By Lucy Tompkins, The Texas Tribune and The New York Times, and Joshua Fechter, The Texas Tribune
“Texas renters got unprecedented help during the pandemic. The Legislature is unlikely to extend it.” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
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In the three years since the coronavirus pandemic began, a historic amount of money and attention has been aimed at keeping the nearly 40% of Texans who are renters in stable housing, providing a rare chance to test policies and programs that might have never been adopted in the state at such a scale otherwise.
But now that those temporary programs have mostly ended, Texans are feeling their absence. Rents soared over the past few years. Evictions in major cities have returned to levels not seen since 2019 — and in some places are the highest they’ve ever been. Homeless shelters around the state are seeing a record number of families with children seeking help.
Lawmakers this legislative session are weighing bills that would make it harder for tenants to be evicted and easier for them to access affordable housing. Texas has some of the country’s weakest protections for renters and efforts to expand renters’ rights have often failed to pass, but advocates hope that the lessons of the past few years will help convince lawmakers to make pandemic-era protections permanent.
“The 88th Legislature is going to be a bellwether for how the state is approaching housing and housing affordability,” said Ben Martin, research director for Texas Housers, a housing advocacy group for low-income Texans. “This session is where we’ll find out if this was a one-time thing.”
But despite Texas’ growing affordable housing crisis, the Republican-controlled Legislature is not signaling urgency regarding tenants’ rights. Several bills this session would even seek to reverse newly adopted eviction protections in some Texas cities and ban any more from passing in the future. Gov. Greg Abbott has said he wants to devote close to half of the state’s $32.7 billion budget surplus to lowering property taxes — which would mostly help homeowners, not renters.
“Property taxes are taking up all the oxygen in the room,” said Rep. Armando Walle, D-Houston, who filed a handful of housing-related bills this session. “I’m all for property tax relief, but if we’re going to distribute the pie … there are also people that don’t own a home who also contribute to the economy.”
National and local moratoria kept eviction numbers low for many months. But as eviction filings surge once more, cities like Austin and Dallas have either already passed or are weighing permanent policies to prevent people from being kicked out of their homes. These new policies give tenants seven days to make up for unpaid rent before a landlord can file for eviction — a policy called “opportunity to cure,” which requires landlords to accept late rent money if it’s paid within a certain window.
State law currently does not require landlords to accept money that is even one day overdue.
The Legislature is weighing several bills that would create a statewide “opportunity to cure” policy. Rep. Nicole Collier, D-Fort Worth, filed one bill that would give all tenants in the state the same seven-day window to pay any overdue rent that the Austin and Dallas policies do. Forty-five other states have already enacted similar policies.
“Opportunity to cure is not a progressive stance for Texas to take,” Martin said. “It’s a small concession in line with other conservative states around the country that would make the eviction process more fair.”
Landlord groups have opposed these types of measures out of fear that they would encourage tenants to delay their rent payments, putting landlords behind on mortgage payments and other obligations. One of the bills proposed would give tenants only one chance a year to make up their late payments, a concession that would prevent the kind of abuse landlords are concerned about.
Debates on these kinds of policies often split along political lines, but some programs that slowed down the eviction process had bipartisan support during the pandemic.
Texas created the first statewide eviction diversion program in the country — which offered mediation for landlords and tenants and rental assistance to ensure landlords got paid — through an emergency Texas Supreme Court order in early 2021. The program helped to stop over 21,000 evictions statewide.
Nathan Hecht, chief justice of the state’s highest court and a Republican, said the program was designed to meet the needs of both landlords and tenants and has been very successful. The program has burned through all of its funding multiple times, but Hecht recently extended the emergency order again until May 1, after Texas received another $96 million in rental assistance funding.
Hecht said it would be a waste not to improve the eviction process in the wake of the pandemic.
“I do hope that everything that comes along like this will make us think: ‘What have we learned, how can we make this better?’” he said. “How long are we going to just continue to let this be a very difficult problem without trying to come up with solutions?”
On the other hand, Rep. Shelby Slawson, R-Stephenville, and Sen. Brandon Creighton, R-Conroe, have filed twin bills in the House and Senate that, if approved, would void the recent eviction protections passed by local governments — and prevent any further safeguards from passing in Texas.
The bills’ language is broad and, if adopted, they may not ban only “opportunity to cure” policies or eviction moratoria like the ones enacted at the height of the pandemic, but also programs that provide free legal counsel or offer mediation between tenants and landlords to prevent evictions. The bills would also make it impossible for local governments to temporarily halt eviction filings in the case of a natural disaster or other emergency.
Supporters of the bills argue that cities and counties should not be allowed to establish their own eviction laws, which would create a patchwork of judicial standards across the state.
“The real problem here is that you need a consistent statewide approach with how you deal with evictions or anything else with the judicial process,” said David Mintz of the Texas Apartment Association, a trade association and lobbying group that represents landlords, apartment managers and apartment builders. “Cities should not be attempting to rewrite law to affect that process.”
