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.