SB 38 Summary Disposition: Eviction Judgment Without Trial in Unauthorized-Occupancy Cases

Summary disposition is one of SB 38‘s most powerful additions to Texas eviction practice, and one of its most narrowly tailored. In Dallas County and the surrounding metro counties, summary disposition motions are most commonly filed in cases where the lease defaults are clear, the documentary record is complete, and there is no realistic factual dispute, exactly the cases where the JP courts have been most receptive to the motion since SB 38 took effect. The procedure allows a Justice Court to enter a judgment of possession without holding a full trial, but only when the case involves unauthorized occupancy or forcible entry, and only when no genuine factual dispute exists. The four-day response window for the occupant is tight, and a properly framed motion can shave weeks off the eviction timeline. But landlords who try to use summary disposition in routine nonpayment cases will see the motion denied, and landlords who use it in true-squatter situations will often be told that SB 1333 is the better tool. What follows addresses when summary disposition fits, how the motion is framed, what the occupant can do to defeat it, and how it interacts with the rest of the SB 38 procedure.

When summary disposition is available

SB 38 limits summary disposition to two categories of forcible detainer:

Unauthorized occupancy cases. The occupant has no lease, no current license, and no other affirmative right to be on the property. This most comfortably captures former licensees, occupants whose right of entry has been revoked, and occupants who are in the property with no colorable tenancy. Whether summary disposition also reaches a lawful-entry holdover, a former tenant who once held a valid lease and is now holding over (a tenant at sufferance), is unsettled. Sources are split, and the safer reading limits summary disposition to unauthorized-occupancy and forcible-entry situations rather than ordinary holdovers, so a landlord who wants to use it against a holding-over former tenant should treat the question as open and be prepared to proceed on the standard trial track.

Forcible entry cases. The occupant entered the property unlawfully, without the owner’s consent. This typically captures situations where the occupant broke in, used force or fraud to gain entry, or otherwise occupied without any color of right.

Summary disposition is not available in:

• Routine nonpayment-of-rent cases. The vast majority of eviction filings.
• Lease-violation cases (e.g., unauthorized pets, unauthorized occupants, noise complaints). These require a full trial.
• Holdover cases where the lease’s terms (such as MTM termination) are disputed.
• Cases involving any genuine factual dispute about possession.

The narrow scope reflects the legislative purpose: summary disposition fills the gap between true-squatter situations (better handled under SB 1333) and routine nonpayment cases (handled by the standard SB 38 procedure). The clearest summary-disposition case is an occupant with no colorable right to possession, such as a former licensee whose permission was revoked. Whether the procedure also reaches a lawful-entry holdover, a former tenant whose lease ended cleanly and who simply refuses to leave, is unsettled, so a landlord in that situation should be ready to proceed on the standard trial track if the court reads the procedure narrowly.

The procedural framework

The summary disposition procedure layers on top of the standard JP eviction process:

• Step 1: The landlord files the eviction petition in JP court following the usual SB 38 procedure (proper notice to vacate, proper venue, proper filing fee).
• Step 2: With or shortly after the petition, the landlord files a motion for summary disposition. The motion identifies the case as an unauthorized-occupancy or forcible-entry case and recites the facts establishing the absence of any genuine dispute.
• Step 3: The motion is served on the occupant along with the citation. Service of the motion is part of the standard service of the eviction case.
• Step 4: The occupant has four days to respond to the motion. The four-day window runs from service of the motion, not from filing.
• Step 5: If the occupant does not respond, or if the response does not raise a genuine factual dispute, the JP can enter judgment for possession without trial.
• Step 6: If the response raises a genuine factual dispute, the case proceeds to the standard SB 38 trial track (10–21 days from filing).

The four-day response window is the operative constraint. Occupants who do not file a response within four days lose the chance to defeat the motion. Occupants who file a defensive response raising even a colorable factual dispute typically see the motion denied, and the case continues on the standard trial track.

What the motion needs to prove

To win summary disposition, the landlord must establish:

• The owner’s title or right to possession of the property.
• The occupant’s presence in the property.
• The absence of any current lease, license, or other lawful right of the occupant to be on the property.
• In appropriate cases, the lapse of any prior right (e.g., expired lease, terminated license, ended tenancy at sufferance).
• Proper notice to vacate, where notice is required.