Opponents say that cities enact unique local policies for all kinds of other issues, and that there is nothing inherently different about evictions.
Lawmakers tried to pass similar legislation during the last session as an amendment, but it was scrapped. This session, with more cities reforming their eviction policies, there may be more pressure to push it through. Slawson said her bill has strong support in both chambers.
A right to counsel
Unlike in criminal cases, people don’t have a right to a lawyer in eviction court. As a result, few tenants show up with legal representation: In the 162,000 eviction cases in Harris County since 2020, less than 2% of tenants had an attorney, according to January Advisors.
During the pandemic, some groups began showing up at justice of the peace courts — where eviction cases are heard — to provide free legal counsel to tenants around the state.
The Dallas Eviction Advocacy Center, which formed at the beginning of the pandemic, represented more than 800 tenants throughout 2021. They found that when a tenant has representation, they win their case 90% of the time on average. Without a lawyer, that figure is less than 20%.
To Mark Melton, a lawyer and the group’s founder, this proved that the scale of the eviction crisis wasn’t necessarily failure of policy, but a lack of enforcement of existing laws.
“No one is arguing for a free holiday,” he said. “But we have minimalist protections for tenants. They’re the law. We should have to follow them.”
San Antonio and Houston also have programs that offer free counsel to tenants in eviction court and have found similar outcomes. But their funding is only temporary. A bill proposed by Walle seeks to expand these efforts statewide by funding a pilot right-to-counsel program for low-income tenants in any county with more than 3.3 million people.
The idea has gained traction across the country over the past few years. Fifteen U.S. cities and three states have enacted right-to-counsel legislation since 2017, most in the past two years as a result of the attention the pandemic brought to evictions.
It’s unclear whether these kinds of measures can garner enough support to pass in the Legislature, where landlord groups have a strong influence and similar bills filed in previous sessions have failed. But Melton said Republicans he’s spoken with lately are sympathetic to the argument that, at the very least, existing laws should be uniformly enforced and people of all incomes should have access to representation.
“They see it as an access-to-justice issue,” he said. “When you show data that says without any qualification, ‘the rule of law does not exist [and] the Constitution doesn’t matter unless you have a lawyer,’ a lot of them view that as un-American, as I do.”
Even if a tenant wins their case, an eviction filing can act as a stain on their record that makes it more difficult to find housing down the road. Several bills filed this session seek to seal eviction records if the case is dismissed or ruled in a tenant’s favor — a measure that has failed in previous sessions.
The question of rent subsidies
Several bills are aimed at making it easier for low-income families with housing choice vouchers, which subsidize a portion of their rent, to find housing.
The federal housing voucher program was designed, in part, to give families more freedom over the neighborhoods they live in and to provide access to better schools and employment opportunities. But families often struggle to find landlords who will accept the vouchers as a form of payment.
Dallas and Austin tried to help by making it illegal for landlords to discriminate based on the source of a tenant’s income, but state lawmakers overturned these protections in 2015, effectively allowing landlords to refuse to rent to a person intending to pay with a housing voucher. Texas is one of three states in the country with this kind of law.
This session, Democratic lawmakers revived a proposal to scrap that law and reintroduced another one intended to entice landlords to rent to voucher holders — ideas that haven’t been successful in previous years.
While cities around the state have successfully convinced landlords to rent to families with vouchers by offering cash and other incentives, requiring them to participate is less likely to gain traction at the Legislature. The voucher program’s regulatory burdens, which require government inspections and other time-consuming steps, make it unappealing to many landlords.
“Doctors aren’t forced to participate in Medicaid,” Mintz said. “We don’t believe that rental property owners ought to be forced to participate in this program.”
Another bill brought by Walle this year would allow cities and counties to pass rules that would make it illegal to discriminate against voucher-holding renters who are seniors or have a disability, a slightly watered-down version of previous source-of-income discrimination bills that he hopes will have a better chance of passing.
But overall, it’s unclear whether the urgency on housing issues highlighted by the pandemic will translate into any lasting reforms.
“I think we’re at a critical crossroads in a lot of ways,” said Ashley Flores, senior director of the Dallas nonprofit Child Poverty Action Lab. “We’re sort of looking back and reflecting on the pandemic. But now, the next hard step is to take those lessons learned and figure out how to put them in practice going forward.”
Lucy Tompkins works for the Tribune as a housing and homelessness reporting fellow through The New York Times’ Headway Initiative, which is funded through grants from the Ford Foundation, the William and Flora Hewlett Foundation and the Stavros Niarchos Foundation (SNF), with Rockefeller Philanthropy Advisors serving as a fiscal sponsor.
Disclosure: Texas Apartment Association has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/03/14/texas-tenant-rights-eviction/.
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