1-1  By:  Duncan (Senate Sponsor - Brown)                  H.B. No. 1300
    1-2        (In the Senate - Received from the House April 5, 1993;
    1-3  April 5, 1993, read first time and referred to Committee on
    1-4  Jurisprudence; April 6, 1993, reported favorably by the following
    1-5  vote:  Yeas 6, Nays 0; April 6, 1993, sent to printer.)
    1-6                            COMMITTEE VOTE
    1-7                          Yea     Nay      PNV      Absent 
    1-8        Henderson          x                               
    1-9        Harris of Tarrant  x                               
   1-10        Brown              x                               
   1-11        Harris of Dallas                              x    
   1-12        Luna               x                               
   1-13        Parker             x                               
   1-14        West               x                               
   1-15                         A BILL TO BE ENTITLED
   1-16                                AN ACT
   1-17  relating to certain technical and clarifying corrections to the
   1-18  Property Code.
   1-19        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-20        SECTION 1.  Section 24.0062(b), Property Code, as added by
   1-21  Chapters 314 and 745, Acts of the 70th Legislature, Regular
   1-22  Session, 1987, is reenacted to read as follows:
   1-23        (b)  If property is to be removed and stored in a public
   1-24  warehouse under a writ of possession, the officer executing the
   1-25  writ shall, at the time of execution, deliver in person to the
   1-26  tenant, or by first class mail to the tenant's last known address
   1-27  not later than 72 hours after execution of the writ if the tenant
   1-28  is not present, a written notice stating the complete address and
   1-29  telephone number of the location at which the property may be
   1-30  redeemed and stating that:
   1-31              (1)  the tenant's property is to be removed and stored
   1-32  by a public warehouseman under Section 24.0062 of the Property
   1-33  Code;
   1-34              (2)  the tenant may redeem any of the property, without
   1-35  payment of moving or storage charges, on demand during the time the
   1-36  warehouseman is removing the property from the tenant's premises
   1-37  and before the warehouseman permanently leaves the tenant's
   1-38  premises;
   1-39              (3)  within 30 days from the date of storage, the
   1-40  tenant may redeem any of the property described by Section
   1-41  24.0062(e), Property Code, on demand by the tenant and on payment
   1-42  of the moving and storage charges reasonably attributable to the
   1-43  items being redeemed;
   1-44              (4)  after the 30-day period and before sale, the
   1-45  tenant may redeem the property on demand by the tenant and on
   1-46  payment of all moving and storage charges; and
   1-47              (5)  subject to the previously stated conditions, the
   1-48  warehouseman has a lien on the property to secure payment of moving
   1-49  and storage charges and may sell all the property to satisfy
   1-50  reasonable moving and storage charges after 30 days, subject to the
   1-51  requirements of Section 24.0062(j) of the Property Code.
   1-52        SECTION 2.  Section 41.001(b), Property Code, is amended to
   1-53  read as follows:
   1-54        (b)  Encumbrances may be properly fixed on homestead property
   1-55  for:
   1-56              (1)  purchase money;
   1-57              (2)  taxes on the property; or
   1-58              (3)  work and material used in constructing
   1-59  improvements on the property if contracted for in writing as
   1-60  provided by Sections 53.059(a), (b), and (c) <before the material
   1-61  is furnished or the labor is performed and in a manner required for
   1-62  the conveyance of a homestead, with joinder of both spouses if the
   1-63  homestead claimant is married>.
   1-64        SECTION 3.  Section 41.005(c), Property Code, is amended to
   1-65  read as follows:
   1-66        (c)  To designate property as a homestead, a person or
   1-67  persons, as applicable, must make the designation in an instrument
   1-68  that is signed and acknowledged or proved in the manner required
    2-1  for the recording of other instruments.  The person or persons must
    2-2  file the designation with the county clerk of the county in which
    2-3  all or part of the property is located.  The clerk shall record the
    2-4  designation in the county deed records.  The designation must
    2-5  contain:
    2-6              (1)  a description sufficient to identify the property
    2-7  designated;
    2-8              (2)  a statement by the person or persons who executed
    2-9  the instrument that the property is designated as the homestead of
   2-10  the person's family or as the homestead of a single adult person
   2-11  not otherwise entitled to a homestead;
   2-12              (3)  the name of the current record title holder
   2-13  <original grantee> of the property; and
   2-14              (4)  for a rural homestead, the number of acres
   2-15  designated and, if there is more than one survey, the number of
   2-16  acres in each.
   2-17        SECTION 4.  Section 41.007(a), Property Code, is amended to
   2-18  read as follows:
   2-19        (a)  A contract described by Section 41.001(b)(3) must
   2-20  contain the following warning conspicuously printed, stamped, or
   2-21  typed in a size equal to at least 10-point bold type or computer
   2-22  equivalent, next to the owner's signature line on the contract
   2-23  <each instrument creating an encumbrance on homestead property>:
   2-24        "IMPORTANT NOTICE:  You and your contractor are responsible
   2-25  for meeting the terms and conditions of this contract.  If you sign
   2-26  this contract and you fail to meet the terms and conditions of this
   2-27  contract, you may lose your legal ownership rights in your home.
