Many aspects of systemic racial injustice in America were given new scrutiny in the immediate aftermath of George Floyd’s death in 2020. In Houston’s St. Stevens United Methodist Church parish, Reverend Nathan Lonsdale Bledsoe pointed out in a sermon that blatantly racist deed restrictions still exist for many Texas neighborhoods including his own in Northwest Houston: “None of the lots… shall be used, owned or occupied by any person other than of the Caucasian Race.”
Racist deed tenets were ruled unconstitutional by the Supreme Court of the United States beginning in the 1940s but were left in the documents to pop up as ugly and hurtful reminders for non-white homeowners. With parishioners ready to address an historic injustice that literally hits home, the Reverend reached out to his parish’s long-time pro bono legal counsel and friend from their time together at Rice University, Danny Newman. Tapping into his advocacy and public policy background, Danny was eager to help remove the unconstitutional language.
Oak Forest, located in Harris County, Texas is a vibrant neighborhood full of young and mid-career professionals. It was developed in successive sections, each with its own deed restriction documents that would need to be altered to remove the racist restrictions. Changing any deed restriction in Texas in 2020, even an unconstitutional one, was a byzantine process that costs thousands of dollars and requires a lawyer, filing notice with the county clerk, gathering notarized signatures from 75% of the neighborhood’s homeowners, and sending a letter by certified mail to all impacted residents. If the petition received signatures from at least 50% of homeowners, the changes requested would fall out of the document the next time the deed restrictions were automatically re-effectuated.
In early meetings, Danny advised a committee of Oak Forest residents on legal and public policy considerations, and helped the organizers strategize their process. The group decided to start with the smallest section in the development, which only had 40 houses. The group tapped several local attorneys and other professionals in the neighborhood and in Danny’s network, including his former colleague Matthew Turner, now a partner at Kirkland & Ellis, to provide boots on the ground support. After completing the prescribed steps to activate the effort, they had a year to complete their work. Facing absentee owners, COVID-19 limitations, apathy towards making a symbolic change, and trepidation regarding signing legal documents that might impact property rights, the committee was dismayed to not reach the 50% threshold of signatures.
Undeterred, the committee regrouped and decided to pursue a legislative solution in the 2021 Texas biennial legislative session. Taking on an advocate role, Danny supported a media awareness campaign to get the story out to the public in articles and held conversations with legislative staff and elected officials about crafting new law to streamline the deed amendment process. As a result of their efforts, a bill passed unanimously to allow individual homeowners to go to court and strike restrictions in their deed through a simplified court process on forms provided by each county clerk.
The committee received further cause to cheer after an Oak Forest resident became the first person in Texas to file a case and receive a positive result under the new law. Through the process, it came to light that Harris County holds just one deed restriction document for each section in a neighborhood. Since the one document serves as a master deed restriction (so to speak), one resident’s filing and positive judgment from a court striking the unconstitutional restriction applies to all houses in that section. All agree this is the best possible result since it achieves the original goal for a broad legislative solution. Read more details here.
Danny and the committee are optimistic that this success can be replicated for the remaining sections in Oak Forest, and indeed hope all communities throughout Texas that have similar deed restrictions will see similarly positive results and wipe the state’s property records clean of their racist past. As he continues to help Oak Forest representatives tackle deeds for the remaining sections, Danny is interested to see if the way in which the Texas law was applied by counties could be a model for Oregon, which went through a similar legislative process to simplify the removal of unconstitutional and racist deed restrictions; unfortunately the new Oregon law has not been utilized often because it only applies to one homeowner at a time.
Although out-of-state pro bono projects are atypical at Tonkon Torp, the firm eagerly supported Danny in taking on the project and has long history of working to increase access to justice and address civil rights violations.
“I’m very happy to help address the deep and systemic problems in this country and improve our society,” shared Danny. “Removing unenforceable deed restrictions may be seen by some as a micro issue compared to others we have to deal with, but when faced with a specific, observable relic of racism that has a legal solution, we need to try and help. That’s part of what we’re supposed to do professionally as lawyers, and I’m proud that Tonkon Torp supports us in these efforts.”
 Newman is a member of the State Bar of Texas and practiced in Texas for several years before relocating to Portland.