Texas courts defy CDC eviction pause

Some Texas state courts are openly defying a federal order to halt evictions amid the coronavirus pandemic, even as the state sits on more than $1 billion in undistributed federal rental aid with more assistance from Washington on its way.

New guidance issued by a state judicial advisory panel has given a green light to Texas courts presiding over eviction cases to disregard a moratorium from the Centers for Disease Control and Prevention (CDC) that temporarily halts evictions through June.

“Texas courts-ignoring the CDC moratorium-have started ordering evictions,” Emily Benfer, a law professor at Wake Forest University, tweeted. “Today, in Arlington, sheriffs evicted a single mom with a 5 yr old child. They were pushed out to the street just like their belongings & offered no assistance.”

Texas courts-ignoring the CDC moratorium-have started ordering evictions. Today, in Arlington, sheriffs evicted a single mom with a 5 yr old child. They were pushed out to the street just like their belongings & offered no assistance. This is how TX treats families in a pandemic. pic.twitter.com/0bho6YvSkf

— Emily A. Benfer (@emilyabenfer) April 8, 2021

Hundreds of thousands of Texans risk being thrown out of their homes under the new court guidance, a problem that advocates say is compounded by the state’s sluggish pace in distributing rental assistance from Congress.

Texas disbursed less than 1 percent of $1.3 billion in federal funding in the first 45 days of its state-run rent relief program, according to the Dallas Morning News, citing an April 5 report by a state legislative panel.

“That $1.3 billion is literally sitting in Austin in a bank account ready to be disbursed,” said Mark Melton, an attorney at Holland & Knight’s Dallas office who is helping to lead pro bono efforts on behalf of tenants.

“You’re going to have a whole bunch of tenants that are going to become homeless,” he said, “who are going to be sitting outside of empty rental units that are across the street from a huge pile of cash that could have stopped this whole thing to begin with.”

The Texas Department of Housing and Community Affairs, which oversees the state program, did not immediately respond to a request for comment.

Texas is slated to receive even more federal rental aid as a result of the $1.9 trillion coronavirus relief package that President Biden signed into law last month. Yet recent state court developments have made it more likely that eviction will reach some tenants before federal rent assistance does.

The Texas Supreme Court last week declined to extend an emergency order that had required Texas courts to effectively abide by the CDC moratorium. Rather than push courts to continue applying these protections, however, a judicial advisory panel moved in the opposite direction.

The Texas Justice Court Training Center (JCTC), which publishes nonbinding advisory opinions to Texas judges, said the CDC’s order should not be considered governing law in eviction cases.

“It is not a matter that a justice court can or should enforce in the absence of authority from the Texas Supreme Court,” read JCTC guidance of March 31, the day the Texas Supreme Court’s emergency order expired.

Benfer, of Wake Forest University, said the new guidance tees up a potential clash where tenants have exercised their rights under the CDC moratorium. Renters demonstrate their eligibility for CDC eviction protections by signing a sworn declaration under penalty of perjury.

“It’s the judge’s duty to interpret and apply the law, and guidance that instructs courts to take no action when presented with a declaration violates the spirit of the moratorium,” she said. “Where a tenant presents a declaration it should halt the eviction process immediately.”

It was not immediately clear how many Texans have been evicted so far this month in defiance of CDC protections. Melton, the Texas attorney, said the response by judges has been mixed, with some continuing to apply federal law while others have fully embraced the new pro-landlord guidance.

“We have some judges that are gleefully evicting people over the course of the last week on the grounds laid out in that guidance,” he said.