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. If the dwelling has no mailbox and has a keyless bolting
1-21 device, alarm system, or dangerous animal that prevents the
1-22 landlord from entering the premises to leave the notice to vacate
1-23 on the inside of the main entry door, the landlord may securely
2-1 affix the notice on the outside of the main entry door.
2-2 (i) If before the notice to vacate is given as required by
2-3 this section the landlord has given a written notice or reminder to
2-4 the tenant that rent is due and unpaid, the landlord may include in
2-5 the notice to vacate required by this section a demand that the
2-6 tenant pay the delinquent rent or vacate the premises by the date
2-7 and time stated in the notice.
2-8 SECTION 3. Subsection (a), Section 24.006, Property Code, is
2-9 amended to read as follows:
2-10 (a) Except as provided by Subsection (b), to be eligible to
2-11 recover attorney's fees in an eviction [a forcible entry and
2-12 detainer suit or a forcible detainer] suit, a landlord must give a
2-13 tenant who is unlawfully retaining possession of the landlord's
2-14 premises a written demand to vacate the premises. The demand must
2-15 state that if the tenant does not vacate the premises before the
2-16 11th day after the date of receipt of the notice and if the
2-17 landlord files suit, the landlord may recover attorney's fees. The
2-18 demand must be sent by registered mail or by certified mail, return
2-19 receipt requested, at least 10 days before the date the suit is
2-20 filed.
2-21 SECTION 4. Section 24.0061, Property Code, is amended to
2-22 read as follows:
2-23 Sec. 24.0061. WRIT OF POSSESSION. (a) A landlord who
2-24 prevails in an eviction suit [a forcible entry and detainer or a
2-25 forcible detainer action] is entitled to a judgment for possession
3-1 of the premises and a writ of possession. In this chapter,
3-2 "premises" means the unit that is occupied or rented and any
3-3 outside area or facility that the tenant is entitled to use under a
3-4 written lease or oral rental agreement, or that is held out for the
3-5 use of tenants generally.
3-6 (b) A writ of possession may not be issued before the sixth
3-7 day after the date on which the judgment for possession is rendered
3-8 unless a possession bond has been filed and approved under the
3-9 Texas Rules of Civil Procedure and judgment for possession is
3-10 thereafter granted by default.
3-11 (c) The court shall notify a tenant in writing of a default
3-12 judgment for possession by sending a copy of the judgment to the
3-13 premises by first class mail not later than 48 hours after the
3-14 entry of the judgment.
3-15 (d) The writ of possession shall order the officer executing
3-16 the writ to [deliver possession of the premises to the landlord and
3-17 to]:
3-18 (1) post a written warning of at least 8-1/2 by 11
3-19 inches on the exterior of the front door of the rental unit
3-20 notifying the tenant that the writ has been issued and that the
3-21 writ will be executed on or after a specific date and time stated
3-22 in the warning not sooner than 24 hours after the warning is
3-23 posted; and
3-24 (2) when the writ is executed:
3-25 (A) deliver possession of the premises to the
4-1 landlord;
4-2 (B) instruct the tenant and all persons claiming
4-3 under the tenant to leave the premises immediately, and, if the
4-4 persons fail to comply, physically remove them;
4-5 (C) [(2)] instruct the tenant to remove or to
4-6 allow the landlord, the landlord's representatives, or other
4-7 persons acting under the officer's supervision to remove all
4-8 personal property from the rental unit other than personal property
4-9 claimed to be owned by the landlord; and
4-10 (D) [(3)] place, or have an authorized person
4-11 place, the removed personal property outside the rental unit at a
4-12 nearby location, but not blocking a public sidewalk, passageway, or
4-13 street and not while it is raining, sleeting, or snowing.
4-14 (e) [(d)] The writ of possession shall authorize the
4-15 officer, at the officer's discretion, to[:]
4-16 [(1) post a written warning on the exterior of the
4-17 front door of the rental unit, notifying the tenant that the writ
4-18 has been issued and that it will be executed on or after a specific
4-19 date and time stated in the warning; and]
4-20 [(2)] engage the services of a bonded or insured
4-21 warehouseman to remove and store, subject to applicable law, part
4-22 or all of the property at no cost to the landlord or the officer
4-23 executing the writ.
