By:  Barrientos                                       S.B. No. 1678

         Line and page numbers may not match official copy.

         Bill not drafted by TLC or Senate E&E.

                                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 92.056, Property Code, is amended to read

 1-5     as follows:

 1-6           Sec. 92.056.  LANDLORD LIABILITY AND TENANT REMEDIES.

 1-7     (a)  The landlord's duty under this subsection is subject to

 1-8     Section 92.052(b) regarding conditions that are caused by the

 1-9     tenant and Section 92.054 regarding conditions that are insured

1-10     casualties.  A landlord has a duty to repair or remedy a condition

1-11     and is liable to a tenant as provided by this subchapter if:

1-12                 (1)  the condition materially affects the physical

1-13     health or safety of an ordinary tenant;

1-14                 (2)  the tenant has given the landlord notice to repair

1-15     or remedy the condition as required by Subsection (a) of Section

1-16     92.052;

1-17                 (3)  the landlord has had a reasonable time to repair

1-18     or remedy the condition, considering the nature of the problem, the

1-19     time the landlord knew or should have known about the problem, and

1-20     the reasonable availability of materials, labor, and utilities from

1-21     a utility company;

 2-1                 (4)  [judicial remedies;]

 2-2                 [(5)]  the landlord has not made a diligent effort to

 2-3     repair or remedy the condition; and

 2-4                 (5) [(6)]  the tenant was not delinquent in the payment

 2-5     of rent at the time the notice [notices] required by Subdivision

 2-6     [Subdivisions] (2) was [and (4) of the subsection were] given.

 2-7           [The landlord's duty under this subsection is subject to the

 2-8     provisions of Subsection (b) of Section 92.052 regarding conditions

 2-9     which are caused by the tenant and Section 92.054 regarding

2-10     conditions which are insured casualties.]

2-11           (b)  Except as provided in Subsection (c) [of this section],

2-12     a tenant to whom a landlord is liable under Subsection (a) [of this

2-13     section] may:

2-14                 (1)  terminate the lease if the condition is not

2-15     repaired or remedied within seven days after the tenant's notice

2-16     given in accordance with Section 92.052(a) [of intent to

2-17     terminate];

2-18                 (2)  have the condition repaired or remedied according

2-19     to Section 92.0561;

2-20                 (3)  deduct from the tenant's rent, without necessity

2-21     of judicial action, the cost of the repair or remedy according to

2-22     Section 92.0561;  or [and]

2-23                 (4)  obtain judicial remedies according to Section

2-24     92.0563 if the condition is not repaired or remedied within seven

2-25     days after the tenant's notice given in accordance with Section

 3-1     92.052(a) [of intent to repair or remedy].

 3-2           (c)  A tenant who elects to terminate the lease under

 3-3     Subsection (b) and vacates the premises not later than the 30th day

 3-4     after the date the lease is terminated [of this section] is:

 3-5                 (1)  released from the obligation to pay rent and is

 3-6     entitled to a pro rata refund of rent from the date the tenant

 3-7     gives notice in accordance with Section 92.052(a) [of termination

 3-8     or the date the tenant moves out, whichever is later];

 3-9                 (2)  entitled to [deduct the tenant's security deposit

3-10     from the tenant's rent without necessity of lawsuit or obtain] a

3-11     refund of the tenant's security deposit according to law; and

3-12                 (3)  not entitled to the other repair and deduct

3-13     remedies under Section 92.0561 or the judicial remedies under

3-14     Subdivisions (1) and (2) of Subsection (a) of Section 92.0563.

