AG Paxton issues opinion, at request of Senator Creighton, that local officials can’t supersede Texas laws during disaster

Senator Brandon Creighton, Republican of Conroe.

BREAKING NEWS!

The Golden Hammer Staff Reports

Austin and Conroe, August 7 – In response to a request for an opinion from State Senator Brandon Creighton, Republican of Conroe, Texas Attorney General Ken Paxton issued an opinion today clarifying that local government officials may not supersede Texas statutes during times of declared disaster. It’s a refreshing turn for rulings from Austin, which may help to bring an eventual end to legislation-by-edict from local government officials during the Chinese Coronavirus panic.

Paxton summarized his ruling as follows:

Chapter 418 of the Government Code grants emergency powers to the Governor and local officials operating under a disaster declaration. Yet, it does not authorize local governmental entities operating under a declared disaster to independently rewrite state law such as Property Code chapter 24 governing evictions.

Creighton specifically asked Attorney General Paxton whether local governments may issue valid orders , when operating under local government emergency provisions, to delay, prohibit, or restrict the eviction process under chapter 24 of the Property Code.

In response to Creighton’s request letter, dated June 25, 2020, Paxton explained,

“Chapter 24 [of the Texas Property Code] establishes statewide procedures for forcible entry and detainer actions, otherwise known as evictions. See TEX. PROP. CODE §§ 24.001–.011. Under chapter 24, if a tenant defaults or holds over beyond the end of the rental term or renewal period, generally the landlord must provide ‘at least three days’ written notice to vacate the premises before the landlord files a forcible detainer suit.’ Id. § 24.005(a)–(b). Following that notice period, the landlord may file suit for eviction in justice court. Id.; see also id. § 24.004(a); TEX. CIV. PRAC. & REM. CODE § 15.084 (providing for jurisdiction of justice courts over forcible entry and detainer suits). Once filed, a sheriff or constable serves the tenant with notice of a hearing. See TEX. PROP. CODE § 24.0051(a). A court hearing will generally occur between six and ten days after the tenant receives notice of the hearing. See TEX. R. CIV. PROC. 510.4(a)–(c), 510.7(a). Trials for eviction are usually heard within twenty-one days of filing suit.5 See id. 510.4(a)(10). ‘A landlord who prevails in an eviction suit is entitled to a judgment for possession of the premises and a writ of possession.’ TEX. PROP. CODE § 24.0061(a). A writ of possession generally ‘may not be issued before the sixth day after the date on which the judgment for possession is rendered.’ Id. § 24.0061(b). Thus, from beginning to end, the eviction process can take a month or more under normal circumstances.”

Paxton’s ruling made clear that local government officials may not replace statewide statutory law with a “patchwork” of local determinations which attempt to supersede state law.

It will be interesting to see whether Paxton will apply the same rationale to Governor Greg Abbott’s attempts to supersede statutory law, which the Texas Legislature properly passed in accordance with the Texas Constitution.

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