January 1st update:

On December 21st Congress passed an appropriations and COVID-19 relief bill that includes $25 billion in emergency rental assistance and extends the CDC’s federal eviction moratorium through January 31. The legislation was signed by President Trump on December 27th.

Texas will receive more than $1.9 billion under the legislation according to an estimate from the National Low Income Housing Coalition. Cities and counties with populations above 200,000 will receive a direct allocation from the federal government, while small cities and counties will receive their allocation through the State of Texas.  The rental relief provisions of the legislation provide the following:

• Eligibility:  To be eligible for the rental assistance, one or more individuals in the household must: (1) be qualified for unemployment benefits or attest in writing that he or she has experienced a reduction in household income, incurred significant costs, or experienced other financial hardship due, directly or indirectly, to the pandemic; (2) demonstrate a risk of experiencing homelessness or housing instability; and (3) have a household income below 80% AMI. The legislation prioritizes rental assistance for households at 50% of AMI or households with a member who has been unemployed for at least 90 days.
• Length of aid: Renters can qualify for up to 12 months of rental assistance, and depending on availability of funds and local or state rules, an additional 3 months.
• Use of funds: The rental assistance can be applied to back rent as well as future rent up to three months, as well as utility payments.
• Fail-safe provision: Payments can be made directly to landlords or utilities on behalf of renters, but renters must co-sign application and be provided documentation of the payments. If landlords choose not to participate in the rental assistance program, funds can be provided directly to renters to meet their obligations.

The legislation also extends to December 31, 2021, the deadline for states and local jurisdictions to spend their prior allocation of CARES Act funding. Some of this funding (including in Texas) has been used for rental housing assistance for those impacted by the pandemic. Here is the full text of the legislation. Additional information on the legislation is available on the National Low Income Housing Coalition’s website.

Here’s the press release from the Governor’s announcement today:

Governor Greg Abbott today announced the allocation of over $171 million in funding from the Coronavirus Aid, Relief, and Economic Security (CARES) Act which will primarily be used for targeted rental assistance for Texans at risk of becoming homeless due to eviction. The funding will also allow the Supreme Court of Texas, the Office of Court Administration, and the Texas Department of Housing and Community Affairs (TDHCA) to work in partnership with local governments and non-profits and the newly created Texas Eviction Diversion Program to help renters stay in their homes, catch up on missed rental payments, and avoid an eviction on their records.

Out of these funds, $167 million will go to targeted rental assistance and $4.2 million will be allocated through the Texas Supreme Court to help the state’s legal aid providers and pro bono lawyers provide basic legal services to eligible Texans through this pandemic.

“The Texas Eviction Diversion Program is crucial to our state’s response to COVID-19, and it will help many families recover from the impact of the pandemic without the looming threat of eviction,” said Governor Abbott. “This innovative partnership, coupled with the renters assistance provided through CARES Act funding, will strengthen our economic recovery efforts and provide a lifeline to renters and property owners alike.”

“Judges across Texas have a duty to ensure that justice is delivered in a timely, fair, and impartial way. In times like these, sometimes that means that we search for creative ways to meet the needs of landlords and tenants,” said Texas Supreme Court Chief Justice Nathan L. Hecht. “The Texas Judiciary is happy to work with Governor Abbott and the Texas Department of Housing and Community Affairs to provide a way for tenants to stay in their homes and ensure that landlords are made whole.”

“The rental assistance and Texas Eviction Diversion Program will help courts deal with the anticipated deluge of eviction filings by reducing filings and diverting cases to an agreeable solution. Courts have worked hard to maintain access to justice during the pandemic, but we anticipate difficulty with timely handling the large number of eviction cases likely to be filed soon,” said David Slayton, Administrative Director of the Texas Office of Court Administration. “The program announced today by the Governor, TDHCA, the Supreme Court, and OCA will permit courts to focus on those cases that need the most attention and ensure that landlords and tenants are able to resolve their issues timely.”

“The effects of the COVID-19 pandemic have been devastating for many Texans, especially for some of our most vulnerable households,” said Bobby Wilkinson, TDHCA executive director. “TDHCA, along with state leaders and program partners have worked expeditiously to get the CARES Act funds out to those in need, and I believe our efforts can make a difference not only in these particular communities, but throughout the state as we work toward more long-term recovery solutions.”

“This CARES Act funding to help Texans who need help with their rent as we continue to fight COVID19 is critically important.  These federal funds will help ensure that Texas families can remain in their homes as our economy recovers and we get on track to come back stronger than ever,” said Lieutenant Governor Dan Patrick.

