By:  Barrientos                                       S.B. No. 1678

                                A BILL TO BE ENTITLED

                                       AN ACT

 1-1     relating to certain procedures concerning landlords and tenants of

 1-2     residential real property.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Section 24.004, Property Code, is amended to read

 1-5     as follows:

 1-6           Sec. 24.004.  JURISDICTION.  A justice court in the precinct

 1-7     in which the real property is located has jurisdiction in eviction

 1-8     suits.  Eviction suits include forcible entry and detainer and

 1-9     forcible detainer suits.

1-10           SECTION 2.  Section 24.005, Property Code, is amended by

1-11     amending Subsection (f) and adding Subsection (i) to read as

1-12     follows:

1-13           (f)  The notice to vacate shall be given in person or by mail

1-14     at the premises in question.  Notice in person may be by personal

1-15     delivery to the tenant or any person residing at the premises who

1-16     is 16 years of age or older or personal delivery to the premises

1-17     and affixing the notice to the inside of the main entry door.

1-18     Notice by mail may be by regular mail, [or] by registered mail, or

1-19     by certified mail, return receipt requested, to the premises in

1-20     question.

1-21           (i)  If before the notice to vacate is given as required by

1-22     this section the landlord has given a written notice or reminder to

1-23     the tenant that rent is due and unpaid, the landlord may include in

 2-1     the notice to vacate required by this section a demand that the

 2-2     tenant pay the delinquent rent or vacate the premises by the date

 2-3     and time stated in the notice.

 2-4           SECTION 3.  Subsection (a), Section 24.006, Property Code, is

 2-5     amended to read as follows:

 2-6           (a)  Except as provided by Subsection (b), to be eligible to

 2-7     recover attorney's fees in an eviction [a forcible entry and

 2-8     detainer suit or a forcible detainer] suit, a landlord must give a

 2-9     tenant who is unlawfully retaining possession of the landlord's

2-10     premises a written demand to vacate the premises.  The demand must

2-11     state that if the tenant does not vacate the premises before the

2-12     11th day after the date of receipt of the notice and if the

2-13     landlord files suit, the landlord may recover attorney's fees.  The

2-14     demand must be sent by registered mail or by certified mail, return

2-15     receipt requested, at least 10 days before the date the suit is

2-16     filed.

2-17           SECTION 4.  Section 24.0061, Property Code, is amended to

2-18     read as follows:

2-19           Sec. 24.0061.  WRIT OF POSSESSION.  (a)  A landlord who

2-20     prevails in an eviction suit [a forcible entry and detainer or a

2-21     forcible detainer action] is entitled to a judgment for possession

2-22     of the premises and a writ of possession.  In this chapter,

2-23     "premises" means the unit that is occupied or rented and any

2-24     outside area or facility that the tenant is entitled to use under a

2-25     written lease or oral rental agreement, or that is held out for the

 3-1     use of tenants generally.

 3-2           (b)  A writ of possession may not be issued before the sixth

 3-3     day after the date on which the judgment for possession is rendered

 3-4     unless a possession bond has been filed and approved under the

 3-5     Texas Rules of Civil Procedure and judgment for possession is

 3-6     thereafter granted by default.

 3-7           (c)  The court shall notify a tenant in writing of a default

 3-8     judgment for possession by sending a copy of the judgment to the

 3-9     premises by first class mail not later than 48 hours after the

3-10     entry of the judgment.

3-11           (d)  The writ of possession shall order the officer executing

3-12     the writ to [deliver possession of the premises to the landlord and

3-13     to]:

3-14                 (1)  post a written warning  of at least 8-1/2 by 11

3-15     inches on the exterior of the front door of the rental unit

3-16     notifying the tenant that the writ has been issued and that the

3-17     writ will be executed on or after a specific date and time stated

3-18     in the warning not sooner than 24 hours after the warning is

3-19     posted; and

3-20                 (2)  when the writ is executed:

3-21                       (A)  deliver possession of the premises to the

3-22     landlord;

3-23                       (B)  instruct the tenant and all persons claiming

3-24     under the tenant to leave the premises immediately, and, if the

3-25     persons fail to comply, physically remove them;

 4-1                       (C) [(2)]  instruct the tenant to remove or to

 4-2     allow the landlord, the landlord's representatives, or other

 4-3     persons acting under the officer's supervision to remove all

 4-4     personal property from the rental unit other than personal property

 4-5     claimed to be owned by the landlord; and

 4-6                       (D) [(3)]  place, or have an authorized person

 4-7     place, the removed personal property outside the rental unit at a

 4-8     nearby location, but not blocking a public sidewalk, passageway, or

 4-9     street and not while it is raining, sleeting, or snowing.

