Eviction orders not exactly clear cut
Several stipulations in the eviction halt authorized by the Centers for Disease Control and Prevention rely on the judge’s interpretation, meaning that a tenant could be evicted or not depending on which of Harris County’s 16 justice of the peace courts their case winds up in.
The CDC order stops residential evictions of the most vulnerable through the end of 2020 in the name of stopping the spread of the novel coronavirus. If a tenant makes under $99,000, has tried to obtain government assistance, is making “best efforts” to make payments and would become homeless or have to double up if evicted, then they can sign a form and present it to their landlord to prevent an eviction being filed.
The order went into effect on Sept. 4 — three days after rent was due.
“We’re still trying to figure out what it actually means,” said Jeremy Brown, Harris County Justice of the Peace for Precinct 7, Place 1. “In my court, I’m treating the affidavits similar to a bankruptcy affidavit. Meaning if someone has filed, technically state law says you can’t evict until it’s wrapped up. So we do a stay.”
The order doesn’t provide specific guidance as to whether eviction judges should ask about the CDC form in each case. Brown is still trying to figure out whether he should.
“Me telling a tenant to fill out an affidavit may be bridging over to legal advice instead of legal information,” he said.
Dana Karni, a managing attorney at Lone Star Legal Aid, believes judges can and should be able to ask both landlords and tenants about the CDC form. A few have: On Thursday, Harris County Justice of the Peace Holly Williamson (Precinct 8-1) told a tenant in front of her court about the form — and told the property manager that if anyone filled out the form, the property manager had to honor it. Justice of the Peace David Patronella (Precinct 1-2) has also asked about the form from the bench.
“Each of my colleagues may interpret it differently,” said Patronella.
The Texas Justice Court Training Center has put out guidance for Texas judges handling evictions. For cases filed before Sept. 4, the Justice Center recommends that the court could ask if the landlord received a CDC declaration.
“The courts are telling us they’re anticipating some sort of guidance or challenge from higher courts,” said Karni. She said LSLA attorneys have seen judges
cases covered by the CDC order from anywhere from a week to a month.
Another clause potentially up for interpretation is what it means for a tenant to have made “best efforts” to make payments.
“It’s kind of hard to paint a picture of what are your ‘best efforts’ when your income is close to zero,” Karni said. She heard discussion of suggesting a tenant tried to pay 30 percent of their income, a measure for some public housing units. But 30 percent for someone with no income, she added, is still zero.
Even if a tenant files the form to their landlord, they will still have to pay rent and any associated late fees.