4-24 (f) [(e)] The officer may not require the landlord to store
4-25 the property.
5-1 (g) [(f)] The writ of possession shall contain notice to the
5-2 officer that under Section 7.003, Civil Practice and Remedies Code,
5-3 the officer is not liable for damages resulting from the execution
5-4 of the writ if the officer executes the writ in good faith and with
5-5 reasonable diligence.
5-6 (h) A sheriff or constable [(g) An officer] may[, if
5-7 necessary,] use reasonable force in executing a writ under this
5-8 section.
5-9 SECTION 5. Section 24.007, Property Code, is amended to read
5-10 as follows:
5-11 Sec. 24.007. APPEAL. A final judgment of a county court in
5-12 an eviction [a forcible entry and detainer suit or a forcible
5-13 detainer] suit may not be appealed on the issue of possession
5-14 unless the premises in question are being used for residential
5-15 purposes only. A judgment of a county court may not under any
5-16 circumstances be stayed pending appeal unless, within 10 days of
5-17 the signing of the judgment, the appellant files a supersedeas bond
5-18 in an amount set by the county court. In setting the supersedeas
5-19 bond the county court shall provide protection for the appellee to
5-20 the same extent as in any other appeal, taking into consideration
5-21 the value of rents likely to accrue during appeal, damages which
5-22 may occur as a result of the stay during appeal, and other damages
5-23 or amounts as the court may deem appropriate.
5-24 SECTION 6. Section 24.008, Property Code, is amended to read
5-25 as follows:
6-1 Sec. 24.008. EFFECT ON OTHER ACTIONS. An eviction [A
6-2 forcible entry and detainer suit or a forcible detainer] suit does
6-3 not bar a suit for trespass, damages, waste, rent, or mesne
6-4 profits.
6-5 SECTION 7. Section 24.011, Property Code, is amended to read
6-6 as follows:
6-7 Sec. 24.011. NONLAWYER REPRESENTATION. In eviction
6-8 [forcible detainer] suits in justice court for nonpayment of rent
6-9 or holding over beyond a rental term, the parties may represent
6-10 themselves or be represented by their authorized agents, who need
6-11 not be attorneys. In any eviction [forcible detainer or forcible
6-12 entry and detainer] suit in justice court, an authorized agent
6-13 requesting or obtaining a default judgment need not be an attorney.
6-14 SECTION 8. Chapter 91, Property Code, is amended by adding
6-15 Section 91.006 to read as follows:
6-16 Sec. 91.006. LANDLORD'S DUTY TO MITIGATE DAMAGES. (a) A
6-17 landlord has a duty to mitigate damages if a tenant abandons the
6-18 leased premises in violation of the lease.
6-19 (b) A provision of a lease that purports to waive a right or
6-20 to exempt a landlord from a liability or duty under this section is
6-21 void.
6-22 SECTION 9. Subsection (d), Section 92.009, Property Code, is
6-23 amended to read as follows:
6-24 (d) The writ of reentry must be served on either the
6-25 landlord or the landlord's management company, on-premises manager,
7-1 or rent collector in the same manner as a writ of possession in a
7-2 forcible detainer action. A sheriff or constable may use
7-3 reasonable force in executing a writ of reentry under this section.
7-4 SECTION 10. Subchapter A, Chapter 92, Property Code, is
7-5 amended by adding Section 92.012 to read as follows:
7-6 Sec. 92.012. NOTICE TO TENANT AT PRIMARY RESIDENCE.
7-7 (a) If, at the time of signing a lease or lease renewal, a tenant
7-8 gives written notice to the tenant's landlord that the tenant does
7-9 not occupy the leased premises as a primary residence and requests
7-10 in writing that the landlord send notices to the tenant at the
7-11 tenant's primary residence and provides to the landlord the address
7-12 of the tenant's primary residence, the landlord shall mail to the
7-13 tenant's primary residence:
7-14 (1) all notices of lease violations;
7-15 (2) all notices of lease termination;
7-16 (3) all notices of rental increases at the end of the
7-17 lease term; and
7-18 (4) all notices to vacate.