4-10           (e) [(d)]  The writ of possession shall authorize the

4-11     officer, at the officer's discretion, to[:]

4-12                 [(1)  post a written warning on the exterior of the

4-13     front door of the rental unit, notifying the tenant that the writ

4-14     has been issued and that it will be executed on or after a specific

4-15     date and time stated in the warning; and]

4-16                 [(2)]  engage the services of a bonded or insured

4-17     warehouseman to remove and store, subject to applicable law, part

4-18     or all of the property at no cost to the landlord or the officer

4-19     executing the writ.

4-20           (f) [(e)]  The officer may not require the landlord to store

4-21     the property.

4-22           (g) [(f)]  The writ of possession shall contain notice to the

4-23     officer that under Section 7.003, Civil Practice and Remedies Code,

4-24     the officer is not liable for damages resulting from the execution

4-25     of the writ if the officer executes the writ in good faith and with

 5-1     reasonable diligence.

 5-2           (h)  A sheriff or constable [(g)  An officer] may[, if

 5-3     necessary,] use reasonable force in executing a writ under this

 5-4     section.

 5-5           SECTION 5.  Section 24.007, Property Code, is amended to read

 5-6     as follows:

 5-7           Sec. 24.007.  APPEAL.  A final judgment of a county court in

 5-8     an eviction [a forcible entry and detainer suit or a forcible

 5-9     detainer] suit may not be appealed on the issue of possession

5-10     unless the premises in question are being used for residential

5-11     purposes only.  A judgment of a county court may not under any

5-12     circumstances be stayed pending appeal unless, within 10 days of

5-13     the signing of the judgment, the appellant files a supersedeas bond

5-14     in an amount set by the county court.  In setting the supersedeas

5-15     bond the county court shall provide protection for the appellee to

5-16     the same extent as in any other appeal, taking into consideration

5-17     the value of rents likely to accrue during appeal, damages which

5-18     may occur as a result of the stay during appeal, and other damages

5-19     or amounts as the court may deem appropriate.

5-20           SECTION 6.  Section 24.008, Property Code, is amended to read

5-21     as follows:

5-22           Sec. 24.008.  EFFECT ON OTHER ACTIONS.  An eviction [A

5-23     forcible entry and detainer suit or a forcible detainer] suit does

5-24     not bar a suit for trespass, damages, waste, rent, or mesne

5-25     profits.

 6-1           SECTION 7.  Section 24.011, Property Code, is amended to read

 6-2     as follows:

 6-3           Sec. 24.011.  NONLAWYER REPRESENTATION.  In eviction

 6-4     [forcible detainer] suits in justice court for nonpayment of rent

 6-5     or holding over beyond a rental term, the parties may represent

 6-6     themselves or be represented by their authorized agents, who need

 6-7     not be attorneys.  In any eviction [forcible detainer or forcible

 6-8     entry and detainer] suit in justice court, an authorized agent

 6-9     requesting or obtaining a default judgment need not be an attorney.

6-10           SECTION 8.  Chapter 91, Property Code, is amended by adding

6-11     Section 91.006 to read as follows:

6-12           Sec. 91.006.  LANDLORD'S DUTY TO MITIGATE DAMAGES.  (a)  A

6-13     landlord has a duty to mitigate damages if a tenant abandons the

6-14     leased premises in violation of the lease.

6-15           (b)  A provision of a lease that purports to waive a right or

6-16     to exempt a landlord from a liability or duty under this section is

6-17     void.

6-18           SECTION 9.  Subsection (d), Section 92.009, Property Code, is

6-19     amended to read as follows:

6-20           (d)  The writ of reentry must be served on either the

6-21     landlord or the landlord's management company, on-premises manager,

6-22     or rent collector in the same manner as a writ of possession in a

6-23     forcible detainer action.  A sheriff or constable may use

6-24     reasonable force in executing a writ of reentry under this section.

