Eviction defense attorneys allege judges go rogue and wrongfully evict tenants, lawsuits allege
Eviction Defense Lawyers who say publicly elected justices of the peace ignored pandemic protections for tenants are increasingly taking what some call a “nuclear” option: suing the justices themselves.
Over the past 15 months, at least a half-dozen cases have been filed asking civil judges in Harris County, who occupy a rank in the judicial hierarchy, to determine whether the decisions of justices of the peace comply with the law.
The cases allege justices of the peace failed to uphold emergency eviction protections. In such cases, a higher court judge can issue what is called a writ of mandamus, ordering the lower court judge to reverse and give tenants a second chance.
“The systems put in place under pandemic emergency protocols have failed for our clients,” said Dana Karni, lead counsel for the Eviction Right to Counsel project at the nonprofit Lone Star Legal. Aid. “We recognize that sometimes the best defense is a good offense.”
Eviction defense lawyers accuse justices of the peace, the elected judges who decide the outcome of hundreds of eviction cases every day, of operating like “kingdoms,” with many interpreting eviction protections from urgency in an idiosyncratic and often incorrect way. These lawyers indicated that many more tenants besides that those who sue judges are being unjustly evicted, but lawyers who provide free legal aid to low-income tenants are too busy fighting a flood of eviction applications to file mandamus suits in many many cases.
“It got pretty offensive,” said Jerry Loza, an eviction defense attorney at South Texas College of Law Houston. “A lot of these cases would qualify for this kind of mandamus in theory, we just don’t have the resources.”
Mandamus cases include a wide range of Justices of the Peace, including Justices Jose Stephens, Holly Williamson, David Patronella and Angela Rodriguez. The tenants’ attorneys stopped pursuing most cases when the corresponding eviction cases against their clients were dropped. But at least one case has resulted in a judge ordering a justice of the peace to revoke his order ordering a constable to evict a tenant.
In the case, a county judge, LaShawn Williams, found that because the tenant, Christopher Jenkins, and the apartment complex, Adorable Pointe Apartments, were participating in emergency rental assistance at the time of Houston-Harris County, the lower court should have frozen the case. for 60 days.
“It was an abuse of discretion to issue the writ of possession,” Williams wrote. Following the mandamus case, the tenant, Jenkins, remains in his home.
Adorable Pointe Apartments and the office of the justice of the peace handling the case, Israel Garcia, did not respond to requests for comment.
Lone Star Legal Aid has filed six mandamus cases since May 2021, which accuse justices of the peace of making decisions that run counter to the protections that were created to protect tenants. The nonprofit also sued a landlord for allegedly violating the Houston-Harris County Emergency Rental Assistance Program. Karni said she hopes the mandamus cases will have a ripple effect as more justices of the peace realize what the pandemic-related protections entail.
The emergency eviction protections in question include the Centers for Disease Control and Prevention’s eviction moratorium (since expired), the Texas Supreme Court’s emergency order requiring judges to stay eviction actions for 60 days if landlord and tenants participate in rent relief and the Houston-Harris County Emergency Rental Assistance Program, which prohibits participating landlords from pursuing evictions while tenants wait for a rent relief.
The bulk of lawsuits against judges involve cases in which the landlord and tenant participate in the Houston-Harris County Rent Assistance Fund. When landlords agree to participate in the rental assistance fund, they sign a contract stating that they will not seek an officer to evict a tenant from their unit if the tenant has applied for housing assistance, unless the program has determined that the tenant is not eligible or selected for assistance.
When asked for clarification on how such cases should play out in court, a spokesperson for the fund said in an email: ‘We discussed the purpose of the program, federal guidelines and eligibility requirements at numerous meetings with judges, elected officials, the Houston Apartment Association, and numerous community groups. The spokesperson added that the power to decide on eviction cases rests with the court.
Most justices of the peace simply ask landlord representatives if they are seeking rent relief, rather than checking the Participating Landlords Fund database, before issuing a judgment or order.
The vast majority of tenants do not have the resources to file a mandamus suit. Even those who do find their lives turned upside down.
Jenkins — who volunteers with the West Houston Assistance Ministry, Houston Area Urban League, Fair Jobs for Progress and other organizations — thinks he knows how to seek out resources and navigate programs such as relief rents. So he was shocked when in January Garcia, a justice of the peace for a precinct stretching west from Memorial Park to Katy and Waller, ordered an officer to vacate his apartment. “It was all on the line,” he said.
His attorney at Lone Star Legal Aid successfully sued the court for recalling the eviction order, but Jenkins is still living with the consequences. He had his back blocked by stress and took a break from college classes until he recovered financially. To this day, he lives in boxes that he packed to be ready for the day a constable was originally expected to arrive.
But he hopes his successful mandamus case will have a positive impact on the results of similar deportation requests.
“Some people wanted me to leave” instead of fighting back in court, he said. He said it wouldn’t happen: “Because if I do this now…it could happen to someone else.”
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