“Over the course of the pandemic, the State of Texas has made providing support for renters and property owners experiencing financial hardship a top priority, and this funding for rental assistance, combined with the Texas Eviction Diversion Program, reinforces that very commitment. This partnership will go great lengths to help stimulate our economy, equip our courts with the tools needed to ensure justice in eviction cases, and relieve many of the financial burdens that landlords and tenants are facing as a result of COVID-19,” said Speaker Dennis Bonnen.

“These funds are targeted to help renters at risk of becoming homeless and will give them time to catch up on payments amid these difficult economic times,” said Senator Jane Nelson.

“I strongly support this effort as it will assist families to stay in their homes at a time of financial stress for so many Texans. This funding will help keep families together and provide them with the rental assistance and legal support needed to prevent homelessness,” said Senator Juan “Chuy” Hinojosa.

“I’m pleased to have worked with my colleagues, stakeholders and others on a program which will assist many Texans during these difficult times,” said Representative Giovanni Capriglione.

“COVID-19 is having a devastating economic impact on many families. Some are facing the reality of eviction when they’re at their most vulnerable,” said Representative Oscar Longoria. “This new program will provide crucial help to them and ensure their lives aren’t upended.”

The U.S. Centers for Disease Control and Prevention issued an order on September 1st (effective September 4th) protecting certain renters from eviction for nonpayment of rent through the end of the year. The moratorium applies only to renters who meet all of the following criteria:

• The renter expects to earn no more than $99,000 in annual income in 2020 ($198,000 if filing a joint return), or was not required to report income to the IRS in 2019, or received a stimulus check under the CARES Act;
• The renter has “used best efforts to obtain all available government assistance for rent or housing”;
• The renter is unable to pay rent in full or make full housing payments due to a substantial loss of household income, loss of compensable work hours or wages, a layoff, or “extraordinary” out-of-pocket medical expenses (=likely to exceed 7.5% of adjusted gross income for the year);
• The renter is using “best efforts” to make timely partial payments as close to the full rental/housing payment as possible; and
• If evicted, the renter would likely become homeless, need to live in a shelter, or need to move in with another person because they have no other housing options.

To qualify under the moratorium, the renter must also submit a declaration to the landlord under penalty of perjury that they meet these standards. A template for the declaration can be found here. Renters can be subject to criminal penalties for false or misleading statements. Under the moratorium, renters are still liable for their rent and subject to late fees, penalties and interest for nonpayment of rent.

The moratorium blocks any actions by a landlord, residential property owner, or other person with a legal right to pursue eviction from removing or causing the removal of a tenant who qualifies under the moratorium. The moratorium thus appears to block all phases of the eviction process including notices to vacate.

More information on the moratorium can be found in fact sheets prepared by the National Low Income Housing Coalition and National Housing Law Project.

On June 16th, the Travis County Justices of the Peace issued an updated order postponing all eviction hearings until July 22, 2020, except for instances involving imminent threat of physical harm or criminal activity. The order also bars writs of possession from being executed until July 29, 2020.

A few days before the June 16th order, Travis County Judge Bisco issued an order suspending landlord notices to vacate until July 25th, 2020. Before an eviction case can be filed in Texas, a notice to vacate is required and the time under the notice must expire. The order provides an exception for instances involving criminal activity or imminent threat of physical harm. The County Judge’s order also bars landlord lockouts of tenants and seizures of tenants’ non-exempt property until July 25th (exempt property is already protected from seizure under the Texas Property Code). The order includes a set of questions and answers and list of jurisdictions covered by the order.

Texas Housers, a statewide advocacy organization, has released a list of actions that local officials in Texas can take to protect people from homelessness and displacement during the pandemic.

The recommendations include the following:

1. Keep Texans safe in their homes and prevent mass evictions
   •  Cities should require landlords to give delinquent tenants a “notice of proposed eviction” before issuing a notice to vacate. Since the start of the pandemic some cities, including Austin, Dallas and San Marcos, have passed ordinances requiring landlords to give tenants a “notice of proposed eviction” and time to pay overdue rent before they can issue a notice to vacate and file for eviction.
   •  Justice of the Peace Courts should postpone eviction hearings until July 25 to match protections with those provided by the CARES Act. The CARES Act prohibits initiating eviction proceedings against those living in federally subsidized or supported properties until July 25, 2020. Justice of the Peace Courts should extend the protections to all.
   •  County Judges should advise the Justice of the Peace Courts to postpone evictions for nonpayment of rent until July 25 if Justice Courts do not do so on their own. 
2. Devote federal aid to keeping low-income tenants and homeowners in their homes.
   •  Cities and counties should create substantial rent assistance funds to provide short-term and long-term rent relief for tenants. While many Texans are receiving unemployment benefits, too many Texans are falling through the cracks. Cities and counties should use federal relief funds to pay for sizable rental and basic needs assistance programs.
   •  Cities should ban late fees for payment of rent during the emergency. Some argue that banning late fees during the disaster would be rent control. Under Section 214.902 of the Local Government Code, a municipality may establish rent control if: (1) the governing body finds that a housing emergency exists due to a disaster; and (2) the governor approves the ordinance. COVID-19 has caused a housing emergency. Tenants who have lost income due to COVID-19 should not be forced to pay late fees.
   •  County Judges should advise landlords to charge no or limited late fees during the emergency. The Dallas County Judge’s order advised landlords to charge no more than $15 a month in late fees.
3. Hold landlords accountable for honoring federal protections. Justice of the Peace Courts should require landlords in eviction cases to file an affidavit under penalty of perjury that they are not seeking to evict tenants from a “covered dwelling” under the CARES Act.

