                Txmz ATTORNEY    GENERAL
                        OF TEKAS
                            Aus-rm.     T-             787ll




                                     August    22,     1974


The Honorable  Chet Brooks                             Opinion No.    H-   377
Chairman,  Senate Committee
on Human Resources                                     Re:     Application   and construc-
Texas State Senate                                             tion of Art. 5236c,    V. T.C.S.,
Austin, Texas 78711                                            concerning    rights of landlords
                                                               and tenants.,
Dear Senator      Brooks:

      You have requested      our opinion on the following          questions!

          1. Are Sections 2 and 4 of Art, 5236c,  V. T. C.&,
          applicable to short term or weekly tenancies?
 ,.
        ” 2.   What constitutes nabandonrpent of the premise&                       ~,
          ,as used in Art. 5236c, Sec. 2, V. T.CdS.          +‘.K

                                                                            .,,
      Article   5236~   s,tates in pertinent   part:

              ‘1. It shall be unlawful under any circumstances
          for a landlord or,his agent to interrupt or cause
          interruption   of utilities paid for by the tenant directly
          to the utility company.

               2. It shall be unlawful for a landlord or his
          agent to willfully exclude a tenant from the tenant’s
          premises.in   any manners except by judicial process.
          Willful exclusion  shall mean preventing the tenant
          from entering into the premises    with the intent to
          deprive the tenant of such entry.    Provided,   however,
          a landlord or his agent shall not be prevented from
          removing the contents of the premises     when tbe
          tenant has abandoned the premises     or from changing
          door locks when the tenant’~s rentals are in fact
          delinquent in whole or part.    When such door lock
          is changed under such circumstances,      a written
                  c




The Honorable    Chet Brooks,    page 2     (H-377)




        notice shall be left on the tenant’s front door des-
        cribing where the new key may be obtained at any
        hour and describing   the name of the individual who
        will provide the tenant with such key; and such key
        shall be provided regardless    of whether the tenant
        pays any delinquent rentals.

              Sec. 4.    Upon violation of this Article by the
          landlord or his agent, the tenant may recover
          possession   or terminate the rental agreement;       and,
          imeither, case, the tenant may recover actual damages,
          plus one month’s rent, plus reasonable       attorneys fees,
          less any delinquent rentals or other sums for which
       : ,the tenant is ‘liable.

     By its terms. Art. 5236~ is applicable to landlord-tenant         relationships.
No mention,is    made, of excepting from its application       short term or weekly
tenancies.    Exceptions,   exemptions,    or limitations    may not ordinarily be
read into,a:statute.   absent some--inconsistency      with material parts qf the
law which would .render a literal interpretation        thereof absurd,     contra-
dictory,   or unjust.   53 TEX. JUR 2d Statutes,, Sec. 135 (1964);. Spears v.
City of San Antonio,    223 S. W. 166 ~(Tex. 1920)*     Since’ no such inconsistency
results, in this case, the plain language of Art. 523&c must be interpreted
to deal with aB~,landlord-tenam     relationships.    .Sucb an interpretation     is
strengthened when it is noted that the legislature        has seen fit to exclude
short term ,tenancies frcsn the operation of other statutes.         e. g., Art. 3975a,
V. T. C. S.

     However,    a short-term    tenancy is to be distinguished    from an innkeeper-
lodger relationship,     for the exclusive   right to possession   of the premises
rests with a tenant, whereas an innkeeper maintains           control over and the
right to enter the premises.       Byrd v. Feilding.    238 S. W. 2d 614 (Tex. Civ.
App. - - Amarillo   ,1951, no writ).   It is only the landlord-tenant   relationship
which is regulated by the statute.

     Therefore,    when a landlord-tenant   relationship  exists, Art. 5236~ in
part prohibits a landlord’s   willful exclusion of a3 tenant from that tenant’s
premises,    and in the case of violation of the statute,   provides for damages
including one month’s rent which may be recovered by a3 tenant so wronged,
regardless    of the duration of the tenancy.




                                      p.   1771
                                                                   e




The Honorable     Chet Brooks,    page 3       (H-377)




     In order to evict a tenant who is delinquent in rental payments,    the
landlord may proceed with a forcible entry and detainer action.       Art.
3973 et seq.,   V. T. C. S. If the tenancy is from week to week or a
lesser period,   the demand for possession,     which is necessary  prior to
the bringing of the action,    may’be made the day before the filing of the
complaint.    25 TEX. JUR. 2d Forcible Entry and Detainer,      Sec. 14 (1961),
Beauchamp v. Runnels,       79 S. W. 1105 (Tex. Civ. App., 1904, no writ).

    While Art. 5236~ prohibits the willful exclusion of a tenant from his
premises,     except by judicial process,      it also provides for the removal
of the contents therein when the tenant has abandoned tbe premises.
Whether there has been an abandonment is essentially              a question of fact,
the primary element of which is an intent to abandon, [Strauch v. Coastal
States Crude Gathering Co.,        424 S. W. 2d 677 (Tex. Civ. App.:        - CorNs
Christi,    1968, writ disfn’d. )], that is, an intention not to return and re-
occupy the property,     Humble Oil and Refinery Co. v. Cook, 215 S. W. 2d
383 (Tex. Civ. App. .- - Austin 1928, writ ref’d., r~ r. e. ). While non-use
is not ~sufficient in itself to show abandonment,         “if the failure to use is
long continued and unexplained,        it gives rise to an inference      of intention
to abandon. ” Anson v. Arnett,        250 S. W. Zd 450. 454 (Tex, Civ.App,~--
Eastland,.,l952,   writ ref’d.,  n. r. e. ) In addition, it would seem that
default in rental payments in conjunction with non-use would constitute
strong evidence of intent to abandon.          Of course the second element
of abandonment is an actual relinquishment           of the premises.      1 TEX.
JUR. 2d Abandonment,       Sec. 2 (1959).

                              SUMMARY

             Article 5236c,  V. T. C. S., is applicable to all
        tenancies regardless    of their duration    Abandon-
        ment consists   of an intent to abandon and actual
        relinquishment   of possession.

                                           Very    truly yours,




                                           Attorney      General       of Texas




                                      p.    1772
    The Honorable   Chet Brooks,   page 4     (H-377)




    APPROVED:




-
    DAVID M. KENDALL,       Chairman
    Opinion Committee




                                       p.   1773
