As most commercial property owners in Texas know, many municipalities throughout the State have placed a moratorium on evictions during the COVID-19 pandemic. In response to rising unemployment, Texas cities began passing these orders shortly after COVID-19 began to spread throughout the State. While some cities have begun to relax those moratoriums, there are plenty still around. Each city is slightly different. With Austin’s being the strictest that we have seen.
|No current order
Last Friday, Attorney General Ken Paxton released a memo addressing the local orders. In his opinion, AG Paxton explained that eviction (forcible entry and detainer) is a procedure that is specifically enumerated in Texas statutes. And, as a result, the local municipalities did not have the authority to suspend evictions.
According to Paxton’s analysis, the local officials do have some additional powers when an emergency is declared. During an emergency, a local official serves as the governor’s designated agent. As a result, he or she may exercise the powers granted to the governor under Texas law on an appropriate scale.
Paxton states that this does not give local officials the power to change state law. “While local officials do possess certain emergency powers, efforts to amend the statutorily prescribed, statewide eviction procedures far exceed the requirement that those powers be exercised ‘on an appropriate local scale.’”
Its unclear what will happen now. It seems the most likely scenario would be that a landlord files an eviction following the State guidelines – including using a three day notice to vacate. And then it would seek an eviction in the Justice of the Peace Court. If this were in Austin, for example, the landlord would not issue the required 60 day notice of proposed eviction. At that point, the City or tenant would likely challenge the landlord’s action as violating the City order. And the JP Court would determine if it agrees with AG Paxton – that the City exceeded the scope of its power in enacting the order.
The landlord, of course, would have the benefit of Paxton’s opinion. But while Paxton’s opinion is certainly influential, it is not controlling. So the court will have to determine if it agrees with Paxton that the cities have far exceeded the requirement that those powers be exercised ‘on an appropriate local scale.’
We will keep you updated as more developments arise.
For more information on the eviction rules in different cities or how this applies to your property, please call us at 512-614-0335.