A September 1 order by the US Centers for Disease Control and Prevention (CDC) prohibits landlords from evicting tenants from their homes and apartments before December 31.
This eviction protection is not automatic however. “To invoke the CDC’s order these persons must provide an executed copy of the Declaration form (or a similar declaration under penalty of perjury) to their landlord, owner of the residential property where they live, or other person who has a right to have them evicted or removed from where they live.”
After watching eviction hearings in several different justice of the peace courts in Texas it is clear that some judges are permitting Texans to be evicted who the CDC order was intended to protect. Some judges are failing to determine if the tenant has filed a CDC declaration before ordering their eviction. In other cases, judges fail to inform tenants appearing before them about the CDC order that, if it were filed by the tenant, would prevent their eviction.
Some Texas judges have claimed they are withholding this vital information from tenants appearing before them because judges are not supposed to provide “legal advice” to tenants. This is wrong. These same judges routinely advise landlords on procedural practices they must follow to secure an eviction order against a tenant.
PEOPLE ARE BEING EVICTED WHO SHOULDN’T BE
It is both heartbreaking and maddening to watch tenants being evicted when they could avoid eviction if only the judge would inform them of the CDC emergency order.
These are extraordinary times. In the words of the CDC order, “In the absence of State and local protections, as many as 30-40 million people in America could be at risk of eviction. A wave of evictions on that scale would be unprecedented in modern times. A large portion of those who are evicted may move into close quarters in shared housing or, as discussed below, become homeless, thus contributing to the spread of COVID-19.”
Texas does not provide tenants a right to legal counsel when they face their landlord and a judge in an eviction hearing. At the very least, the judge should inform tenants of the CDC order to afford them a right to protect their lives and those of their family members.
WHAT NEEDS TO HAPPEN RIGHT NOW
- The Texas Supreme Court should issue an emergency order instructing justices of the peace to inform tenants who have been served eviction orders of the rights to temporarily block their eviction by completing the CDC declaration.
- The Texas Supreme Court should require landlords to show proof that they have provided their tenant with a copy of the CDC order and instructions at the time they serve a tenant with a notice to vacate.
- City and county governments should mail a copy of the CDC declaration to all renters living in their jurisdictions along with instructions on how to complete the declaration and file it with the landlord.
- The State of Texas, using CARES Act funds, (or, in the absence of state action, cities and counties) ￼should contract with attorneys to be present when eviction cases are heard in justice of the peace courts to advise tenants on the CDC order and/or represent them, if requested, in the eviction proceeding.￼￼￼
Illustration designed by Wannapik.