1-1 By: Barrientos S.B. No. 1678
1-2 (In the Senate - Filed March 14, 1997; March 24, 1997, read
1-3 first time and referred to Committee on Jurisprudence;
1-4 April 23, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; April 23, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1678 By: Harris
1-8 AN ACT
1-9 relating to certain procedures concerning landlords and tenants of
1-10 residential real property.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Section 24.004, Property Code, is amended to read
1-13 as follows:
1-14 Sec. 24.004. JURISDICTION. A justice court in the precinct
1-15 in which the real property is located has jurisdiction in eviction
1-16 suits. Eviction suits include forcible entry and detainer and
1-17 forcible detainer suits.
1-18 SECTION 2. Section 24.005, Property Code, is amended by
1-19 amending Subsection (f) and adding Subsection (i) to read as
1-20 follows:
1-21 (f) The notice to vacate shall be given in person or by mail
1-22 at the premises in question. Notice in person may be by personal
1-23 delivery to the tenant or any person residing at the premises who
1-24 is 16 years of age or older or personal delivery to the premises
1-25 and affixing the notice to the inside of the main entry door.
1-26 Notice by mail may be by regular mail, [or] by registered mail, or
1-27 by certified mail, return receipt requested, to the premises in
1-28 question.
1-29 (i) If before the notice to vacate is given as required by
1-30 this section the landlord has given a written notice or reminder to
1-31 the tenant that rent is due and unpaid, the landlord may include in
1-32 the notice to vacate required by this section a demand that the
1-33 tenant pay the delinquent rent or vacate the premises by the date
1-34 and time stated in the notice.
1-35 SECTION 3. Subsection (a), Section 24.006, Property Code, is
1-36 amended to read as follows:
1-37 (a) Except as provided by Subsection (b), to be eligible to
1-38 recover attorney's fees in an eviction [a forcible entry and
1-39 detainer suit or a forcible detainer] suit, a landlord must give a
1-40 tenant who is unlawfully retaining possession of the landlord's
1-41 premises a written demand to vacate the premises. The demand must
1-42 state that if the tenant does not vacate the premises before the
1-43 11th day after the date of receipt of the notice and if the
1-44 landlord files suit, the landlord may recover attorney's fees. The
1-45 demand must be sent by registered mail or by certified mail, return
1-46 receipt requested, at least 10 days before the date the suit is
1-47 filed.
1-48 SECTION 4. Section 24.0061, Property Code, is amended to
1-49 read as follows:
1-50 Sec. 24.0061. WRIT OF POSSESSION. (a) A landlord who
1-51 prevails in an eviction suit [a forcible entry and detainer or a
1-52 forcible detainer action] is entitled to a judgment for possession
1-53 of the premises and a writ of possession. In this chapter,
1-54 "premises" means the unit that is occupied or rented and any
1-55 outside area or facility that the tenant is entitled to use under a
1-56 written lease or oral rental agreement, or that is held out for the
1-57 use of tenants generally.
1-58 (b) A writ of possession may not be issued before the sixth
1-59 day after the date on which the judgment for possession is rendered
1-60 unless a possession bond has been filed and approved under the
1-61 Texas Rules of Civil Procedure and judgment for possession is
1-62 thereafter granted by default.
1-63 (c) The court shall notify a tenant in writing of a default
1-64 judgment for possession by sending a copy of the judgment to the
2-1 premises by first class mail not later than 48 hours after the
2-2 entry of the judgment.
2-3 (d) The writ of possession shall order the officer executing
2-4 the writ to [deliver possession of the premises to the landlord and
2-5 to]:
2-6 (1) post a written warning of at least 8-1/2 by 11
2-7 inches on the exterior of the front door of the rental unit
2-8 notifying the tenant that the writ has been issued and that the
2-9 writ will be executed on or after a specific date and time stated
2-10 in the warning not sooner than 24 hours after the warning is
2-11 posted; and
2-12 (2) when the writ is executed:
2-13 (A) deliver possession of the premises to the
2-14 landlord;
2-15 (B) instruct the tenant and all persons claiming
2-16 under the tenant to leave the premises immediately, and, if the
2-17 persons fail to comply, physically remove them;
2-18 (C) [(2)] instruct the tenant to remove or to
2-19 allow the landlord, the landlord's representatives, or other
2-20 persons acting under the officer's supervision to remove all
2-21 personal property from the rental unit other than personal property
2-22 claimed to be owned by the landlord; and
2-23 (D) [(3)] place, or have an authorized person
2-24 place, the removed personal property outside the rental unit at a
2-25 nearby location, but not blocking a public sidewalk, passageway, or
2-26 street and not while it is raining, sleeting, or snowing.