The motion is typically supported by:

• The owner’s deed or other proof of title.
• An affidavit from the owner or property manager establishing the absence of any lease or license.
• Documentation of any prior tenancy that ended, including the prior lease and notice to vacate.
• Photographs or other evidence of occupancy.

What defeats summary disposition

The occupant defeats summary disposition by raising a genuine factual dispute on any element. Common winning responses:

Existence of an oral lease or month-to-month tenancy. The occupant claims an oral arrangement that the landlord disputes. This raises a factual question that requires trial.

Permission from a co-owner or other authorized party. The occupant claims someone with apparent authority gave permission to occupy.

Disputed identity. The occupant claims to be someone other than the person named in the petition, or claims to be a different occupant in the unit.

Disputed lapse of prior right. The occupant claims the lease did not end when the landlord says it did, or that the notice to vacate was defective.

Affirmative defenses with factual support. Habitability defenses, retaliation defenses, fair housing defenses, or VAWA defenses with credible factual support typically defeat summary disposition because they raise factual issues for trial.

The key question is always: does the occupant’s response raise a genuine factual dispute? If yes, summary disposition is denied and the case continues. If no, summary disposition is granted and judgment enters.

Where landlords gain or lose leverage

Summary disposition is most valuable in three situations:

Former tenants who refuse to leave after a clean lease end. The classic case. Lease ended, notice properly served, no defenses asserted, occupant simply refusing to move.

Former licensees who lost permission. Roommates, family members, friends-of-friends, contractors who stayed past the work period. Where the prior right is documented and clearly ended, summary disposition can resolve quickly.

Occupants who failed to appear at any prior eviction proceeding. SB 38 summary disposition is not a default judgment, but the same dynamic, non-appearing occupant, usually produces non-response to the motion, and judgment follows.

Summary disposition is generally not worth filing in:

• Routine nonpayment cases. Not eligible by statute.
• Cases with any plausible defensive issue. The motion will be denied and the case continues on the trial track, meaning the landlord paid for the motion and gained nothing.
• True-squatter cases. SB 1333 is faster and avoids JP court entirely.
• Cases where the occupant has counsel. Counsel will almost always file a defensive response.

Interaction with SB 1333

Summary disposition and SB 1333 squatter removal address overlapping but distinct situations:

SB 1333 applies when there is no lease, no license, no former tenancy, and no genuine dispute about the occupant’s right to be there. Peace officer removal, no JP court involvement.

Summary disposition applies in the JP forcible-detainer context, including when there was once some color of right (a lapsed lease, a terminated license, a revoked permission) but it has ended.

The classic borderline case is a former tenant who has been holding over for several months. SB 1333 likely does not apply because the prior tenancy gives the occupant some lingering color of right. Whether summary disposition applies to that holdover is unsettled, because the occupant entered under a lawful tenancy; the safer reading limits summary disposition to unauthorized-occupancy and forcible-entry cases, so the landlord should be prepared to try the case on the standard SB 38 track if the court declines to apply the procedure to a holdover.

When in doubt, the JP forcible-detainer route with summary disposition is the safer choice. SB 1333 misuse creates substantial liability; summary disposition denial just means the case continues on the standard track.

Common procedural mistakes

Filing summary disposition in a nonpayment case. The motion will be denied. Don’t file in nonpayment cases.

Filing the motion without supporting affidavits. The JP needs evidence of the elements, not just allegations. Affidavits from the owner or property manager, with attached documents, are the minimum.

Naming the wrong occupant. If the occupant in the petition is not the actual occupant, the response will defeat the motion on identity grounds. Verify the occupant’s name (or list as “John/Jane Doe” with description).

Skipping the notice to vacate. Even in summary disposition cases, the underlying notice requirements still apply where notice is required by law or lease. A defective notice defeats the motion.

Treating summary disposition as a default-judgment substitute. They are different procedures. Default judgment is for non-appearance at trial; summary disposition is for non-response to the motion. The procedural requirements differ.

Filing summary disposition against a represented occupant. Almost always defeated. Save the filing fee and proceed on the trial track.