Retrieval of Personal Property
A person unable to enter his residence or former residence to retrieve personal property may be entitled under certain circumstances to a writ authorizing him to enter with a peace officer to retrieve the property. If the person and the current occupant are parties to a pending suit under title 1 of the Texas Family Code, the application for a writ must be made to the court in which the suit is pending. If the person’s right to possession of the personal property is subject to a decree of divorce or annulment to which the person and the current occupant are parties, the application must be made to the court with jurisdiction of the divorce or annulment action. In other circumstances, the application is made to a justice court. Tex. Prop. Code § 24A.002(a), (a–1).
The applicant must certify that he is unable to enter the residence because the current occupant has denied him access or poses a clear and present danger of family violence to him or his dependent; that he is not the subject of an active protective order under title 4 of the Texas Family Code, a magistrate’s order for emergency protection under article 17.292 of the Texas Code of Criminal Procedure, or another court order prohibiting entry to the residence or otherwise prohibited by law from entering the residence; and that he or his dependent requires certain specifically described personal items located in the residence and will suffer personal harm if the items are not retrieved promptly. These items are limited to medical records; medicine and medical supplies; clothing; child-care items; legal or financial documents; checks or bank or credit cards in the applicant’s name; employment records; personal identification documents; copies of electronic records containing legal or financial documents; assistance or service animals used by the applicant or his dependent; wireless communication devices; and tools, equipment, books, and apparatus used by the applicant in his trade or profession. Tex. Prop. Code § 24A.002(b)(1), (b)(2), (b)(4)–(6).
The applicant must certify whether he and the current occupant are parties to a pending suit under title 1 of the Family Code or his right to possession of the personal property is subject to a decree of divorce or annulment to which he and the current occupant are parties. The application must include a lease or other documentary evidence showing that the applicant is currently authorized to occupy the residence or was formerly authorized to do so. Tex. Prop. Code § 24A.002(b)(3), (b)(7).
On sufficient evidence of urgency and potential harm to the safety of any person and after sufficient notice to the current occupant and opportunity to be heard, the court may grant the application and issue a writ authorizing the applicant to enter the residence accompanied by a peace officer to retrieve the listed property. The court must find that the applicant is unable to enter the residence because the current occupant has denied the applicant access to retrieve personal property of the applicant or his dependent; that the applicant is not the subject of an active protective order under title 4 of the Texas Family Code, a magistrate’s order for emergency protection under article 17.292 of the Texas Code of Criminal Procedure, or another court order prohibiting entry to the residence or otherwise prohibited by law from entering the residence; that there is a risk of personal harm to the applicant or his dependent if the property is not retrieved promptly; that the applicant is currently or was formerly authorized to occupy the residence according to documentary evidence; and that the current occupant received notice of the application and was provided an opportunity to contest it. Tex. Prop. Code § 24A.002(e).
A bond is required before the writ may be issued. See Tex. Prop. Code § 24A.002(c)–(d).
A temporary writ effective for up to five days may be issued ex parte and without bond under certain circumstances.
A court may issue a writ under Property Code section 24A.0021 without providing notice and hearing if the court finds at the hearing on the application that all other conditions for the writ have been established, that the current occupant poses a clear and present danger of family violence to the applicant or his dependent, and that the personal harm to be suffered by the applicant or dependent will be immediate and irreparable if the application is not granted. Under these circumstances, the court may waive the bond that is otherwise required. The writ must state the period during which it is valid, which may not exceed five days. Tex. Prop. Code § 24A.0021(a), (b), (d).
The court may recess a hearing to notify the current occupant by telephone that he may attend the hearing or bring to the court the personal property listed in the application. Regardless of whether the current occupant attends or brings the property, the court must reconvene the hearing before 5:00 p.m. on that day. Tex. Prop. Code § 24A.0021(c).
If a writ or temporary ex parte writ is issued, a peace officer shall accompany and assist the applicant in making the authorized entry and retrieving the listed personal property. If the current occupant is present, the peace officer shall provide him a copy of the writ. Tex. Prop. Code § 24A.003(a), (b).
Before removing the personal property, the applicant must submit it to the peace officer, who must create an inventory listing the items taken from the residence; provide a copy of the inventory to the applicant; provide a copy of the inventory to the current occupant if present or leave it in a conspicuous place in the residence; and return the property to be removed to the applicant. The officer must file the original inventory with the court. Tex. Prop. Code § 24A.003(c).
The officer may use reasonable force in providing assistance and is generally immune from liability if acting in good faith and with reasonable diligence. See Tex. Prop. Code § 24A.003(d), (e).
A landlord is not liable for an act or omission arising in connection with permitting or facilitating entry in accordance with the writ. Tex. Prop. Code § 24A.004.
It is a class B misdemeanor to interfere with a person or peace officer acting under the writ; it is a defense to prosecution that the actor did not receive a copy of the writ or other notice that the entry or property retrieval was authorized. Tex. Prop. Code § 24A.005.
The current occupant of the residence may file a complaint within ten days after the entry alleging that the applicant has appropriated property belonging to the occupant or the occupant’s dependent. The court must promptly hold a hearing on the complaint and rule on the disposition of the disputed property. Tex. Prop. Code § 24A.006.