6-25           SECTION 10.  Section 92.056, Property Code, is amended to

 7-1     read as follows:

 7-2           Sec. 92.056. LANDLORD LIABILITY AND TENANT REMEDIES; NOTICE

 7-3     AND TIME FOR REPAIR.  (a)  A landlord's liability under this

 7-4     section  is subject to Section 92.052(b) regarding conditions that

 7-5     are caused by a tenant and Section 92.054 regarding conditions that

 7-6     are insured casualties.

 7-7           (b)  A landlord [has a duty to repair or remedy a condition

 7-8     and] is liable to a tenant as provided by this subchapter if:

 7-9                 (1)  [the condition materially affects the physical

7-10     health or safety of an ordinary tenant;]

7-11                 [(2)]  the tenant has given the landlord notice to

7-12     repair or remedy a [the] condition by giving that notice to the

7-13     person to whom or to the place where the tenant's rent is normally

7-14     paid [as required by Subsection (a) of Section 92.052];

7-15                 (2)  the condition materially affects the physical

7-16     health or safety of an ordinary tenant;

7-17                 (3)  the tenant has given the landlord a subsequent

7-18     written notice to repair or remedy the condition after a reasonable

7-19     time to repair or remedy the condition following the notice given

7-20     under Subdivision (1) or the tenant has given the notice under

7-21     Subdivision (1) by sending that notice by certified mail, return

7-22     receipt requested, or by registered mail;

7-23                 (4)  the landlord has had a reasonable time to repair

7-24     or remedy the condition after the landlord received the tenant's

7-25     notice under Subdivision (1) and, if applicable, the tenant's

 8-1     subsequent notice under Subdivision (3)[, considering the nature of

 8-2     the problem and the reasonable availability of materials, labor,

 8-3     and utilities from a utility company];

 8-4                 [(4)  the tenant has given subsequent written notice to

 8-5     the landlord, stating that the tenant intends to terminate the

 8-6     lease, exercise repair and deduct remedies, or pursue judicial

 8-7     remedies;]

 8-8                 (5)  the landlord has not made a diligent effort to

 8-9     repair or remedy the condition after the landlord received the

8-10     tenant's notice under Subdivision (1) and, if applicable, the

8-11     tenant's notice under Subdivision (3); and

8-12                 (6)  the tenant was not delinquent in the payment of

8-13     rent at the time any notice [the notices] required by [Subdivisions

8-14     (2) and (4) of] this subsection was [were] given.

8-15           (c)  For purposes of Subsection (b)(4) or (5), a landlord is

8-16     considered to have received the tenant's notice when the landlord

8-17     or the landlord's agent or employee has actually received the

8-18     notice or when the United States Postal Service has attempted to

8-19     deliver the notice to the landlord.

8-20           (d)  For purposes of Subsection (b)(3) or (4), in determining

8-21     whether a period of time is a reasonable time to repair or remedy a

8-22     condition, there is a rebuttable presumption that seven days is a

8-23     reasonable time.  To rebut that presumption, the date on which the

8-24     landlord received the tenant's notice, the severity and nature of

8-25     the condition, and the reasonable availability of materials and

 9-1     labor and of utilities from a utility company must be considered.

 9-2           (e)  [The landlord's duty under this subsection is subject to

 9-3     the provisions of Subsection (b) of Section 92.052 regarding

 9-4     conditions which are caused by the tenant and Section 92.054

 9-5     regarding conditions which are insured casualties.]

 9-6           [(b)]  Except as provided in Subsection (f) [(c) of this

 9-7     section], a tenant to whom a landlord is liable under Subsection

 9-8     (b) [(a)] of this section may:

 9-9                 (1)  terminate the lease [if the condition is not

9-10     repaired or remedied within seven days after the tenant's notice of

9-11     intent to terminate];

9-12                 (2)  have the condition repaired or remedied according

9-13     to Section 92.0561;

9-14                 (3)  deduct from the tenant's rent, without necessity

9-15     of judicial action, the cost of the repair or remedy according to

9-16     Section 92.0561; and

9-17                 (4)  obtain judicial remedies according to Section

9-18     92.0563 [if the condition is not repaired or remedied within seven

9-19     days after the tenant's notice of intent to repair or remedy].

9-20           (f) [(c)]  A tenant who elects to terminate the lease under

9-21     Subsection (e) [(b) of this section] is:

9-22                 (1)  entitled to a pro rata refund of rent from the

9-23     date of termination or the date the tenant moves out, whichever is

9-24     later;

9-25                 (2)  entitled to deduct the tenant's security deposit

 10-1    from the tenant's rent without necessity of lawsuit or obtain a

 10-2    refund of the tenant's security deposit according to law; and

 10-3                (3)  not entitled to the other repair and deduct

 10-4    remedies under Section 92.0561 or the judicial remedies under

 10-5    Subdivisions (1) and (2) of Subsection (a) of Section 92.0563.