2-27 (e) [(d)] The writ of possession shall authorize the
2-28 officer, at the officer's discretion, to[:]
2-29 [(1) post a written warning on the exterior of the
2-30 front door of the rental unit, notifying the tenant that the writ
2-31 has been issued and that it will be executed on or after a specific
2-32 date and time stated in the warning; and]
2-33 [(2)] engage the services of a bonded or insured
2-34 warehouseman to remove and store, subject to applicable law, part
2-35 or all of the property at no cost to the landlord or the officer
2-36 executing the writ.
2-37 (f) [(e)] The officer may not require the landlord to store
2-38 the property.
2-39 (g) [(f)] The writ of possession shall contain notice to the
2-40 officer that under Section 7.003, Civil Practice and Remedies Code,
2-41 the officer is not liable for damages resulting from the execution
2-42 of the writ if the officer executes the writ in good faith and with
2-43 reasonable diligence.
2-44 (h) A sheriff or constable [(g) An officer] may[, if
2-45 necessary,] use reasonable force in executing a writ under this
2-46 section.
2-47 SECTION 5. Section 24.007, Property Code, is amended to read
2-48 as follows:
2-49 Sec. 24.007. APPEAL. A final judgment of a county court in
2-50 an eviction [a forcible entry and detainer suit or a forcible
2-51 detainer] suit may not be appealed on the issue of possession
2-52 unless the premises in question are being used for residential
2-53 purposes only. A judgment of a county court may not under any
2-54 circumstances be stayed pending appeal unless, within 10 days of
2-55 the signing of the judgment, the appellant files a supersedeas bond
2-56 in an amount set by the county court. In setting the supersedeas
2-57 bond the county court shall provide protection for the appellee to
2-58 the same extent as in any other appeal, taking into consideration
2-59 the value of rents likely to accrue during appeal, damages which
2-60 may occur as a result of the stay during appeal, and other damages
2-61 or amounts as the court may deem appropriate.
2-62 SECTION 6. Section 24.008, Property Code, is amended to read
2-63 as follows:
2-64 Sec. 24.008. EFFECT ON OTHER ACTIONS. An eviction [A
2-65 forcible entry and detainer suit or a forcible detainer] suit does
2-66 not bar a suit for trespass, damages, waste, rent, or mesne
2-67 profits.
2-68 SECTION 7. Section 24.011, Property Code, is amended to read
2-69 as follows:
3-1 Sec. 24.011. NONLAWYER REPRESENTATION. In eviction
3-2 [forcible detainer] suits in justice court for nonpayment of rent
3-3 or holding over beyond a rental term, the parties may represent
3-4 themselves or be represented by their authorized agents, who need
3-5 not be attorneys. In any eviction [forcible detainer or forcible
3-6 entry and detainer] suit in justice court, an authorized agent
3-7 requesting or obtaining a default judgment need not be an attorney.
3-8 SECTION 8. Chapter 91, Property Code, is amended by adding
3-9 Section 91.006 to read as follows:
3-10 Sec. 91.006. LANDLORD'S DUTY TO MITIGATE DAMAGES. (a) A
3-11 landlord has a duty to mitigate damages if a tenant abandons the
3-12 leased premises in violation of the lease.
3-13 (b) A provision of a lease that purports to waive a right or
3-14 to exempt a landlord from a liability or duty under this section is
3-15 void.
3-16 SECTION 9. Subsection (d), Section 92.009, Property Code, is
3-17 amended to read as follows:
3-18 (d) The writ of reentry must be served on either the
3-19 landlord or the landlord's management company, on-premises manager,
3-20 or rent collector in the same manner as a writ of possession in a
3-21 forcible detainer action. A sheriff or constable may use
3-22 reasonable force in executing a writ of reentry under this section.
