On Halloween the Texas Supreme Court issued its 56th and 57th Emergency Orders governing the operation of the courts during the declared state of disaster for COVID-19. But are they really necessary in a world that (except for China) has moved on from the coronavirus pandemic?
Specifically, TCJL has serious concerns about the ongoing impact of the emergency orders on eviction cases in justice courts. The latest order premises the extension of eviction abatement on the provision of additional federal rental assistance funding to the Texas Department of Housing and Community Affairs and certain local jurisdictions in March and October of this year. Under the logic of the order, as long as rental assistance funds are available and might beapplied for, automatic abatement of an eviction action is mandatory if either a plaintiff-landlord has a pending application involving the defendant-tenant or both parties “express an interest in participating” in an available assistance program. As a practical matter, this language gives a justice court all the leeway it needs to put off an eviction proceeding regardless of the plaintiff-landlord’s position on rental assistance programs, especially where JPs are already predisposed to slow-play eviction proceedings in any event. Moreover, some local jurisdictions have enacted overlaying ordinances that perpetuate moratoria on eviction proceedings even though the emergency has long passed. The fact that these ordinances conflict with the statutory requirements for eviction proceedings contained in Chapter 24, Property Code, as well as with SCOTX’s emergency orders, should be of some interest to the Legislature next spring. What’s the point of having a statutorily prescribed process for adjudicating simple nonpayment of rent eviction cases if it’s so easy to subvert that process and no effective enforcement mechanism exists to ensure compliance with the law?
The core of the problem with the apparently endless extension of these orders is that they require landlords to absorb the whole cost of a problem that they did not create and cannot control. No one questions that the pandemic caused economic disruption at all levels of society, and that relief for tenants was both necessary and proper during the height of the crisis. Many landlords benefited from these programs and worked together with their tenants to keep them in housing until the crisis eased and people could get back to work. It should be noted, however, that even these programs could not provide sufficient resources to cover the rising costs to landlords of maintaining their properties, not to mention skyrocketing property tax bills. It is lamentable that nothing in SCOTX’s emergency orders or local ordinances has ever acknowledged that much of the cost of the pandemic has been shifted to housing providers. To our knowledge, no jurisdiction has abated a landlord’s property taxes or loan obligations because of a loss of rental income from the pandemic.
These interventions in the process further fail to acknowledge the fact that a substantial majority of residential landlords are private individuals who manage their own properties, not corporate behemoths with third-party management companies. Many of these independent landlords rely on rental income to survive financially and have taken terrible losses resulting from the pandemic. Continuing to make it harder and more onerous for them to maintain a vitally necessary income stream is both unfair and unjust. Again, Chapter 24 establishes a process that allows independent landlords to move forward from a non-paying tenant in a cost-effective and relatively prompt manner. Now that we have upended this process, and appear content to continue upending it for the foreseeable future, these people are faced with paying their bills on reduced incomes as delays in the eviction process snowball.
While it is understandable that nobody wanted to see people evicted from their homes during the pandemic, that justification for eviction abatement no longer exists and hasn’t existed for the better part of a year. It’s one thing to allow an abatement if the landlord and the tenant have a current deal with respect to rental assistance, but the emergency order goes much further than that and makes the eviction process so unwieldy and cost-intensive that it actively discourages landlords, especially independent landlords with one or a few rental units, from availing themselves of what they have every legal right to do if a tenant won’t or can’t pay the rent. The added requirement in the order that “representatives from legal aid organizations or volunteer legal services be present” at an eviction trial is simply overkill and adds yet more layers of cost and delay to what is supposed to be a summary process. There is certainly nothing wrong with tenant representation at eviction hearings, but mandating and, in some cases, publicly funding it will do nothing but turn every eviction action into a protracted adversarial fistfight when the only question at issue is whether the tenant paid the rent.
If we’re going to go down this road, then perhaps we need to look at another way of resolving landlord-tenant disputes than in non-record courts with judges who may or may not have the training, education, background, or will necessary to apply the law as they are bound to do. It has been suggested that mandamus is the proper remedy if a JP fails to follow law. This is neither practical nor effective in most cases because the landlord either cannot afford to lawyer up in the first place or the outcome of a mandamus action is so uncertain that even well-resourced landlords see no benefit in engaging a potentially lengthy and certainly expensive process (while all the while not receiving rent payments). It is our understanding that the vast majority of landlords seeking to evict non-paying tenants have no interest in trying to recoup lost rent. They merely want to be able to rent the property to a paying customer. In short, by tying up the eviction process in justice courts by imposing new mandates and additional delay, we are both increasing costs and depriving property owners of the use of their property for longer and longer periods of time. Perhaps some kind of administrative process with hard timelines, some kind of record, and little judicial discretion would work better than what we have now.
Presumably, the declared emergency will end some day and the emergency orders will finally terminate. But a lot of damage has been done, and the longer these conditions persist, we can anticipate a lot more. It seems that we should be looking for ways to reduce the costs of renting property, not imposing new mandates that increase them. There is also no guarantee that when the orders do expire, that some of these additional requirements will not survive them in some form or another. We’ve already alluded to the pre-emption issue, but it might be necessary to look at other measures to prevent this from happening again.
