Amend HB 1285 as follows:
(1) On page 2, between lines 52 and 53 insert the
following, numbering the sections appropriately:
SECTION ____. Section 24.004, Property Code, is amended to
read as follows:
Sec. 24.004. JURISDICTION. A justice court in the precinct
in which the real property is located has jurisdiction in eviction
suits. Eviction suits include forcible entry and detainer and
forcible detainer suits.
SECTION ____. Section 24.005, Property Code, is amended by
amending Subsection (f) and adding Subsection (i) to read as
follows:
(f) The notice to vacate shall be given in person or by mail
at the premises in question. Notice in person may be by personal
delivery to the tenant or any person residing at the premises who
is 16 years of age or older or personal delivery to the premises
and affixing the notice to the inside of the main entry door.
Notice by mail may be by regular mail, <or> by registered mail, or
by certified mail, return receipt requested, to the premises in
question.
(i) If before the notice to vacate is given as required by
this section the landlord has given a written notice or reminder to
the tenant that rent is due and unpaid, the landlord may include in
the notice to vacate required by this section a demand that the
tenant pay the delinquent rent or vacate the premises by the date
and time stated in the notice.
SECTION ____. Subsection (a), Section 24.006, Property Code,
is amended to read as follows:
(a) Except as provided by Subsection (b), to be eligible to
recover attorney's fees in an eviction <a forcible entry and
detainer suit or a forcible detainer> suit, a landlord must give a
tenant who is unlawfully retaining possession of the landlord's
premises a written demand to vacate the premises. The demand must
state that if the tenant does not vacate the premises before the
11th day after the date of receipt of the notice and if the
landlord files suit, the landlord may recover attorney's fees. The
demand must be sent by registered mail or by certified mail, return
receipt requested, at least 10 days before the date the suit is
filed.
SECTION ____. Section 24.0061, Property Code, is amended to
read as follows:
Sec. 24.0061. WRIT OF POSSESSION. (a) A landlord who
prevails in an eviction suit <a forcible entry and detainer or a
forcible detainer action> is entitled to a judgment for possession
of the premises and a writ of possession. In this chapter,
"premises" means the unit that is occupied or rented and any
outside area or facility that the tenant is entitled to use under a
written lease or oral rental agreement, or that is held out for the
use of tenants generally.
(b) A writ of possession may not be issued before the sixth
day after the date on which the judgment for possession is rendered
unless a possession bond has been filed and approved under the
Texas Rules of Civil Procedure and judgment for possession is
thereafter granted by default.
(c) The court shall notify a tenant in writing of a default
judgment for possession by sending a copy of the judgment to the
premises by first class mail not later than 48 hours after the
entry of the judgment.
(d) The writ of possession shall order the officer executing
the writ to <deliver possession of the premises to the landlord
and to>:
(1) post a written warning of at least 8-1/2 by 11
inches on the exterior of the front door of the rental unit
notifying the tenant that the writ has been issued and that the
writ will be executed on or after a specific date and time stated
in the warning not sooner than 24 hours after the warning is
posted; and
(2) when the writ is executed:
(A) deliver possession of the premises to the
landlord;
(B) instruct the tenant and all persons claiming
under the tenant to leave the premises immediately, and, if the
persons fail to comply, physically remove them;
(C) <(2)> instruct the tenant to remove or to
allow the landlord, the landlord's representatives, or other
persons acting under the officer's supervision to remove all
personal property from the rental unit other than personal property
claimed to be owned by the landlord; and
(D) <(3)> place, or have an authorized person
place, the removed personal property outside the rental unit at a
nearby location, but not blocking a public sidewalk, passageway, or
street and not while it is raining, sleeting, or snowing.
(e) <(d)> The writ of possession shall authorize the
officer, at the officer's discretion, to<:>
<(1) post a written warning on the exterior of the
front door of the rental unit, notifying the tenant that the writ
has been issued and that it will be executed on or after a specific
date and time stated in the warning; and>
<(2)> engage the services of a bonded or insured
warehouseman to remove and store, subject to applicable law, part
or all of the property at no cost to the landlord or the officer
executing the writ.
(f) <(e)> The officer may not require the landlord to store
the property.
(g) <(f)> The writ of possession shall contain notice to the
officer that under Section 7.003, Civil Practice and Remedies
Code, the officer is not liable for damages resulting from the
execution of the writ if the officer executes the writ in good
faith and with reasonable diligence.
(h) A sheriff or constable <(g) An officer> may<, if
necessary,> use reasonable force in executing a writ under this
section.