3-23 SECTION 10. Section 92.056, Property Code, is amended to
3-24 read as follows:
3-25 Sec. 92.056. LANDLORD LIABILITY AND TENANT REMEDIES; NOTICE
3-26 AND TIME FOR REPAIR. (a) A landlord's liability under this
3-27 section is subject to Section 92.052(b) regarding conditions that
3-28 are caused by a tenant and Section 92.054 regarding conditions that
3-29 are insured casualties.
3-30 (b) A landlord [has a duty to repair or remedy a condition
3-31 and] is liable to a tenant as provided by this subchapter if:
3-32 (1) [the condition materially affects the physical
3-33 health or safety of an ordinary tenant;]
3-34 [(2)] the tenant has given the landlord notice to
3-35 repair or remedy a [the] condition by giving that notice to the
3-36 person to whom or to the place where the tenant's rent is normally
3-37 paid [as required by Subsection (a) of Section 92.052];
3-38 (2) the condition materially affects the physical
3-39 health or safety of an ordinary tenant;
3-40 (3) the tenant has given the landlord a subsequent
3-41 written notice to repair or remedy the condition after a reasonable
3-42 time to repair or remedy the condition following the notice given
3-43 under Subdivision (1) or the tenant has given the notice under
3-44 Subdivision (1) by sending that notice by certified mail, return
3-45 receipt requested, or by registered mail;
3-46 (4) the landlord has had a reasonable time to repair
3-47 or remedy the condition after the landlord received the tenant's
3-48 notice under Subdivision (1) and, if applicable, the tenant's
3-49 subsequent notice under Subdivision (3)[, considering the nature of
3-50 the problem and the reasonable availability of materials, labor,
3-51 and utilities from a utility company];
3-52 [(4) the tenant has given subsequent written notice to
3-53 the landlord, stating that the tenant intends to terminate the
3-54 lease, exercise repair and deduct remedies, or pursue judicial
3-55 remedies;]
3-56 (5) the landlord has not made a diligent effort to
3-57 repair or remedy the condition after the landlord received the
3-58 tenant's notice under Subdivision (1) and, if applicable, the
3-59 tenant's notice under Subdivision (3); and
3-60 (6) the tenant was not delinquent in the payment of
3-61 rent at the time any notice [the notices] required by [Subdivisions
3-62 (2) and (4) of] this subsection was [were] given.
3-63 (c) For purposes of Subsection (b)(4) or (5), a landlord is
3-64 considered to have received the tenant's notice when the landlord
3-65 or the landlord's agent or employee has actually received the
3-66 notice or when the United States Postal Service has attempted to
3-67 deliver the notice to the landlord.
3-68 (d) For purposes of Subsection (b)(3) or (4), in determining
3-69 whether a period of time is a reasonable time to repair or remedy a
4-1 condition, there is a rebuttable presumption that seven days is a
4-2 reasonable time. To rebut that presumption, the date on which the
4-3 landlord received the tenant's notice, the severity and nature of
4-4 the condition, and the reasonable availability of materials and
4-5 labor and of utilities from a utility company must be considered.
4-6 (e) [The landlord's duty under this subsection is subject to
4-7 the provisions of Subsection (b) of Section 92.052 regarding
4-8 conditions which are caused by the tenant and Section 92.054
4-9 regarding conditions which are insured casualties.]
4-10 [(b)] Except as provided in Subsection (f) [(c) of this
4-11 section], a tenant to whom a landlord is liable under Subsection
4-12 (b) [(a)] of this section may:
4-13 (1) terminate the lease [if the condition is not
4-14 repaired or remedied within seven days after the tenant's notice of
4-15 intent to terminate];
4-16 (2) have the condition repaired or remedied according
4-17 to Section 92.0561;
4-18 (3) deduct from the tenant's rent, without necessity
4-19 of judicial action, the cost of the repair or remedy according to
4-20 Section 92.0561; and
4-21 (4) obtain judicial remedies according to Section
4-22 92.0563 [if the condition is not repaired or remedied within seven
4-23 days after the tenant's notice of intent to repair or remedy].
4-24 (f) [(c)] A tenant who elects to terminate the lease under
4-25 Subsection (e) [(b) of this section] is:
4-26 (1) entitled to a pro rata refund of rent from the
4-27 date of termination or the date the tenant moves out, whichever is
4-28 later;
4-29 (2) entitled to deduct the tenant's security deposit
4-30 from the tenant's rent without necessity of lawsuit or obtain a
4-31 refund of the tenant's security deposit according to law; and
4-32 (3) not entitled to the other repair and deduct
4-33 remedies under Section 92.0561 or the judicial remedies under
4-34 Subdivisions (1) and (2) of Subsection (a) of Section 92.0563.
