Update on Evictions in Texas – September 2021
It has been exceedingly challenging staying up-to-date on the constantly changing laws, rules, orders, and local ordinances dealing with evictions in Texas.
Unfortunately, I start this latest update with the admission that the process and guidance on evictions is still extremely confusing and varies widely across the state.
Let’s start with the Texas Rent Relief Program that is still ongoing. This is the originally $1.2 billion program to provide renters and landlords relief during the pandemic and the eviction moratoriums. To date, this program has administered more the $737 million, with average household assistance of approximately $6,000.
I start with rent relief program for two reasons. First, a 10 percent subpart of the rent relief program is the Texas Eviction Diversion Program, which has implications when seeking an eviction (see more below). Second, we have observed many courts and policies geared towards delaying formal eviction proceedings to allow for additional time to instead receive rental assistance and/or have as a prerequisite to an eviction proceeding a demonstration that a tenant has exhausted all other forms of rental assistance.
Federal
At the federal level, on August 27, 2021, the U.S. Supreme Court blocked the further extension of the CDC federal Eviction Moratorium. The court concluded that for a longer moratorium, Congress would need to pass legislation, but that it could not be achieve through regulatory orders. With the CDC order struck down, the prior CDC Declaration form needed as a prerequisite to starting an eviction proceeding is also no longer required.
However, we have received reports that some Justice Courts (Travis County, for example) are still requiring this notice and will reject an eviction proceeding based on these grounds.
Potentially still applicable, depending on the property, is the 30-Day Notice to Vacate for any property that is a “covered property/dwelling” under the federal CARES Act, which is essentially any property backed by a federally supported program or mortgage (Low Income Housing Tax Credit properties; single-family and multifamily properties backed by Fannie Mae/Freddie Mac/USDA/FHA/VA; and most federally-subsidized rental housing properties - Section 8 vouchers).
There is disagreement and debate as to if this notice requirement remains, but the current guidance from the Texas Justice Court Training Center, which is the body that informs all of the state Justice Courts on how they should operate, concludes the requirement is still valid.
While there isn’t formal or consistent guidance on how this expanded notice must be handled in Texas when dealing with a manufactured home on a lot where state law requires a 10-Day Notice to Cure, the more conservative approach and the timeline we have been told, is to provide the notice to cure, then the new, if appliable, 30-day notice to vacate, for a total of 40 days.
If the community is not a “covered property” then the normal notices to cure and to vacate under long established state law apply, though there may be additional locally imposed cure periods and prohibitions (see below).
State of Texas
Now we shift to the requirements imposed at a state level by the Texas Supreme Court. The Texas Supreme Court has not issued an update to any of their emergency orders post-CDC eviction revocation by the U.S. Supreme Court. As such, the last emergency order 39 from July 19 still applies. This order is set to expire on October 1, 2021, but could be further extended by a subsequent emergency order from the Court.
Under the order there is a specific new layer of citation and pleading requirements for a landlord. In all residential eviction cases based partially or completely on nonpayment of rent, the landlord must include in an original or amended petition whether or not the plaintiff has reviewed the Eviction Diversion Program website. Citations must include the warning to the tenant about the Texas Eviction Diversion Program in both English and Spanish.
The TJCTC promulgated model forms for the Eviction Petition and Eviction Citation along with the Texas Eviction Diversion Program Brochure that also must be provided to a tenant prior to obtaining an eviction.
Landlords should expect Justice Court judges to require documentation and proof of compliance with these new petition, citation, and notice requirements. Justice Courts have also been advised that they can, and perhaps should, require these provisions on all evictions, not just evictions for nonpayment of rent.
Texas County and Cities
Unfortunately, the new layers of complexity do not stop at the federal and state level. Several cities have local bans on evictions, extended time to “cure” and other local provisions. These provisions are in spite of and contrary to the August 7, 2021 Texas Attorney General Opinion that concluded:
Chapter 418 of the Government Code grants emergency powers to the Governor and local officials operating under a disaster declaration. Yet, it does not authorize local governmental entities operating under a declared disaster to independently rewrite state law such as Property Code chapter 24 governing evictions.
Despite this opinion many cities and counties do have eviction prohibitions in place, and many of the local Justice Courts in those jurisdictions are enforcing and abiding by the local restrictions.
City of Austin – requires landlords to provide tenants with a “notice of proposed eviction” at least 60 days before proceeding with a notice to vacate under state law (and possibly federal law with the CARES Act). The “notice of proposed eviction” must provide tenants with the “right to cure” any late payments in at least 60 days.
The ordinance is set to expire, if not extended, on October 15, 2021.
More uncertainly and inconsistency surrounds this local provision as well when the property is a “covered property” under CARES Act (see previous discussion), but one interpretation is that for Austin evictions a 60-day “notice of proposed eviction” must first be given, then the state law 10-day notice to cure for manufactured home rentals from Chapter 94, Property Code, and then the CARES Act 30-day notice to vacate if it is a covered property. Various differing interpretations and debates are occurring in courts as to how these timelines interact, but conceptually the full duration of notices for an Austin tenant could be up to 100 days.
