Can a Texas city or county halt evictions under a local disaster declaration?

Plain-English summary

In the first months of the COVID-19 pandemic, after the Governor declared a statewide disaster and many cities and counties declared local disasters, some local governments issued orders that halted or delayed evictions. A state senator, Brandon Creighton, asked the Attorney General whether those local officials actually had the power to delay, prohibit, or restrict the eviction process that the Legislature laid out in chapter 24 of the Property Code.

The AG said they did not. Chapter 24 sets a single statewide procedure for evictions (technically "forcible entry and detainer"): a landlord gives at least three days' written notice to vacate, files suit in justice court, gets a hearing, and, if the landlord wins, obtains a judgment and a writ of possession, a process that normally takes a month or more. The emergency-powers statute, chapter 418 of the Government Code, lets the Governor suspend regulatory statutes during a declared disaster if strict compliance would hinder the response. Local officials have no equivalent suspension power.

The AG walked through the structure of chapter 418. A city or county presiding officer is designated as the local "emergency management director" and "serves as the governor's designated agent," able to exercise the Governor's powers but only "on an appropriate local scale." That phrase was the hinge. Declaring a local disaster and controlling movement is one thing; rewriting a statewide statute is another. Because chapter 418 expressly gives the Governor, and not local officials, the authority to suspend state statutes, the AG concluded that local orders attempting to override chapter 24's eviction procedures exceeded local emergency authority and created an inconsistent patchwork the statute did not authorize.

The AG was careful to note what was not being decided. The request did not raise, and the opinion did not address, the property-rights constitutional questions that such local orders might also implicate. In a footnote the AG pointed out two separate sources of eviction restrictions that did apply at the time: the federal CARES Act, which imposed a 120-day moratorium on evictions for federally connected properties, and a series of Texas Supreme Court emergency orders that briefly stayed eviction proceedings. Those came from the federal government and the state's highest court, not from the local officials whose authority the senator asked about.

Currency note

This opinion was issued in 2020, during the COVID-19 disaster. The disaster declarations, executive orders, CARES Act moratorium, and Texas Supreme Court emergency orders it discusses have since ended, and statutes can be amended. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The opinion answered a separation-of-powers question about who controls eviction law during a disaster. For the Legislature and the senator who asked, the reading at the time was that chapter 24's statewide eviction procedure stayed in force despite local disaster orders, because chapter 418 reserved statute-suspension power to the Governor. For city and county officials, the opinion drew a line around their emergency powers: declaring a local disaster and controlling movement fell inside the "appropriate local scale," but rewriting statewide eviction procedure did not. For landlords and tenants at the time, the opinion meant the source of any binding eviction pause was the Governor, the federal CARES Act, or the Texas Supreme Court's emergency orders, not a local order purporting to suspend chapter 24. The AG framed the conclusion as the limit of local authority under chapter 418 and expressly left the related constitutional property-rights questions unaddressed.

Common questions

Q: Could a Texas city or county legally stop evictions during the COVID disaster?
A: Not by suspending the state eviction statute, the AG concluded. Local officials could declare a local disaster and exercise emergency powers "on an appropriate local scale," but chapter 418 gave only the Governor the power to suspend regulatory statutes. A local order overriding chapter 24's eviction procedures exceeded that authority.

Q: Who did have the power to pause evictions?
A: The AG pointed to the Governor (who can suspend statutes during a disaster), the federal CARES Act (which imposed a 120-day moratorium on evictions for federally connected properties), and the Texas Supreme Court, which issued emergency orders briefly staying eviction proceedings. Those were the binding pauses at the time, not local orders.

Q: What is the normal eviction process the opinion described?
A: Under chapter 24 of the Property Code, a landlord generally must give at least three days' written notice to vacate, then file a forcible-detainer suit in justice court. A hearing usually follows within a week or two, and if the landlord wins, the court issues a judgment and a writ of possession. Start to finish, the AG said, it usually takes a month or more.

Q: Did the AG decide whether eviction moratoriums are constitutional?
A: No. The opinion expressly declined to address the property-rights constitutional issues that local eviction orders might raise, answering only the narrower question of whether local officials had statutory authority under chapter 418 to override chapter 24.

