What You Can Do When Facing An Eviction In Texas
In early December, according to the Census Bureau, more than a million Texans said they weren’t able to pay rent that month, and even more worried they’d be unable to make rent in January. About three-quarters of them are families with children in the home.
For months, housing advocates, landlords and faith leaders nationwide have been warning of a looming tidal wave of evictions because millions of renters have fallen behind on rent. While many advocates expect the measures approved by Congress to help, it’s not yet clear whether they’ll be enough to keep struggling renters in their homes.
The $900 billion coronavirus relief bill that Congress recently passed included about $25 billion for rental assistance and extended a federal eviction moratorium for renters impacted by the pandemic.
That moratorium is now slated to end on January 31, and there’s no clarity yet on when the rental assistance money will be available.
The eviction process includes several steps, but can happen very quickly. In Texas, in most cases, a landlord can evict a tenant for failing to pay rent within a few weeks of the first missed rent payment.
The eviction process in Texas begins when a landlord gives a tenant a notice to vacate, which can be issued the moment a tenant is late on rent.
“This is important because if they don’t give you the notice to vacate and they just file the eviction suit, then they have violated the notice provisions and that case should be dismissed,” said Mark Melton, an attorney who launched Dallas Evictions 2020 to help renters facing eviction during the pandemic.
While Texas law requires landlords give a tenant a three-day notice to vacate before filing an eviction lawsuit in court, many Texas landlords use a standardized lease contract in which a tenant waives their right to a three-day notice to vacate. That standardized contract gives the landlord the right to give a tenant only 24 hours notice before filing an eviction lawsuit.
There are some exceptions related to the pandemic that give tenants more time than usual before a lawsuit is filed to evict them.
Under the CARES Act, which Congress passed in May, landlords who own rental properties that have federally backed mortgages or that receive federal housing subsidies are required to give a 30-day notice to vacate to tenants before filing an eviction lawsuit for nonpayment of rent.
The National Low Income Housing Coalition maintains a searchable database of CARES Act properties, though it only includes properties with more than four units.
Some cities like Austin and Dallas have given additional time for tenants to catch up on rent, apply for rental assistance or work out a payment plan with their landlord before they can be taken to court. Most cities, however, do not have those additional protections.
After receiving the notice to vacate, a lot of actions can be taken to prevent an eviction, Melton said. Tenants should take the time to see if they qualify for protections under the CDC moratorium or other federal protections, figure out their legal options and, more than anything, talk to their landlord to explain why they’ve been unable to pay rent.
“One of the most important things is to communicate with your landlord. If you call your landlord in a lot of cases, I would say most landlords are sympathetic to that and are willing to work something out,” Melton said.
Because of the pandemic, Ian Mattingly from the Greater Dallas Apartment Association, which represents landlords and the rental housing industry, has found that landlords find it in their best business interests to keep tenants in the apartments if they’re able to commit to chipping away at the rent they owe.
“I’d say as a whole that our membership as a whole understands that we have some obligation to be flexible right now and give people the time to work things out when they can,” Mattingly said.
Farwah Raza, a Denton-based attorney with Legal Aid of NorthWest Texas, recommends that people correspond with their landlord in writing, to have a record of their conversations and discussion of partial payments, even if it is a small amount, because that is required to qualify for the CDC moratorium.
For those who have lost their job and have no income to put toward a repayment plan, many nonprofits, cities and counties can still offer some rental assistance, and the next round of federal funds for rental assistance should be available in the next few weeks.
If a solution can’t be negotiated, once the required waiting time in the notice to vacate is up, a landlord can file an eviction lawsuit in a county justice of the peace court, asking for permission to evict a tenant.
Once the case is filed, a constable or sheriff will deliver a notice to appear in court between 10 and 21 days after the lawsuit is filed. When the CDC issued its moratorium on evictions, the Texas Supreme Court ordered that courts include the information and forms related to the moratorium’s protections in the paperwork.
Sandy Rollins, who heads the Texas Tenants Union, points out that a tenant can request a jury trial up to three days before their hearing. That could give a tenant more time to work out a plan or negotiate a solution with their landlord because, “right now, most jury trials are postponed by the Texas Supreme Court until February 1.”
At the hearing, the justice of the peace will preside over the court case. If a tenant doesn’t show up to the hearing, the judge will automatically give the landlord permission to evict the tenant. That’s why tenants’ rights advocates and housing lawyers recommend always showing up to the court hearing.
Because of the pandemic, most cases are happening virtually, using video conferencing software like Zoom. That can be a challenge for tenants who don’t have internet access or a computer or other device that can handle a video call.
Raza, the Legal Aid attorney, said that renters who have a hearing scheduled should make sure they know how to contact the court if they’re having trouble connecting to the online hearing.
