73R5610 LJD-F
By Duncan H.B. No. 1300
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain technical and clarifying corrections to the
1-3 Property Code.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 24.0062(b), Property Code, as added by
1-6 Chapters 314 and 745, Acts of the 70th Legislature, Regular
1-7 Session, 1987, is reenacted to read as follows:
1-8 (b) If property is to be removed and stored in a public
1-9 warehouse under a writ of possession, the officer executing the
1-10 writ shall, at the time of execution, deliver in person to the
1-11 tenant, or by first class mail to the tenant's last known address
1-12 not later than 72 hours after execution of the writ if the tenant
1-13 is not present, a written notice stating the complete address and
1-14 telephone number of the location at which the property may be
1-15 redeemed and stating that:
1-16 (1) the tenant's property is to be removed and stored
1-17 by a public warehouseman under Section 24.0062 of the Property
1-18 Code;
1-19 (2) the tenant may redeem any of the property, without
1-20 payment of moving or storage charges, on demand during the time the
1-21 warehouseman is removing the property from the tenant's premises
1-22 and before the warehouseman permanently leaves the tenant's
1-23 premises;
1-24 (3) within 30 days from the date of storage, the
2-1 tenant may redeem any of the property described by Section
2-2 24.0062(e), Property Code, on demand by the tenant and on payment
2-3 of the moving and storage charges reasonably attributable to the
2-4 items being redeemed;
2-5 (4) after the 30-day period and before sale, the
2-6 tenant may redeem the property on demand by the tenant and on
2-7 payment of all moving and storage charges; and
2-8 (5) subject to the previously stated conditions, the
2-9 warehouseman has a lien on the property to secure payment of moving
2-10 and storage charges and may sell all the property to satisfy
2-11 reasonable moving and storage charges after 30 days, subject to the
2-12 requirements of Section 24.0062(j) of the Property Code.
2-13 SECTION 2. Section 41.001(b), Property Code, is amended to
2-14 read as follows:
2-15 (b) Encumbrances may be properly fixed on homestead property
2-16 for:
2-17 (1) purchase money;
2-18 (2) taxes on the property; or
2-19 (3) work and material used in constructing
2-20 improvements on the property if contracted for in writing as
2-21 provided by Sections 53.059(a), (b), and (c) <before the material
2-22 is furnished or the labor is performed and in a manner required for
2-23 the conveyance of a homestead, with joinder of both spouses if the
2-24 homestead claimant is married>.
2-25 SECTION 3. Section 41.005(c), Property Code, is amended to
2-26 read as follows:
2-27 (c) To designate property as a homestead, a person or
3-1 persons, as applicable, must make the designation in an instrument
3-2 that is signed and acknowledged or proved in the manner required
3-3 for the recording of other instruments. The person or persons must
3-4 file the designation with the county clerk of the county in which
3-5 all or part of the property is located. The clerk shall record the
3-6 designation in the county deed records. The designation must
3-7 contain:
3-8 (1) a description sufficient to identify the property
3-9 designated;
3-10 (2) a statement by the person or persons who executed
3-11 the instrument that the property is designated as the homestead of
3-12 the person's family or as the homestead of a single adult person
3-13 not otherwise entitled to a homestead;
3-14 (3) the name of the current record title holder
3-15 <original grantee> of the property; and
3-16 (4) for a rural homestead, the number of acres
3-17 designated and, if there is more than one survey, the number of
3-18 acres in each.
3-19 SECTION 4. Section 41.007(a), Property Code, is amended to
3-20 read as follows:
3-21 (a) A contract described by Section 41.001(b)(3) must
3-22 contain the following warning conspicuously printed, stamped, or
3-23 typed in a size equal to at least 10-point bold type or computer
3-24 equivalent, next to the owner's signature line on the contract
3-25 <each instrument creating an encumbrance on homestead property>:
3-26 "IMPORTANT NOTICE: You and your contractor are responsible
3-27 for meeting the terms and conditions of this contract. If you sign
4-1 this contract and you fail to meet the terms and conditions of this
4-2 contract, you may lose your legal ownership rights in your home.
4-3 KNOW YOUR RIGHTS AND DUTIES UNDER THE LAW."
