Txmz ATTORNEY GENERAL 

OF TEKAS 

Aus-rm. T- 787ll 

August 22, 1974 

The Honorable Chet Brooks 

Chairman, Senate Committee 

on Human Resources 

Texas State Senate 

Austin, Texas 78711 

Dear Senator Brooks: 

Opinion No. H- 377 

Re: Application and construction of Art. 5236c, V. T.C.S., 

concerning rights of landlords 

and tenants., 

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 describing 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, contradictory, 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 innkeeperlodger 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 reoccupy 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 Abandonment 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