Judge Jeff Wentworth, who presides over Precinct 3 of the Bexar County Justice of the Peace Courts, will continue to hear eviction cases despite a new, temporary federal eviction moratorium issued by the Centers for Disease Control and Prevention (CDC).
“I am not going to automatically abate these cases based on a CDC order, which I believe is unconstitutional,” said Wentworth, who upheld a previous moratorium.
All four other justices of the peace have agreed to follow the moratorium, according to a local order signed by judges Rogelio Lopez (Pct. 4), Roberto Vasquez (Pct. 2), Ciro Rodriguez (Pct. 1), and Robert Tejeda (Pct. 1).
“I, as a judge, took an oath to follow the law,” Lopez said in an interview. “Whether I agree with it, whether I disagree with it … is irrelevant until it’s in front of me or until I’ve been told by another court” that it is no longer law.
“The situation that our country is in today is that we are at greater risk due to the [COVID-19] delta variant, which is why the CDC entered the new order.”
The CDC’s first moratorium, which started in September last year in response to the coronavirus pandemic, expired on July 31, and Congress failed to extend it. The CDC’s new order issued this week only applies to counties experiencing “substantial” or “high” levels of COVID-19 spread and expires on Oct. 3.
Bexar County’s current level of community transmission of the virus is high, according to the CDC.
Last year, the justices were united in their approach during the first moratorium, which was extended several times.
“If we’ve always treated the CDC order as law, then what’s different with this CDC order?” Lopez said.
Wentworth points to U.S. Supreme Court Justice Brett Kavanaugh’s statements that he would strike down another moratorium extension after the U.S. Supreme Court’s 5-4 procedural ruling in late June that rejected a request to lift the ban.
“That’s what has changed since the last time,” Wentworth said. “Kavanaugh said it would not be extended.”
The landlords, real estate companies, and trade associations in Alabama and Georgia that filed the request argued that the CDC didn’t have the legal authority to issue such a moratorium.
“Kavanaugh is not the Supreme Court,” Lopez said, adding that while the justice noted concerns about the moratorium, Kavanaugh ultimately voted against blocking the previous ban.
Justices of the peace are assigned to geographical districts across Bexar County; which court an eviction case is heard in depends on the address of the property. A precinct map can be found here. Wentworth represents northern Bexar County.
The moratorium only applies to evictions for non-payment of rent. Renters must sign a declaration that says they have tried to receive rental assistance and that they earned $99,000 or less ($198,000 for joint filers) last year. Find out more about local and state rental assistance here.
The temporary ban on evictions comes after the Biden administration reversed course this week after saying it saw no legal pathway forward to extend the eviction ban over the weekend without Congressional action.
Groups representing property owners have already asked a federal judge to block enforcement.
Meanwhile, tenants, landlords, attorneys, and judges will continue to wade through “uncharted territories,” Wentworth said.
The penalty for violating the moratorium is up to $100,000, a year in jail, or both. If the violation “results in death,” the penalty climbs to $250,000, one year in jail, or both.
According to the Texas Justice Court Training Center, which issues guidance for judges, the moratorium is targeted at landlords rather than courts.
“What [the order] basically does is it puts the landlord in the position of violating the moratorium,” Wentworth said. “Then they’re on the hook with criminal offenses. … What I’m going to do from now on is I’m going to proceed with those back-rent evictions if the landlord wants … [to] run the risk that the moratorium is going to be held to be constitutional.”
Lopez said he refuses to give landlords the option of committing a crime in his courtroom. He called the Training Center’s advice “problematic.”
“I’m going to allow [a landlord] to proceed on a criminal violation in my court? I don’t understand. That logic does not work for me,” he said.
Despite the moratorium, tenants in Bexar County have been evicted due to non-payment of rent. Some tenants don’t show up for their court date, some haven’t signed a declaration, and some can’t prove that they have sought rental assistance as required by the declaration.
“It’s been called a moratorium, but that’s a bit of a misnomer,” said Teri Bilby, executive director of the San Antonio Apartment Association. “This is an opportunity … for a tenant who is behind on rent to pause an eviction process in order to seek assistance by issuing a declaration that says they’ve been directly impacted.”
Often the biggest motivator for tenants to apply for assistance — and the only way landlords can get paid — is to start the eviction process, Bilby said.
“If a landlord is going to move forward with an eviction suit against someone, you can be pretty sure that they have exhausted every avenue and this is the last resort,” she said. “They don’t want to have to put in the additional expense [of] turning it around to re-rent it.”
Most landlords, especially smaller mom-and-pop operations, actively help their tenants apply for assistance, she said, because often their livelihoods are at stake, too.
“They’re struggling to pay their property taxes, they’re struggling to pay mortgages, they’re struggling with other operating expenses,” she said.
Despite awareness efforts for the city, county, and state assistance programs, Wentworth is still seeing people in his courtroom who have simply not applied for help, he said.
Recently, the judge heard a case in which a woman hadn’t paid any rent for a year.
“I asked her why in the world haven’t you applied for rent relief?” he said.
“I guess I should have,” was her response, he recalled. He delayed the case for another 60 days. “Hopefully [her] landlord will get paid for a year’s worth of rent.”
The city’s Emergency Housing Assistance Program and the state’s rent relief program are currently funded through at least the end of the year. Texas received a total of $2 billion from the federal government in January, $1.3 billion of which was set aside for the Texas Rent Relief Program. The local program received a $55 million boost from federal COVID-19 relief grants in June, bringing the program total to nearly $190 million.
‘Awkward and weird’
The last-minute extensions and temporary orders have made the already complicated eviction process confusing for everyone involved, Bilby said. “It’s an ever-changing landscape that everybody is trying to keep their footing on.”
That footing is especially difficult to find for tenants facing eviction, said Matt Garcia, an attorney with Texas RioGrande Legal Aid who represents tenants.
“I’m having to call through a lot of my clients right now and inform them of what’s going on because they have no idea,” Garcia said. “I was not optimistic that we would see another moratorium. … There is a little bit more hope right now that there is the possibility that they will continue to be protected.”
Under the CDC’s order, if a county’s transmission level drops below “substantial” for 14 days, the moratorium will no longer apply.
Garcia said that premise is “counterintuitive.”
“The reason for the order is to stop the spread of the virus,” he said. “So that means that if we’re starting to do well, then we’re going to lift one of the protections, which means that the transmission of the virus is going to go back up as people get evicted and forced into congregate settings.”
Bilby also found the CDC’s order “awkward and weird.”
“This is what happens when things get political instead of looking at the real issue and trying to solve it,” she said.