3-15           (d)  For purposes of Subsections (a)(3) and (4), a landlord

3-16     is presumed to have had a reasonable time and not made a diligent

3-17     effort to repair or remedy a condition if the landlord has not

3-18     responded to a tenant's written notice given in accordance with

3-19     Section 92.052(a) by mailing or otherwise delivering to the tenant

3-20     on or before the fifth day after the date the tenant's notice is

3-21     received a written notice that:

3-22                 (1)  denies the existence of the condition complained

3-23     of by the tenant, states the condition is one that the landlord

3-24     does not have a duty to repair or remedy as provided under Section

3-25     92.052(b), or states the condition is an insured casualty that the

 4-1     landlord is not required or not yet required to repair, as

 4-2     applicable, as provided under Section 92.054;

 4-3                 (2)  denies the condition materially affects the

 4-4     physical health and safety of an ordinary tenant;

 4-5                 (3)  asserts the tenant's notice was given at a time

 4-6     the tenant was delinquent in paying rent; or

 4-7                 (4)  explains a plan of action to address the

 4-8     condition, including the activities to be performed and a specific,

 4-9     reasonable period for completion of each activity.

4-10           (e)  If a landlord in bad faith sends a notice to a tenant

4-11     under Subsection (d), the tenant is entitled to:

4-12                 (1)  actual damages;

4-13                 (2)  additional damages not to exceed twice the actual

4-14     damages; and

4-15                 (3)  a civil penalty under Section 92.0563.

4-16           SECTION 2.  Sections 92.0561(b)-(d), Property Code, are

4-17     amended to read as follows:

4-18           (b)  The tenant's deduction for the cost of the repair or

4-19     remedy may not exceed the amount of two [one] month's rent under

4-20     the lease.  However, if the tenant's rent is subsidized in whole or

4-21     in part by a governmental agency, the deduction limitation of two

4-22     [one] month's rent shall mean the fair market rent for the dwelling

4-23     and not the rent that the tenant pays.  The fair market rent shall

4-24     be determined by the governmental agency subsidizing the rent, or

4-25     in the absence of such a determination, it shall be a reasonable

 5-1     amount of rent under the circumstances.

 5-2           (c)  Repairs and deductions under this section may be made as

 5-3     often as necessary so long as the total repairs and deductions in

 5-4     any two-month period [one month] do not exceed two months' [one

 5-5     month's] rent.

 5-6           (d)  Repairs under this section may be made only if all of

 5-7     the following requirements are met:

 5-8                 (1)  The landlord has a duty to repair or remedy the

 5-9     condition under Section 92.052, and the duty has not been waived in

5-10     a written lease by the tenant under Subsection (e) or (f) of

5-11     Section 92.006.

5-12                 (2)  The tenant has given notice [notices] to the

5-13     landlord as required by Section 92.056, and a [the second or last]

5-14     notice by the tenant to the landlord states that the tenant intends

5-15     to repair or remedy the condition.  On written request by the

5-16     landlord, the tenant [The notice] shall give the landlord [also

5-17     contain] a reasonable description of the intended repair or remedy.

5-18                 (3)  Any one of the following events has occurred:

5-19                       (A)  There is [The landlord has failed to remedy

5-20     the] backup or overflow of raw sewage inside the tenant's dwelling

5-21     or [the] flooding from broken pipes or natural drainage inside the

5-22     dwelling.

5-23                       (B)  The landlord has expressly or impliedly

5-24     agreed in the lease to furnish potable water to the tenant's

5-25     dwelling and the water service to the dwelling has totally ceased.

 6-1                       (C)  The landlord has expressly or impliedly

 6-2     agreed in the lease to furnish heating or cooling equipment and [;]

 6-3     the equipment is producing inadequate heat or cooled air[; and the

 6-4     landlord has been notified in writing by the appropriate local

 6-5     housing, building, or health official or other official having

 6-6     jurisdiction that the lack of heat or cooling materially affects

 6-7     the health or safety of an ordinary tenant].

 6-8                       (D)  A [The landlord has been notified in writing

 6-9     by the appropriate local housing, building, or health official or

6-10     other official having jurisdiction that the] condition exists at

6-11     the leased premises that materially affects the health or safety of

6-12     an ordinary tenant.

6-13           SECTION 3.  Subchapter B, Chapter 92, Property Code, is

6-14     amended by adding Section 92.0564 to read as follows:

6-15           Sec. 92.0564.  OTHER JUDICIAL REMEDIES.  (a) A governmental

6-16     entity or civic association acting on a tenant's behalf may give

6-17     notice and file suit against a landlord to enjoin a violation of

6-18     this subchapter.

