             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




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