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.