with a certified copy of the decree of the court directing the partition.
Rule 763. Service of Writ of Partition
The writ of partition shall be served by reading the same to each of the persons named therein as commissioners, and by delivering to any one of them the accompanying certified copy of the decree of the court.
Rule 764. May Appoint Surveyor
The court may, should it be deemed necessary, appoint a surveyor to assist the commissioners in making the partition, in which case the writ of partition shall name such surveyor, and shall be served upon him by reading the same to him.
Rule 765. Return of Writ
A writ of partition, unless otherwise directed by the court, shall be made returnable twenty days from date of service on the commissioner last served; and the officer serving it shall endorse thereon the time and manner of such service.
Rule 766. Shall Proceed to Partition
The commissioners, or a majority of them, shall proceed to partition the real estate described in the decree of the court, in accordance with the directions contained in such decree and with the provisions of law and these rules.
Rule 767. May Cause Survey
If the commissioners deem it necessary, they may cause to be surveyed the real estate to be partitioned into several tracts or parcels.
Rule 768. Shall Divide Real Estate
The commissioners shall divide the real estate to be partitioned into as many shares as there are persons entitled thereto, as determined by the court, each share to contain one or more tracts or parcels, as the commissioners may think proper, having due regard in the division to the situation, quantity and advantages of each share, so that the shares may be equal in value, as nearly as may be, in proportion to the respective interests of the parties entitled. The commissioners shall then proceed by lot to set apart to each of the parties entitled one of said shares, determined by the decrees of the court.
Rule 769. Report of Commissioners
When the commissioners have completed the partition, they shall report the same in writing and under oath to the court, which report shall show:
The property divided, describing the same.
The several tracts or parcels into which the same was divided by them, describing each particularly.
The number of shares and the land which constitutes each share, and the estimated value of each share.
The allotment of each share.
The clerk shall immediately mail written notice of the filing of the report to all parties.
Notes and Comments: The report shall be accompanied by such field notes and maps as may be necessary to make the same intelligible.
Comment to 1990 change: Requirement added that clerk notify parties of the filing of the report.
Rule 770. Property Incapable of Division
Should the court be of the opinion that a fair and equitable division of the real estate, or any part thereof, cannot be made, it shall order a sale of so much as is incapable of partition, which sale shall be for cash, or upon such other terms as the court may direct, and shall be made as under execution or by private or public sale through a receiver, if the court so order, and the proceeds thereof shall be returned into court and be partitioned among the persons entitled thereto, according to their respective interests.
Rule 771. Objections to Report
Either party to the suit may file objections to any report of the commissioners in partition within thirty days of the date the report is filed, and in such case a trial of the issues thereon shall be had as in other cases. If the report be found to be erroneous in any material respect, or unequal and unjust, the same shall be rejected, and other commissioners shall be appointed by the Court, and the same proceedings had as in the first instance.
Notes and Comments: Comment to 1990 change: To set a time within which objections to a commissioners report must be filed.
Rule 772. Procedure
An action seeking partition of personal property as authorized by Section 23.001, Texas Property Code, shall be commenced in the same manner as other civil suits, and the several owners or claimants of such property shall be cited as in other cases.
Rule 773. Value Ascertained
The separate value of each article of such personal property, and the allotment in kind to which each owner is entitled, shall be ascertained by the court, with or without a jury.
Rule 774. Decree of Court Executed
When partition in kind of personal property is ordered by the judgment of the court, a writ shall be issued in accordance with such judgment, commanding the sheriff or constable of the county where the property may be to put the parties forthwith in possession of the property allotted to each respectively.
Rule 775. Property Sold
When personal property will not admit of a fair and equitable partition, the court shall ascertain the proportion to which each owner thereof is entitled, and order the property to be sold, and execution shall be issued to the sheriff or any constable of the county where the property may be describing such property and commanding such officer to sell the same as in other cases of execution, and pay over the proceeds of sale to the parties entitled thereto, in the proportion ascertained by the judgment of the court.