7-19 (b) The tenant shall notify the landlord in writing of any
7-20 change in the tenant's primary residence address. Oral notices of
7-21 change are insufficient.
7-22 (c) A notice to a tenant's primary residence under
7-23 Subsection (a) may be sent by regular United States mail and shall
7-24 be considered as having been given on the date of postmark of the
7-25 notice.
8-1 (d) If there is more than one tenant on a lease, the
8-2 landlord is not required under this section to send notices to the
8-3 primary residence of more than one tenant.
8-4 (e) This section does not apply if notice is actually hand
8-5 delivered to and received by a person occupying the leased
8-6 premises.
8-7 SECTION 11. Section 92.056, Property Code, is amended to
8-8 read as follows:
8-9 Sec. 92.056. LANDLORD LIABILITY AND TENANT REMEDIES; NOTICE
8-10 AND TIME FOR REPAIR. (a) A landlord's liability under this
8-11 section is subject to Section 92.052(b) regarding conditions that
8-12 are caused by a tenant and Section 92.054 regarding conditions that
8-13 are insured casualties.
8-14 (b) A landlord [has a duty to repair or remedy a condition
8-15 and] is liable to a tenant as provided by this subchapter if:
8-16 (1) [the condition materially affects the physical
8-17 health or safety of an ordinary tenant;]
8-18 [(2)] the tenant has given the landlord notice to
8-19 repair or remedy a [the] condition by giving that notice to the
8-20 person to whom or to the place where the tenant's rent is normally
8-21 paid [as required by Subsection (a) of Section 92.052];
8-22 (2) the condition materially affects the physical
8-23 health or safety of an ordinary tenant;
8-24 (3) the tenant has given the landlord a subsequent
8-25 written notice to repair or remedy the condition after a reasonable
9-1 time to repair or remedy the condition following the notice given
9-2 under Subdivision (1) or the tenant has given the notice under
9-3 Subdivision (1) by sending that notice by certified mail, return
9-4 receipt requested, or by registered mail;
9-5 (4) the landlord has had a reasonable time to repair
9-6 or remedy the condition after the landlord received the tenant's
9-7 notice under Subdivision (1) and, if applicable, the tenant's
9-8 subsequent notice under Subdivision (3)[, considering the nature of
9-9 the problem and the reasonable availability of materials, labor,
9-10 and utilities from a utility company];
9-11 [(4) the tenant has given subsequent written notice to
9-12 the landlord, stating that the tenant intends to terminate the
9-13 lease, exercise repair and deduct remedies, or pursue judicial
9-14 remedies;]
9-15 (5) the landlord has not made a diligent effort to
9-16 repair or remedy the condition after the landlord received the
9-17 tenant's notice under Subdivision (1) and, if applicable, the
9-18 tenant's notice under Subdivision (3); and
9-19 (6) the tenant was not delinquent in the payment of
9-20 rent at the time any notice [the notices] required by [Subdivisions
9-21 (2) and (4) of] this subsection was [were] given.
9-22 (c) For purposes of Subsection (b)(4) or (5), a landlord is
9-23 considered to have received the tenant's notice when the landlord
9-24 or the landlord's agent or employee has actually received the
9-25 notice or when the United States Postal Service has attempted to
10-1 deliver the notice to the landlord.
10-2 (d) For purposes of Subsection (b)(3) or (4), in determining
10-3 whether a period of time is a reasonable time to repair or remedy a
10-4 condition, there is a rebuttable presumption that seven days is a
10-5 reasonable time. To rebut that presumption, the date on which the
10-6 landlord received the tenant's notice, the severity and nature of
10-7 the condition, and the reasonable availability of materials and
10-8 labor and of utilities from a utility company must be considered.
10-9 (e) [The landlord's duty under this subsection is subject to
10-10 the provisions of Subsection (b) of Section 92.052 regarding
10-11 conditions which are caused by the tenant and Section 92.054
10-12 regarding conditions which are insured casualties.]