SECTION ____. Section 24.007, Property Code, is amended to
read as follows:
Sec. 24.007. APPEAL. A final judgment of a county court in
an eviction <a forcible entry and detainer suit or a forcible
detainer> suit may not be appealed on the issue of possession
unless the premises in question are being used for residential
purposes only. A judgment of a county court may not under any
circumstances be stayed pending appeal unless, within 10 days of
the signing of the judgment, the appellant files a supersedeas bond
in an amount set by the county court. In setting the supersedeas
bond the county court shall provide protection for the appellee to
the same extent as in any other appeal, taking into consideration
the value of rents likely to accrue during appeal, damages which
may occur as a result of the stay during appeal, and other damages
or amounts as the court may deem appropriate.
SECTION ____. Section 24.008, Property Code, is amended to
read as follows:
Sec. 24.008. EFFECT ON OTHER ACTIONS. An eviction <A
forcible entry and detainer suit or a forcible detainer> suit does
not bar a suit for trespass, damages, waste, rent, or mesne
profits.
SECTION ____. Section 24.011, Property Code, is amended to
read as follows:
Sec. 24.011. NONLAWYER REPRESENTATION. In eviction
<forcible detainer> suits in justice court for nonpayment of rent
or holding over beyond a rental term, the parties may represent
themselves or be represented by their authorized agents, who need
not be attorneys. In any eviction <forcible detainer or forcible
entry and detainer> suit in justice court, an authorized agent
requesting or obtaining a default judgment need not be an attorney.
SECTION ____. Chapter 91, Property Code, is amended by
adding Section 91.006 to read as follows:
Sec. 91.006. LANDLORD'S DUTY TO MITIGATE DAMAGES. (a) A
landlord has a duty to mitigate damages if a tenant abandons the
leased premises in violation of the lease.
(b) A provision of a lease that purports to waive a right or
to exempt a landlord from a liability or duty under this section is
void.
SECTION ____. Subsection (d), Section 92.009, Property Code,
is amended to read as follows:
(d) The writ of reentry must be served on either the
landlord or the landlord's management company, on-premises manager,
or rent collector in the same manner as a writ of possession in a
forcible detainer action. A sheriff or constable may use
reasonable force in executing a writ of reentry under this section.
SECTION ____. Section 92.056, Property Code, is amended to
read as follows:
Sec. 92.056. LANDLORD LIABILITY AND TENANT REMEDIES; NOTICE
AND TIME FOR REPAIR. (a) A landlord's liability under this
section is subject to Section 92.052(b) regarding conditions that
are caused by a tenant and Section 92.054 regarding conditions that
are insured casualties.
(b) A landlord <has a duty to repair or remedy a condition
and> is liable to a tenant as provided by this subchapter if:
(1) <the condition materially affects the physical
health or safety of an ordinary tenant;>
<(2)> the tenant has given the landlord notice to
repair or remedy a <the> condition by giving that notice to the
person to whom or to the place where the tenant's rent is normally
paid <as required by Subsection (a) of Section 92.052>;
(2) the condition materially affects the physical
health or safety of an ordinary tenant;
(3) the tenant has given the landlord a subsequent
written notice to repair or remedy the condition after a reasonable
time to repair or remedy the condition following the notice given
under Subdivision (1) or the tenant has given the notice under
Subdivision (1) by sending that notice by certified mail, return
receipt requested, or by registered mail;
(4) the landlord has had a reasonable time to repair
or remedy the condition after the landlord received the tenant's
notice under Subdivision (1) and, if applicable, the tenant's
subsequent notice under Subdivision (3)<, considering the nature of
the problem and the reasonable availability of materials, labor,
and utilities from a utility company>;
<(4) the tenant has given subsequent written notice to
the landlord, stating that the tenant intends to terminate the
lease, exercise repair and deduct remedies, or pursue judicial
remedies;>
(5) the landlord has not made a diligent effort to
repair or remedy the condition after the landlord received the
tenant's notice under Subdivision (1) and, if applicable, the
tenant's notice under Subdivision (3); and
(6) the tenant was not delinquent in the payment of
rent at the time any notice <the notices> required by <Subdivisions
(2) and (4) of> this subsection was <were> given.
(c) For purposes of Subsection (b)(4) or (5), a landlord is
considered to have received the tenant's notice when the landlord
or the landlord's agent or employee has actually received the
notice or when the United States Postal Service has attempted to
deliver the notice to the landlord.
(d) For purposes of Subsection (b)(3) or (4), in determining
whether a period of time is a reasonable time to repair or remedy a
condition, there is a rebuttable presumption that seven days is a
reasonable time. To rebut that presumption, the date on which the
landlord received the tenant's notice, the severity and nature of
the condition, and the reasonable availability of materials and
labor and of utilities from a utility company must be considered.
(e) <The landlord's duty under this subsection is subject to
the provisions of Subsection (b) of Section 92.052 regarding
conditions which are caused by the tenant and Section 92.054
regarding conditions which are insured casualties.>
<(b)> Except as provided in Subsection (f) <(c) of this
section>, a tenant to whom a landlord is liable under Subsection
(b) <(a)> of this section may:
(1) terminate the lease <if the condition is not
repaired or remedied within seven days after the tenant's notice of
intent to terminate>;
(2) have the condition repaired or remedied according
to Section 92.0561;
(3) deduct from the tenant's rent, without necessity
of judicial action, the cost of the repair or remedy according to
Section 92.0561; and
(4) obtain judicial remedies according to Section
92.0563 <if the condition is not repaired or remedied within seven
days after the tenant's notice of intent to repair or remedy>.
(f) <(c)> A tenant who elects to terminate the lease under
Subsection (e) <(b) of this section> is:
(1) entitled to a pro rata refund of rent from the
date of termination or the date the tenant moves out, whichever is
later;
(2) entitled to deduct the tenant's security deposit
from the tenant's rent without necessity of lawsuit or obtain a
refund of the tenant's security deposit according to law; and
(3) not entitled to the other repair and deduct
remedies under Section 92.0561 or the judicial remedies under
Subdivisions (1) and (2) of Subsection (a) of Section 92.0563.
SECTION ____. Subsections (a) through (d), Section 92.0561,
Property Code, are amended to read as follows:
(a) If the landlord is liable to the tenant under
<Subsection (a) of> Section 92.056(b) <92.056>, the tenant may
have the condition repaired or remedied and may deduct the cost
from a subsequent rent payment as provided in this section.
(b) The tenant's deduction for the cost of the repair or
remedy may not exceed the amount of one month's rent under the
lease or $500, whichever is greater. However, if the tenant's rent
is subsidized in whole or in part by a governmental agency, the
deduction limitation of one month's rent shall mean the fair market
rent for the dwelling and not the rent that the tenant pays. The
fair market rent shall be determined by the governmental agency
subsidizing the rent, or in the absence of such a determination, it
shall be a reasonable amount of rent under the circumstances.
(c) Repairs and deductions under this section may be made as
often as necessary so long as the total repairs and deductions in
any one month do not exceed one month's rent or $500, whichever is
greater.
(d) Repairs under this section may be made only if all of
the following requirements are met:
(1) The landlord has a duty to repair or remedy the
condition under Section 92.052, and the duty has not been waived in
a written lease by the tenant under Subsection (e) or (f) of
Section 92.006.
(2) The tenant has given notice <notices> to the
landlord as required by Section 92.056(b)(1) <92.056>, and, if
required, a subsequent notice under Section 92.056(b)(3), and at
least one of those notices <the second or last notice by the tenant
to the landlord> states that the tenant intends to repair or remedy
the condition. The notice shall also contain a reasonable
description of the intended repair or remedy.
(3) Any one of the following events has occurred:
(A) The landlord has failed to remedy the backup
or overflow of raw sewage inside the tenant's dwelling or the
flooding from broken pipes or natural drainage inside the dwelling.
(B) The landlord has expressly or impliedly
agreed in the lease to furnish potable water to the tenant's
dwelling and the water service to the dwelling has totally ceased.
(C) The landlord has expressly or impliedly
agreed in the lease to furnish heating or cooling equipment; the
equipment is producing inadequate heat or cooled air; and the
landlord has been notified in writing by the appropriate local
housing, building, or health official or other official having
jurisdiction that the lack of heat or cooling materially affects
the health or safety of an ordinary tenant.
(D) The landlord has been notified in writing by
the appropriate local housing, building, or health official or
other official having jurisdiction that the condition materially
affects the health or safety of an ordinary tenant.
SECTION ____. (a) Section 91.006, Property Code, as added
by this Act, applies only to a lease entered into on or after the
effective date of this Act.
(b) The changes in law made by Sections 92.056 and 92.0561,
Property Code, as amended by this Act, apply only to residential
leases entered into or renewed on or after January 1, 1998.
Residential leases entered into or renewed before that date are
covered by the law as it existed at the time the lease was entered
into or renewed, and the former law is continued in effect for that
purpose.