Dallas judge says part of Texas eviction law is unconstitutional — but it may not make a difference
A Dallas County judge has ruled that tenants should have the right to stay in their homes and appeal an eviction ruling — even if they don’t have the cash required to put ups as collateral while they make their case.
A part of Texas law governing evictions is unconstitutional, according to County Court at Law No. 5 Judge Juan Renteria.
Last week, Renteria ruled a tenant facing eviction should be able to stay in their home while they appeal their case to a higher court, even if they can’t afford to put up the cash typically required to file the appeal.
Because Texas law doesn’t allow that, it violates a poor tenant’s rights because it makes paying money a condition of accessing the courts, Renteria said.
Mark Melton from the Dallas Eviction Advocacy Center filed the legal challenge, and said it is one of several fundamentally unfair pieces of Texas’ eviction statutes.
“Your ability to access the courts and get your day in court shouldn’t depend on the amount of money in your bank account,” Melton said.
But it is not clear if this ruling will have any real-world impact on the way evictions work in Texas. Because Renteria’s court is not an appeals court, justice of the peace courts that oversee eviction cases aren’t necessarily required to abide by the judge’s order.
“It’s just a county court at law, and it’s just one of five in Dallas County. It has no effect on justice [of the peace] courts,” said Al Cercone, a Dallas County justice of the peace who judged the originating case.
The original case
Melton brought the lawsuit on behalf of Kandyse Hunt, a mother of four who was living at the Trellis at Lake Highlands apartments.
In April, the Trellis took Hunt to court to evict her for failing to pay rent. Two of her children had moved out of their father’s house and moved back in with her, and she was struggling to make ends meet. She was trying to get rental assistance when a county constable taped an eviction notice on her door, Melton said.
Hunt lost the case, and Cercone issued a writ of possession allowing jer landlord to evict her family.
Records show that the Trellis at Lake Highlands owned by Ueshima Gota. The apartment complex is operated by California-based Cirrus Asset Management.
Melton told KERA Hunt was unavailable for comment, but he thinks Hunt would have would have won her appeal because her landlord did not follow the rules while taking her to court.
Kimberly Sims, a lawyer who represented the apartment complex in the appeal case, rejected that argument, saying her client followed all of the relevant statutes.
Either way, Hunt's appeal didn't move forward. She signed a settlement agreement with her landlord and moved out.
“She should be the legal winner in this case, but right now, she is the legal loser in a real bad way,” Melton said. “And this is not an exception, this is a rule.”
The appeals process
If a tenant loses in an eviction case because they did not pay rent on time, and a justice of the peace orders them to be evicted, Texas law gives that tenant five days to appeal that eviction order. To file that appeal, state law requires the tenant to put up an appeal bond — usually the amount of unpaid rent — in order to appeal the case. If the landlord wins the appeal, he’ll get that money.
If the tenant can’t afford that appeal bond, she can file an affidavit saying they’re unable to pay, a so-called “pauper’s affidavit.”
With a judge’s sign-off, she no longer has to pay that bond to appeal her case, but she’s not in the clear. State law still requires a tenant deemed too poor to pay an appeal bond to pay a month’s worth of rent into the court registry, essentially as collateral, to appeal their case.
If a tenant fails to pay the “rent” into the court registry, their landlord can get an order to evict them. Once they’ve been evicted, their appeal becomes moot.
In either scenario, the tenant risks being evicted if she can’t come up with cash for the appeal.
“If I say, ‘You don’t have to write me a check for a bond, but you do have to write me a check for something that we’re going to call something else,’ that’s the same thing,” Melton said.
Hunt’s case adds further complication because she tried to pay the one-month’s rent required to appeal her case, but Cercone declined to accept it.
Hunt had been granted the funds by the DeSoto nonprofit The Mint Foundation, one of several nonprofits working to distribute county rental assistance funds. When she tried to deliver the foundation’s check to Cercone’s court, his clerks rejected it.
Cercone’s order said his court would only take payment by cashier’s check or money order, not a regular check.
After a back and forth with Melton, Cercone agreed that his office would take checks from nonprofits that distribute local rental assistance funds, but he made that call after he’d already signed the order allowing Hunt to be evicted.
That’s what prompted Melton, who’d been looking for the right case to challenge the constitutionality of the requirement that indigent clients pay the rent in order to successfully appeal their eviction and keep their home.
