Untitled Texas Attorney General Opinion

THE ATTORSEY GENERAL
OF TEXAS

September 21, 1987

Honorable Kent A. Caperton Opinion No. m-790
chairman
Jurisprudence Committee Re: Authority of a municipal-
Texas State Senate ity to enact a "repair and
P. 0. Box 2910 deduct" ordinance
Austin, Texas 78711

Dear Senator Caperton:

You ask whether a municipality may enact what you term a "repair
and deduct" ordinance. By "repair and deduct," you describe an
ordinance that would'permit a tenant to deduct from his rent payment
those amounts that the tenant expended to repair a deficiency in the
rental property that the landlord had a duty to repair but had unreas-
onably failed to repair. You do not ask about any specific ordinance.
You wish to know whether the legislature. with its enactment of
chapter 92 of the Property Code, has preempted a municipality from
enacting such an ordinance. We conclude that the legislature has
preempted the field in this area of the law. Accordingly, we conclude
that a municipality may not enact the sort of ordinance that you
describe.

Article XI. section 5, of the Texas Constitution provides that a
home-rule city, by a majority vote of its qualified voters, may adopt
or amend a charter

subject to such limitations as may be prescribed
by the Legislature, and providing that "0 charter
or any ordinance passed under said charter shall
contain any prevision inconsistent with the
Constitution of the State, or of the general laws
enacted by the Legislature of this State.
(Emphasis added.)

See, e.g., Lower Colorado River Authority v. City of San Marcos, 523
S.W.2d 641 (Tex. 1975); City of Wichita Falls v. Abell. 566 S.W.Zd 336
(Tex. Civ. App. - Fort Worth 1978, writ ref'd n.r.e.). At issue is
whether various sections of the Property Code, taken together, fairly
can be said to preempt the field in this area of law and effectively
prohibit a municipality from enacting the sort of ordinance that you
describe.

p. 3734
honorable Kent A. Caperton - Page 2 (JM-790)

The duties of a landlord and the remedies afforded a tenant are
set forth in chapter 92 of the Property Code. The various subchapters
of chapter 92 govern the repair or closing of a leasehold, the
entrnstment of security deposits, the installation of security
devices, the disclosure of ownership and management of the project,
and the installation of smoke detectors. Specifically, subchapter B
of chapter 92 contains provisions governing the repair or closing of a
leasehold. Section 92.052 of the code sets forth the landlord’s duty
to repair or remedy defects in the property and provides the
following:

(a) A landlord shall make a diligent effort to
repair or remedy a condition if:

(1) the tenant specifies the condition in a
notice to the person to whom or to the place
where rent is normally paid;

(2) the tenant is not delinquent in the
payment of rent at the time notice is given;
and

(3) the condition materially affects the
physical health or safety of an ordinary
tenant.

(b) The landlord does not have a duty to repair
or remedy a condition caused during the term of
the lease, including a renewal or extension, by
the tenant, a member of the tenant’s family, or a
guest of the tenant, unless the condition was
caused by normal wear and tear.

(c) This subchapter does not require the
landlord:

(1) to furnish utilities from a utility
company if as a practical matter the utility
lines of the company are not reasonably
available; or

(2) to furnish security guards.

(d) The tenant’s notice under Subsection (a)
must be in writing only if the tenant’s lease is
in writing and requires written notice.

See also Property Code, §92.053 (imposing burden of proof on tenant to
enforce remedies under section 92.052).

p. 3735
 Honorable Kent A. Caperton - Page 3 (JM-790)

Section 92.056 sets forth specific provisions regarding landlord
liability and tenant remedies, with the remedies enforceable only by a
judicial order, and provides the following:

(a) A landlord who has a duty to repair or
remedy under section 92.052 is liable to a tenant
according to this section if:

(1) after receiving notice to repair the
landlord has had a reasonable time, considering
the nature of the problem and the reasonable
availability of materials, labor, and utilities
from a utility company, to repair or remedy the
condition; and

(2) the landlord has not made a diligent
effort to repair or remedy the condition before
the eighth day after the tenant gives the
landlord written notice that the tenant will
terminate the lease or file suit under this
subchapter unless the condition is repaired or
remedied on or before the seventh day after the
date the notice is given.
- (b) The tenant of a landlord who is liable
under Subsection (a) may either terminate the
lease or obtain one or more of the following
judicial remedies:

(1) an order directing the landlord to take
reasonable action to repair or remedy the
condition;

(2) an order reducing the tenant's rent in
proportion to the reduced rental value result-
ing from the condition until the condition is
repaired or remedied;

(3) a judgment against the landlord for one
month's rent plus $100;

(4)~a judgment against the landlord for the
amount of the tenant's actual damages; or

(5) court costs and attorney's fees, exclud-
ing any attorney's fees for a cause of action
for damages relating to a personal injury.

(c) A tenant who elects to terminate the lease
” is entitled to a pro rata refund of rent from the

p. 3736
Honorable Kent A. Caperton - Page 4 (JK-790)

date of termination or the date the tenant moves
out, whichever is later. and to a refund of the
tenant's security deposit as required by law. but
is not entitled to a remedy provided by Subdivi-
sion (1) or (2) of Subsection (b).

(d) The county and district courts have exclus-
ive jurisdiction of an action under Subdiv~ision
(1) or (2) of Subsection (b).