Background and statutory framework

The request came from the chair of the Senate Committee on Higher Education during the COVID-19 disaster, after local governments issued orders restricting evictions. The eviction procedure at issue lives in Property Code chapter 24 (sections 24.001-.011), which sets the notice-to-vacate, justice-court filing, hearing, judgment, and writ-of-possession sequence, with justice-court jurisdiction supplied by Civil Practice and Remedies Code section 15.084 and timelines set by Texas Rules of Civil Procedure 510.1-510.13. The emergency-powers framework is Government Code chapter 418: section 418.012 gives the Governor's orders the force of law, section 418.016 lets the Governor suspend regulatory statutes, and sections 418.108 and 418.1015 set out local disaster declarations and make the local presiding officer the Governor's "designated agent" acting "on an appropriate local scale." The AG relied on the contrast between the Governor's express suspension power and the absence of any such power for local officials, citing its earlier Opinion KP-0304 (2020) for the point that the Legislature gave local authorities only some of the Governor's extraordinary powers. Footnotes referenced the property-rights cases (Hearts Bluff Game Ranch, Inc. v. State; Terrace v. Thompson; Zaatari v. City of Austin), a pending CARES Act challenge (Sappington Garden, L.L.C. v. United States of America), the federal CARES Act section 4024 moratorium, and the Texas Supreme Court's emergency orders staying evictions.

Citations and references

Statutory and rule provisions:

• Tex. Gov't Code ch. 418 (emergency management; emergency powers of the Governor and local officials)
• Tex. Prop. Code ch. 24 (forcible entry and detainer; eviction procedures)
• Tex. Civ. Prac. & Rem. Code § 15.084 (justice court jurisdiction)
• Tex. R. Civ. Proc. 510.1-510.13 (justice court eviction procedures)
• CARES Act § 4024, Pub. L. No. 116-136, 134 Stat. 281 (2020) (federal eviction moratorium)

Cases:

• Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468 (Tex. 2012)
• Terrace v. Thompson, 263 U.S. 197 (1923)
• Zaatari v. City of Austin, No. 03-17-00812-CV, 2019 WL 6336186 (Tex. App.-Austin Nov. 27, 2019, no pet.)
• Sappington Garden, L.L.C. v. United States of America, No. 4:20-CV-00658-P (N.D. Tex. June 24, 2020)

Related opinions:

• Tex. Att'y Gen. Op. No. KP-0304 (2020) (local authorities received some, not all, of the Governor's extraordinary disaster powers)
• Tex. Att'y Gen. Op. No. KP-0308 (2020)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0324
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0324.pdf

Original opinion text

August 7, 2020

The Honorable Brandon Creighton
Chair, Senate Committee on Higher Education
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. KP-0324

Re: Authority of local governmental entities operating under local emergency declarations, to delay, prohibit, or restrict eviction procedures established by the Legislature in chapter 24 of the Property Code (RQ-0362-KP)

Dear Senator Creighton:

You question 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.[1] As background, due to the COVID-19 pandemic, the Governor declared a state of disaster on March 13, 2020.[2] See TEX. GOV'T CODE § 418.014(a) (authorizing the Governor to declare a state of emergency). Additionally, many counties and cities declared a local state of disaster. See id. § 418.108(a), (f), (g) (authorizing the presiding officer of a governing body of a political subdivision to declare a local state of disaster and granting powers once a disaster has been declared). As you note, many political subdivisions then halted evictions with orders adopted under those local disaster declarations.[3] See Request Letter at 1. You question whether these local officials have authority to enact such orders as they pertain to chapter 24 of the Property Code.[4] See id.

