Texas Supreme Court Interprets CDC Order
The Texas Supreme Court issued an emergency order explaining the requirements for Texas landlords and JP Courts in response to the CDC order.
The Supreme Court apparently wants to ensure that defendants are fully aware of the opportunity to provide a CDC declaration and potentially halt the eviction.
Property owners, however, apparently have an opportunity to challenge a defendant’s declaration.
On Thursday, September 17, the Texas Supreme Court issued the emergency order we expected it would. The Supreme Court’s order (the “Order”) interprets the CDC’s order that put a moratorium on evictions nationwide.
The Order explains what property owners are required to do to comply with the CDC order and when Courts can let an eviction go through to the next step. In the paragraphs below, we explain what the Order requires.
New Requirements for Eviction Petition
The Order first explains what is required to be included in ANY petition for eviction in Texas. Under Texas Property Code Chapter 24 and Texas Rules of Civil Procedure 510.3, a property owner wishing to gain possession of his property from a tenant has to file a sworn petition describing the facts for eviction. Under the Order, that petition must now state whether or not:
The property is a "covered dwelling" subject to Section 4024 of the CARES Act;
The plaintiff is a “multifamily borrower” under forbearance subject to Section 4023 of the CARES Act;
The plaintiff has provided the defendant with 30 days’ notice to vacate under Sections 4024(c) and 4023(e) of the CARES Act; and
The defendant has provided the plaintiff with a declaration under the CDC’s order confirming the requirements of that declaration.
So while the requirements of the CARES Act have expired, the Texas Supreme Court, through this Order, are apparently still requiring affected property owners to adhere to it.
Citation will Explain CDC Order
Under the TRCP, once a plaintiff files a petition, the Court then issues a citation. In the Order, the Supreme Court now requires that citation to explain that the CDC issued an order potentially staying the eviction. And to get that eviction stayed, the tenant must file a declaration, like the one in the CDC’s order. The citation will also contain a copy of that declaration.
During the eviction hearing, the Court can question whether the defendant is aware of the CDC order and has had time to fill out the declaration. Its difficult to see how the defendant would not be aware if it is included in the citation, but the Order allows the JP court to question this. Which means that the defendant is going to have every opportunity to submit a declaration. And if he or she does, the Order requires the JP court to stop the eviction process.
Plaintiff can Question Defendant
While a JP court is instructed to halt an eviction if there is a declaration, it appears that the Texas Supreme Court is allowing plaintiffs to challenge the veracity of the defendant’s declaration. Specifically, an eviction can proceed if:
The plaintiff contests the defendant’s declaration or the CDC Order*;
The judge holds a hearing to determine whether the action should proceed; and
Determines that it should proceed.
So it appears from the Order that a plaintiff is allowed to contest the veracity of a declaration. Its not clear how that process will work. I guess we will have to see as it develops.
If you have any questions or need more information, please call us at 512-614-0335.
*I have no idea what it means to contest the CDC order. Or, at least, what the Supreme Court envisioned there.