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Navigating the Current COVID-19 Eviction Maze

Updated: Oct 13, 2020

Eviction procedure, especially when talking about evictions for nonpayment of rent, is usually relatively straightforward. Don't get me wrong - it takes time to get the hang of it, and it is usually a good idea to have a lawyer, but it is not usually full of twists and turns.

Until COVID-19 that is. Residential eviction trials were prohibited across the state by Texas Supreme Court order from mid-March until May 19, with limited exceptions for tenants who were accused of committing crimes. Trials resumed May 19, and writs of possession began to issue again starting May 26. Evictions were back! Or were they?

The federal CARES Act limited evictions from residential properties with federally backed mortgages or that received other federal funding, barring them until August. But that only applied to about 25% of residential rental properties. Evictions were allowed to resume in CARES-subject properties, but 30-day notices to vacate were required. (Note that 30-day notices are not required for most evictions from other properties, or in evictions other than for nonpayment).

The eviction world looked like it was seemingly getting back to somewhat normal. Or at least a new normal. And then, on September 1, the U.S. Centers for Disease Control issued an order entitled Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19. This order is effective until December 31, 2020. Many tenants incorrectly assume that they don't have to do anything to be subject to this "moratorium" and that all evictions are banned regardless of reason. That couldn't be farther from the truth.

First, it only applies to evictions for nonpayment of rent or other fees. Moreover, a tenant must invoke the protections of this order by providing his or her landlord with a declaration under penalty of perjury that he or she meets certain criteria, including that he or she has income less than $99,000 per year (or $198,000 for a couple), has suffered a loss of income or certain unusual expenses this year, is trying to make partial payments, and is likely to end up homeless or in a crowded living situation if evicted.

But wait - evictions are a state issue! And Texas judges had no idea how to apply this federal mandate to the eviction procedures established by Texas law until the Twenty-Fifth Emergency Order Regarding the COVID-19 State of Disaster was issued by the Texas Supreme Court on September 17. This order established a procedure for dealing with these declarations in Texas eviction courts, including a mechanism for landlords to contest or challenge declarations provided by tenants.

Then, on September 25, the Texas Supreme Court issued the Twenty-Seventh Emergency Order Regarding the COVID-19 State of Disaster, laying out plans for a new "eviction diversion program." It goes into effect tomorrow - October 12. In certain counties (can we add even more confusion?). Little information has been provided about this new "diversion program," but seemingly, the program will provide funds to landlords to make up delinquent rent if they agree to not go forward with evicting tenants. However, eviction judges are supposed are to ask landlords and tenants if they are interested in participating during trials and abate (or postpone) proceedings if interest is expressed. It is not clear that landlords will be given the opportunity to see if they and their tenants even qualify for funding under the program first.

These orders have also created new pleading requirements for landlords when filing eviction petitions.

To make matters more interesting, judges have the discretion to delay or modify deadlines and procedures until as late as December 1 if they are doing it to "avoid risk" to litigants, attorneys, jurors, court staff, or the public. Some Justices of the Peace in Texas are using this flexibility to not hear evictions at all - or to not hear them in certain situations. And Justices of the Peace are still barred from conducting in-person jury trials until at least December 1. Regardless of the reasons for eviction, this can put a significant roadblock in a landlord's path.

And a few local jurisdictions in Texas have enacted ordinances requiring notices of "proposed eviction" or notices to cure prior to giving notice to vacate, or outright banning or severely restricting giving notices to vacate or filing eviction suits in the first place. Constitutionally, the latter is problematic. The former, however, seems to be allowed by Section 24.005(e) of the Texas Property Code, which provides that "If the lease or applicable law requires the landlord to give a tenant an opportunity to respond to a notice of proposed eviction, a notice to vacate may not be given until the period provided for the tenant to respond to the eviction notice has expired." (The bolding is mine.)

Stay tuned as we continue to navigate the constantly changing maze of Texas eviction procedure!

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