Rule 776. Construction
No provision of the statutes or rules relating to partition shall affect the mode of proceeding prescribed by law for the partition of estates of decedents among the heirs and legatees, nor preclude partition in any other manner authorized by the rules of equity, which rules shall govern in proceedings for partition in all respects not provided for by law or these rules.
Rule 777. Pleading and Practice
The same rules of pleading, practice and evidence which govern in other civil actions shall govern in suits for partition, when not in conflict with any provisions of the law or these rules relating to partition.
Rule 778. Costs
The court shall adjudge the costs in a partition suit to be paid by each party to whom a share has been allotted in proportion to the value of such share.
Rule 779. Joinder of Parties
When it appears to the court or judge that the several rights of divers parties to the same office or franchise may properly be determined on one information, the court or judge may give leave to join all such persons in the same information in order to try their respective rights to such office or franchise.
Rule 780. Citation to Issue
When such information is filed, the clerk shall issue citation as in civil actions, commanding the defendant to appear and answer the relator in an information in the nature of a quo warranto.
Rule 781. Proceeding as in Civil Cases
Every person or corporation who shall be cited as hereinbefore provided shall be entitled to all the rights in the trial and investigation of the matters alleged against him, as in other cases of trial of civil cases in this State. Either party may prosecute an appeal or writ of error from any judgment
rendered, as in other civil cases, subject, however, to the provisions of Rule 42, Texas Rules of Appellate Procedure, and the appellate court shall give preference to such case, and hear and determine the same as early as practicable.
Rule 782. Remedy Cumulative
The remedy and mode of procedure hereby prescribed shall be construed to be cumulative of any now existing.
Rule 783. Requisites of Petition
The petition shall state:
The real names of the plaintiff and defendant and their residences, if known.
A description of the premises by metes and bounds, or with sufficient certainty to identify the same, so that from such description possession thereof may be delivered, and state the county or counties in which the same are situated.
The interest which the plaintiff claims in the premises, whether it be a fee simple or other estate; and, if he claims an undivided interest, the petition shall state the same and the amount thereof.
That the plaintiff was in possession of the premises or entitled to such possession.
That the defendant afterward unlawfully entered upon and dispossessed him of such premises, stating the date, and withholds from him the possession thereof.
If rents and profits or damages are claimed, such facts as show the plaintiff to be entitled thereto and the amount thereof.
It shall conclude with a prayer for the relief sought.
Rule 784. The Possessor Shall Be Defendant
The defendant in the action shall be the person in possession if the premises are occupied, or some person claiming title thereto in case they are unoccupied.
Rule 785. May Join as Defendants, When
The plaintiff may join as a defendant with the person in possession, any other person who, as landlord, remainderman, reversioner or otherwise, may claim title to the premises, or any part thereof, adversely to the plaintiff.
Rule 786. Warrantor, Etc., May Be Made a Party
When a party is sued for lands, the real owner or warrantor may make himself, or may be made, a party defendant in the suit, and shall be entitled to make such defense as if he had been the original defendant in the action.
Rule 787. Landlord May Become Defendant
When such action shall be commenced against a tenant in possession, the landlord may enter himself as the defendant, or he may be made a party on motion of such tenant; and he shall be entitled to make the same defense as if the suit had been originally commenced against him.
Rule 788. May File Plea of "not Guilty" Only
The defendant in such action may file only the plea of "not guilty," which shall state in substance that he is not guilty of the injury complained of in the petition filed by the plaintiff against him, except that if he claims an allowance for improvements, he shall state the facts entitling him to the same.
Rule 789. Proof Under Such Plea
Under such plea of "not guilty" the defendant may give in evidence any lawful defense to the action except the defense of limitations, which shall be specially pleaded.