Chapter 24 establishes statewide procedures for forcible entry and detainer actions, otherwise known as evictions. See TEX. PROP. CODE §§ 24.001-.011. Under chapter 24, if a tenant defaults or holds over beyond the end of the rental term or renewal period, generally the landlord must provide "at least three days' written notice to vacate the premises before the landlord files a forcible detainer suit." Id. § 24.005(a)-(b). Following that notice period, the landlord may file suit for eviction in justice court. Id.; see also id. § 24.004(a); TEX. CIV. PRAC. & REM. CODE § 15.084 (providing for jurisdiction of justice courts over forcible entry and detainer suits). Once filed, a sheriff or constable serves the tenant with notice of a hearing. See TEX. PROP. CODE § 24.0051(a). A court hearing will generally occur between six and ten days after the tenant receives notice of the hearing. See TEX. R. CIV. PROC. 510.4(a)-(c), 510.7(a). Trials for eviction are usually heard within twenty-one days of filing suit.[5] See id. 510.4(a)(10). "A landlord who prevails in an eviction suit is entitled to a judgment for possession of the premises and a writ of possession." TEX. PROP. CODE § 24.0061(a). A writ of possession generally "may not be issued before the sixth day after the date on which the judgment for possession is rendered." Id. § 24.0061(b). Thus, from beginning to end, the eviction process can take a month or more under normal circumstances.

Under a declared disaster pursuant to chapter 418 of the Government Code, the Governor "may issue executive orders, proclamations, and regulations and amend or rescind them." TEX. GOV'T CODE § 418.012. During a declared disaster, the Governor also has authority to "suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business . . . if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster." Id. § 418.016(a). The Governor's executive orders, proclamations, and regulations "have the force and effect of law." Id. § 418.012. Pursuant to that authority, the Governor has issued multiple executive orders, proclamations, and other statements, relating to the disaster declaration, including Executive Order GA-28, which expanded the provision of essential services and reopened businesses.[6]

In addition to the Governor's orders and as noted above, many counties and cities have issued local orders restricting businesses and activities. See id. § 418.108(a), (f), (g) (authorizing the presiding officer of the governing body of a political subdivision to declare a local state of disaster and granting certain powers once a disaster has been declared). Certain provisions within Government Code chapter 418 provide governmental entities with additional authority during times of disaster to address emergency situations. See id. §§ 418.001-.261; but see Tex. Att'y Gen. Op. No. KP-0304 (2020) at 3 ("The Legislature expressly conferred some, but not all, of the extraordinary powers given to the Governor to local government authorities."). Related to your question, the Legislature authorized the presiding officer of a governing body of a municipality or county to declare a local state of disaster. TEX. GOV'T CODE § 418.108(a); see also id. § 418.004(6). Section 418.1015 of the Government Code provides that the "presiding officer of the governing body of an incorporated city or a county or the chief administrative officer of a joint board is designated as the emergency management director for the officer's political subdivision." Id. § 418.1015(a). That official "serves as the governor's designated agent" and "may exercise the powers granted to the governor under [chapter 418] on an appropriate local scale" during a disaster declaration. Id. § 418.1015(b) (emphasis added). But unlike the Governor who has express powers to suspend certain state laws under chapter 418, the presiding officer of the governing body of an incorporated city or county has no similar emergency power to suspend state statutes. Compare id. § 418.016(a), (e) (authorizing the Governor to suspend certain statutes), with id. § 418.108(a), (g) (authorizing local officials to declare a local state of disaster and control ingress and egress), and id. § 418.1075 (authorizing suspension of deadlines imposed by local law in certain circumstances).

The aspects of the orders about which you ask attempt to rewrite broadly applicable state law governing eviction procedures and replace them with a patchwork of local orders that are inconsistent across the State. 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." Id. § 418.1015(b). Thus, chapter 418 of 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.[7]

[1] See Letter from Honorable Brandon Creighton, Chair, Senate Comm. on Higher Education, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (June 25, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0362KP.pdf ("Request Letter").

[2] See OFFICE OF THE TEXAS GOVERNOR, DISASTER PROCLAMATION (Mar. 13, 2020). The Governor has subsequently extended the disaster proclamation every thirty days.