   2-28  KNOW YOUR RIGHTS AND DUTIES UNDER THE LAW."
   2-29        SECTION 5.  Section 51.002, Property Code, is amended by
   2-30  amending Subsections (b) and (d) and adding Subsection (g) to read
   2-31  as follows:
   2-32        (b)  Notice of the sale, which must include a statement of
   2-33  the earliest time at which the sale will begin <occur>, must be
   2-34  given at least 21 days before the date of the sale:
   2-35              (1)  by posting at the courthouse door of each county
   2-36  in which the property is located a written notice designating the
   2-37  county in which the property will be sold;
   2-38              (2)  by filing in the office of the county clerk of
   2-39  each county in which the property is located a copy of the notice
   2-40  posted under Subdivision (1); and
   2-41              (3)  by the holder of the debt to which the power of
   2-42  sale is related serving written notice of the sale by certified
   2-43  mail on each debtor who, according to the records of the holder of
   2-44  the debt, is obligated to pay the debt.
   2-45        (d)  Notwithstanding any agreement to the contrary, the
   2-46  holder of the debt shall serve a debtor in default under a deed of
   2-47  trust or other contract lien on real property used as the debtor's
   2-48  residence with written notice by certified mail stating that the
   2-49  debtor is in default under the deed of trust or other contract lien
   2-50  and giving the<.  The> debtor <must be given> at least 20 days to
   2-51  cure the default before <the entire debt is due and> notice of sale
   2-52  can be <is> given under Subsection (b).  The entire calendar day on
   2-53  which the notice required by this subsection is given, regardless
   2-54  of the time of day at which the notice is given, is included in
   2-55  computing the 20-day notice period required by this subsection, and
   2-56  the entire calendar day on which notice of sale is given under
   2-57  Subsection (b) is excluded in computing the 20-day notice period.
   2-58        (g)  The entire calendar day on which the notice of sale is
   2-59  given, regardless of the time of day at which the notice is given,
   2-60  is included in computing the 21-day notice period required by
   2-61  Subsection (b), and the entire calendar day of the foreclosure sale
   2-62  is excluded.
   2-63        SECTION 6.  Section 52.001, Property Code, is amended to read
   2-64  as follows:
   2-65        Sec. 52.001.  Establishment of Lien.  Except as provided by
   2-66  Section 52.0011, a first or subsequent abstract of judgment, when
   2-67  it is recorded and indexed in accordance with this chapter, if the
   2-68  judgment is not then dormant, constitutes a lien on the real
   2-69  property of the defendant located in the county in which the
   2-70  abstract is recorded and indexed, including real property acquired
    3-1  after such recording and indexing.
    3-2        SECTION 7.  Section 53.055, Property Code, is amended to read
    3-3  as follows:
    3-4        Sec. 53.055.  Notice of Filed Affidavit.  (a)  A person who
    3-5  files an affidavit must send a copy of the affidavit by registered
    3-6  or certified mail to the owner or reputed owner at the owner's last
    3-7  known business or residence address not later than the earlier of:
    3-8              (1)  the 10th business day after the date the person
    3-9  files the affidavit; or <after>
   3-10              (2)  the date the affidavit is required to be filed<,
   3-11  whichever is earlier>.
   3-12        (b)  If the person is not an original contractor, the person
   3-13  must also send a copy of the affidavit to the original contractor
   3-14  at the original contractor's last known business or residence
   3-15  address within the same period.
   3-16        SECTION 8.  Sections 53.059(b) and (i), Property Code, are
   3-17  amended to read as follows:
   3-18        (b)  The contract must be executed <entered> before the
   3-19  material is furnished or the labor is performed.
   3-20        (i)  For the lien on a homestead to be valid, the notice
   3-21  required to be given to the owner under Section 53.056, 53.057, or
   3-22  53.058, as applicable, must include or have attached the following
   3-23  statement:
   3-24        "If a subcontractor or supplier <person> who furnishes
   3-25  materials or performs labor for construction of improvements on
   3-26  your property is not paid, your property may be subject to a lien
   3-27  for the unpaid amount if:
   3-28              (1)  after receiving notice of the unpaid claim from
   3-29  the claimant, you fail to withhold payment to your contractor that
   3-30  is sufficient to cover the unpaid claim until the dispute is
   3-31  resolved; or
   3-32              (2)  during construction and for 30 days after
   3-33  completion of construction, you fail to retain 10 percent of the
   3-34  contract price or 10 percent of the value of the work performed by
   3-35  your contractor.