4-4 SECTION 5. Section 51.002, Property Code, is amended by
4-5 amending Subsections (b) and (d) and adding Subsection (g) to read
4-6 as follows:
4-7 (b) Notice of the sale, which must include a statement of
4-8 the earliest time at which the sale will begin <occur>, must be
4-9 given at least 21 days before the date of the sale:
4-10 (1) by posting at the courthouse door of each county
4-11 in which the property is located a written notice designating the
4-12 county in which the property will be sold;
4-13 (2) by filing in the office of the county clerk of
4-14 each county in which the property is located a copy of the notice
4-15 posted under Subdivision (1); and
4-16 (3) by the holder of the debt to which the power of
4-17 sale is related serving written notice of the sale by certified
4-18 mail on each debtor who, according to the records of the holder of
4-19 the debt, is obligated to pay the debt.
4-20 (d) Notwithstanding any agreement to the contrary, the
4-21 holder of the debt shall serve a debtor in default under a deed of
4-22 trust or other contract lien on real property used as the debtor's
4-23 residence with written notice by certified mail stating that the
4-24 debtor is in default under the deed of trust or other contract lien
4-25 and giving the<. The> debtor <must be given> at least 20 days to
4-26 cure the default before <the entire debt is due and> notice of sale
4-27 can be <is> given under Subsection (b). The entire calendar day on
5-1 which the notice required by this subsection is given, regardless
5-2 of the time of day at which the notice is given, is included in
5-3 computing the 20-day notice period required by this subsection, and
5-4 the entire calendar day on which notice of sale is given under
5-5 Subsection (b) is excluded in computing the 20-day notice period.
5-6 (g) The entire calendar day on which the notice of sale is
5-7 given, regardless of the time of day at which the notice is given,
5-8 is included in computing the 21-day notice period required by
5-9 Subsection (b), and the entire calendar day of the foreclosure sale
5-10 is excluded.
5-11 SECTION 6. Section 52.001, Property Code, is amended to read
5-12 as follows:
5-13 Sec. 52.001. Establishment of Lien. Except as provided by
5-14 Section 52.0011, a first or subsequent abstract of judgment, when
5-15 it is recorded and indexed in accordance with this chapter, if the
5-16 judgment is not then dormant, constitutes a lien on the real
5-17 property of the defendant located in the county in which the
5-18 abstract is recorded and indexed, including real property acquired
5-19 after such recording and indexing.
5-20 SECTION 7. Section 53.055, Property Code, is amended to read
5-21 as follows:
5-22 Sec. 53.055. Notice of Filed Affidavit. (a) A person who
5-23 files an affidavit must send a copy of the affidavit by registered
5-24 or certified mail to the owner or reputed owner at the owner's last
5-25 known business or residence address not later than the earlier of:
5-26 (1) the 10th business day after the date the person
5-27 files the affidavit; or <after>
6-1 (2) the date the affidavit is required to be filed<,
6-2 whichever is earlier>.
6-3 (b) If the person is not an original contractor, the person
6-4 must also send a copy of the affidavit to the original contractor
6-5 at the original contractor's last known business or residence
6-6 address within the same period.
6-7 SECTION 8. Sections 53.059(b) and (i), Property Code, are
6-8 amended to read as follows:
6-9 (b) The contract must be executed <entered> before the
6-10 material is furnished or the labor is performed.
6-11 (i) For the lien on a homestead to be valid, the notice
6-12 required to be given to the owner under Section 53.056, 53.057, or
6-13 53.058, as applicable, must include or have attached the following
6-14 statement:
6-15 "If a subcontractor or supplier <person> who furnishes
6-16 materials or performs labor for construction of improvements on
6-17 your property is not paid, your property may be subject to a lien
6-18 for the unpaid amount if:
6-19 (1) after receiving notice of the unpaid claim from
6-20 the claimant, you fail to withhold payment to your contractor that
6-21 is sufficient to cover the unpaid claim until the dispute is
6-22 resolved; or
6-23 (2) during construction and for 30 days after
6-24 completion of construction, you fail to retain 10 percent of the
6-25 contract price or 10 percent of the value of the work performed by
6-26 your contractor.
