GEC H.B. 2290 75(R)    BILL ANALYSIS


BUSINESS & INDUSTRY
H.B. 2290
By: Naishtat
4-17-97
Committee Report (Unamended)



BACKGROUND 

There is inconsistency statewide in interpretation of Section 92 of the
Property Code, concerning a sheriff's or constable's authority to use
reasonable force to enact a writ of reentry.   

In 1989, the 71st Legislature added Section 92.009(d) to the Property Code
to give a tenant immediate remedy when a landlord violates Sec. 92.008 in
an "unlawful lockout" as determined in court.  If the court reasonably
believes that the lockout occurred illegally, the law currently allows a
sheriff or constable to serve the writ of reentry "in the same manner as a
writ of possession in a forcible detainer action."  A writ of possession
allows reasonable force.   

The conflict occurs due to Sec.92.009(i), where contempt procedures are
outlined for landlords who continue to act illegally after the writ of
reentry is issued.  Some judges have interpreted this to mean the tenant
must take the landlord back to court for contempt instead of allowing for
reasonable force, such as the breaking of a window, to enforce the court
order.  The delay can keep a tenant out of the property illegally for
weeks.   

PURPOSE

This bill simply clarifies that a sheriff or constable may use reasonable
force to enact the court ordered writ of reentry. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency or
institution. 

SECTION BY SECTION ANALYSIS

Section 1.  In a technical change, amends section 24.0061(g), Property
Code, to clarify the definition of "officer" as a sheriff or constable to
make this section consistent with the Rules of Civil Procedure concerning
who may execute a writ of possession. 

Section 2.  Amends section 92.009(d), Property Code, to include the
clarification:  "A sheriff or constable may use reasonable force in
executing a writ of reentry under this section." 

Section 3.  Emergency clause.