“Make sure you have the clerk of the court’s phone number somewhere near you so if you can’t get into your Zoom hearing, you can call them and notify them immediately,” Raza said.
If a judge rules against the renter, they will sign a Writ of Possession for the landlord. That gives the landlord the right to have the renter and their possessions removed from the property, but not right away.
After a judge has ruled against a renter, the tenant has five days to appeal the judgement. When that time is up, a constable or sheriff will paste a notice on the front door saying that they will return in 24 hours to evict the tenant and all of their property. The constable or sheriff can’t remove a person or their property if it is raining, sleeting or snowing.
The Centers for Disease Control and Prevention issued a nationwide moratorium on evictions for people who are unable to pay rent due to the coronavirus, but that eviction ban is slated to expire at the end of January, 2021.
To be covered by the eviction moratorium, a tenant must sign a declaration that they meet certain conditions, and provide it to their landlord. This is the sample CDC self-declaration: CDC Declaration Form (PDF).
Mark Melton, the Dallas attorney, said that many of the people he talks to don’t know they have to take the step of signing the declaration and giving it to their landlord.
“If they don’t do that, even if they would have been eligible for protection, they don’t get it,” Melton said. “It’s not automatic. And what we’ve found is that most people we talk to have no idea that the CDC declaration exists.”
That declaration certifies that a tenant qualifies for protection under the moratorium. Specifically, that they:
- have tried to get government rental or housing assistance;
- earn no more than $99,000 a year in income ($198,000 for couples who file taxes jointly);
- cannot pay their full rent because of pandemic-related financial issues;
- have made or tried to make partial rent payments; and
- would likely become homeless, need to move into a homeless shelter or move in with family, friends or others whose homes are already full.
The moratorium isn’t a silver bullet: Tenants still owe all of the rent they haven’t paid, plus any late fees. It only puts a pause on the eviction process. Renters protected by the moratorium cannot be evicted for failing to pay rent. They can, however, still be evicted for other lease violations.
The Texas State Law Library has copies of the declaration in multiple languages, as well as a form letter to send to a landlord explaining the moratorium.
Sandy Rollins from the Texas Tenants Union said the declaration can be signed and delivered at any time to stop an eviction, if it applies.
“They should sign [the declaration] and give it to their landlord,” she said. “If they didn’t give it to the landlord before the court case was filed, they should give it to their landlord and take it to the court and give it to the judge. If they already had their court date and the constable is on their way, they should give it to their constable.”
The three Legal Aid organizations in Texas offer the most robust civil (not criminal) legal services for low-income people, including for evictions and other housing-related issues.
They launched the Stop TX Eviction website as a one-stop shop to find legal information, apply for free legal assistance, and find rental assistance and other resources.
Most law schools offer clinics where students help with legal matters, under the supervision of professors, including housing or more general civil law clinics.
The Texas Tenants Union, while it doesn’t provide legal services itself, will also help connect people to resources if they are facing eviction.
Texas Housers, an low-income housing advocacy group, also has a lot of information for renters.
Congress authorized another $25 billion for rental assistance in its most recent coronavirus relief and stimulus package. Texas will get about $1.9 billion to help renters who are unable to pay their rent due to the coronavirus. Details are still emerging about how and when the funds are expected to be available to renters needing help.
The landscape of rental assistance and other help with household expenses can be complicated, so it’s best to contact both local and state governments, as well as local nonprofits.
“You want to be looking everywhere for what those rental resources are. That’s time consuming, but if you do that research right away, you’re in a better position,” said Legal Aid’s Raza.
The Texas Department of Housing and Community Assistance maintains a three-step Help for Texans resource guide that connects people to local organizations that received money from the state to help with rent or utility assistance.
If there aren’t state funds or programs that can help, city and county governments also received funding to help people struggling under the financial strain of the pandemic.
Local nonprofits like the United Way, Catholic Charities and the Salvation Army are typically equipped to connect people with financial assistance.
In October, Gov. Greg Abbott announced a statewide eviction diversion program. It is only in 19 pilot counties so far, and is expected to be operational in an additional 40 counties by the end of January, with expansion to the rest of the state later. It includes $161 million dollars to help people pay back up to six months of rent.
One limitation to the program, Raza cautioned, is that it is run through the courts, which means only people who have had an eviction lawsuit filed against them can get the rental assistance funds. That can be risky for clients, Raza said.
“That financial resource is not going to be available to folks who are receiving the notice to vacate and want to come up with some way which neither one of them have to go to court,” said Raza. “So the diversion program really is a last resort.”
Texas Tenants Union's Rollins also suggests that people facing eviction reach out to elected representatives at the local, state and federal level.
They may not be able to help directly, but they have the power to provide more protections and resources for renters to help a massive wave of evictions.
"It's important for people to let elected officials know what you're going through. They need to hear the stories. They're supposed to represent you," she said.
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