In addition to the Austin 60 day notice of proposed eviction, there is also a separate city ban on all notices to vacate until October 15, 2021.
From September 1, 2021, through October 15, 2021, if a tenant’s rent is $2,475 a month or less, landlords can only give notices to vacate for nonpayment if a tenant owes more than 3 months’ rent and the tenant has exhausted all rental assistance remedies.
The Austin provisions are set to expire on October 15, 2021, but we are hearing that it is likely these could be future extended due to the high COVID case levels.
City of Dallas - requires landlords to issue tenants a “Notice of Possible Eviction” before sending a notice to vacate for nonpayment of rent. The notice must include information on rental assistance programs and provide tenants with at least 21 days to negotiate lease payment agreements with their landlords.
If a tenant provides proof of financial hardship due to COVID-19, their landlord must provide the tenant with 60 days to catch up on the late rent or enter into a payment plan.
Here is more information about the Dallas eviction provisions.
The Dallas provision expire upon the Governor’s termination of the State of Disaster due to COVID-19.
City of San Marcos – requires that landlords must provide tenants with a “Notice of Proposed Eviction” giving tenants at least 90 days to catch up on any late rent payments before proceeding with a notice to vacate.
The ordinance expires upon the expiration of the city’s disaster declaration.
City of San Antonio - requires landlords to send tenants a notice of tenants’ rights whenever they send out a notice to vacate. The landlord must provide a copy of the notice created by the City. The notice includes information on housing assistance resources, outlines the eviction process, and provides a link to a self-help information packet with advocacy information. The ordinance applies to all residential landlords in the city limits.
Travis County – bans certain notices to vacate in residential evictions until October 15, 2021. Similar to the City of Austin’s order from September 1, 2021, through October 15, 2021, if a tenant’s rent is $2,475 a month or less, landlords can only give notices to vacate for nonpayment if a tenant owes more than 3 months’ rent and the tenant has exhausted all rental assistance remedies.
The Travis County Justices of the Peace issued an updated order abating certain eviction trials through October 15, 2021. This order is similar to the orders issued by Travis County Judge Brown and Austin Mayor Adler.
An eviction case will be put on hold if (1) the grounds for eviction are solely for nonpayment of rent; and (2) the tenant’s portion of the rent is less than $2,475 a month. From September 1, 2021, through October 15, 2021, there’s an exception for cases where the tenant owes more than 3 months’ rent and the tenant has exhausted all rental assistance remedies.
The order includes an additional nine (9) requirements that the landlord’s petition must meet, including (but not limited to) a CARES Act “covered property” determination, the CDC Declaration form, and a separate form attesting as the landlord “Verification of Compliance with Local, State and Federal Eviction Requirements” a copy/form is contained on pages 8-11 in the JP Court Order.
Local Checks and Recommendations
The list provided above is not an exhaustive list of all the local city and county level eviction provisions. With the vastness of the provisions and the specificity to individual cities and counties, coupled with there not being a single database or repository of these local provisions, we highly encourage members to research or call the local JP courts to get the court’s provisions.
While not all JP clerk’s offices will assist, some have been found to be helpful and provide clear, locally specific, guidance on how, if possible, to proceed with an eviction.
The reports we are getting at TMHA run the gamut from practically impossible to those operating pretty much as normal pre-pandemic eviction procedures.
In order to have the best chance of proceeding as seamlessly and without major time and procedural setbacks, first researching a local court could help significantly.
And finally, there is an option at the JP level to file for a change of venue with an affidavit of two other credible persons that have good reason to believe and do believe that a fair and impartial trial is not possible within a specific JP court.
For more on this, consult with your legal counsel and see Rule 502.4, Texas Rules of Civil Procedure:
Fair Trial Venue Change. If a party believes it cannot get a fair trial in a specific precinct or before a specific judge, the party may file a sworn motion stating such, supported by the sworn statements of two other credible persons, and specifying if the party is requesting a change of location or a change of judge. Except for good cause shown, this motion must be filed no less than 7 days before trial. If the party seeks a change of judge, the judge must exchange benches with another qualified justice of the peace, or if no judge is available to exchange benches, the county judge must appoint a visiting judge to hear the case. If the party seeks a change in location, the case must be transferred to the nearest justice court in the county that is not subject to the same or some other disqualification. If there is only one justice of the peace precinct in the county, then the judge must exchange benches with another qualified justice of the peace, or if no judge is available to exchange benches, the county judge must appoint a visiting judge to hear the case. In cases where exclusive jurisdiction is within a specific precinct, as in eviction cases, the only remedy available is a change of judge. A party may apply for relief under this rule only one time in any given lawsuit.