10-13 [(b)] Except as provided in Subsection (f) [(c) of this
10-14 section], a tenant to whom a landlord is liable under Subsection
10-15 (b) [(a)] of this section may:
10-16 (1) terminate the lease [if the condition is not
10-17 repaired or remedied within seven days after the tenant's notice of
10-18 intent to terminate];
10-19 (2) have the condition repaired or remedied according
10-20 to Section 92.0561;
10-21 (3) deduct from the tenant's rent, without necessity
10-22 of judicial action, the cost of the repair or remedy according to
10-23 Section 92.0561; and
10-24 (4) obtain judicial remedies according to Section
10-25 92.0563 [if the condition is not repaired or remedied within seven
11-1 days after the tenant's notice of intent to repair or remedy].
11-2 (f) [(c)] A tenant who elects to terminate the lease under
11-3 Subsection (e) [(b) of this section] is:
11-4 (1) entitled to a pro rata refund of rent from the
11-5 date of termination or the date the tenant moves out, whichever is
11-6 later;
11-7 (2) entitled to deduct the tenant's security deposit
11-8 from the tenant's rent without necessity of lawsuit or obtain a
11-9 refund of the tenant's security deposit according to law; and
11-10 (3) not entitled to the other repair and deduct
11-11 remedies under Section 92.0561 or the judicial remedies under
11-12 Subdivisions (1) and (2) of Subsection (a) of Section 92.0563.
11-13 SECTION 12. Subsections (a) through (d), Section 92.0561,
11-14 Property Code, are amended to read as follows:
11-15 (a) If the landlord is liable to the tenant under
11-16 [Subsection (a) of] Section 92.056(b) [92.056], the tenant may have
11-17 the condition repaired or remedied and may deduct the cost from a
11-18 subsequent rent payment as provided in this section.
11-19 (b) The tenant's deduction for the cost of the repair or
11-20 remedy may not exceed the amount of one month's rent under the
11-21 lease or $500, whichever is greater. However, if the tenant's rent
11-22 is subsidized in whole or in part by a governmental agency, the
11-23 deduction limitation of one month's rent shall mean the fair market
11-24 rent for the dwelling and not the rent that the tenant pays. The
11-25 fair market rent shall be determined by the governmental agency
12-1 subsidizing the rent, or in the absence of such a determination, it
12-2 shall be a reasonable amount of rent under the circumstances.
12-3 (c) Repairs and deductions under this section may be made as
12-4 often as necessary so long as the total repairs and deductions in
12-5 any one month do not exceed one month's rent or $500, whichever is
12-6 greater.
12-7 (d) Repairs under this section may be made only if all of
12-8 the following requirements are met:
12-9 (1) The landlord has a duty to repair or remedy the
12-10 condition under Section 92.052, and the duty has not been waived in
12-11 a written lease by the tenant under Subsection (e) or (f) of
12-12 Section 92.006.
12-13 (2) The tenant has given notice [notices] to the
12-14 landlord as required by Section 92.056(b)(1) [92.056], and, if
12-15 required, a subsequent notice under Section 92.056(b)(3), and at
12-16 least one of those notices [the second or last notice by the tenant
12-17 to the landlord] states that the tenant intends to repair or remedy
12-18 the condition. The notice shall also contain a reasonable
12-19 description of the intended repair or remedy.
12-20 (3) Any one of the following events has occurred:
12-21 (A) The landlord has failed to remedy the backup
12-22 or overflow of raw sewage inside the tenant's dwelling or the
12-23 flooding from broken pipes or natural drainage inside the dwelling.
12-24 (B) The landlord has expressly or impliedly
12-25 agreed in the lease to furnish potable water to the tenant's
13-1 dwelling and the water service to the dwelling has totally ceased.
