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
1-24 the notice to vacate required by this section a demand that the
2-1 tenant pay the delinquent rent or vacate the premises by the date
2-2 and time stated in the notice.
2-3 SECTION 3. Subsection (a), Section 24.006, Property Code, is
2-4 amended to read as follows:
2-5 (a) Except as provided by Subsection (b), to be eligible to
2-6 recover attorney's fees in an eviction [a forcible entry and
2-7 detainer suit or a forcible detainer] suit, a landlord must give a
2-8 tenant who is unlawfully retaining possession of the landlord's
2-9 premises a written demand to vacate the premises. The demand must
2-10 state that if the tenant does not vacate the premises before the
2-11 11th day after the date of receipt of the notice and if the
2-12 landlord files suit, the landlord may recover attorney's fees. The
2-13 demand must be sent by registered mail or by certified mail, return
2-14 receipt requested, at least 10 days before the date the suit is
2-15 filed.
2-16 SECTION 4. Section 24.0061, Property Code, is amended to
2-17 read as follows:
2-18 Sec. 24.0061. WRIT OF POSSESSION. (a) A landlord who
2-19 prevails in an eviction suit [a forcible entry and detainer or a
2-20 forcible detainer action] is entitled to a judgment for possession
2-21 of the premises and a writ of possession. In this chapter,
2-22 "premises" means the unit that is occupied or rented and any
2-23 outside area or facility that the tenant is entitled to use under a
2-24 written lease or oral rental agreement, or that is held out for the
2-25 use of tenants generally.
2-26 (b) A writ of possession may not be issued before the sixth
2-27 day after the date on which the judgment for possession is rendered
3-1 unless a possession bond has been filed and approved under the
3-2 Texas Rules of Civil Procedure and judgment for possession is
3-3 thereafter granted by default.
3-4 (c) The court shall notify a tenant in writing of a default
3-5 judgment for possession by sending a copy of the judgment to the
3-6 premises by first class mail not later than 48 hours after the
3-7 entry of the judgment.
3-8 (d) The writ of possession shall order the officer executing
3-9 the writ to [deliver possession of the premises to the landlord and
3-10 to]:
3-11 (1) post a written warning of at least 8-1/2 by 11
3-12 inches on the exterior of the front door of the rental unit
3-13 notifying the tenant that the writ has been issued and that the
3-14 writ will be executed on or after a specific date and time stated
3-15 in the warning not sooner than 24 hours after the warning is
3-16 posted; and
3-17 (2) when the writ is executed:
3-18 (A) deliver possession of the premises to the
3-19 landlord;
3-20 (B) instruct the tenant and all persons claiming
3-21 under the tenant to leave the premises immediately, and, if the
3-22 persons fail to comply, physically remove them;
3-23 (C) [(2)] instruct the tenant to remove or to
3-24 allow the landlord, the landlord's representatives, or other
3-25 persons acting under the officer's supervision to remove all
3-26 personal property from the rental unit other than personal property
3-27 claimed to be owned by the landlord; and
4-1 (D) [(3)] place, or have an authorized person
4-2 place, the removed personal property outside the rental unit at a
4-3 nearby location, but not blocking a public sidewalk, passageway, or
4-4 street and not while it is raining, sleeting, or snowing.
4-5 (e) [(d)] The writ of possession shall authorize the
4-6 officer, at the officer's discretion, to[:]
4-7 [(1) post a written warning on the exterior of the
4-8 front door of the rental unit, notifying the tenant that the writ
4-9 has been issued and that it will be executed on or after a specific
4-10 date and time stated in the warning; and]
4-11 [(2)] engage the services of a bonded or insured
4-12 warehouseman to remove and store, subject to applicable law, part
4-13 or all of the property at no cost to the landlord or the officer
4-14 executing the writ.
4-15 (f) [(e)] The officer may not require the landlord to store
4-16 the property.