“If I've got two tenants in the same situation, and one of them happens to have $1,600 in their account and can go get a money order or cashier's check and the other one doesn't, the only difference in those situations is the amount of money in their bank account,” Melton said. “One of them is getting evicted and one of them gets to stay in their home while they go up on appeal.”
After months of court hearings and legal filings, Renteria sided with Melton, ruling in May that the rent requirement is a violation of their constitutional right to access the courts, due process, and equal protection under law.
Sims told KERA that the case should have ended long before that ruling. That's because Hunt and Gota signed a settlement and lease termination agreement before the case even went to trial.
"The issue was moot because Hunt agreed to move and payment was made on her behalf. Judge Renteria should not have ruled at all because there was no dispute at that time," Sims said.
Justice of the Peace Cercone said it would be “inappropriate” for him to comment on Renteria’s ruling, but said that the requirement to pay rent into the court record is valid. He said rental agreements are contracts that require tenants to pay rent to inhabit a rental home. Relieving a tenant from her obligation to pay the monthly rent leaves landlords unable to collect rent or replace a non-paying tenant with a paying one while the appeal is ongoing.
“[The ruling] essentially implies that tenants don’t have to pay rent, which is a violation of contract law,” he said.
Mary Spector, a professor who leads a civil law clinic at Southern Methodist University’s law school, said this case hits on a tension in the law between setting appropriate “stakes,” and ensuring that tenants can access courts and defend their rights, whether or not they can pay those stakes.
And the process leaves little time to work out a compromise.
“The speed with which a writ of possession can be executed after an unfavorable judgment or a judgment in favor of the landlord is dizzyingly fast,” Spector said.
Melton said he’s looking for ways to move the case forward and change the law.
For now, though, the ruling doesn’t force other courts to change the way they operate. That’s because a county court at law judge can only rule on the case in front of them. It would take a ruling from a regional appeals court or the Texas Supreme Court to do away with the rent rule — or for the state legislature to change the law.
“I think that the pandemic raised peoples’ awareness about the process, and there are lots of people that are looking at evictions and how the process may be changed to provide tenants with some additional rights,” she said.
On a practical level, Spector thinks this case may encourage other justices of the peace who oversee eviction cases to remove barriers for tenants to use rental assistance funds. Those programs a win-win for both landlords and their tenants, she points out.
The burden of proof
According to Melton, there’s a more fundamental injustice in Hunt’s case.
Melton said she should never have lost her original eviction case. The Trellis at Lake Highlands failed to follow rules in Dallas giving tenants extra time to apply for rental assistance or work out a payment plan with their landlord, which means they didn’t have a legal right to evict her on the day she went to court in April.
Cercone ruled against her at trial.
Sims said Melton is "asserting a technicality" that she disagrees with. The Trellis followed the rules, she said.
"All notices were given, and Ms. Hunt was in default of the lease. Therefore, Judge Cercone’s ruling was absolutely correct," she said.
Cercone does not recall the details of the case, saying that he presides over eviction cases every day. And there are no records kept of the proceedings in eviction courts, so it is impossible to know exactly what arguments were made.
But the justice of the peace insists he would never have given the landlord permission to evict a tenant if he’d known that the landlord had failed to follow the law.
“If that wasn’t brought up [by the tenant], it was nothing for the court to consider,” he said.
In Cercone’s court, the burden of proof belongs to the defendant in eviction cases. That’s how a lot of justices of the peace operate, Melton said, which he thinks adds another fundamental injustice. Melton said the landlord should have the burden of proving they have followed the law and are legally entitled to take the rental unit away from the tenant.
“We have these idealistic notions that we're a country that is based on the rule of law…that we are a country of laws, not of men,” Melton said. “Those things are true, if you have enough money to enforce your own rights under the Constitution. Those things are not true for poor people.”
If a justice of the peace signs off on a tenant’s eviction after the landlord failed to follow the proper legal procedure, Cercone said the tenant should bring that up on appeal and the eviction case will be dismissed. At that point, the tenant could stay in her home.
But, of course, Hunt was never able to mount her appeal.
Now, Melton said, Hunt moved her family in with her mother, and she’s trying to figure out what to do next. Even though she has a solid job and income, affordable rental housing in Dallas is increasingly hard to find.
KERA News: This story has been updated to include comments from an attorney for the apartment complex that were provided after publication.
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