Evictions Are Once Again on the Docket

Due to the coronavirus pandemic, the Supreme Court of Texas had issued its Fourth Emergency Order Regarding the COVID-19 State of Disaster, establishing a moratorium on any action for eviction to recover possession of residential property until April 19, 2020. The expiration date for this moratorium was subsequently extended by the Twelfth Emergency Order Regarding the COVID-19 State of Diasater to May 18, 2020. These orders allowed new filings to be submitted during the moratorium but halted the posting of any statutory notice of a writ of possession as well as any service of citation until May 25, 2020.

In addition to the Texas moratorium, renters had the further protection provided by the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, enacted by Congress on March 27, 2020. The CARES Act, and specifically Section 4024(b), prohibited landlords of certain “covered dwellings” from instituting eviction actions or charging fees or penalties for the nonpayment of rent. The protections afforded by the CARES Act extend 120 days from its date of enactment. During this 120-day period, landlords also are enjoined from issuing any notices to vacate. Under the statute, landlords are also required to provide tenants with 30 days during which to vacate the premises. However, the protections afforded by the CARES Act are only applicable to covered property. Section 4024(a)(2) defines “covered property” as any property that participates in a federal assistance program, such as public housing, Section-8 Project-Based Rental Assistance, and the Low Housing Income Tax Credit (LHITC) program or that is secured by a federally backed mortgage loan or federally backed multifamily mortgage loan, such as Fannie Mae and Freddie Mac, or that is insured by the Federal Housing Administration or the Department of Veterans Affairs. Of course, the difficulty involved with the CARES Act as it relates to renters involves whether the property which they are renting is a covered property under the Act. Unfortunately, renters might have no reason to know this as the property is owned by another party, and it might be difficult to determine or discover whether the property is covered. To aid in this regard, ProPublica, an independent, nonprofit newsroom, has published an interactive database to help renters find out if the federal moratorium would apply to them.

For those Texas renters whose property is not a covered one as defined in the CARES Act, eviction, unfortunately, could become a sad reality. With the Texas moratorium expiring on May 18, landlords are now free to move forward with eviction proceedings, including the issuance of service of process and the posting of writs of possession. Note that the onus is not necessarily on the tenant to determine whether the dwelling is a covered one under the CARES Act. Pursuant to the Fifteenth Emergency Order Regarding the COVID-19 State of Disaster, landlords are required to state in any sworn petitions or separate affidavit filed between March 27, 2020 and July 25, 2020, that “the premises are not subject to the moratorium on evictions imposed by Section 4024 of the CARES Act.” A sample of an affidavit containing the required language can be found on the website of the Harris County Justice Courts. Interested parties are directed to consult the websites of the individual justice courts for more information about filing and court proceedings.

For those tenants who require some assistance, there are some options available. There are some legal aid organizations in Harris County and the Houston area that might be able to help, most notably, Houston Volunteer Lawyers and Lone Star Legal Aid. Others around Texas include: Legal Aid of Northwest Texas, Texas Legal Services Center, and Texas RioGrande Legal Aid. There is also some useful information on TexasLawHelp.org concerning eviction and other landlord issues, including a page discussing Evictions During the COVID-19 Pandemic. See also a post written by the blog team here at the Harris County Law Library about some useful landlord/tenant resources.

Where There’s a Will, There’s a Wayback Machine: Ransomware Hits the TEXas Judiciary online

Page Not Found

If your bookmark for the Texas Rules of Civil Procedure on the Texas Courts Website no longer links you to the source you are seeking but instead gives you a 404 error, or if you’re searching for your favorite Research Guide on the Texas State Law Library website but the page is timing out, you may wonder why. On May 8, the Office of Court Administration, the IT service provider for the appellate courts and state judicial agencies within the Texas Judicial Branch, identified a serious security issue, which was later determined to be a ransomware attack. OCA was able to shut down the branch network, including websites and servers, to prevent further harm.

While the server problems are being addressed, a temporary website is providing access to coronavirus information including emergency orders, court guidance, and electronic hearing procedures. The latest Court news and other updates, including the statement released by the OCA, are also available on the temporary page, along with the @txcourts Twitter feed. The OCA took care to address concerns about essential services such as eFile Texas and reSearchTX, which, they explain, are cloud-based services unaffected by the ransomware attack. The courts and judicial branch agencies are continuing operations and ensuring that the filing of court documents will continue without interruption. If you need to access the resources on the original version of the website, follow the steps below.

