In Harris County, many changes are needed until all eviction courts operate equally

Source: i_am_jim (Jim Evans) from Wikimedia Commons

Texas renters are still fighting an uphill battle for housing stability. Across the state, we continue to see increasing rent rates, shrinking expendable incomes due to inflation and stagnant wages, and health issues including the ongoing spread of COVID-19. This leaves renters especially vulnerable to eviction.

Unfortunately, favor does not fall on the tenant’s side when it comes to protections and access to justice in the courtroom either. Federal and state policy interventions to mitigate the ongoing effects of the COVID-19 pandemic are waning, the Texas Rent Relief program closed its application window within 24 hours of reopening the portal earlier this year due to oversubscription, and the Texas Supreme Court Emergency Order, which guarantees essential protections to renters during the pandemic such as access to legal aid in courts and a 60-day abatement period on applicants of rent relief programs, is set to expire on July 1st –  all while tenants are enduring hardships from the still ongoing pandemic.

I began my work at Texas Housers to find ways to help vulnerable tenants from falling through the cracks in the justice system and into homelessness. My first mission: to assess the rapidly changing landscape of eviction court proceedings across Harris County. Here are three key takeaways from my time observing eviction courts so far.

Settlement Agreements and mediation can foster positive tenant-landlord relationships and can keep people from being evicted

Some Justices of the Peace (JPs) actively encourage landlords and tenants before, during and after their eviction hearing to work out what’s called a Rule 11 agreement. This agreement, made in writing and submitted to the court record, is a negotiation between the landlord and tenant about how they will proceed with the possession of the property and the owed back rent without the intervention of a judge.

In some cases, the settlement agreement simply sets a mutually agreed upon deadline for the tenant to vacate the premises, and if the tenant follows through, the landlord will dismiss any pending charges against the tenant in court. Some Justice of the Peace courts are also using Rule 11 agreements to temporarily seal the eviction court record if the tenant complies with the terms laid out in the agreement.

This kind of settlement agreement allows tenants more flexibility and autonomy, as both parties can agree upon a date to move out, and not be forcibly moved out by a constable seven days after the judgment when a Writ of Possession is obtained by the landlord. This can allow a tenant more time to pack and find stable housing – even if the housing is temporary. Furthermore, the judgment of Rule 11 agreements will show as a dismissed charge on a tenant’s record rather than a court-ordered eviction.

As we have noted before, even dismissed eviction charges can stay on a tenant’s credit, housing and background check records for up to 7 years, which harms tenants renting prospects in the future. As dismissed evictions still have detrimental effects on a tenant’s future housing, we at Texas Housers must reiterate our call to pass legislation at the statewide level to seal dismissed eviction records instantly following a dismissal, so tenants will rightfully have more opportunities as they search for new housing.

A Rule 11 agreement can also take the form of a written and agreed payment plan between a landlord and tenant, which enables tenants to make smaller payments on the owed back rent over time, and the landlord will allow them to remain on the premises unbothered. Then, upon full payment of the back rent, the landlord will move to dismiss the eviction case.

Mediation is another tactic similar to Rule 11 agreements that can be encouraged by JP’s in eviction court. Some Justices of the Peace even have mediators in their courtrooms who clients can speak with when they choose, or to whom they can be referred to following presentation of facts to the JP. Other Justices of the Peace refer clients during their hearing to a mediator to resolve other issues between the parties unrelated to the possession of the property before they deliver a decision on the issue of possession. 

Mediation allows both parties to arrive at a written agreement in a constructive manner, especially when there may be a tense relationship between the landlord and the tenant. The opportunity for mediation during an eviction proceeding offers tenants and landlords a chance to come to a mutual agreement, and gives tenants more autonomy than a normal court ruling. Mediations can also be used as a tool to work out common landlord-tenant disagreements, such as issues with eviction paperwork and maintenance issues on the property that have been left unsettled before the eviction hearing.

JP’s cannot order parties to make a Rule 11 agreement, nor can they actively facilitate the terms of a Rule 11 agreement between a tenant and landlord. The parties and their legal representation, if any, must work out the terms of the agreement. However, in my time observing courts, a judge simply encouraging that a settlement agreement occurs at the top of the docket for the day, or even during a hearing, has led to many tenants and landlords opting to work out a written agreement rather than going through with the eviction hearing.

Rule 11 agreements should be encouraged unilaterally across JP courts – as they encourage tenants and landlords to work together to find a solution that isn’t a court ordered eviction. 

Legal Aid is a critical resource for tenants that balances the courtroom and makes the legal experience less daunting

The current Texas Supreme Court Emergency Order dictates that, if available, Justices of the Peace must allow legal aids in their courtroom to be present for client intake, legal advice, referral or additional assistance. Of the nine JP courts I have been present in, all currently have legal aid present in some capacity to speak with clients about any questions they have throughout the eviction process.

The eviction process is undeniably confusing for the average tenant, who isn’t intimate with the inner-workings of the court hearing or is aware of the few “legal defenses” to eviction that tenants have under Texas law. When the legal aid that is present represents clients in court, tenants have a much better shot at achieving a positive outcome in their eviction case. Legal aid is better able to identify precise legal issues with eviction documents that tenants may be unaware of or are overly complex, and therefore deliver a tenant a reset or dismissal on the case. Legal aid also clarifies the appeals processes and decisions issued by the JP for tenants, providing crucial knowledge for tenants even after their hearing. Moreover, tenants can ask questions about important issues that can drastically change the outcome of their case such as rent relief applications – which many tenants have pending– and improperly delivered notices to vacate. 

In my personal observation of the courts, clients who are represented by legal aid are more capable of making a compelling case for dismissal, reset or abatement of their case, all of which allow the tenant more time to get their financial and property affairs in place following an eviction proceeding. Legal aids also ensure legal accountability to ensure that landlords file all of their eviction paperwork correctly and help eliminate evictions that may occur despite improperly filed documents.

Following the expiration of the Texas Supreme Court order, Justices of the Peace should allow legal aid to remain in their courtrooms, and a more comprehensive Right to Counsel program should be established throughout Harris County.

Justices of the Peace should exercise prudence in leveling the playing field between tenants and landlords in their individual court practices where Texas law will not

Justices of the Peace have an immense amount of control over how their court is run. Their job is simple: administer the Texas law as it pertains to civil law matters. Historically, Texas civil law concerning tenant and landlord relations has heavily conferred advantages to landlords.

That imbalance in power created by the law is why Justices of the Peace should take active steps to ensure that tenants are supported in their courts before, during and after their hearing. Last year, we outlined our JP best practices, and from my recent observations, here are a few best practices ongoing that I’d like to emphasize.

  • For proper discovery, a Justice of the Peace should ask both the tenant and the landlord/representative not only IF the 3-day notice to vacate was delivered – the document which landlords must issue correctly to notify tenants the landlord will be filing an eviction – but HOW the notice to vacate was delivered. Tenants may be unaware their notice to vacate was delivered improperly. Moreover, proactively asking about the date and method the notice to vacate was delivered holds landlords accountable for their documentation. 
  • A Justice of the Peace should encourage landlords and tenants to enter a Rule 11 agreement, or refer the parties to mediation when necessary, rather than hastily entering a decision based on testimony alone. Written Rule 11 agreements can be worked out by landlords and tenants at any stage of the hearing and submitted to the court even after a decision has been given. This drastically improves the power imbalance for tenants in an eviction hearing as their fate is not solely up to the judge alone and ensures a just trial is held.
  • A Justice of the Peace should briefly educate tenants on elements in the eviction process in their courtroom before hearings. By explaining some complicated elements of the eviction process, tenants are more aware of what is happening to them in court, how an eviction hearing functions, and next steps following a decision.
  • A Justice of the Peace should provide resources on site in addition to legal aid such as community navigators, shelter information, and rent relief information. These are just a small handful of non-legal resources that I’ve seen available in the halls of JP courts. Having these resources immediately available for tenants to access in the courts makes necessary support that tenants are seeking accessible.

Eviction trials should be just and respect the law, no matter who is presiding over the case. A Justice of the Peace who quickly dismisses and cuts off defendants who do not have a “legal defense,” stacks their eviction dockets with hundreds of eviction cases in a single day, or imposes racist or classist courtroom decorum procedures, such as dress codes, are technically meeting their jobs requirements as an elected administer of the law, but those Justices of the Peace fail to rise to the occasion of being a fair, prudent arbiter of justice in recognition of an ongoing eviction crisis – leveling the playing field where the Texas law fails for the most vulnerable.

The procedures described in this blog, some which are ongoing in some Harris County Justice of the Peace courts, aid in the administration of justice to tenants to ensure that they have the best shot at staying housed in the present and the future. I have only visited nine out of the sixteen Justice of the Peace courts around Harris County. There is still a lot to observe in the administration of justice in eviction courts.

Stay tuned for more stories from Harris County eviction courts. If you would like to join our Houston Eviction Solidarity Network, please use this form and we will be in touch with you!

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