Texas Attorney General Issues Opinion on Eviction Restrictions

Industry ,

Late on Friday, August 7, Texas Attorney General Ken Paxton issued an opinion that calls into question the city and county action taken to restrict the eviction process.  Paxton’s opinion clearly stated that local governmental entities, even when operating under local emergency declarations, cannot delay, prohibit, or restrict the eviction process since that process is under the purview of the state’s Property Code.
The opinion was released after the Texas Apartment Association (TAA) was able to procure the request through state Senator Brandon Creighton in late June.  The specific question asked was:  “Whether orders and ordinances adopted by local governmental entities pursuant to emergency declarations that have the effect of prohibiting, delaying, or restricting the eviction process as set forth in Chapter 24 of the Texas Property Code and the 500-510 rules of the Texas Rules of Civil Procedure are valid under Texas law.” 
Although Attorney General opinions are not legally binding, they can greatly influence policy decisions, and AG opinions can be an important factor in any lawsuits filed against a local government on the issue of eviction moratorium. During the last week of July both Travis County and the City of Austin extended eviction moratoriums until Sept. 30.
In his decision Paxton wrote, “While local officials do possess certain emergency powers ... statewide eviction procedures far exceed the requirement that those powers be exercised 'on an appropriate local scale.'” Paxton went on to say, “Government Code does not authorize local governmental entities operating under a declared disaster to independently rewrite state law as it applies to their jurisdiction to prohibit, delay, or restrict the issuance of a notice to vacate.”
This opinion supports the Austin Apartment Association’s and Texas Apartment Association’s position that local orders and ordinances may not interfere with the eviction process.  David Mintz, vice president of government affairs for the Texas Apartment Association stated “We think that it is really important that there is a consistent process, and we think that this opinion supports our thoughts the local ordinances were beyond city authority.” 
Both the AAA and TAA we continue to encourage members to work with residents to the maximum extent possible to avoid evictions, and at the national level the National Apartment Association is focused on securing a robust rental assistance program in the to help renter in need.  An eviction moratorium may keep residents in their homes in the short term, but it will just put them months behind in their payments that they will struggle to ever make up. And months of lost rent will cripple our industry’s ability to protect our communities, pay our employees and meet our own financial obligations. A robust and targeted rental assistance program, on the other hand, will keep residents who have a COVID-related hardship in their homes and keep apartment communities stable and solvent.
For more information about this opinion release of the advocacy action being taken at the local, state and national levels to protect the interests of the rental housing industry contact me at emily@austinaptassoc.com.