A new bill was recently filed in the Texas House to ease the burden of landlords that want to evict a tenant. It provides for sweeping reforms to the Texas Property Code, all of which are aimed at removing due process protections and denying tenants access to justice, such as getting help from legal aid lawyers. Afterall, it’s much easier to evict tenants that can’t defend themselves. And if you can’t win in a fair fight, then simply make sure the fight is rigged.
In March of 2020, as the pandemic began to rage, I began a small pro bono project to help tenants navigate the various pandemic-era eviction moratoria. They had been told they couldn’t go to work on account of government stay-at-home orders, but the rent was still due. Over the course of the remainder of 2020, I recruited 250 volunteer lawyers, and we helped around 6,500 households understand their rights and remain housed.
In January of 2021, I formed a nonprofit law firm called the Dallas Eviction Advocacy Center. I hired two staff lawyers, and between the three of us we litigated 853 eviction trials that year. We won 96 percent of them.
The reason for our success was simple. Landlords operated in a culture of massive noncompliance with the law. We didn’t cherry pick the best cases to argue. Most of the time, we met our client for the first time in the courthouse the morning of the trial. In many cases, I would stand in the court, and as the docket was called, I would ask the tenant if they wanted help as they approached the bench. I didn’t know if they had defenses. But all I had to do was turn around and ask the landlord if they could prove up their case. And 96 percent of the time, they couldn’t do that.
After one of those cases, the landlord angrily shouted to the judge, “Are you telling me that I have to bring evidence to every single one of these now?” That’s how used to winning they were; they didn’t even bring evidence to a court of law when seeking a legal remedy. And that wasn’t the exception. It was the rule.
Prior to the pandemic, fewer than 3 percent of tenants had a lawyer. So there was a 97 percent chance that a landlord would be able to go into court and get their eviction, whether they followed the laws required to evict a tenant or not. You might be thinking, isn’t it the judge’s job to make sure they did follow the law? And while the answer to that question is an obvious yes, that’s not what really happened in eviction courts. It was more of a rubber stamp process than a meaningful hearing. It was just an illusion of due process.
Justice courts exist to provide a forum where two lay litigants can resolve small disputes without the expense of a lawyer. The rules of evidence don’t apply; each party can just tell their story in a largely informal setting. The idea is that the justice of the peace should be able to parse through the facts, apply the law and dispense justice accordingly. If that underlying premise was true — that a lawyer is unnecessary in order to get justice — one would expect to see similar outcomes for represented tenants and unrepresented tenants. A tenant without a lawyer should get justice at the same rate as one with counsel. But tenants with lawyers are three to four times more likely to get a positive outcome than tenants without one. The entire reason justice courts exist is based on a farce.
I have personally witnessed on many occasions the following scenario. I represented a tenant and won. The next tenant declined my assistance and told the judge that they lived in the same apartment complex as the tenant I had just represented and that their facts were identical. The judge then ruled in favor of the landlord because the unrepresented tenant couldn’t cite the statute that I had just cited mere minutes before in the previous case where the case was dismissed. It should be clear that it is absolutely necessary for a tenant to have a lawyer in order to get a just result.
In reality, the equal application of the rule of law is a myth. Both constitutional and statutory rights only exist to the extent you have the resources to enforce them. The law is just words on a page. It’s passive. It doesn’t stand up and fight for you. It only provides a defense if you know how to use it, have the money to hire someone that knows how to use it or if you’re lucky enough to find a lawyer to volunteer to use their knowledge on your behalf.
People seem to forget that in eviction cases the law goes two ways. If the tenant doesn’t pay, the law provides a procedure for them to be evicted. Everyone agrees that the tenant should be held accountable to their contractual obligations and the law. But the law also requires the landlord to do a few specific things before they throw a single mom and her kids into the street. A lot of people ignore this part and view the landlord’s responsibilities as mere technicalities that can be overlooked. That’s not how laws work. Or at least it shouldn’t be.
When I say landlords operated in a culture of noncompliance, I mean that most of the time they didn’t follow the steps required of them under the law to evict. And without lawyers in the courtroom to ask them if they did, it didn’t matter. They were executing unlawful evictions, and the courts weren’t asking any questions.