6-27 If you have complied with the law regarding the 10 percent
7-1 retainage and you have withheld payment to the contractor
7-2 sufficient to cover any written notice of claim and have paid that
7-3 amount, if any, to the claimant, any lien claim filed on your
7-4 property by a subcontractor or supplier, other than a person who
7-5 contracted directly with you, will not be a valid lien on your
7-6 property. In addition, except for the required 10 percent
7-7 retainage, you are not liable to a subcontractor or supplier for
7-8 any amount paid to your contractor before you received written
7-9 notice of the claim."
7-10 SECTION 9. Section 54.006(a), Property Code, is amended to
7-11 read as follows:
7-12 (a) The person to whom rent or an advance is payable under
7-13 the lease or the person's agent, attorney, assign, or other legal
7-14 representative may apply to an appropriate justice of the peace for
7-15 a distress warrant if the tenant:
7-16 (1) owes any rent or an advance;
7-17 (2) is about to abandon the premises; or
7-18 (3) is about to remove the tenant's property from the
7-19 premises.
7-20 SECTION 10. Section 54.025, Property Code, is amended to
7-21 read as follows:
7-22 Sec. 54.025. Distress Warrant. The person to whom rent is
7-23 payable under a building lease or the person's agent, attorney,
7-24 assign, or other legal representative may apply to the justice of
7-25 the peace in the precinct in which the building is located for a
7-26 distress warrant if the tenant:
7-27 (1) owes rent;
8-1 (2) is about to abandon the building; or
8-2 (3) is about to remove the tenant's property from the
8-3 building.
8-4 SECTION 11. Section 61.004, Property Code, is amended to
8-5 read as follows:
8-6 Sec. 61.004. AMOUNT OF LIEN. The amount of the lien is the
8-7 lesser of:
8-8 (1) the fair market value of the motor vehicle before
8-9 the accident;
8-10 (2) the reasonable cost of repair to the motor
8-11 vehicle; or
8-12 (3) the balance owed to the mortgagee by the
8-13 mortgagor.
8-14 SECTION 12. Section 92.001(4), Property Code, is amended to
8-15 read as follows:
8-16 (4) "Normal wear and tear" means deterioration that
8-17 results from the intended use of a dwelling, including, for the
8-18 purposes of Subchapter B, breakage or malfunction due to age or
8-19 deteriorated condition, but the term does not include deterioration
8-20 that results from negligence, carelessness, accident, or abuse of
8-21 the premises, equipment, or chattels by the tenant, by a member of
8-22 the tenant's household, or by a guest or invitee of the tenant.
8-23 SECTION 13. Section 92.007, Property Code, as amended by
8-24 Chapters 332 and 650, Acts of the 71st Legislature, Regular
8-25 Session, 1989, is reenacted to read as follows:
8-26 Sec. 92.007. VENUE. Venue for an action under this chapter
8-27 is in the county in which the premises are <dwelling is> located.
9-1 SECTION 14. Section 92.052(b), Property Code, is amended to
9-2 read as follows:
9-3 (b) Unless the condition was caused by normal wear and tear,
9-4 the landlord does not have a duty during the lease term or a
9-5 renewal or extension to repair or remedy a condition caused by:
9-6 (1) the tenant;
9-7 (2) a lawful occupant in the tenant's dwelling;
9-8 (3) a member of the tenant's family; or
9-9 (4) a guest or invitee of the tenant.
9-10 SECTION 15. Sections 92.054(b) and (c), Property Code, are
9-11 amended to read as follows:
9-12 (b) If after a casualty loss the rental premises are as a
9-13 practical matter totally unusable for residential purposes and if
9-14 the casualty loss is not caused by the negligence or fault of the
9-15 tenant, a member of the tenant's family, or a guest or invitee of
9-16 the tenant, either the landlord or the tenant may terminate the
9-17 lease by giving written notice to the other any time before repairs
9-18 are completed. If the lease is terminated, the tenant is entitled
9-19 only to a pro rata refund of rent from the date the tenant moves
9-20 out and to a refund of any security deposit otherwise required by
9-21 law.