[3] As one example, an order issued by the Travis County Judge generally prohibits, until September 30, 2020, among other things issuances of notices to vacate the premises under section 24.005 of the Government Code, effectively prohibiting evictions during that time. See, e.g., Travis County, Tex., County Judge Order No. 2020-15 Relating to Notices to Vacate, Eviction Proceedings in Response to COVID-19 (July 22, 2020). Other jurisdictions, including Brazoria County, halted eviction proceedings beyond July 24, 2020. See Brazoria County (Mar. 19, 2020) (cancelling all civil hearings, including evictions, until the State of Disaster is lifted).

[4] "Private property ownership is a fundamental right in the United States." Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476 (Tex. 2012). The "right of property" includes the "right to use and enjoy" the property "in a lawful manner and for a lawful purpose." Id. (quotation marks omitted). And the right to lease property is a fundamental privilege of property ownership. Terrace v. Thompson, 263 U.S. 197, 215 (1923) (noting that "essential attributes of property" include "the right to use, lease and dispose of it for lawful purposes"); see Zaatari v. City of Austin, No. 03-17-00812-CV, 2019 WL 6336186, at *10 (Tex. App.-Austin Nov. 27, 2019, no pet.) (holding city ordinance banning short-term rentals of single-family residences not owner occupied was unconstitutional infringement on property rights); Tex. Att'y Gen. Op. No. KP-0308 (2020) at 2. You do not ask about, and we do not address, any property-related constitutional issues implicated by these local orders. See generally Sappington Garden, L.L.C. v. United States of America, No. 4:20-CV-00658-P (N.D. Tex. June 24, 2020) (challenging the constitutionality of, among others, section 4024 of the CARES Act).

[5] In addition to the Texas Rules of Civil Procedure that pertain to eviction proceedings, the justices of the peace may issue local procedural rules that establish more specific timelines. See generally TEX. R. CIV. PROC. 510.1-510.13 (applying to Justice Court eviction procedures). So long as those rules do not conflict with state law, the justices have some discretion in managing the timeline of an eviction procedure.

[6] See OFFICE OF THE TEXAS GOVERNOR, EXEC. ORDER GA-28 (June 26, 2020).

[7] We note, however, that section 4024 of the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. No. 116-136, 134 Stat. 281 (2020) (to be codified in various titles of the U.S.C.), placed a 120-day moratorium on evictions for properties covered by the CARES Act, beginning March 27, 2020, and extending through July 24, 2020. See CARES Act § 4024(b). Covered properties include those properties receiving a low-income-housing tax credit, single-family and multifamily properties backed by federal loans, and federally-subsidized rental housing properties. Id. § 4024(a). During the moratorium period, lessors of covered properties could not issue a notice to vacate until after July 24, 2020. See id. § 4024(b) (providing for 120-day moratorium from enactment of the CARES Act on March 27, 2020). Thus, while local governmental entities do not possess authority to rewrite state law by changing eviction procedure notifications, federal law at one time imposed the restrictions about which you ask for many properties nationwide. Additionally, on March 19, 2020, the Texas Supreme Court issued an order temporarily staying certain eviction procedures. See TEX. SUP. COURT, FOURTH EMERGENCY ORDER REGARDING THE COVID-19 STATE OF DISASTER, MISC. DOCKET 20-9045 (Mar. 19, 2020). That order was extended through May 18, 2020, but beginning on May 19, 2020, eviction proceedings could resume. See TEX. SUP. COURT, FIFTEENTH EMERGENCY ORDER REGARDING THE COVID-19 STATE OF DISASTER, MISC. DOCKET 20-9066 (May 14, 2020) ("Beginning May 19, 2020, eviction proceedings may resume, and deadlines are no longer tolled, and beginning May 26, 2020, warnings may be posted and writs of possession may be executed."). However, for all Texas evictions occurring from March 27, 2020, through August 4, 2020, the lessor initiating an eviction proceeding must file a sworn affidavit stating that the premises are not subject to the moratorium on evictions imposed by the CARES Act. See TEX. SUP. COURT, TWENTIETH EMERGENCY ORDER REGARDING THE COVID-19 STATE OF DISASTER, MISC. DOCKET 20-9086 (July 21, 2020) (requiring certain statements regarding applicability of the CARES Act).

S U M M A R Y

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.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee