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.