Updated: TX Supreme Court ends eviction hearings orders; CDC moratorium extended through June

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Synopsis

After the Centers for Disease Control and Prevention extended its eviction moratorium through June 30, the Texas Supreme Court has opted to allow its emergency orders related to eviction hearings to expire March 31, 2021.

Key takeaways

  • The Texas Supreme Court opted not to extend its 34th Emergency Order related to eviction hearings, which expired March 31.
  • That order included certain pleading requirements in eviction petitions, related both to the applicability of the CARES Act and to whether or not property owners had been given a declaration needed to invoke protections under the eviction moratorium put in place by the Centers for Disease Control and Prevention last September.
  • While the CDC eviction moratorium is still in place, and was recently extended through June 30, 2021, the Texas Supreme Court no longer requires eviction petitions to include specific information related to the CDC order and the CARES Act.
  • The Texas Apartment Association has updated its sample eviction petitionand Contest of Defendant’s Declaration Under the CDC Order.
  • TAA has provided updated guidance on this matter to the Justice Court Training Center. This guidance will be posted on the JCTC’s website, along with guidance from tenant advocate groups.

Update: On April 8, the Texas Apartment Association submitted updated guidance on the CDC eviction order to the Justice Court Training Center, in light of the Supreme Court’s action in allowing its relevant order to expire and JCTC’s own guidance on this matter. JCTC will be posting TAA’s guidance, along with guidance from tenant advocate groups, on its website. 

The Texas Supreme Court did not extend its 34th Emergency Order, allowing it to expire March 31, 2021.

Emergency Order 34 included pleading requirements in eviction petitions regarding certain COVID-19 disclosures. These included the applicability of the CARES Act to the property and a statement regarding whether the defendant had provided the landlord a CDC declaration, as well as other requirements governing the hearing.

The federal CDC Eviction Moratorium does remain in effect until June 30, 2021. 

Following the expiration of the Texas Supreme Court’s 34th Order, the only continuing Supreme Court Orders are those relating to participation in the state’s eviction diversion program and permitting courts to modify or suspend deadlines and procedures through June 1 to avoid exposing their court, staff, parties and the public to COVID-19.

According to information from the Justice Court Training Center, the process related to the CDC eviction moratorium in Texas eviction cases has been governed by the Texas Supreme Court’s Emergency Orders, not the specific text of the CDC order itself. Nothing in the text of the moratorium itself specifically directs or forbids courts to take any action.

Instead, the CDC Order directs landlords to not evict tenants who are covered by the moratorium. It also provides civil and criminal penalties for landlords who violate the moratorium, but that is a matter between the tenant, the landlord, and potentially a federal prosecutor. It is not a matter that a justice court can or should enforce in the absence of authority from the Texas Supreme Court.

The Department of Health and Human Service and the CDC issued an FAQ on the CDC Order on Jan. 29, 2021. In that FAQ, the agencies noted:

“State and local laws with respect to tenant-landlord relations vary, as do the eviction processes used to implement those laws. The judicial process will be carried out according to state and local laws and rules. The Order is not intended to terminate or suspend the operations of any state or local court.” (emphasis added)

JP Courts in Texas are no longer authorized by the Texas Supreme Court to abate (put on hold) cases based on the CDC eviction moratorium. Instead, the moratorium prevents landlords from evicting covered tenants, and provides civil and criminal penalties for landlords who violate it.

Please carefully review the CDC Order to ensure that your company is properly handling this transition period following the expiration of the 34th Emergency Order.

Given the Texas Supreme Court’s decision to let its 34th Emergency Order expire, justice courts and other courts should move forward with their dockets and no longer require property owners to include additional pleading requirements in eviction petitions. There are no more extra pleading requirements or state mandates relating to the CDC Order or the CARES Act.

For previously abated cases, TAA’s recommendation is to contact the court to set the case for hearing if you wish to proceed with the case. Property owners may wish to dismiss because, for example, the resident moved out at some point. Or, owners may want to wait until the moratorium expires. Finally, the owner may choose to move forward with the case because, for example, they don’t believe the moratorium applies to their case.

Updated forms 

TAA has updated its sample Eviction Petition and Contest of Defendant’s Declaration Under the CDC Order. Please note that the Justice Court Training Center’s guidance is that “Courts are unable to provide guidance or direction to landlords about whether or not the CDC eviction moratorium applies to their case, and have no authority to hold a hearing to make such a determination. Previously, the contest hearing process was authorized by the Texas Supreme Court’s 34th Emergency Order, which expired March 31, 2021.” Nonetheless, TAA updated its forms in case some courts do continue to hear Contests of Declarations. These will be available soon on the TAA website and REDBOOK Online and included with an upcoming update for TAA Click & Lease users.

Legal brief on CARES Act 

TAA believes the 30-day notice to vacate requirement under the CARES Act ended last year. TAA is aware that some tenant advocacy groups argue that the CARES Act requirement is still in place. In response to this legal argument, TAA has prepared this brief expressing the association’s legal interpretation of the applicable provisions.

While our opinion is not binding upon courts, we hope it may serve as a persuasive counter-argument to those asserting the continuation of the 30-day notice to vacate provision of the CARES Act.