9-22 (c) If after a casualty loss the rental premises are
9-23 partially unusable for residential purposes and if the casualty
9-24 loss is not caused by the negligence or fault of the tenant, a
9-25 member of the tenant's family, or a guest or invitee of the tenant,
9-26 the tenant is entitled to reduction in the rent in an amount
9-27 proportionate to the extent the premises are unusable because of
10-1 the casualty, but only on judgment of a county or district court.
10-2 A landlord and tenant may agree otherwise in a written lease.
10-3 SECTION 16. Section 92.057(c), Property Code, is amended to
10-4 read as follows:
10-5 (c) An eviction based on the following circumstances, which
10-6 are valid grounds for eviction in any event, does not constitute
10-7 retaliation:
10-8 (1) the tenant is delinquent in rent when the landlord
10-9 gives notice to vacate or files an eviction action;
10-10 (2) the tenant, a member of the tenant's family, or a
10-11 guest or invitee of the tenant intentionally damages property on
10-12 the premises or by word or conduct threatens the personal safety of
10-13 the landlord, the landlord's employees, or another tenant;
10-14 (3) the tenant has materially breached the lease other
10-15 than by holding over, except as provided by this subsection;
10-16 (4) the tenant holds over after giving notice of
10-17 termination or intent to vacate;
10-18 (5) the tenant holds over after the landlord gives
10-19 notice of termination at the end of the rental term and the
10-20 landlord does not receive actual notice from the tenant to repair
10-21 until after the landlord gives notice of termination; or
10-22 (6) the tenant holds over and the landlord's notice of
10-23 termination is motivated by a good faith belief that the tenant, a
10-24 member of the tenant's family, or a guest or invitee of the tenant
10-25 might:
10-26 (A) adversely affect the quiet enjoyment by
10-27 other tenants or neighbors;
11-1 (B) materially affect the health or safety of
11-2 the landlord, other tenants, or neighbors; or
11-3 (C) damage the property of the landlord, other
11-4 tenants, or neighbors.
11-5 SECTION 17. Section 92.158, Property Code, is amended to
11-6 read as follows:
11-7 Sec. 92.158. Landlord's Defenses. The landlord has a
11-8 defense to liability under Section 92.156 if:
11-9 (1) the tenant has not fully paid all rent then due
11-10 from the tenant <owes rent> on the date the tenant gives a request
11-11 under Subsection (a) of Section 92.153 or the notice required by
11-12 Section 92.156; or
11-13 (2) on the date the tenant terminates the lease or
11-14 files suit the tenant has not fully paid costs requested by the
11-15 landlord and authorized by Section 92.154.
11-16 SECTION 18. Section 92.204, Property Code, is amended to
11-17 read as follows:
11-18 Sec. 92.204. Bad Faith Violation. A landlord acts in bad
11-19 faith and is liable according to this subchapter if the landlord
11-20 gives an incorrect name or address under Subsection (a) of Section
11-21 92.201 by wilfully:
11-22 (1) disclosing incorrect information under Subdivision
11-23 (1) or (2) of Subsection (b) of Section 92.201 <92.202>; or
11-24 (2) failing to correct information given under
11-25 Subdivision (1) or (2) of Subsection (b) of Section 92.201 that the
11-26 landlord knows is incorrect.
11-27 SECTION 19. Section 92.258(c), Property Code, is amended to
12-1 read as follows:
12-2 (c) During the term of a lease or during a renewal or
12-3 extension, the landlord has a duty to inspect and repair a smoke
12-4 detector, but only if the tenant gives the landlord notice of a
12-5 malfunction or requests to the landlord that the smoke detector be
12-6 inspected or repaired. This duty does not exist with respect to
12-7 damage or a malfunction caused by the tenant, the tenant's family,
12-8 or the tenant's guests or invitees during the term of the lease or
12-9 a renewal or extension, except that the landlord has a duty to
12-10 repair or replace the smoke detector if the tenant pays in advance
12-11 the reasonable repair or replacement cost, including labor,
12-12 materials, taxes, and overhead.
12-13 SECTION 20. This Act takes effect September 1, 1993.
12-14 SECTION 21. The importance of this legislation and the
12-15 crowded condition of the calendars in both houses create an
12-16 emergency and an imperative public necessity that the
12-17 constitutional rule requiring bills to be read on three several
12-18 days in each house be suspended, and this rule is hereby suspended.