6-19           (b)  A governmental entity or civic association that prevails

6-20     in a suit brought under Subsection (a) may recover court costs and

6-21     reasonable attorney's fees.

6-22           SECTION 4.  Section 92.201, Property Code, is amended by

6-23     adding Subsections (g) and (h) to read as follows:

6-24           (g)  Notwithstanding Subsection (e), a landlord who obtains

6-25     ownership of the dwelling rented by the tenant during the tenant's

 7-1     lease term shall disclose in writing to the tenant the date of the

 7-2     change in ownership and the information required under Subsection

 7-3     (a)(1).  That disclosure must be made before the first day of the

 7-4     month following the date of the change in ownership but not later

 7-5     than the 15th day after the date of the change in ownership.

 7-6           (h)  Notwithstanding Subsection (e), a landlord who begins

 7-7     using or changes a management company to manage the dwelling rented

 7-8     by the tenant during the tenant's lease term shall disclose in

 7-9     writing to the tenant the date of the change in management and the

7-10     information required under Subsection (a)(2).  That disclosure must

7-11     be made before the first day of the month following the date of the

7-12     change in management but not later than the 15th day after the date

7-13     of the change in management.

7-14           SECTION 5.  Chapter 24, Property Code, is amended by adding

7-15     Sections 24.0051 and 24.0052 to read as follows:

7-16           Sec. 24.0051.  RESIDENTIAL TENANT'S RIGHT TO CURE DEFAULT

7-17     BEFORE EVICTION SUIT FILED.  (a)  Except as provided by Subsection

7-18     (e), a residential tenant who defaults under a written or oral

7-19     lease may avoid termination of the lease by complying with the

7-20     lease terms not later than the third day after the date the notice

7-21     of default required by this section is delivered.

7-22           (b)  A landlord who intends to terminate the lease of a

7-23     tenant in default must notify the tenant in writing.  Delivery of

7-24     the notice is sufficient if it is:

7-25                 (1)  delivered by regular mail or by registered or

 8-1     certified mail, return receipt requested;

 8-2                 (2)  delivered in person to the tenant or to any person

 8-3     residing at the premises who is at least 16 years of age; or

 8-4                 (3)  affixed to the inside of the main entry door to

 8-5     the premises.

 8-6           (c)  The notice must:

 8-7                 (1)  state that the tenant is in default under the

 8-8     lease;

 8-9                 (2)  inform the tenant of the tenant's right to cure

8-10     the default; and

8-11                 (3)  specify the nature of the default, the action

8-12     required to cure the default, and the period available to cure the

8-13     default.

8-14           (d)  If the tenant cures the default as required by the

8-15     notice, the landlord may not:

8-16                 (1)  terminate the lease;

8-17                 (2)  terminate the tenant's right to possession of the

8-18     premises;

8-19                 (3)  give the tenant notice to vacate; or

8-20                 (4)  file a forcible detainer suit based on the default

8-21     cured by the tenant.

8-22           (e)  Unless the lease provides otherwise, a tenant does not

8-23     have a right to cure a default that resulted from violent criminal

8-24     activity or an illegal drug related activity.

8-25           Sec. 24.0052.  RESIDENTIAL TENANT'S RIGHT TO CURE DEFAULT

 9-1     AFTER EVICTION SUIT FILED.  (a)  If a landlord prevails in a

 9-2     forcible detainer suit against a residential tenant and the court

 9-3     enters a judgment awarding the landlord possession of the premises

 9-4     based solely on nonpayment or late payment of rent, the court,

 9-5     before issuing a writ of possession, shall:

 9-6                 (1)  determine the payment amount required to cure the

 9-7     default;

 9-8                 (2)  enter the payment amount on the court docket; and

 9-9                 (3)  notify the tenant at the hearing or, in the event

9-10     of a default judgment, by postcard notice, of:

9-11                       (A)  the tenant's right to cure the default;

9-12                       (B)  the payment amount required to cure the

9-13     default; and

9-14                       (C)  the period available to cure the default.