Rule 790. Answer Taken as Admitting Possession
Such plea or any other answer to the merits shall be an admission by the defendant, for the purpose of that action, that he was in possession of the premises sued for, or that he claimed title thereto at the time of commencing the action, unless he states distinctly in his answer the extent of his possession or claim, in which case it shall be an admission to such extent only.
Rule 791. May Demand Abstract of Title
After answer filed, either party may, by notice in writing, duly served on the opposite party or his attorney of record, not less than ten days before the trial of the cause, demand an abstract in writing of the claim or title to the premises in question upon which he relies.
Rule 792. Time to File Abstract
Such abstract of title shall be filed with the papers of the cause that within thirty days after the service of the notice, or within such further time that the court on good cause shown may grant; and in default thereof, the court may, after notice and hearing prior to the beginning of trial, order that no written instruments which are evidence of the claim or title of such opposite party be given on trial.
Rule 793. Abstract Shall State, What
The abstract mentioned in the two preceding rules shall state:
The nature of each document or written instrument intended to be used as evidence and its date; or
If a contract or conveyance, its date, the parties thereto and the date of the proof of acknowledgment, and before what officer the same was made; and
Where recorded, stating the book and page of the record.
If not recorded in the county when the trial is had, copies of such instrument, with the names of the subscribing witnesses, shall be included. If such unrecorded instrument be lost or destroyed it shall be sufficient to state the nature of such instrument and its loss or destruction.
Rule 794. Amended Abstract
The court may allow either party to file an amended abstract of title, under the same rules, which authorize the amendment of pleadings so far as they are applicable; but in all cases the documentary evidence of title shall at the trial be confined to the matters contained in the abstract of title.
Rule 795. Rules in Other Cases Observed
The trial shall be conducted according to the rules of pleading, practice and evidence in other cases in the district court and conformable to the principles of trial by ejectment, except as otherwise provided by these rules.
Rule 796. Surveyor Appointed, Etc.
The judge of the court may, either in term time or in vacation, at his own discretion, or on motion of either party to the action appoint a surveyor, who shall survey the premises in controversy pursuant to the order of the court, and report his action under oath to such court. If said report be not rejected for good cause shown, the same shall be admitted as evidence on the trial.
Rule 797. Survey Unnecessary, When
Where there is no dispute as to the lines or boundaries of the land in controversy, or where the defendant admits that he is in possession of the lands or tenements included in the plaintiff's claim, or title, an order of survey shall be unnecessary.
Rule 798. Common Source of Title
It shall not be necessary for the plaintiff to deraign title beyond a common source. Proof of a common source may be made by the plaintiff by certified copies of the deeds showing a chain of title to the defendant emanating from and under such common source. Before any such certified copies shall be read in evidence, they shall be filed with the papers of the suit three days before the trial, and the adverse party served with notice of such filing as in other cases. Such certified copies shall not be evidence of title in the defendant unless offered in evidence by him. The plaintiff may make any legal objection to such certified copies, or the originals thereof, when introduced by the defendant.
Rule 799. Judgment by Default
If the defendant, who has been personally served with citation according to law or these rules fails to appear and answer by himself or attorney within the time prescribed by law or these rules for other actions in the district court, then judgment by default may be entered against him and in favor of the plaintiff for the title to the premises, or the possession thereof, or for both, according to the petition, and for all costs, without any proof of title by the plaintiff.
Rule 800. Proof Ex Parte
If the defendant has been cited only by publication, and fails to appear and answer by himself, or by attorney of his own selection, or if any defendant, having answered, fails to appear by himself or attorney when the case is called for trial on its merits, the plaintiff shall make such proof as will entitle him prima facie to recover, whereupon the proper judgment shall be entered.
Rule 801. When Defendant Claims Part Only
Where the defendant claims part of the premises only, the answer shall be equivalent to a disclaimer of the balance.
Rule 802. When Plaintiff Proves Part
Where the defendant claims the whole premises, and the plaintiff shows himself entitled to recover part, the plaintiff shall recover such part and costs.