13-2 (C) The landlord has expressly or impliedly
13-3 agreed in the lease to furnish heating or cooling equipment; the
13-4 equipment is producing inadequate heat or cooled air; and the
13-5 landlord has been notified in writing by the appropriate local
13-6 housing, building, or health official or other official having
13-7 jurisdiction that the lack of heat or cooling materially affects
13-8 the health or safety of an ordinary tenant.
13-9 (D) The landlord has been notified in writing by
13-10 the appropriate local housing, building, or health official or
13-11 other official having jurisdiction that the condition materially
13-12 affects the health or safety of an ordinary tenant.
13-13 SECTION 13. Subsection (a), Section 92.252, Property Code,
13-14 is amended to read as follows:
13-15 (a) The duties of a landlord and the remedies of a tenant
13-16 under this subchapter are in lieu of common law, other statutory
13-17 law, and local ordinances regarding a residential landlord's duty
13-18 to install, inspect, or repair a smoke detector in a dwelling unit.
13-19 However, this subchapter does not:
13-20 (1) affect a local ordinance adopted before September
13-21 1, 1981, that requires landlords to install smoke detectors in new
13-22 or remodeled dwelling units before September 1, 1981, if the
13-23 ordinance conforms with or is amended to conform with this
13-24 subchapter;
13-25 (2) limit or prevent adoption or enforcement of a
14-1 local ordinance relating to fire safety as a part of a building,
14-2 fire, or housing code, including any requirements relating to the
14-3 installation of smoke detectors or the type of smoke detectors;
14-4 [or]
14-5 (3) otherwise limit or prevent the adoption of a local
14-6 ordinance that conforms to this subchapter but which contains
14-7 additional enforcement provisions, except as provided by Subsection
14-8 (b); or
14-9 (4) affect a local ordinance that requires regular
14-10 inspections by local officials of smoke detectors in dwelling units
14-11 and that requires smoke detectors to be operational at the time of
14-12 inspection.
14-13 SECTION 14. Subsection (a), Section 3, Article 5.43-2,
14-14 Insurance Code, is amended to read as follows:
14-15 (a) The provisions of this article and the rules and
14-16 regulations promulgated under this article shall have uniform force
14-17 and effect throughout the state and no municipality or county shall
14-18 enact any ordinances, rules, or regulations inconsistent with the
14-19 provisions of this article or rules and regulations promulgated
14-20 pursuant to this article and any such ordinances, rules, or
14-21 regulations are void and shall have no effect; provided, however,
14-22 that a municipality or county shall have the right to:
14-23 (1) mandate that a fire alarm or detection system be
14-24 installed in certain facilities, so long as said installation
14-25 conforms to applicable state law; [and]
15-1 (2) require a better type of alarm or detection system
15-2 or otherwise safer conditions than the minimum required by state
15-3 law; and
15-4 (3) require regular inspections by local officials of
15-5 smoke detectors in dwelling units, as defined by Section 92.251,
15-6 Property Code, and require the smoke detectors to be operational at
15-7 the time of inspection.
15-8 SECTION 15. (a) Except as provided by Subsection (b) of
15-9 this section, this Act takes effect September 1, 1997.
15-10 (b) Sections 11 and 12 of this Act take effect January 1,
15-11 1998.
15-12 SECTION 16. (a) Section 91.006, Property Code, as added by
15-13 this Act, applies only to a lease entered into on or after the
15-14 effective date of this Act.
15-15 (b) The changes in law made by Sections 92.056 and 92.0561,
15-16 Property Code, as amended by this Act, apply only to residential
15-17 leases entered into or renewed on or after January 1, 1998.
15-18 Residential leases entered into or renewed before that date are
15-19 covered by the law as it existed at the time the lease was entered
15-20 into or renewed, and the former law is continued in effect for that
15-21 purpose.
15-22 SECTION 17. The importance of this legislation and the
15-23 crowded condition of the calendars in both houses create an
15-24 emergency and an imperative public necessity that the
15-25 constitutional rule requiring bills to be read on three several
16-1 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1678 passed the Senate on
April 28, 1997, by a viva-voce vote; and that the Senate concurred
in House amendments on May 29, 1997, by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1678 passed the House, with
amendments, on May 27, 1997, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor