# TxmzATTORNEY GENERAL OF TEKAS
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# T- 787ll

August 22, 1974
The Honorable Chet Brooks Chairman, Senate Committee onHuman Resources Texas State Senate Austin, Texas 78711 Dear Senator Brooks: Opinion No. H- 377 Re: Application and construction ofArt. 5236c, V. T.C.S., concerning rights of landlords and tenants.,

You have requested our opinion onthe following questions! 1. Are Sections 2and 4 of Art, 5236c, V. T. C.&, applicable to short term or weekly tenancies?

,. ” 2. What constitutes nabandonrpent ofthe 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 ofutilities paid for by the tenant directly to the utility company. 2. It shall be unlawful for a landlord or his agent towillfully exclude a tenant from the tenant’s premises.in any manners except byjudicial 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 ofthe 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, awrittenc
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 ofthe individual who will provide the tenant with such key; and such key shall be provided regardless ofwhether the tenant pays any delinquent rentals. Sec. 4. Upon violation ofthis 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, ofexcepting 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 qfthe law which would .render a literal interpretation thereof absurd, contradictory, or unjust. 53 TEX. JUR 2d Statutes,, Sec. 135 (1964);. Spears v. City ofSan Antonio, 223 S.W. 166~(Tex. 1920)* Since’ nosuch inconsistency results, in this case, the plain language ofArt. 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 aninnkeeperlodger relationship, for the exclusive right to possession of the premises rests with a tenant, whereas aninnkeeper maintains control over and the right to enter the premises. Byrd v. Feilding. 238 S.W. 2d 614 (Tex. Civ. App. -- Amarillo ,1951, nowrit). Itis 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 ofa3 tenant from that tenant’s premises, and in the case of violation ofthe statute, provides for damages including one month’s rent which may be recovered by a3 tenant so wronged, regardless ofthe duration of the tenancy.

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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. Ifthe 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 ofthe complaint. 25 TEX. JUR. 2d Forcible Entry and Detainer, Sec. 14 (1961), Beauchamp v. Runnels, 79 S.W. 1105 (Tex. Civ. App., 1904, nowrit). While Art. 5236~ prohibits the willful exclusion ofa tenant from his premises, except byjudicial 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 offact, the primary element ofwhich 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, 215S.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 ofintention to abandon. ” Anson v. Arnett, 250 S.W. Zd450. 454 (Tex, Civ.App,~-- Eastland,.,l952, writ ref’d., n.r. e. ) Inaddition, itwould seem that default in rental payments in conjunction with non-use would constitute strong evidence ofintent to abandon. Of course the second element of abandonment is an actual relinquishment of the premises. 1TEX. JUR. 2dAbandonment, Sec. 2 (1959). SUMMARY Article 5236c, V. T. C. S., is applicable to all tenancies regardless of their duration Abandonment consists of anintent to abandon and actual relinquishment ofpossession. Very truly yours,

Attorney General of Texas

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

APPROVED:

-DAVID M. KENDALL, Chairman Opinion Committee

p. 1773