4-17 (g) [(f)] The writ of possession shall contain notice to the
4-18 officer that under Section 7.003, Civil Practice and Remedies Code,
4-19 the officer is not liable for damages resulting from the execution
4-20 of the writ if the officer executes the writ in good faith and with
4-21 reasonable diligence.
4-22 (h) A sheriff or constable [(g) An officer] may[, if
4-23 necessary,] use reasonable force in executing a writ under this
4-24 section.
4-25 SECTION 5. Section 24.007, Property Code, is amended to read
4-26 as follows:
4-27 Sec. 24.007. APPEAL. A final judgment of a county court in
5-1 an eviction [a forcible entry and detainer suit or a forcible
5-2 detainer] suit may not be appealed on the issue of possession
5-3 unless the premises in question are being used for residential
5-4 purposes only. A judgment of a county court may not under any
5-5 circumstances be stayed pending appeal unless, within 10 days of
5-6 the signing of the judgment, the appellant files a supersedeas bond
5-7 in an amount set by the county court. In setting the supersedeas
5-8 bond the county court shall provide protection for the appellee to
5-9 the same extent as in any other appeal, taking into consideration
5-10 the value of rents likely to accrue during appeal, damages which
5-11 may occur as a result of the stay during appeal, and other damages
5-12 or amounts as the court may deem appropriate.
5-13 SECTION 6. Section 24.008, Property Code, is amended to read
5-14 as follows:
5-15 Sec. 24.008. EFFECT ON OTHER ACTIONS. An eviction [A
5-16 forcible entry and detainer suit or a forcible detainer] suit does
5-17 not bar a suit for trespass, damages, waste, rent, or mesne
5-18 profits.
5-19 SECTION 7. Section 24.011, Property Code, is amended to read
5-20 as follows:
5-21 Sec. 24.011. NONLAWYER REPRESENTATION. In eviction
5-22 [forcible detainer] suits in justice court for nonpayment of rent
5-23 or holding over beyond a rental term, the parties may represent
5-24 themselves or be represented by their authorized agents, who need
5-25 not be attorneys. In any eviction [forcible detainer or forcible
5-26 entry and detainer] suit in justice court, an authorized agent
5-27 requesting or obtaining a default judgment need not be an attorney.
6-1 SECTION 8. Chapter 91, Property Code, is amended by adding
6-2 Section 91.006 to read as follows:
6-3 Sec. 91.006. LANDLORD'S DUTY TO MITIGATE DAMAGES. (a) A
6-4 landlord has a duty to mitigate damages if a tenant abandons the
6-5 leased premises in violation of the lease.
6-6 (b) A provision of a lease that purports to waive a right or
6-7 to exempt a landlord from a liability or duty under this section is
6-8 void.
6-9 SECTION 9. Subsection (d), Section 92.009, Property Code, is
6-10 amended to read as follows:
6-11 (d) The writ of reentry must be served on either the
6-12 landlord or the landlord's management company, on-premises manager,
6-13 or rent collector in the same manner as a writ of possession in a
6-14 forcible detainer action. A sheriff or constable may use
6-15 reasonable force in executing a writ of reentry under this section.
6-16 SECTION 10. Section 92.056, Property Code, is amended to
6-17 read as follows:
6-18 Sec. 92.056. LANDLORD LIABILITY AND TENANT REMEDIES; NOTICE
6-19 AND TIME FOR REPAIR. (a) A landlord's liability under this
6-20 section is subject to Section 92.052(b) regarding conditions that
6-21 are caused by a tenant and Section 92.054 regarding conditions that
6-22 are insured casualties.
