Texas Eviction Update
Our first reminder is a quick one, and one that if you have obtained an eviction judgment from a JP court in the last year you have probably already seen.
Rule 505.1 was amended effective February 1, 2023, to require eviction judgments to include information about the parties' appeal rights. This isn’t the landlord’s responsibility but will be provided by the court in its judgment.
The language that must be included is:
“You may appeal this judgment by filing a bond, making a cash deposit, or filing a Statement of Inability to Afford Payment of Court Costs within 5 days after this judgment was signed. See Texas Rule of Civil Procedure 510.9(a).”
Our second review topic is the result of TMHA receiving input from multiple members frustrated and confused about the inconsistencies in various JP court eviction proceedings. The issue steams from the federal requirements passed into law in the CARES Act to provide an additional 30-day notice to vacate for all “covered dwellings/properties.”
We previously addressed this lingering issue that unlike the other temporary provisions in the CARES Act of assistance, financial support, foreclosure forbearance, and even moratoriums, the lone exception without a “sunsetting” provision was the 30-day notice to vacate.
Whether this notice is applicable or no longer applicable continues to be debated.
There are many who assert that the 30-day notice only applied after the 120-eviction moratorium, which has long since ended. Coupled with a legal history of eviction law being regulated by the states and a presumption that Congress did not intend to preempt state law in this regard, or, at a minimum, not to preempt it on a permanent basis, have some who conclude that the extra 30-day federal notice no longer applies.
However, there are at least four state high courts who have now ruled that the 30-day notice in CARES is still in effect – Colorado, Washington, Oklahoma, and Connecticut.
HUD has also issued several FAQs stating that it still applies, and Fannie and Freddie have required compliance with this notice for their commercial lending contracts since 2022 (see footnote 18).
Additionally, in Texas the go-to source for guidance for JP courts is the Texas Justice Court Training Center. This guide, used by nearly all the JP courts, makes clear that the “covered dwelling” disclosure in the eviction petition filing is no longer required per the expiration of the Texas Supreme Court’s 34th Emergency Order (we previously covered all of these EOs as well), but that:
“the plaintiff must prove that they have given the proper notice to vacate in order to receive a judgment of possession. If the property is a "covered dwelling" and the eviction is based on nonpayment, the plaintiff is still required to give a 30-day notice to vacate. This requirement of the CARES Act has never expired. If the property is not covered by the CARES Act or the eviction is not based on nonpayment, then the standard notice to vacate rules would apply.
For most landlords who are not looking for a case to advance to the Texas Supreme Court to press the validity of the 30-day requirement, the conservative approach is to still provide the notice, when applicable.
So, as a reminder, when does it apply?
First the property/dwelling must be “covered,” which basically means receives some sort of federal housing assistance or voucher money, or (and this is most common for our members) has a federally-back commercial loan/mortgage (HUD, Fannie, Freddie, etc.).
Second, this only applies for NONPAYMENT evictions. If the eviction is for something other than nonpayment, like a violation of community rules or a holdover tenancy after a lease term has expired, then the additional notice and time is not required.
TMHA also wants to remind our members we have a form you can use - 30-Day Notice to Vacate for Nonpayment at a CARES Act Covered Property.
And if this does apply to your property and eviction situations, then using this with the Texas law on a 10-day Notice to Cure creates more ambiguity. However, when dealing with a manufactured home on a lot where state law requires a 10-Day Notice to Cure, the more conservative approach is to provide the notice to cure, then the, if appliable, CARES Act 30-day notice to vacate, for a total of 40 days.
And while I know this can all still sound a bit confusing, I’d be remiss not to mention that in Texas the eviction process statewide has been vastly improved. If reading any of the above is triggering memories coming out of the months and years following COVID of all the different local, city, JP, and county eviction requirements, as well as the numerous Emergency Orders that impacted notices, moratoriums, pleadings, citation requirements and so much more, recall that during the 2023 Legislative Session contained in H.B. 2127 that went into effect September 1, 2023, was the ultimate state preemption over all local requirements regarding evictions.
The law now reads:
Sec. 1.004. PREEMPTION.
(a) Unless expressly authorized by another statute, a municipality or county may not adopt, enforce, or maintain an ordinance, order, or rule regulating conduct in a field of regulation that is occupied by a provision of this code. An ordinance, order, or rule that violates this section is void, unenforceable, and inconsistent with this code.
(b) For purposes of Subsection (a), a field occupied by a provision of this code includes an ordinance, order, or rule regulating evictions or otherwise prohibiting, restricting, or delaying delivery of a notice to vacate or filing a suit to recover possession of the premises under Chapter 24.
Granted this Texas law does not supersede federal law requirements (thus this long post reminder about CARES Act notices), but other than that has streamlined the eviction process statewide – follow Chapter 24, Property Code and with it Rule 510 of the Texas Rules of Civil Procedure and you should be good in every JP court in the state.