9-15           (b)  The tenant may cure the default on or before the fifth

9-16     day after the date the judgment of the court is signed by

9-17     depositing the payment amount in the registry of the court.  If the

9-18     court is closed on the last day available for the tenant to cure

9-19     the default, the period to cure is extended to the next day the

9-20     court is open for business.

9-21           (c)  If a tenant complies with Subsection (b), the court:

9-22                 (1)  shall release the judgment, reinstate the tenant

9-23     under the lease, and transfer the deposited funds to the landlord;

9-24     and

9-25                 (2)  may not issue a writ of possession in favor of the

 10-1    landlord.

 10-2          (d)  The payment amount necessary to cure the default is the

 10-3    sum of:

 10-4                (1)  the delinquent rent, excluding any amount

 10-5    accelerated because of the default;

 10-6                (2)  reasonable late fees owed to the landlord; and

 10-7                (3)  any court costs assessed against the tenant by the

 10-8    court.

 10-9          SECTION 6.  Section 24.0061, Property Code, is amended to

10-10    read as follows:

10-11          Sec. 24.0061.  Writ of Possession.  (a)  A landlord who

10-12    prevails in a forcible entry and detainer or a forcible detainer

10-13    action is entitled to a judgment for possession of the premises and

10-14    a writ of possession.  In this chapter, "premises" means the unit

10-15    that is occupied or rented and any outside area or facility that

10-16    the tenant is entitled to use under a written lease or oral rental

10-17    agreement, or that is held out for the use of tenants generally.

10-18          (b)  A writ of possession may not be issued before the sixth

10-19    day after the date on which the judgment for possession is rendered

10-20    unless a possession bond has been filed and approved under the

10-21    Texas Rules of Civil Procedure and judgment for possession is

10-22    thereafter granted by default.

10-23          (c)  The court shall notify a tenant in writing of a default

10-24    judgment for possession by sending a copy of the judgment to the

10-25    premises by first class mail not later than 24 hours after the

 11-1    entry of the judgment.

 11-2          (d)  The writ of possession shall order the officer executing

 11-3    the writ to [deliver possession of the premises to the landlord and

 11-4    to]:

 11-5                (1)  Post a written notice printed on brightly colored

 11-6    poster board of at least 8-1/2 by 11 inches on the exterior of the

 11-7    front door of the rental unit notifying the tenant that the writ

 11-8    has been issued and that the writ will be executed on or after a

 11-9    specific date and hour stated in the warning, but not sooner than

11-10    24 hours after the warning is posted; and

11-11                (2)  When the writ is executed:

11-12                      (A)  deliver possession of the premises to the

11-13    landlord;

11-14                      (B) [(1)]  instruct the tenant and all persons

11-15    claiming under the tenant to leave the premises immediately, and,

11-16    if the person fail to comply, physically remove them;

11-17                      (C) [(2)]  instruct the tenant to remove or to

11-18    allow the landlord, the landlord's representatives, or other

11-19    persons acting under the officer's supervision to remove all

11-20    personal property from the rental unit other than personal property

11-21    claimed to be owned by the landlord; and

11-22                      (D) [(3)]  place, or have an authorized person

11-23    place, the removed personal property outside the rental unit at a

11-24    nearby location, but not blocking a public sidewalk, passageway, or

11-25    street and not while it is raining, sleeting, or snowing.

 12-1          (e) [(d)]  The writ of possession shall authorize the

 12-2    officer, at the officer's discretion, to[:]

 12-3                [(1)  post a written warning on the exterior of the

 12-4    front door of the rental unit, notifying the tenant that the writ

 12-5    has been issued and that it will be executed on or after a specific

 12-6    date and time stated in the warning; and]

 12-7                [(2)]  engage the services of a bonded or insured

 12-8    warehouseman to remove and store, subject to applicable law, part

 12-9    or all of the property at no cost to the landlord or the officer

12-10    executing the writ.

12-11          (f) [(e)]  The officer may not require the landlord to store

12-12    the property.