The Texas Supreme Court issued an order on May 14th allowing eviction proceedings to resume next Tuesday, May 19th.  Writs of execution may resume on May 26th.  For eviction proceedings filed from March 27, 2020, through July 25, 2020, a sworn petition containing “a description of the facts and grounds for eviction” must state that the premises are not subject to the moratorium on evictions imposed by the CARES Act.

On May 7th, Austin Mayor Steve Adler issued an updated order barring landlords from issuing notices to vacate to tenant in the City of Austin. Residential landlords are prohibited from issuing a notice to vacate through July 25th except for instances involving criminal activity or where the tenant, tenant’s household, or guests, pose an imminent threat of physical harm to the landlord or other tenants. The order also prohibits landlords from removing property or excluding tenants from their rental home and from seizing the tenant’s nonexempt property subject to a lien.

On the same day, the Austin City Council extended its ordinance giving tenants 60 days to catch up on late rent before a landlord can proceed with an eviction. The ordinance now runs to August 24th. Under the ordinance, landlords must give tenants 60 days to catch up on late rent before a landlord can proceed with issuing a notice to vacate, which is required before an eviction can be filed. The cities of Dallas and San Marcos have adopted similar ordinances.

According to a new scorecard released by the Eviction Lab, the State of Texas performs poorly when it comes to protecting renters impacted by COVID-19 from eviction. As a result, “[w]ithout further action and supportive measures, Texas could see a surge of evictions immediately following the pandemic.”  While Texas has a short-term moratorium on eviction hearings, Texas landlords can still file eviction actions, and both back rent and late fees continue to accumulate. Additional weaknesses highlighted in the scorecard include:

• Landlords are still allowed to report missed or late rent payments to credit agencies.
• Texas has not introduced any new housing subsidies to help tenants catch up on rent during the pandemic.
• Tenants facing eviction have no guaranteed legal counsel.
• Renters do not have a grace period to pay past-due rent.

 

This week the US Treasury Department provided much anticipated guidance on how the State of Texas and local jurisdictions can spend the $11.2 billion flowing to Texas from the CARES Act Coronavirus Relief Fund. Economic supports (such as housing assistance) are clearly allowed under the guidance:

Expenditures incurred ‘due to’ the public health emergency from COVID-19 includes those “incurred to respond to second-order effects of the emergency, such as by providing economic support to those suffering from employment or business interruptions due to COVID-19-related business closures.”

Texas cities and counties with a population of at least 500,000 will receive a direct allocation of close to $3.2 billion from these funds, with another $8 billion flowing to the state. This page shows how much each city and county is expected to receive in Texas.

On Wednesday, April 22nd, the Dallas City Council allocated $13.7 million in federal funding for rental and mortgage assistance to support low-income renters and homeowners impacted by COVID-19. The funding, which will be administered through four different programs, comes primarily from the federal HOME, CDBG, ESG, and HOWPA programs.

The City Council also adopted critical protections to help renters avoid eviction from their homes due to nonpayment of rent. These protections, which resemble those previously adopted by the Austin City Council, require residential landlords to issue tenants a “Notice of Possible Eviction” before sending a notice to vacate for nonpayment of rent. The notice must include information on rental assistance programs and provide tenants with at least 21 days to negotiate lease payment agreements with their landlords. If a tenant provides proof of financial hardship due to COVID-19, then their landlord must provide the tenant with 60 days to catch up on the late rent or enter into a payment plan. One major problem with the ordinance: it expires on the same date as the city’s or state’s declaration of disaster (whichever is later). As of April 23rd, both disaster declarations are set to expire on May 12th. As a result, unless one of the disaster declarations is extended, any landlord notices to vacate sent after May 12th will not be subject to the ordinance.