6-23 (b) A landlord [has a duty to repair or remedy a condition
6-24 and] is liable to a tenant as provided by this subchapter if:
6-25 (1) [the condition materially affects the physical
6-26 health or safety of an ordinary tenant;]
6-27 [(2)] the tenant has given the landlord notice to
7-1 repair or remedy a [the] condition by giving that notice to the
7-2 person to whom or to the place where the tenant's rent is normally
7-3 paid [as required by Subsection (a) of Section 92.052];
7-4 (2) the condition materially affects the physical
7-5 health or safety of an ordinary tenant;
7-6 (3) the tenant has given the landlord a subsequent
7-7 written notice to repair or remedy the condition after a reasonable
7-8 time to repair or remedy the condition following the notice given
7-9 under Subdivision (1) or the tenant has given the notice under
7-10 Subdivision (1) by sending that notice by certified mail, return
7-11 receipt requested, or by registered mail;
7-12 (4) the landlord has had a reasonable time to repair
7-13 or remedy the condition after the landlord received the tenant's
7-14 notice under Subdivision (1) and, if applicable, the tenant's
7-15 subsequent notice under Subdivision (3)[, considering the nature of
7-16 the problem and the reasonable availability of materials, labor,
7-17 and utilities from a utility company];
7-18 [(4) the tenant has given subsequent written notice to
7-19 the landlord, stating that the tenant intends to terminate the
7-20 lease, exercise repair and deduct remedies, or pursue judicial
7-21 remedies;]
7-22 (5) the landlord has not made a diligent effort to
7-23 repair or remedy the condition after the landlord received the
7-24 tenant's notice under Subdivision (1) and, if applicable, the
7-25 tenant's notice under Subdivision (3); and
7-26 (6) the tenant was not delinquent in the payment of
7-27 rent at the time any notice [the notices] required by [Subdivisions
8-1 (2) and (4) of] this subsection was [were] given.
8-2 (c) For purposes of Subsection (b)(4) or (5), a landlord is
8-3 considered to have received the tenant's notice when the landlord
8-4 or the landlord's agent or employee has actually received the
8-5 notice or when the United States Postal Service has attempted to
8-6 deliver the notice to the landlord.
8-7 (d) For purposes of Subsection (b)(3) or (4), in determining
8-8 whether a period of time is a reasonable time to repair or remedy a
8-9 condition, there is a rebuttable presumption that seven days is a
8-10 reasonable time. To rebut that presumption, the date on which the
8-11 landlord received the tenant's notice, the severity and nature of
8-12 the condition, and the reasonable availability of materials and
8-13 labor and of utilities from a utility company must be considered.
8-14 (e) [The landlord's duty under this subsection is subject to
8-15 the provisions of Subsection (b) of Section 92.052 regarding
8-16 conditions which are caused by the tenant and Section 92.054
8-17 regarding conditions which are insured casualties.]
8-18 [(b)] Except as provided in Subsection (f) [(c) of this
8-19 section], a tenant to whom a landlord is liable under Subsection
8-20 (b) [(a)] of this section may:
8-21 (1) terminate the lease [if the condition is not
8-22 repaired or remedied within seven days after the tenant's notice of
8-23 intent to terminate];
8-24 (2) have the condition repaired or remedied according
8-25 to Section 92.0561;
8-26 (3) deduct from the tenant's rent, without necessity
8-27 of judicial action, the cost of the repair or remedy according to
9-1 Section 92.0561; and
9-2 (4) obtain judicial remedies according to Section
9-3 92.0563 [if the condition is not repaired or remedied within seven
9-4 days after the tenant's notice of intent to repair or remedy].
9-5 (f) [(c)] A tenant who elects to terminate the lease under
9-6 Subsection (e) [(b) of this section] is:
9-7 (1) entitled to a pro rata refund of rent from the
9-8 date of termination or the date the tenant moves out, whichever is
9-9 later;
9-10 (2) entitled to deduct the tenant's security deposit
9-11 from the tenant's rent without necessity of lawsuit or obtain a
9-12 refund of the tenant's security deposit according to law; and
9-13 (3) not entitled to the other repair and deduct
9-14 remedies under Section 92.0561 or the judicial remedies under
9-15 Subdivisions (1) and (2) of Subsection (a) of Section 92.0563.