Access the original Texas Judicial Branch website as it was captured by the Wayback Machine on April 10, 2020.

Here’s the Hack

• Go to the Internet Archive’s Wayback Machine website.

• Type this URL into the search box: TXCOURTS.GOV

• The page has been captured hundreds of times since 2012, and as most recently as April 10, 2020. Choose that date on the calendar.

• Select one of the timestamp options, and you will link to the original Texas Courts homepage where most, if not all, of the webpages — including the PDFs they link to — are available.

Access, for example, the Texas Rules of Evidence. Download any number of forms, including Orders of Nondisclosure. As long as you access the site via the Wayback Machine, you will be able to view all captured pages. (What is the Wayback Machine? Learn more here.)

Hopefully, the Texas Judiciary and our good friends at the Texas State Law Library will be back up and running smoothly again soon! If you’re missing the State Law Library’s chat reference feature, try the link at Harris County Law Library, where we’ve partnered with the TSLL to provide real-time chat services. Your reliable State Law Library reference staff is available and continuing to provide services. We wish the OCA much luck in the investigation, remediation, and recovery of IT services for the Judiciary and the Texas State Law Library.

What About Books?

In mid-April, a French court ordered shipping giant Amazon to restrict its sales and deliveries to “essential items.” The order stated that Amazon could only fulfill orders for food, hygiene, and medical items. The court further gave Amazon 24 hours to cease delivery of nonessential items or face steep fines, as much as one million euros per day per infraction. The order was the result of an action filed by a trade union, alleging that Amazon had violated the Labor Code by failing to protect the health and safety of its employees by allowing them to work in crowded, enclosed spaces. As a result of the court order, Amazon shut down its facilities for five days to clean and assess the working environment. Amazon also appealed the order, citing ambiguity in the definition of what constitutes essential as one of the bases of the appeal.

On April 24, the Court of Appeals of Versailles affirmed the lower tribunal’s order. The appellate court also defined specific categories of essential items: hi-tech and information technology; office supplies; pet supplies; health, nutrition, and personal care product; groceries; drinks; and maintenance.

While we applaud the French courts for focusing on the health and safety of workers, we at the Harris County Law Library can’t help but wonder why books were not included among those items deemed essential. Yes, we know that books are not “absolutely necessary,” but they are still extremely important, not in an earth-shattering way, but critical nonetheless. Crucial, too, to a segment of the population that has been overlooked by the digital divide and who have no access to digital versions of print materials. Before the pandemic, print books outsold eBooks. Even in Paris, it seemed as if more commuters were reading print books while commuting on the Paris Metro. Of course, life is much different now. Social distancing and disinfecting have become the norm. Still, we can’t help but feel that books should be considered essential, especially now when physical libraries are closed to the public. Moreover, the French ruling overlooks the obvious health and mental benefits that come from reading books. Reading sharpens the brain and prevents cognitive decline, reduces stress, helps sleep, eases depression, educates and boosts vocabulary, and can even help people live longer. These benefits are extremely important, especially now, when so many people are isolated from their loved ones and friends.

We urge you today (and everyday) to pick up a book, whether a print one or an eBook, and reap the benefits that come from reading the written word. Then, you, too, can see how essential books are.