Articles 92.057 and 92.058 proscribe retaliation by either the
landlord or by the tenant, respectively. Section 92.058 specifically
proscribes a tenant from tendering a rent. payment offset in
retaliation for an alleged failure of the landlord to remedy or repair
a defect:

(a) If after a landlord notifies a tenant of
the penalties under this section the tenant with-
holds payment of any part of the rent owed .the
landlord in retaliation for an alleged failure by
the landlord to repair or remedy a condition com-
plained of by the tenant, the tenant is liable to
the landlord for:

(1) one month's rent plus $100; and

(2) attorney's fees.

(b) Notice under this section must be in
writing and may be given in person, by mail, or by
delivery to the premises.

Section 92.054 of the Property Code is the only provision in
subchapter B that permits a rent offset under certain specified
circumstances, but only pursuant to a judgment of a county or district
court, and provides the following:

(a) If a condition results from an insured
casualty loss, such as fire, smoke.,hail, explo-
sion, or a similar cause. the period for repair
does not begin until the landlord receives the
insurance proceeds.

(b) If after a casualty loss the rental
pr2mises are as a practical matter totally
unusable for residential purposes and if the
casualty loss is not caused by the negligence or
fault of the tenant, a member of the tenant's
family, or a guest of the tenant, either the
landlord or the tenant may terminate the lease by

p. 3737
Xonorable Kent A. Caperton - Page 5 (s-790)

giving written notice to the other any time before
repairs are completed. If the lease is
terminated, the tenant is entitled only to a pro
rata refund of rent from the date the tenant moves
out and to a refund of any security deposit other-
wise required by law.

(c) If after a casualty loss the rental
premises are partially unusable for residential
purposes and if the casualty loss is not caused by
the negligence or fault of the tenant, a member of
the tenant's family, or a guest of the tenant, the
tenant is entitled to reduction in the rent in an
amount proportionate to the extent the premises
are unusable because of the casualty, but only on
judgment of a county or district court. A land-
lord and tenant may agree otherwise in a written
lease.

And finally, section 92.061 is entitled "Effect on Other Rights" and
sets forth the following:

The duties of a landlord and the remedies of a
tenant under this subchapter are in lieu of exist-
ing common and other statutory law warranties and
duties of landlords for maintenance, repair,
security, habitability,~ and nonretaliation. and
remedies of tenants for a violation of those
warranties and duties. Otherwise, this subchapter
does not affect anv other right of a landlord or
tenant under contract, statutory law, or common
law that is consistent with the purposes of this
subchapter or any right a landlord or tenant may
have to bring an action for personal injury or
property damage under the law of this state. This
subchapter does not impose obligations on a land-
lord or tenant other than those expressly stated
in this subchapter. (Emphasis added.)

Generally, the governing bodies of cities are prohibited by the
Texas Constitution and statutes from entering a field of legislation
that has been occupied by general legislative enactments. Leach v.
Coleman, 188 S.W.2d 220 (Tex. Civ. App. - Austin 1945, writ ref'd.
w.o.m.); Prescott v. City of Borger, 158 S.W.2d 578 (Tex. Civ. App. -
Amarillo 1935, writ ref'd). The limitation placed upon local bodies
in regard to entering a field of legislation, by the constitution and
statutes, does not extend to those ordinances that are permitted by or
are in harmony with constitutional and statutory provisions, even
though, in doing so, governing bodies may be said to be entering a
field occupied by general legislative enactments. Prescott v. City of

p. 3738
Ronorable Kent A. Caperton - Page 6 (m-790)

7
Borger , supra.

The Texas Supreme Court has declared:

A limitation on the power of home rule cities by
general law or charter may be either an express
limitation or one arising by implication. ‘Such a
limitation will not be implied, however. unless
the provisions of the general law or of the
charter are clear and compelling to that end.’
Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645. The
intention of the Leaislature to imnose such lim-
itations must ’appear
- with unmistakable clarity.’
City of Sweetwater v. Geron, Tex. Sup., 388 S.W.2d
550.

Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641,
645 (Tex. 1975); see also City of Brookside Village v. Comeau, 633
S.W.2d 790, 796 (Tex. 1982). Action by a city in a certain area of
law is preempted if legislation expressly prohibits the action, if the
legislature intended state law to occupy the field covered by the
action, or if the city’s action is in direct conflict with state law
even when the state law does not occupy the field. See Attorney
General Opinions JM-619 (1987); JM-226 (1984); H-1071 (1977).

It is clear from a’ reading of the relevant provisions of the
Property Code that the legislature intended to occupy the field in
this area of landlord-tenant rights. Accordingly, we conclude that a
municipality may not enact an ordinance that would permit a tenant to
deduct from his rent payment those amounts that the tenant expended to
repair a deficiency in the rental property that the landlord had a
duty to repair but had unreasonably failed to repair.

SUMMARY

Chapter 92 of the Property Code preempts the
field in the area of landlord-tenant duties and
remedies regarding a landlord’s duty to repair
leased premises; accordingly, a home rule city is
effectively precluded from enacting a so-called
“repair and deduct” ordinance that would permit a
tenant to deduct from his rent payment those
amounts that the tenant expended to repair a
deficiency in the rental property that the land-
lord had a duty to repair but had unreasonably
failed to repair.

p. 3739
Honorable Kent A. Caperton - Page 7 (m-790)

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General

p. 3740