12-13          (g) [(f)]  The writ of possession shall contain notice to the

12-14    officer that under Section 7.003, Civil Practice and Remedies Code,

12-15    the officer is not liable for damages resulting from the execution

12-16    of the writ if the officer executes the writ in good faith and with

12-17    reasonable diligence.

12-18          (h) [(g)]  An officer may, if necessary, use reasonable force

12-19    in executing a writ under this section.

12-20          SECTION 7.  Chapter 92, Property Code, is amended by adding

12-21    Subchapter I, to read as follows:

12-22          SUBCHAPTER I.  TENANT REPORTING.  Sec. 92.350.  TENANT

12-23    REPORTING SERVICES.  As used in this Subchapter "tenant reporting

12-24    service" means a person or organization engaging in the practice of

12-25    assembling or reporting information regarding individual

 13-1    residential tenants, for the purpose of furnishing such tenant

 13-2    information to third parties.

 13-3          Sec. 92.351.  PROHIBITION AGAINST SUBMITTING FALSE OR

 13-4    DISPUTED MATTERS.  (a)  A person who knowingly furnishes false

 13-5    tenant information regarding another person to a tenant reporting

 13-6    service is liable to the tenant for actual damages, plus a civil

 13-7    penalty of $500, court costs and reasonable and necessary

 13-8    attorney's fees.

 13-9          (b)  If a tenant has exercised a right to unilaterally

13-10    terminate the lease, withhold rent, use the security deposit for

13-11    rent, or repair and deduct, according to this Chapter, the landlord

13-12    and management company may not issue statements to a tenant

13-13    reporting service regarding any claim the landlord or management

13-14    company may have against the tenant based upon an alleged improper

13-15    exercise unless such a claim has been judicially determined.

13-16          Sec. 92.352.  RIGHT TO NOTICE OF REPORT USED.  If a landlord

13-17    or management company rejects a prospective tenant based in whole

13-18    or in part on information provided by a tenant reporting service,

13-19    the landlord or management company must inform the tenant, upon

13-20    request within five days, of the name, address and telephone number

13-21    of the tenant reporting service and the information obtained from

13-22    the tenant reporting service, and give a copy of any written report

13-23    without charge to the tenant.

13-24          Sec. 92.353.  REMEDIES FOR VIOLATION.  (a)  In addition to

13-25    other remedies provided by law, a landlord or management company

 14-1    who violates any provision of this Subchapter is liable to the

 14-2    tenant for actual damages, plus a civil penalty of $500, court

 14-3    costs and reasonable and necessary attorney's fees.

 14-4          (b)  In addition to the remedies provided in Subsection (a)

 14-5    of this Section, if a landlord or management company is notified of

 14-6    a violation of any provision of this Subchapter in writing, and

 14-7    fails to withdraw or otherwise correct the information given to the

 14-8    tenant reporting service within 10 days, then the tenant is further

 14-9    entitled to injunctive relief, and an additional civil penalty of

14-10    $1,000.

14-11          SECTION 8.  (a)  This Act takes effect September 1, 1997.

14-12          (b)  The changes in law made by Sections 1, 2, 3 and 4 of

14-13    this Act apply only to residential leases entered into or renewed

14-14    on or after September 1, 1997.  Residential leases entered into or

14-15    renewed before that date are covered by the law as it existed at

14-16    the time the lease was entered into or renewed, and the former law

14-17    is continued in effect for that purpose.

14-18          (c)  The change in law made by Section 5 of this Act applies

14-19    only to a tenant who defaults on or after the effective date of

14-20    this Act.

14-21          (d)  The change in law made by Section 6 of this Act applies

14-22    only to a judgment for possession that is rendered on or after the

14-23    effective date of this Act.  A judgment for possession that was

14-24    rendered before the effective date of this Act is governed by the

14-25    law in effect when the judgment was rendered, and the former law is

 15-1    continued in effect for that purpose.

 15-2          SECTION 9.  The importance of this legislation and the

 15-3    crowded condition of the calendars in both houses create an

 15-4    emergency and an imperative public necessity that the

 15-5    constitutional rule requiring bills to be read on three several

 15-6    days in each house be suspended, and this rule is hereby suspended.