It’s not like we’re talking about $20 jaywalking tickets here. We’re talking about removing people from their homes. It’s a major remedy the landlord is asking for that can have devastating and lifelong effects on the tenant. Shouldn’t we be sure it’s done properly? Is that really too much to ask?
Over the years, our little project has grown. The Dallas Eviction Advocacy Center now has 20 full-time employees, and in 2024 we litigated 5,175 eviction cases. No longer is it true that a landlord in Dallas County can walk into an eviction court and ask the court to rubber stamp their unlawful eviction. We have created accountability in a system that previously had none. And that takes us back to House Bill 32.
This bill is a direct result of the increase in the tenant defense apparatus that was born during the pandemic. The only thing that changed is that landlords can no longer flaunt the law. And if they must now follow the law, their solution isn’t to comply. It’s to delete the laws they don’t want to follow.
Both Dallas County and Harris County, as well as the cities of Dallas and Houston, among others, have provided grants so that legal aid lawyers can defend tenants in eviction courts. This bill includes a poison pill to stop that. It provides that any local government providing such grants must also provide a grant of equal amount to rehouse the tenants being served. It’s a clever way to keep lawyers out of the courtroom while appearing to help tenants. But the reality is that the drafters know that local governments are already constrained by tight budgets, and if they are required to double their allocations and then to manage a relocation program, they simply won’t fund tenant access to justice programs any longer. They aren’t trying to help; they’re trying to harm.
The bill also removes many of the requirements landlords must comply with to evict; thus, reducing the number of things they can get wrong. It’s easier to evict lawfully when there are no laws to follow in the first place. So this bill effectively removes the guardrails intended to protect tenants, which already were minimal. Even without this bill, Texas tenants are some of the least protected and most vulnerable in the country.
The bill removes the requirement to provide a tenant pre-suit notice altogether for lease violations other than nonpayment of rent. So expect the number of evictions on pretextual grounds other than nonpayment to drastically increase. It also strips out the rules for how a notice that is required must be delivered. The current rules are intended to make sure that a tenant actually receives the notice. This bill includes a provision that allows notices to be delivered in any manner provided for in a lease. Given that leases aren’t generally negotiable, landlords will include delivery methods where there is no assurance the tenant is properly served.
It also extends jurisdiction for evictions from the JP precinct that includes the subject property to any contiguous JP precinct. So if the judge in that precinct is perceived as too tenant friendly, the landlord would be able to forum shop among several other judges to find one that will more easily overlook any procedural infractions.
Perhaps most egregious is a provision that allows a landlord to include an affidavit with its petition claiming that there are no “genuinely disputed facts that would prevent judgment in favor of the plaintiff. …” If the landlord makes such a claim, the eviction is to be granted without any hearing on the matter unless the tenant files a sworn written response within three days. As if a tenant would have any idea how to do that. But they know this.
To sum up the 29 pages of House Bill 32, the drafters (i.e., the Texas Apartment Association) found each reason landlords have lost eviction cases over the last few years and deleted or amended them so that the minimal due process currently afforded tenants would be effectively removed.
I’m not arguing that eviction is inherently wrong. Private property owners should be paid for the use of their property. But I am saying that evictions should be executed lawfully. It’s only the unlawful evictions I have a problem with. It just turns out, that describes most of them. And by the way, we only win the cases where the landlord proceeded unlawfully. We aren’t magicians using sorcery to deny landlords the return of their property when they aren’t paid. We’re simply holding them accountable to the law. When they follow the law, they win the eviction case, as they should.
We shouldn’t fix this problem by making lawful what is currently unlawful. And we certainly shouldn’t fix it by removing due process and accountability from the system so that landlords can return to an environment where noncompliance with the law is simply overlooked and the poor can be denied their rights as a matter of course.
Are we not a country of laws? And aren’t the lawyers the protectors of justice? I argue that we should be, on both counts. The proponents of this bill disagree. Shame on them.
Mark Melton is the founder of the Dallas Eviction Advocacy Center.