Vote By Mail in Texas? Judge Says Yes...For Now

A district court judge in Travis County, Texas has paved the way for Texas voters to be able to request and use mail-in ballots in the upcoming party primary runoff elections scheduled for July 14, 2020, and in the General Election to be held in November. The Texas Democratic Party, its chairman, and two registered Texas voters filed a lawsuit in district court seeking a declaratory judgment holding that Tex. Election Code Sec. 82.002 permits any eligible voter who believes that they are practicing social distancing because of COVID-19, regardless of age or physical condition, to request a mail-in ballot from the county clerk’s office, use that ballot, and have it counted in the upcoming elections. Plaintiffs also sought a temporary and permanent injunction requiring defendants Texas Secretary of State and Travis County Clerk to accept and tabulate those ballots. Several voters groups, including the League of Women Voters of Texas and MOVE Texas Action Fund, intervened, seeking a temporary injunction to enjoin the county from rejecting mail-in ballot applications from voters on the basis of a disability and refusing to accept those ballots during the elections. They also sought to prevent Intervenor-Defendant State of Texas from issuing any guidance or taking any action that would prevent or prohibit the tabulation or submission of mail-in ballots by those voters claiming a disability because of coronavirus. The State of Texas filed a Plea to the Jurisdiction, arguing that plaintiffs lacked standing due to a failure to state a particularized harm, plaintiffs sought an impermissible advisory opinion regarding claims that were not yet ripe, and plaintiff’s claims were barred on the ground of sovereign immunity.

Plaintiffs have filed in the United States District Court for the Western District of Texas San Antonio Division, stating that the election conditions alleged in the petition constitute discrimination in violation of the Voting Rights Act and the 1st, 14th, 15th, and 26th Amendments. Plaintiffs sought both declaratory and injunctive relief.

We at the Harris County Law Library are keeping up with developments in this case as they become available.

Judge Tim Sulak’s Order, dated April 17, is now available here.

You're Out!

Even though the coronavirus has silenced the crack of the bats, the United States District Court for the Southern District of New York has hit one out of the park in favor of Major League Baseball (MLB) and our hometown Houston Astros. In an opinion issued on April 3, 2020, Judge Jed S. Rakoff dismissed with prejudice a class action suit brought by five fantasy sports players against MLB, MLB Advanced Media, L.P., Houston Astros, LLC, and Boston Red Sox Baseball Club, LP.

As you may recall, in January of this year, MLB Commissioner Rob Manfred suspended for one year Houston Astros General Manager Jeff Luhnow and Manager A.J. Hinch for their roles in the sign-stealing scandal during the 2017 World Series-winning season and extending into 2018, and the Astros organization was fined $5 million and forced to give up first- and second-round picks in 2020 and 2021. The Boston Red Sox had been implicated previously in a similar scandal. As a result of these scandals, plaintiffs filed suit, alleging that they were harmed by defendants’ representations and conduct with respect to the sign-stealing scandal. They asserted claims based on fraud, negligence, unjust enrichment, and under consumer protection laws, all arising from plaintiffs’ contracts with DraftKings, Inc., a fantasy sports contest and sports betting provider. Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The court granted the motion to dismiss. The court made these specific findings:

• plaintiffs failed to allege statements made by the commissioner indicating a commitment to protect fantasy baseball from any rules violations occurring in the sport;

• although plaintiffs alleged at least one plausibly false statement made by each of the defendants, such statements could not support fraud claims because plaintiffs could not show that they reasonably relied on those representations when choosing to enter the fantasy baseball contests;

• plaintiffs did not identify any duty on behalf of defendants to disclose the existence of a sign-stealing plot;

• plaintiffs’ negligence claim also falls short in that they failed to allege the existence of any duty owed to them by defendants or any reasonable reliance on any affirmative representations made by defendants;

• plaintiffs failed to allege their consumer protection law claims with the required specificity and could not demonstrate that but for defendants’ deceptive acts, plaintiffs would not have entered the fantasy baseball contests nor was there evidence of a substantial business relationship among the parties and no allegations that defendants made any misrepresentations about fantasy baseball itself; and

• there was no showing that defendants were enriched at plaintiffs’ expense.

Although our hometown hero Astros were able to eke out a no-hitter in the federal lawsuit, they nevertheless need to bring in their closer: still pending is a lawsuit filed in the Harris County District Court by a season ticket holder, alleging negligence, breach of contract, and violations of the Texas Deceptive Trade Practices Act.

Image released into public domain

No matter what you may think of our Houston Astros after the scandal, they were “Houston Strong” at a time when the city needed them most. So, today, in this time of silent bats and stadiums, let’s forget the sign-stealing scandals, the steroid abuse, and the owners’ collusion scheme in the 1980s, and remember the things we love most about the game: dollar hot dogs, that ceremonial first pitch, the team mascots (Orbit, anyone?), and of course, the camaraderie shared at being in the stands with thousands of other fans rooting for your hometown team. Play ball!