Rule 803. May Recover a Part
When there are two or more plaintiffs or defendants any one or more of the plaintiffs may recover against one or more of the defendants the premises, or any part thereof, or any interest therein, or damages, according to the rights of the parties.
Rule 804. The Judgment
Upon the finding of the jury, or of the court where the case is tried by the court, in favor of the plaintiff for the whole or any part of the premises in controversy, the judgment shall be that the plaintiff recover of the defendant the title or possession, or both, as the case may be, of such premises, describing them, and where he recovers the possession, that he have his writ of possession.
Rule 805. Damages
Where it is alleged and proved that one of the parties is in possession of the premises, the court or jury, if they find for the adverse party, shall assess the damages for the use and occupation of the premises. If special injury to the property be alleged and proved, the damages for such injury shall also be assessed, and the proper judgment shall be entered therefor, on which execution may issue.
Rule 806. Claim for Improvements
When the defendant or person in possession has claimed an allowance for improvements in accordance with Sections 22.021 - 22.024, Texas Property Code, the claim for use and occupation and damages mentioned in the preceding rule shall be considered and acted on in connection with such claim by the defendant or person in possession.
Rule 807. Judgment When Claim for Improvements Is Made
When a claim for improvements is successfully made under Sections 22.021 -22.024, Texas Property Code, the judgment shall recite the estimated value of the premises without the
improvements, and shall also include the conditions, stipulations and directions contained in Sections 22.021 - 22.024, Texas Property Code so far as applicable to the case before the court.
Rule 808. These Rules Shall Not Govern, When
Nothing in Sections 22.001 - 22.045, Texas Property Code, shall be so construed as to alter, impair or take away the rights of parties, as arising under the laws in force before the introduction of the common law, but the same shall be decided by the principles of the law under which the same accrued, or by which the same were regulated or in any manner affected.
Rule 809. These Rules Shall Not Govern, When
Nothing in these rules relating to trespass to try title shall be so construed as to alter, impair or take away the rights of parties, as arising under the laws in force before the introduction of the common law, but the same shall be decided by the principles of the law under which the same accrued, or by which the same were regulated or in any manner affected.
Rule 810. Requisites of Pleadings
The petition in actions authorized by Section 17.003, Civil Practice and Remedies Code, shall state the real names of the plaintiff and defendant, and shall describe the property involved with sufficient certainty to identify the same, the interest which the plaintiff claims, and such proceedings shall be had in such action as may be necessary to fully settle and determine the question of right or title in and to said property between the parties to said suit, and to decree the title or right of the party entitled thereto; and the court may issue the appropriate order to carry such decree, judgment or order into effect; and whenever such petition has been duly filed and citation thereon has been duly served by publication as required by Rules 114 -116, the plaintiff may, at any time prior to entering the decree by leave of court first had and obtained, file amended and supplemental pleadings that do not subject additional property to said suit without the necessity of reciting the defendants so cited as aforesaid.
Rule 811. Service by Publication in Actions Under Section 17.003, Civil Practice and Remedies Code
In actions authorized by Section 17.003, Civil Practice and Remedies Code, service on the defendant or defendants may be made by publication as is provided by Rules 114 -116 or by service of notice of the character and in the manner provided by Rule 108.
Rule 812. No Judgment by Default
No judgment by default shall be taken in such case when service has been had by publication, but in such case the facts entitling the plaintiff to judgment shall be exhibited to the court on the trial; and a statement of facts shall be filed as provided by law and these rules in suits against nonresidents of this State served by publication, where no appearance has been made by them.
Rule 813. Suit to Extinguish Lien
Notes and Comments: If said suit shall be for the extinguishment of a lien or claim for money on said property that may be held by the defendant, the amount thereof, with interest, shall be ascertained by the court; and the same deposited in the registry of the court, subject to the drawn by the parties entitled thereto; but in such case no decree shall be entered until said sum is deposited; which fact shall be noted in said decree.