   3-36        If you have complied with the law regarding the 10 percent
   3-37  retainage and you have withheld payment to the contractor
   3-38  sufficient to cover any written notice of claim and have paid that
   3-39  amount, if any, to the claimant, any lien claim filed on your
   3-40  property by a subcontractor or supplier, other than a person who
   3-41  contracted directly with you, will not be a valid lien on your
   3-42  property.  In addition, except for the required 10 percent
   3-43  retainage, you are not liable to a subcontractor or supplier for
   3-44  any amount paid to your contractor before you received written
   3-45  notice of the claim."
   3-46        SECTION 9.  Section 54.006(a), Property Code, is amended to
   3-47  read as follows:
   3-48        (a)  The person to whom rent or an advance is payable under
   3-49  the lease or the person's agent, attorney, assign, or other legal
   3-50  representative may apply to an appropriate justice of the peace for
   3-51  a distress warrant if the tenant:
   3-52              (1)  owes any rent or an advance;
   3-53              (2)  is about to abandon the premises; or
   3-54              (3)  is about to remove the tenant's property from the
   3-55  premises.
   3-56        SECTION 10.  Section 54.025, Property Code, is amended to
   3-57  read as follows:
   3-58        Sec. 54.025.  Distress Warrant.  The person to whom rent is
   3-59  payable under a building lease or the person's agent, attorney,
   3-60  assign, or other legal representative may apply to the justice of
   3-61  the peace in the precinct in which the building is located for a
   3-62  distress warrant if the tenant:
   3-63              (1)  owes rent;
   3-64              (2)  is about to abandon the building; or
   3-65              (3)  is about to remove the tenant's property from the
   3-66  building.
   3-67        SECTION 11.  Section 61.004, Property Code, is amended to
   3-68  read as follows:
   3-69        Sec. 61.004.  AMOUNT OF LIEN.  The amount of the lien is the
   3-70  lesser of:
    4-1              (1)  the fair market value of the motor vehicle before
    4-2  the accident;
    4-3              (2)  the reasonable cost of repair to the motor
    4-4  vehicle; or
    4-5              (3)  the balance owed to the mortgagee by the
    4-6  mortgagor.
    4-7        SECTION 12.  Section 92.001(4), Property Code, is amended to
    4-8  read as follows:
    4-9              (4)  "Normal wear and tear" means deterioration that
   4-10  results from the intended use of a dwelling, including, for the
   4-11  purposes of Subchapter B, breakage or malfunction due to age or
   4-12  deteriorated condition, but the term does not include deterioration
   4-13  that results from negligence, carelessness, accident, or abuse of
   4-14  the premises, equipment, or chattels by the tenant, by a member of
   4-15  the tenant's household, or by a guest or invitee of the tenant.
   4-16        SECTION 13.  Section 92.007, Property Code, as amended by
   4-17  Chapters 332 and 650, Acts of the 71st Legislature, Regular
   4-18  Session, 1989, is reenacted to read as follows:
   4-19        Sec. 92.007.  VENUE.  Venue for an action under this chapter
   4-20  is in the county in which the premises are <dwelling is> located.
   4-21        SECTION 14.  Section 92.052(b), Property Code, is amended to
   4-22  read as follows:
   4-23        (b)  Unless the condition was caused by normal wear and tear,
   4-24  the landlord does not have a duty during the lease term or a
   4-25  renewal or extension to repair or remedy a condition caused by:
   4-26              (1)  the tenant;
   4-27              (2)  a lawful occupant in the tenant's dwelling;
   4-28              (3)  a member of the tenant's family; or
   4-29              (4)  a guest or invitee of the tenant.
   4-30        SECTION 15.  Sections 92.054(b) and (c), Property Code, are
   4-31  amended to read as follows:
   4-32        (b)  If after a casualty loss the rental premises are as a
   4-33  practical matter totally unusable for residential purposes and if
   4-34  the casualty loss is not caused by the negligence or fault of the
   4-35  tenant, a member of the tenant's family, or a guest or invitee of
   4-36  the tenant, either the landlord or the tenant may terminate the
   4-37  lease by giving written notice to the other any time before repairs
   4-38  are completed.  If the lease is terminated, the tenant is entitled
   4-39  only to a pro rata refund of rent from the date the tenant moves
   4-40  out and to a refund of any security deposit otherwise required by
   4-41  law.
   4-42        (c)  If after a casualty loss the rental premises are
   4-43  partially unusable for residential purposes and if the casualty
   4-44  loss is not caused by the negligence or fault of the tenant, a
   4-45  member of the tenant's family, or a guest or invitee of the tenant,
   4-46  the tenant is entitled to reduction in the rent in an amount
   4-47  proportionate to the extent the premises are unusable because of
   4-48  the casualty, but only on judgment of a county or district court.
   4-49  A landlord and tenant may agree otherwise in a written lease.
