Texas State Updates

On February 25, 2021, United States District Judge J. Campbell Barker of the Eastern District of Texas struck down the eviction moratorium enacted by the Center for Disease Control (“CDC”).

The CDC argued that the federal government’s broad grant of power to regulate commerce in Article I of the United States Constitution gave it the authority to impose the moratorium.

The plaintiffs, which included both corporate and individual residential landlords in East Texas, contended that the limits on federal power in the Constitution precluded the CDC from impeding their contractual rights of eviction as provided in the lease agreements they have with their tenants.

Judge Barker at the outset noted that the states, not the federal government, have the “police power” to regulate contractual rights in the interest of the public welfare, and that the states have utilized this power in the past to limit foreclosures and evictions in times of crisis.  Judge Baker referenced the enactment of these types of restrictions by the states during the Great Depression.

But for the federal government to have the power to impinge upon contractual rights, there must be a basis for it in the Constitution.  The CDC argued in favor of essentially a limitless grant of authority under the Commerce Clause as the charging of rents and the housing of citizens will necessarily impact interstate commerce at a certain level.

Judge Barker analyzed the Supreme Court precedent on the “substantial effects” doctrine to determine if the contested regulation sufficiently implicates the Commerce Clause to justify the federal government’s exercise of authority.  Judge Barker considered that the eviction moratorium was directed at local housing activity and not the housing market as a whole.  As such, there was an insufficient nexus between the CDC eviction moratorium and interstate commerce to justify the CDC’s actions.  Judge Barker did not issue an injunction, so it remains to be seen if the CDC will honor the Court’s order immediately.  An appeal by the CDC to the Fifth Circuit Court of Appeals would be expected. 

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On January 29, 2021, Harris County Judge Lina Hidalgo signed an executive order prohibiting access to the Bayou City Event Center on February 2, 2021 which prevented the February foreclosure sales under Section 51.002 of the Texas Property Code and Section 34.01 Texas Property Tax Code in Harris County (Houston).

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On December 8, 2020, Bexar County Judge Nelson W. Wolff issued an executive order canceling foreclosure sales in December 2020, January 2021 and February 2021.  Executive Order NW-18 allows for foreclosure sales to “be scheduled for a date following public health official’s determination that a foreclosure sale with a large crowd will not result in a threat to the health and safety of those in attendance due to a risk of transmission of COVID-19.”

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On February 16, 2021, Travis County Judge Andy Brown issued County Judge Order 2021-02 which prohibited “all gatherings for any public sale, including but not limited to foreclosure sales, writs of execution, tax levies are hereby prohibited.”  Order 2020-21 went into effect on February 17, 2021 and continues through April 21, 2021. 

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On January 14, 2021, the Texas Supreme Court issued its 33^rd Emergency Order declaring Texas under a statewide public health emergency which is in effect until April 1, 2021.  A justice of municipal court must not hold an in-person jury proceeding, including jury selection or a jury trial, prior to April 1, 2021. Further, a district court, statutory court, county court, or probate court must not conduct an in-person jury proceeding unless (1) the administrative district judge of the county submitted a plan for conducting jury proceedings; (2) the court has obtained approval for that jury proceeding by the administrative district judge and regional presiding judge; (3) the administrative district judge has consulted with the local health authority within 5 days before the trial and the local heath authority has verified that plan precautions are appropriate for trial to proceed; (4) the court has considered any record objections or motion related to the jury proceeding at least 7 days before the proceeding or as soon as practicable; and (5) the court has established that no court participants have tested positive for COVID within the previous 30 days, have symptoms of COVID, or have had recent known exposure to COVID. Finally, the Office of the Court Administration should issue detailed guidance and assistance for Courts wishing to conduct remote jury proceedings.

CDC eviction moratorium decision – full document