In Texas, tenants have few legal defenses against their landlords in eviction hearings.
Tenants cannot countersue to hold their landlords accountable for property negligence, nor for refusing to make repairs during eviction hearings. Their late rent payment may also be rejected by the landlord, even if they can pay in full before the hearing. For these reasons, it is critical that tenants understand the full extent of their rights, what legal defenses are allowed in eviction hearings, and how to use these defenses to secure a case dismissal.
In May of 2022, Houston Eviction Solidarity Network (HESN) court observers witnessed and logged 746 eviction hearings in Harris County. Out of these cases, only 155 cases, or 21%, were dismissed. A case is dismissed when the landlord does not show up for their eviction proceeding, there are administrative issues, or the judge rules on the side of the tenant.
Dismissals in the Courtroom
Discovery is the point in a trial where the judge presiding over the court listens to each side present information relevant to the case. During discovery, both landlord and tenant are each asked to present their evidence to the court. Through proper discovery, a Justice of the Peace (JP) should be able to deduce whether the case is being brought to the correct court and which of the two parties should the case be ruled in favor of.
JPs have been able to conclude that some eviction cases are being filed in the improper court. Cases dealing with questions of estates and heirship belong in probate court. We have observed plaintiffs initially state that the grounds for eviction are simply due to non-payment of rent, but as the JP begins to ask questions of both parties, they learn that the case was filed in the incorrect court and does not have standing. If this is the case, the JP will dismiss the case.
JPs should also dismiss cases with improper administrative procedures or filing errors made by the landlord. It is imperative that the landlord properly follow the law when dealing with eviction court, yet many attempt to get around certain necessary procedures. In Texas, a Notice to Vacate (NTV) must be delivered to the tenant at least 3 days before the landlord files for eviction with the court.
Currently, the CARES Act – one of the few remaining protections from the pandemic – requires landlords to give a 30-day NTV to anyone who lives in a property that receives a housing subsidy. Some JPs in courts across Texas have been diligent in asking about the NTV and the property’s subsidy. However, despite its importance, this is not a question that HESN court observers frequently hear during their time in court. Only 5 cases observed in May by HESN were flagged for improper notice, and the cases dismissed. Four out of five of these tenants had legal representation.
Unfortunately, we don’t always see the JPs doing their due diligence to create fair trials. HESN court observers have noted that most JPs do not ask the majority of the questions necessary for proper discovery. We seldom hear about NTVs; the rent amount, total due, and months behind are not verified or made clear to the tenant; and the tenant is generally treated with less respect than the landlord or their representative. Tenant testimony is not given equal weight to their landlord’s word, and at times when each party’s testimony may be contradictory, the JPs often side with the landlord and rule in favor of them.
Texas Housers created this bench card to assist JPs in ensuring they verify all the impartial and necessary facts of a case with both landlord and tenant.
Dismissals by the Landlord
There are unobservable outcomes that ultimately translate into dismissals in court. Most of these cases receive a motion for dismissal with prejudice from the plaintiff before the hearing. This means that the landlord is dropping the current lawsuit and can bring the case back against the tenant for the same issue. Unfortunately, this grants the landlord the potential power of prolonged harassment or to dangle the threat of eviction over a tenant.
Sometimes, the tenant and landlord can come to an agreement, usually in the form of a payment plan, and the tenant does not have to move. The tenant’s back rent might be accepted by the landlord – or as in many cases during the pandemic, landlords receive rental relief from the government – so the tenant is no longer delinquent on rent.
There are also instances where the tenant agrees to move out, with or without paying back rent. Because the tenant self-vacated, the landlord no longer needs the court to repossess their property, so the landlord files a dismissal in court. Due to the nature of these private conversations, we cannot deduce the probability of housing stability for these tenants.
It’s important to note that the law in Texas allows a landlord to reject any and all rental payments from the tenant, even if attempting to pay in full, once a notice to vacate has been provided. This does not allow the tenant the opportunity to cure the delinquency.
Fair Trials and Necessary Legislation
While a dismissal is the best outcome for a tenant, we would like to highlight that the eviction filing itself will still be reflected on the tenant’s record – housing, credit, and background checks – for up to 7 years. This ultimately can harm their chances of finding adequate housing, jobs, and other opportunities that become diminished with an eviction record.
HESN observers estimate that the majority of eviction hearings are over in less than two minutes. Texas tenants’ housing stability is more valuable than this. We must strive to enact more just eviction practices that give both tenants and landlords the fairest possible trial in court.
Action can be taken today by simply following existing laws. We call on Justices of the Peace to use the process of discovery to adequately check Notice to Vacate procedures, proper grounds for eviction, and assure that the tenant and landlord’s account of these procedures are in alignment and accurate with the evidence submitted. Read more on Justice of the Peace Best Practices here.
There is also a pressing need for new laws that assist tenants in navigating the eviction process and protect wrongly charged tenants from long-term repercussions.
Expunging a record is a common practice in criminal law, but this is not something granted to tenants in eviction proceedings. Stormy Clark, an attorney with the Earl Carl Institute for Legal & Social Policy, shared with us that because a past landlord wrongfully filed an eviction suit against her, she is now forced to prove to her new landlord that she was not evicted and must present all the evidence each time she applies for a new apartment. This should not be the norm for any tenant trying to secure housing. It should not require a law degree to find a home following a case dismissal. New legislation is necessary to allow the immediate sealing of eviction records when eviction cases are dismissed. Sealing records for eviction cases that are dismissed will ensure that tenants are not discriminated against in the future, and that a dismissal is a true end for tenants who have finished the eviction court process.
Right to Counsel in eviction court is another issue gaining ground across the nation. The opportunity to be represented by legal counsel should not only be granted to those with the funds to hire one. Moreover, one would assume that a tenant that is being suited for non-payment of rent is probably not in an economic position to hire an attorney. The Right to Counsel has been passed in many cities and states around the country and serves as model programs for local and state jurisdictions in Texas.
As Texas begins to prepare for the 2023 Legislative session just months away, Texas Housers will be highlighting legislation that addresses the unequal reality that tenants face every day in eviction court. Stay tuned for more information regarding this forthcoming legislative agenda.
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