9-16 SECTION 11. Subsections (a) through (d), Section 92.0561,
9-17 Property Code, are amended to read as follows:
9-18 (a) If the landlord is liable to the tenant under
9-19 [Subsection (a) of] Section 92.056(b) [92.056], the tenant may have
9-20 the condition repaired or remedied and may deduct the cost from a
9-21 subsequent rent payment as provided in this section.
9-22 (b) The tenant's deduction for the cost of the repair or
9-23 remedy may not exceed the amount of one month's rent under the
9-24 lease or $500, whichever is greater. However, if the tenant's rent
9-25 is subsidized in whole or in part by a governmental agency, the
9-26 deduction limitation of one month's rent shall mean the fair market
9-27 rent for the dwelling and not the rent that the tenant pays. The
10-1 fair market rent shall be determined by the governmental agency
10-2 subsidizing the rent, or in the absence of such a determination, it
10-3 shall be a reasonable amount of rent under the circumstances.
10-4 (c) Repairs and deductions under this section may be made as
10-5 often as necessary so long as the total repairs and deductions in
10-6 any one month do not exceed one month's rent or $500, whichever is
10-7 greater.
10-8 (d) Repairs under this section may be made only if all of
10-9 the following requirements are met:
10-10 (1) The landlord has a duty to repair or remedy the
10-11 condition under Section 92.052, and the duty has not been waived in
10-12 a written lease by the tenant under Subsection (e) or (f) of
10-13 Section 92.006.
10-14 (2) The tenant has given notice [notices] to the
10-15 landlord as required by Section 92.056(b)(1) [92.056], and, if
10-16 required, a subsequent notice under Section 92.056(b)(3), and at
10-17 least one of those notices [the second or last notice by the tenant
10-18 to the landlord] states that the tenant intends to repair or remedy
10-19 the condition. The notice shall also contain a reasonable
10-20 description of the intended repair or remedy.
10-21 (3) Any one of the following events has occurred:
10-22 (A) The landlord has failed to remedy the backup
10-23 or overflow of raw sewage inside the tenant's dwelling or the
10-24 flooding from broken pipes or natural drainage inside the dwelling.
10-25 (B) The landlord has expressly or impliedly
10-26 agreed in the lease to furnish potable water to the tenant's
10-27 dwelling and the water service to the dwelling has totally ceased.
11-1 (C) The landlord has expressly or impliedly
11-2 agreed in the lease to furnish heating or cooling equipment; the
11-3 equipment is producing inadequate heat or cooled air; and the
11-4 landlord has been notified in writing by the appropriate local
11-5 housing, building, or health official or other official having
11-6 jurisdiction that the lack of heat or cooling materially affects
11-7 the health or safety of an ordinary tenant.
11-8 (D) The landlord has been notified in writing by
11-9 the appropriate local housing, building, or health official or
11-10 other official having jurisdiction that the condition materially
11-11 affects the health or safety of an ordinary tenant.
11-12 SECTION 12. (a) Except as provided by Subsection (b) of
11-13 this section, this Act takes effect September 1, 1997.
11-14 (b) Sections 10 and 11 of this Act take effect January 1,
11-15 1998.
11-16 SECTION 13. (a) Section 91.006, Property Code, as added by
11-17 this Act, applies only to a lease entered into on or after the
11-18 effective date of this Act.
11-19 (b) The changes in law made by Sections 92.056 and 92.0561,
11-20 Property Code, as amended by this Act, apply only to residential
11-21 leases entered into or renewed on or after January 1, 1998.
11-22 Residential leases entered into or renewed before that date are
11-23 covered by the law as it existed at the time the lease was entered
11-24 into or renewed, and the former law is continued in effect for that
11-25 purpose.
11-26 SECTION 14. The importance of this legislation and the
11-27 crowded condition of the calendars in both houses create an
12-1 emergency and an imperative public necessity that the
12-2 constitutional rule requiring bills to be read on three several
12-3 days in each house be suspended, and this rule is hereby suspended.