Local judges decide fate of many renters facing eviction
ARLINGTON, Texas – When Tiara Alexander, 32, dropped off her two children at school the morning of Aug. 10, she did not know if they were going to have a place to come home to.
Alexander lost her job as a housekeeping manager in June after her 6year-old daughter’s caretaker contracted COVID-19. When she told her employer, a hotel in downtown Fort Worth, that she had to stay home to care for her daughter, her boss told her she would have to quit.
“I didn’t know what to do, I don’t have any family or friends here to care for my daughter and I couldn’t just drop her off at a day care because she’d been exposed,” said Alexander.
The single mother had moved to Texas in March from Indianapolis with her daughter and 12-year-old son. After losing her job, Alexander fell behind on bills and was not able to pay her rent this past month. Her landlord filed for eviction, and on Aug. 3 a judge gave Alexander seven days to move out of her apartment or risk having her belongings thrown to the curb.
“We came here looking for a fresh start,” Alexander said. “I never imagined that in a few months we’d be on the brink of losing our home and living on the streets.”
Alexander’s fate might have been different if she had moved to a different Texas county or another part of the city. In Tarrant County, which includes Arlington, most courts have stopped enforcing the eviction moratorium put in place by the federal Centers for Disease Control and Prevention last September. It expired July 31, but earlier this month President Joe Biden issued an executive order extending it for 60 days in counties where COVID-19 is spreading rapidly. Tarrant County and 90% of the country are covered.
An emergency order that the Texas Supreme Court issued last year instructing judges how to follow the original CDC moratorium expired on March 31. Since then, Texas judges have said they are no longer able enforce the CDC order, nor are they required to inform tenants that it exists.
“I’m only here calling the balls and strikes,” said Justice of the Peace Mary Tom Curnutt, during Alexander’s eviction hearing. “If you don’t like the law, bring it up with your [state] representative and make sure one of those guys changes it up there.”
Meanwhile, in Travis County, which includes Austin, judges are still using the CDC moratorium to delay evictions, giving tenants more time to access the $46 billion in national emergency rental relief allocated by Congress. The city of Austin also has its own eviction moratorium, which runs through Oct. 15.
These discrepancies in renter protections also are prevalent in other states because it’s largely up to local judges to interpret how to apply local, state and federal eviction bans, according to Emily Benfer, a visiting law professor at Wake Forest University and chair of the American Bar Association’s COVID-19 Task Force on Eviction.
“Your level of protection varies depending on your ZIP code,” Benfer said. “But despite its faultiness, the moratorium has been effective at reducing evictions across the country, and that’s what makes it a critical public health protection strategy in the face of the pandemic, especially in the development of the delta variant.”
If Alexander lived just 2.5 miles south, on the other side of Texas State Highway 360, her case would have been heard by a different judge – one more likely to rule in her favor. “I reset [cases] just to give the tenants time to get assistance,” said Kenneth Sanders, the justice of the peace, or eviction judge, for Precinct 7.
But even Sanders said it’s not an easy call when there are tenants who have not paid rent since last year. He said some renters are under the impression that because of the pandemic and the moratorium, they don’t have to pay rent.
“In light of the pandemic and situation, no one should be evicted at all, but I understand the side of the landlord. Oftentimes, they need the rental money to pay the mortgage or pay property taxes,” he said. “We have had tenants who’ve taken advantage of the situation.”
Conflicting court rulings have contributed to similar inconsistencies across the nation.
On June 29, in a case brought by the Alabama Association of Realtors, the U.S. Supreme Court ruled 5-4 that the CDC moratorium could stay in place until July 31, its expiration date. But Justice Brett Kavanaugh, who cast the fifth and deciding vote, wrote in a concurring opinion that Congress would have to pass legislation to extend the moratorium past that date. The Biden administration signaled that it agreed the moratorium was on shaky legal ground.
On July 23, the U.S. 6th Circuit Court of Appeals, which has jurisdiction over Kentucky, Michigan, Ohio and Tennessee, ruled that the CDC exceeded its authority when it issued the eviction moratorium last year.
Then, shortly after Biden issued his executive order, the Alabama and Georgia chapters of the National Association of Realtors filed a motion in federal court to vacate Biden’s executive order, which he issued after intense pressure from congressional Democrats. Around the same time, officials in Franklin County, Ohio, the state’s most populous county, said they would defy the CDC’S latest moratorium and continue eviction proceedings.
“About half of all housing providers are mom-and-pop operators, and without rental income, they cannot pay their own bills or maintain their properties,” wrote National Association of Realtors President Charlie Oppler in a news release. “No housing provider wants to evict a tenant and considers it only as a last resort.”
As of the first week of July, some 6.3 million tenants nationwide owed more than $21 billion in rent, according to the National Equity Atlas, a data and policy tool maintained by the University of Southern California Equity Research Institute and the research firm Policylink. In Tarrant County, some 30,000 tenants owed more than $97 million in back rent as of July, according to the National Equity Atlas.
A judge’s choice
Stuart Campbell is a former Legal Aid of Northwest Texas attorney who has represented dozens of tenants at eviction courts across Tarrant County. Campbell said there are many variables that drive eviction filings, including how many apartment complexes are in each precinct and how many are owned by large investors.
But, he said, a major factor is simply how judges have applied the CDC moratorium in their courtrooms. Campbell says judges known to honor the CDC moratorium have fewer eviction filings, because landlords think it would be a waste of time.
Tarrant County has one of the highest eviction rates in Texas, according to January Advisors, a Houston-based data consulting firm.
Campbell said judges in Precincts 5, 7 and 8 have delayed evictions when tenants could prove that they had signed and delivered a CDC moratorium declaration to their landlords. The declarations detail how renters were affected by COVID-19 and explain why they can’t pay rent.
In the five other precincts, however, the judges typically told tenants the CDC moratorium was not applicable in Texas, Campbell said. In June, Campbell left Legal Aid to work at the Dallas Eviction Advocacy Center.
“It’s really up to the judge to determine what level of protection tenants have,” Campbell said.
Nick Chu, justice of the peace for Precinct 5 in Travis County, said “in a perfect world,” judges should pause eviction proceedings if a tenant files a CDC declaration.
But in April, the Texas Justice Court Training Center at Texas State University, which provides guidance to the state’s constables and justices of the peace, advised judges to allow evictions to proceed regardless of the CDC order.
Chu, who chairs the Texas Supreme Court’s working group on justice courts and COVID-19 response, said the center’s guidance is not obligatory. In Travis County, landlords have filed 1,450 eviction lawsuits since March 15, 2020. In June, filings were down 87% from the 2018-2019 average, according to Eviction Lab, a Princeton University research project.
“Even if the training center says you have to do ‘X,’ a judge does not have to do that,” said Chu. “Truly each judge has to look at the law and then also the arguments on both sides and apply those arguments.”
On the morning of Aug. 10, Alexander was at her apartment waiting by the phone, unsure of what she would do if she was forced out of her home.
“I’ll just figure it out as it happens,” she said. “I’ll try to find a storage unit where we can leave all our things and find a place to stay.”
A few minutes before 11 a.m., she got a call from the Arlington Housing Authority. She’d been approved for her back rent and three months of future rent.
“I feel so relieved,” she said shortly after taking the call. “I just hope my landlord wants to take the money and lets us stay.”