Council looks at legal options after appeals court throws out housing voucher challenge

Members of City Council have criticized a recent decision by the 5th U.S. Circuit Court of Appeals to throw out the city’s lawsuit against state Attorney General Ken Paxton over a state law passed in 2015 that prevents cities from requiring landlords to accept federal housing vouchers.

The law was passed in response to a 2014 law passed in Austin that prevented landlords from discriminating against renters based on the source of income they used to pay their rent.

Council voted in 2017 to sue Paxton and the Texas Workforce Commission and challenge the law, with a district court finding in the city’s favor. That decision was nullified last Wednesday when the appeals court found the city didn’t demonstrate that Paxton and the state would move to enforce the state law that was passed to preempt Austin’s law.

Mayor Steve Adler, himself an attorney prior to running for public office, said the city will likely have to force Paxton’s hand by trying to enforce the local ordinance. That action could then set up a different legal challenge if the state intervenes to block the city’s action.

“This ruling seems silly. Our lawsuit was dismissed because the Court of Appeals did not find the state would enforce its law preempting our ordinance if the city tried to apply it. Really?” he said. “I believe the district court’s support of the city’s concern about improper state preemption is correct and we need to figure out a way, somehow, to have the Court of Appeals address the issue of preemption that it just avoided.”

In a press release praising the decision, the Austin Apartment Association said increasing the city’s housing supply is the city’s best move for addressing the rising cost of living.

“If the city of Austin is serious about achieving its housing goals and objectives it must focus on these initiatives rather than pursuing lawsuits against well-established state and federal laws,” said Sandy Eckhardt, the group’s president. “We encourage the city to focus its resources upon realistic, effective options to increase the supply of housing and affordable housing here in Austin.”

In October the apartment association held a workshop with its members to inform them about the process for accepting voucher holders in an attempt to increase enrollment of lower-income renters.

Council Member Greg Casar, who sponsored the Council action to bring the lawsuit against the state, said he expects the city’s position to require voucher acceptance will be upheld in subsequent legal actions.

“It’s not over yet. Not even close,” he said. “The Court of Appeals is trying to abdicate its responsibility to protect Texans’ civil rights since what the Legislature did so clearly is legalize discrimination against poor people. I can’t imagine that courts are going to uphold that law.”

Council Member Kathie Tovo said Council as a whole will need to be briefed by the Legal Department on the opinion and possible legal options before deciding how to move forward.

“I believe we passed a very reasonable regulation that protects the rights of Austin renters to use various sources of income and to make sure that they had access to housing. It’s extremely unfortunate the state Legislature preempted that. The (apartment association) and others have been good partners in helping to house people. That association in particular has a strong interest in expanding Austinites’ access to apartments and working collaboratively in partnership with the city on our housing challenges. I absolutely wish we had the ability to make it a requirement and will continue to support that direction.”

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Photo by Bobak Ha’Eri [CC BY 3.0], via Wikimedia Commons.

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