On August 7, Texas Attorney General Ken Paxton issued an opinion addressing a request from Sen. Brandon Creighton questioning the validity of orders adopted by local governmental entities, operating under local emergency declarations, to delay, prohibit, or restrict the eviction process under Chapter 24 of the Property Code.
The conclusion of the opinion states:
Chapter 418 of the Government Code grants emergency powers to the Governor and local officials operating under a disaster declaration. Yet, it does not authorize local governmental entities operating under a declared disaster to independently rewrite state law such as Property Code chapter 24 governing evictions
Sen. Creighton specifically asked for the Attorney General’s opinion to his question, “Whether orders and ordinances adopted by local governmental entities pursuant to emergency declarations that have the effect of prohibiting, delaying, or restricting the eviction process as set forth in Chapter 24 of the Texas Property Code and the 500-510 rules of the Texas Rules of Civil Procedure are valid under Texas law.”
In his opinion, Attorney General Paxton wrote the, “Government Code does not authorize local governmental entities operating under a declared disaster to independently rewrite state law as it applies to their jurisdiction to prohibit, delay, or restrict the issuance of a notice to vacate.”
Attorney general opinions are nonbinding legal interpretations that courts are not bound to follow. They carry less precedential value than upper court appellate decisions. However, that isn’t to say they aren’t highly influential, and opinions do have an impact on courts and policy makers. They are used in citations and as part of court advocacy efforts. And for those on the other side of a legal argument presented by an attorney general opinion, they serve as an additional legal obstacle those in opposition must try and overcome.
TMHA encourages members to work with residents to avoid evictions. TMHA further reminds members of existing state law that must be followed in addition to any recent federal requirements. For example, FHFA recently announced that any federally backed commercial loan that has entered into a forbearance agreement, must now make their tenants aware of the tenant protections that no eviction can occur during the forbearance period. There similarly remains in effect a new 30-day notice to vacant for any federally back loans under the CAREs Act, and the eviction moratorium was extended by FHFA for federally back loans to August 31. And if the property is not covered by a federally supported loan, the Texas Supreme Court has imposed an affidavit tenant disclosure requirement that must be followed prior to an eviction proceeding.
It will not be surprising to see lawsuits filed in response to locally imposed eviction prohibitions, especially in light of the recent attorney general opinion. We are following many of these lawsuits throughout the county. Recently from Virginia a state level eviction moratorium was imposed, but was done so over some rather vociferous dissenting opinions from members of the state supreme court. A New York lawsuit filed by property owners failed in district court when challenging the New York Governor’s order. We are aware of at least eleven other cases making their ways through the courts in the states of New York, Nevada, Illinois, New Jersey, California, Maryland, Michigan, Connecticut, Colorado, and Pennsylvania.
We also expect a flurry of bills and legislative activity in this area come January 2021 when the Texas Session begins.