 10-6          SECTION 11.  Subsections (a) through (d), Section 92.0561,

 10-7    Property Code, are amended to read as follows:

 10-8          (a)  If the landlord is liable to the tenant under

 10-9    [Subsection (a) of] Section 92.056(b) [92.056], the tenant may have

10-10    the condition repaired or remedied and may deduct the cost from a

10-11    subsequent rent payment as provided in this section.

10-12          (b)  The tenant's deduction for the cost of the repair or

10-13    remedy may not exceed the amount of one month's rent under the

10-14    lease or $500, whichever is greater.  However, if the tenant's rent

10-15    is subsidized in whole or in part by a governmental agency, the

10-16    deduction limitation of one month's rent shall mean the fair market

10-17    rent for the dwelling and not the rent that the tenant pays.  The

10-18    fair market rent shall be determined by the governmental agency

10-19    subsidizing the rent, or in the absence of such a determination, it

10-20    shall be a reasonable amount of rent under the circumstances.

10-21          (c)  Repairs and deductions under this section may be made as

10-22    often as necessary so long as the total repairs and deductions in

10-23    any one month do not exceed one month's rent or $500, whichever is

10-24    greater.

10-25          (d)  Repairs under this section may be made only if all of

 11-1    the following requirements are met:

 11-2                (1)  The landlord has a duty to repair or remedy the

 11-3    condition under Section 92.052, and the duty has not been waived in

 11-4    a written lease by the tenant under Subsection (e) or (f) of

 11-5    Section 92.006.

 11-6                (2)  The tenant has given notice [notices] to the

 11-7    landlord as required by Section 92.056(b)(1) [92.056], and, if

 11-8    required, a subsequent notice under Section 92.056(b)(3), and at

 11-9    least one of those notices [the second or last notice by the tenant

11-10    to the landlord] states that the tenant intends to repair or remedy

11-11    the condition.  The notice shall also contain a reasonable

11-12    description of the intended repair or remedy.

11-13                (3)  Any one of the following events has occurred:

11-14                      (A)  The landlord has failed to remedy the backup

11-15    or overflow of raw sewage inside the tenant's dwelling or the

11-16    flooding from broken pipes or natural drainage inside the dwelling.

11-17                      (B)  The landlord has expressly or impliedly

11-18    agreed in the lease to furnish potable water to the tenant's

11-19    dwelling and the water service to the dwelling has totally ceased.

11-20                      (C)  The landlord has expressly or impliedly

11-21    agreed in the lease to furnish heating or cooling equipment; the

11-22    equipment is producing inadequate heat or cooled air; and the

11-23    landlord has been notified in writing by the appropriate local

11-24    housing, building, or health official or other official having

11-25    jurisdiction that the lack of heat or cooling materially affects

 12-1    the health or safety of an ordinary tenant.

 12-2                      (D)  The landlord has been notified in writing by

 12-3    the appropriate local housing, building, or health official or

 12-4    other official having jurisdiction that the condition materially

 12-5    affects the health or safety of an ordinary tenant.

 12-6          SECTION 12.  (a)  Except as provided by Subsection (b) of

 12-7    this section, this Act takes effect September 1, 1997.

 12-8          (b)  Sections 10 and 11 of this Act take effect January 1,

 12-9    1998.

12-10          SECTION 13.  (a)  Section 91.006, Property Code, as added by

12-11    this Act, applies only to a lease entered into on or after the

12-12    effective date of this Act.

12-13          (b)  The changes in law made by Sections 92.056 and 92.0561,

12-14    Property Code, as amended by this Act, apply only to residential

12-15    leases entered into or renewed on or after January 1, 1998.

12-16    Residential leases entered into or renewed before that date are

12-17    covered by the law as it existed at the time the lease was entered

12-18    into or renewed, and the former law is continued in effect for that

12-19    purpose.

12-20          SECTION 14.  The importance of this legislation and the

12-21    crowded condition of the calendars in both houses create an

12-22    emergency and an imperative public necessity that the

12-23    constitutional rule requiring bills to be read on three several

12-24    days in each house be suspended, and this rule is hereby suspended.