Texas courts must start telling tenants how a federal eviction moratorium can keep them housed

The Texas Supreme Court signed an order clarifying the federal eviction moratorium. Credit: Miguel Gutierrez Jr./The Texas Tribune

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Texans facing an eviction must be informed in court citations about how they can remain housed under a national eviction moratorium, the Texas Supreme Court ordered Thursday. The measure clarified aspects that housing lawyers said were unclear after the Centers for Disease Control and Prevention issued its moratorium on evictions this month.

“Now you will be notified when you are served by the constable that you have this right,” said Fred Fuchs, housing attorney with Texas RioGrande Legal Aid. “For folks that don’t know about this, now they will. It’s absolutely critical that the court took this step. It will ensure to promote public health during this pandemic, because it prevents evictions and keeps people housed.”

Prior to the court's order, housing advocates expressed concerns that tenants wouldn’t know about the moratorium and its requirements, including that they had to sign and give to their landlord a declaration that the eviction would leave them homeless. It also wasn’t clear also if justices of peace could be proactive and educate tenants about the protections.

"Before you had to print this piece of paper and sign it," said Becky Moseley, staff attorney at Legal Aid Northwest Texas. "This puts the declaration in the tenants hands and that's huge. We are very thankful for that."

To be protected by the moratorium, tenants have to declare that they have searched for rental assistance and they cannot earn more than than $99,000 in annual income in 2020 or $198,000 if filing a joint return, among other requirements. Under the declaration, tenants also agree that they will pay rent eventually, as well as fees and penalties according to their leases or agreements with the landlord. This declaration has to be presented to the landlord and the judge.

The CDC eviction moratorium, which stops evictions for anyone that signs this declaration until the end of the year, was applauded by housing advocates and housing lawyers when it was announced, but many pointed out gray areas and loopholes. It was unclear, for example, if cases that started previous to the publication of the moratorium would be covered and even if the CDC had authority to issue such an order. On Sept. 9, the Texas Justice Court Training Center provided guidance for justices of peace, but advocates said that tenants still had trouble benefiting from the moratorium.

“I’ve watched 60 cases, maybe more, but I’ve only seen one successful use of the CDC moratorium,” said Zoe Middleton, Southeast Texas co-director with the advocacy group Texas Housers, on Thursday, who was monitoring hearings prior to the publication of the Supreme Court Order.

In most cases, tenants weren't present or they didn't know of the declaration.

“The moratorium is not consistently applied, and this makes it difficult to understand for people,” she said.

Housing lawyers also explained that there wasn’t clarity if the moratorium should prevent an eviction has been granted, but the order for the constable to actually evict a person — the writ of possession — hasn’t been issued.

“We saw a case or two in the Valley when the writ of possession had already been issued and they were set to execution by the constable,” Fuchs said. “With this order of the Supreme Court, it makes it very clear that the court must abate these situations.”

The Texas Supreme Court order also allows landlords to contest the declaration of the tenant.

Fuchs warned that, although the order is good news for tenants, they will still have to pay rent eventually, many times with added late fees. He is concerned that, if there’s no action from the federal government on rental assistance, a wave of evictions will start happening once the moratorium lifts in January.

“Now is the time as a tenant to be proactive on getting rental assistance and try to pay as much as possible,” Fuchs said. “And is also the time for Congress to provide rental assistance to the folks that need it.”