4-35 SECTION 11. Subsections (a) through (d), Section 92.0561,
4-36 Property Code, are amended to read as follows:
4-37 (a) If the landlord is liable to the tenant under
4-38 [Subsection (a) of] Section 92.056(b) [92.056], the tenant may have
4-39 the condition repaired or remedied and may deduct the cost from a
4-40 subsequent rent payment as provided in this section.
4-41 (b) The tenant's deduction for the cost of the repair or
4-42 remedy may not exceed the amount of one month's rent under the
4-43 lease or $500, whichever is greater. However, if the tenant's rent
4-44 is subsidized in whole or in part by a governmental agency, the
4-45 deduction limitation of one month's rent shall mean the fair market
4-46 rent for the dwelling and not the rent that the tenant pays. The
4-47 fair market rent shall be determined by the governmental agency
4-48 subsidizing the rent, or in the absence of such a determination, it
4-49 shall be a reasonable amount of rent under the circumstances.
4-50 (c) Repairs and deductions under this section may be made as
4-51 often as necessary so long as the total repairs and deductions in
4-52 any one month do not exceed one month's rent or $500, whichever is
4-53 greater.
4-54 (d) Repairs under this section may be made only if all of
4-55 the following requirements are met:
4-56 (1) The landlord has a duty to repair or remedy the
4-57 condition under Section 92.052, and the duty has not been waived in
4-58 a written lease by the tenant under Subsection (e) or (f) of
4-59 Section 92.006.
4-60 (2) The tenant has given notice [notices] to the
4-61 landlord as required by Section 92.056(b)(1) [92.056], and, if
4-62 required, a subsequent notice under Section 92.056(b)(3), and at
4-63 least one of those notices [the second or last notice by the tenant
4-64 to the landlord] states that the tenant intends to repair or remedy
4-65 the condition. The notice shall also contain a reasonable
4-66 description of the intended repair or remedy.
4-67 (3) Any one of the following events has occurred:
4-68 (A) The landlord has failed to remedy the backup
4-69 or overflow of raw sewage inside the tenant's dwelling or the
5-1 flooding from broken pipes or natural drainage inside the dwelling.
5-2 (B) The landlord has expressly or impliedly
5-3 agreed in the lease to furnish potable water to the tenant's
5-4 dwelling and the water service to the dwelling has totally ceased.
5-5 (C) The landlord has expressly or impliedly
5-6 agreed in the lease to furnish heating or cooling equipment; the
5-7 equipment is producing inadequate heat or cooled air; and the
5-8 landlord has been notified in writing by the appropriate local
5-9 housing, building, or health official or other official having
5-10 jurisdiction that the lack of heat or cooling materially affects
5-11 the health or safety of an ordinary tenant.
5-12 (D) The landlord has been notified in writing by
5-13 the appropriate local housing, building, or health official or
5-14 other official having jurisdiction that the condition materially
5-15 affects the health or safety of an ordinary tenant.
5-16 SECTION 12. (a) Except as provided by Subsection (b) of
5-17 this section, this Act takes effect September 1, 1997.
5-18 (b) Sections 10 and 11 of this Act take effect January 1,
5-19 1998.
5-20 SECTION 13. (a) Section 91.006, Property Code, as added by
5-21 this Act, applies only to a lease entered into on or after the
5-22 effective date of this Act.
5-23 (b) The changes in law made by Sections 92.056 and 92.0561,
5-24 Property Code, as amended by this Act, apply only to residential
5-25 leases entered into or renewed on or after January 1, 1998.
5-26 Residential leases entered into or renewed before that date are
5-27 covered by the law as it existed at the time the lease was entered
5-28 into or renewed, and the former law is continued in effect for that
5-29 purpose.
5-30 SECTION 14. The importance of this legislation and the
5-31 crowded condition of the calendars in both houses create an
5-32 emergency and an imperative public necessity that the
5-33 constitutional rule requiring bills to be read on three several
5-34 days in each house be suspended, and this rule is hereby suspended.
5-35 * * * * *