   4-50        SECTION 16.  Section 92.057(c), Property Code, is amended to
   4-51  read as follows:
   4-52        (c)  An eviction based on the following circumstances, which
   4-53  are valid grounds for eviction in any event, does not constitute
   4-54  retaliation:
   4-55              (1)  the tenant is delinquent in rent when the landlord
   4-56  gives notice to vacate or files an eviction action;
   4-57              (2)  the tenant, a member of the tenant's family, or a
   4-58  guest or invitee of the tenant intentionally damages property on
   4-59  the premises or by word or conduct threatens the personal safety of
   4-60  the landlord, the landlord's employees, or another tenant;
   4-61              (3)  the tenant has materially breached the lease other
   4-62  than by holding over, except as provided by this subsection;
   4-63              (4)  the tenant holds over after giving notice of
   4-64  termination or intent to vacate;
   4-65              (5)  the tenant holds over after the landlord gives
   4-66  notice of termination at the end of the rental term and the
   4-67  landlord does not receive actual notice from the tenant to repair
   4-68  until after the landlord gives notice of termination; or
   4-69              (6)  the tenant holds over and the landlord's notice of
   4-70  termination is motivated by a good faith belief that the tenant, a
    5-1  member of the tenant's family, or a guest or invitee of the tenant
    5-2  might:
    5-3                    (A)  adversely affect the quiet enjoyment by
    5-4  other tenants or neighbors;
    5-5                    (B)  materially affect the health or safety of
    5-6  the landlord, other tenants, or neighbors; or
    5-7                    (C)  damage the property of the landlord, other
    5-8  tenants, or neighbors.
    5-9        SECTION 17.  Section 92.158, Property Code, is amended to
   5-10  read as follows:
   5-11        Sec. 92.158.  Landlord's Defenses.  The landlord has a
   5-12  defense to liability under Section 92.156 if:
   5-13              (1)  the tenant has not fully paid all rent then due
   5-14  from the tenant <owes rent> on the date the tenant gives a request
   5-15  under Subsection (a) of Section 92.153 or the notice required by
   5-16  Section 92.156; or
   5-17              (2)  on the date the tenant terminates the lease or
   5-18  files suit the tenant has not fully paid costs requested by the
   5-19  landlord and authorized by Section 92.154.
   5-20        SECTION 18.  Section 92.204, Property Code, is amended to
   5-21  read as follows:
   5-22        Sec. 92.204.  Bad Faith Violation.  A landlord acts in bad
   5-23  faith and is liable according to this subchapter if the landlord
   5-24  gives an incorrect name or address under Subsection (a) of Section
   5-25  92.201 by wilfully:
   5-26              (1)  disclosing incorrect information under Subdivision
   5-27  (1) or (2) of Subsection (b) of Section 92.201 <92.202>; or
   5-28              (2)  failing to correct information given under
   5-29  Subdivision (1) or (2) of Subsection (b) of Section 92.201 that the
   5-30  landlord knows is incorrect.
   5-31        SECTION 19.  Section 92.258(c), Property Code, is amended to
   5-32  read as follows:
   5-33        (c)  During the term of a lease or during a renewal or
   5-34  extension, the landlord has a duty to inspect and repair a smoke
   5-35  detector, but only if the tenant gives the landlord notice of a
   5-36  malfunction or requests to the landlord that the smoke detector be
   5-37  inspected or repaired.  This duty does not exist with respect to
   5-38  damage or a malfunction caused by the tenant, the tenant's family,
   5-39  or the tenant's guests or invitees during the term of the lease or
   5-40  a renewal or extension, except that the landlord has a duty to
   5-41  repair or replace the smoke detector if the tenant pays in advance
   5-42  the reasonable repair or replacement cost, including labor,
   5-43  materials, taxes, and overhead.
   5-44        SECTION 20.  This Act takes effect September 1, 1993.
   5-45        SECTION 21.  The importance of this legislation and the
   5-46  crowded condition of the calendars in both houses create an
   5-47  emergency   and   an   imperative   public   necessity   that   the
   5-48  constitutional rule requiring bills to be read on three several
   5-49  days in each house be suspended, and this rule is hereby suspended.
   5-50                               * * * * *
   5-51                                                         Austin,
   5-52  Texas
   5-53                                                         April 6, 1993
   5-54  Hon. Bob Bullock
   5-55  President of the Senate
   5-56  Sir:
   5-57  We, your Committee on Jurisprudence to which was referred H.B.
   5-58  No. 1300, have had the same under consideration, and I am
   5-59  instructed to report it back to the Senate with the recommendation
   5-60  that it do pass and be printed.
   5-61                                                         Henderson,
   5-62  Chairman
   5-63                               * * * * *
   5-64                               WITNESSES
   5-65  No witnesses appeared on H.B. No. 1300.