Texas Judges Can Now Ignore Eviction Ban, And That's Confusing Tenants And Landlords

A national moratorium on residential evictions has been in place since September, but in Texas, the legal system has opened the door for judges to ignore the federal ban.

The combination of an expiring state court order, legal challenges and guidance from an educational body have provided Texas judges the justification to make rulings against tenants facing eviction.

And in Harris County, those judgments can vary wildly on a court-by-court basis, creating uncertainty for both landlords and tenants.

The Centers for Disease Control and Prevention eviction moratorium first came into effect on Sept. 4 and was slated to last through Dec. 31. The CDC moratorium is designed to temporarily halt the residential evictions of eligible tenants for not paying rent.

Eligible tenants have to prove they have suffered a substantial loss of household income due to the coronavirus pandemic and must attest that eviction would likely leave them homeless or potentially force them to live with others at unsafely close quarters. When the second stimulus package passed, the moratorium was extended to Jan. 31.

More extensions were to come. Immediately after President Joe Biden was sworn into office, he signed an executive order to extend the CDC eviction moratorium through March 31. And on March 29, the moratorium was extended again through the end of June. 

The initial announcement of the CDC moratorium sent landlords and tenant advocates scrambling to unpack the ramifications, and in some cases, spawned legal challenges. A federal judge in the Eastern District Court of Texas in late February ruled that the moratorium was unconstitutional and that the CDC lacked the authority to enforce it, though other judges in other states have found the exact opposite.

Though the ruling was a serious challenge, the judge did not issue an injunction. In addition, the Texas Supreme Court had already issued an emergency order on Sept. 17, directing landlords to take certain actions related to the CARES Act and the CDC’s halt on residential evictions, primarily informing tenants they may be able to fight the eviction on the grounds of the moratorium.

The situation around evictions became more legally complicated on March 31, when the Texas Supreme Court’s emergency order expired. Without a city- or county-level ordinance to continue enforcing the order, the Texas Justice Court Training Center issued guidance saying judges may disregard the CDC moratorium.

This has now placed Houston landlords in a situation where they may be able to pursue evictions more aggressively, but their success largely depends on which Justice of the Peace court they file their complaint in.

“At the end of the day, we've discovered through this whole process that … the individual Justices of the Peace of the different courts have a lot of autonomy into how their courts are run,” Houston Apartment Association President John Boriack said.

Boriack said the approach of different JPs can vary so much that the HAA has been keeping elaborate records of how each individual judge in Harris County is running their courthouse, including whether hearings are held online or in person. 

“It's all over the place, and there's no real uniformity there. So it's a really confusing time to navigate, and just a lot of unpredictability on when we're going to have that access to the justice system and when rules will be enforced and when they won't,” Boriack said.

Lone Star Legal Aid Managing Attorney Dana Karni told Bisnow that JPs have historically run their courthouses however they pleased, but the pandemic has highlighted just how differently each judge operates.

“The reality is that we have some precincts where one JP may be suppressing dockets, and the other JP may be inviting dockets. And so, the landlords know where to go file their eviction cases,” Karni said.

In theory, the CDC eviction moratorium is supposed to prevent vulnerable people from being evicted in the middle of a global pandemic. But filings show eviction cases have continued to move forward since the moratorium in Harris County, at the discretion of individual JPs.

Evictions are frequently cited as the last resort of landlords. Shifting city, state and federal moratoriums have led some tenants to believe they are immune to being evicted, which in turn has led to those people ignoring efforts by property managers to communicate, or simply refusing to pay rent, Boriack said.

“A lot of times, the only way to even get their attention is through the preliminary eviction proceedings,” Boriack said.

In addition to his role as HAA president, Boriack is president of Veritas Equity Management, a property management firm that oversees five Class-B and Class-C multifamily properties in the Houston area, equating to 1,258 units. The firm has 12 active eviction cases right now, all against tenants that have accumulated several months’ worth of unpaid rent.

Despite the legal drama surrounding the expiration of the Texas Supreme Court order, Boriack said that from a practical, boots-on-the-ground standpoint, he hasn’t seen a dramatic shift in the rules of court proceedings.

“You still have the individual judges saying, ‘well, in my courthouse, we're going to still follow the CDC order,’ or ‘in my courthouse, we're going to follow this piece of the CDC order,’ or ‘in my courthouse, we're business as usual,’” Boriack said. 

Karni used data from January Advisors to compare the volume of cases filed during March 1-13 and April 1-13. Fewer cases were filed during the April period, but Karni said her organization has seen an uptick in the number of tenants being issued notices to vacate. 

She has also seen more enforcement of pre-existing cases that were abated and are now being reinstituted or judgments that had been made and are now coming to the point of writs of possession. 

“The fact that new lawsuits haven't been filed at the same rate, to me, is not as compelling as the data that we're seeing where landlords are trying to force their hand at actual displacement of tenants,” Karni said.

Though some landlords are pushing eviction proceedings against tenants, the situation is different for those that oversee subsidized housing. J. Allen Management Co. President Josh Allen has a portfolio that contains about 3,000 units in the Houston area, including a mix of conventional, Section 8 and Houston Housing Authority properties.

Allen told Bisnow that the expiration of the Texas Supreme Court order hasn’t affected his business, and that he hasn’t been forced to pursue many evictions based on lack of rent payment during the pandemic. Most of his tenants live in subsidized housing, and when those people lose jobs, the U.S. Department of Housing and Urban Development increases its contribution toward the rent.

“The majority of our money is paid. We have some losses, but it's not a lot,” Allen said. 

Rental assistance programs like Baker Ripley’s Covid-19 Rental Assistance Program are also finally delivering funds, according to Allen and Boriack. However, Karni said some landlords that have received rental assistance funds are still filing eviction proceedings against tenants, in clear violation of the terms of those programs.

“We are seeing a very high number of those cases. We are urging tenants to complain. There are potential criminal penalties to landlords who violate the CDC order,” Karni said.

Even prior to the pandemic, Harris County had one of the highest rates of eviction in the country. Housing experts previously told Bisnow that the unusually high eviction rate is a reflection of just how little affordable housing there is across the metro.

Boriack said that many landlords are experiencing burnout in the wake of the pandemic, and that the combination of financial stress and ongoing moratoriums could end up driving good-quality operators away from the sector, exacerbating Houston’s housing crisis further.

“These situations — the eviction moratoriums, the aggression to the industry and so many things — just discourage that, and just cause people to burn out and not want to do it anymore, and [say] it's not worth it. You hear that a lot,” Boriack said.

Amid the expiration of the Texas Supreme Court order and the anticipated end of the CDC eviction moratorium, the backlog of pending eviction cases is only expected to grow. But for some renters, the consequences of an eviction could potentially be fatal. 

Last year, researchers at the University of California, Los Angeles and other academic institutions found that Texas could have prevented 4,456 deaths if the state had not lifted its eviction moratorium on May 18. That study has not yet been peer-reviewed, but it indicates a grim connection between evictions and deaths.

“It's an unfortunate reality that there will be tenants who are displaced, who will end up with the virus — who end up with long-term consequences, if not death, as the result of the virus,” Karni said.