Texas renters may lose after state Supreme Court declines to renew emergency order

After a Texas Supreme Court emergency order lapsed this week, Texas judges were advised to stop enforcing a key protection renters have used to fight evictions during the COVID-19 pandemic.

Since last September, renters throughout the U.S. have postponed late rent evictions through a mechanism known as the CDC declaration. Texas tenants could give the declaration directly to their landlord or, if an eviction had been filed against them, turn in copies to their landlord and to a Justice of the Peace Court.

Although many renters were unaware the declaration existed, it has helped around 1,400 tenants postpone evictions in Tarrant County through the JP court system, according to research firm January Advisors. Many other renters have likely used the declaration to avoid the court process altogether. Because Texas has offered almost no state-centric protections, the CDC declaration is basically the only defense renters affected by the pandemic can use.

But things started to get complicated on Wednesday. With the CDC declaration’s powers set to expire, the Biden administration extended them through the end of June. But the Texas Supreme Court, which outlined CDC declaration enforcement procedures in a September emergency order, did not extend its order. The court had twice extended the order before Wednesday, most recently in late January.

The Supreme Court’s decision left the Texas Justice Court Training Center (TJCTC), the state-sanctioned advisory body for JPs, questioning the role Texas’ JP courts should play.

The group’s executive director, Thea Whalen, told the Star-Telegram it believed the CDC declaration is only directed at landlords. The only part tying the JP courts, she said, was the Texas Supreme Court’s executive order. In updated guidelines for JPs, the TJCTC stated the CDC declaration “is not a matter that a justice court can or should enforce in the absence of authority from the Texas Supreme Court,” effectively telling JPs to disregard the declaration. It also recommended JPs begin scheduling hearings for cases that were previously postponed by use of the CDC declaration.

The TJCTC only provides recommendations. JPs have wide discretion to make their own decisions in their courtrooms. But if they follow the TJCTC, renters will have to rely on landlords to accept the declaration and have no outlet for making their case to JPs.

The guidance provoked disbelief among Texas legal advocacy groups. Legal Aid of Northwest Texas, Texas Rio Grande Legal Aid, and Dallas Evictions 2020 were among organizations whose leaders sent a letter to the TJCTC to question its interpretation of a federal FAQ related to the CDC declaration and ask it to revise the guidance to be compliant with federal law. The FAQ includes the language “courts should take into account the order’s instruction not to evict a covered person from rental properties where the order applies,” suggesting courts should play a role.

For the last 12 months, these groups have warned of a disastrous rise in evictions once various protections and federal funding expire. The picture had improved in recent weeks with Texas setting up a statewide rent relief package from $1.3 billion in federal funding. Now, Stuart Campbell, staff attorney for Legal Aid of Northwest Texas, is afraid the state is inching closer to the precipice with the latest decisions by the Supreme Court and TJCTC.

“For some reason,” he said, “Texas has decided they want to be first to start the eviction wave.”