THE ATTORSEY 

## GENERAL OF TEXAS
September 21, 1987

HonorableKent A. Caperton chairman Jurisprudence Committee Texas State Senate P. 0. Box 2910 Austin, Texas 78711 OpinionNo. m-790
Re: Authority of amunicipality to enact a "repair and deduct" ordinance

Dear SenatorCaperton:
You ask whether a municipalitymay 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 rentalproperty that the landlordhad a duty to repairbut had unreasonably 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 Constitutionprovides that a home-rule city, by a majority vote of its qualifiedvoters, 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 an

y p inconsistent with the revision Constitution of the State, or of the general laws enacted by the Legislature of this State. (Emphasisadded.) See, e.g., Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975);City of Wichita Fallsv. 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.

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The duties of a landlord and the remedies afforded a tenant are set forth in chapter 92 of the Property Code. Thevarious 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 containsprovisionsgoverning the repairor closing of a leasehold. Section 92.052 of the code sets forth the landlord’sduty to repair or remedy defects in the property and provides the following: (a)A landlord shallmake 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 normallypaid; (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 landlorddoes 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 causedby normalwear and tear. (c)This subchapter does not require the landlord:(1) to furnish utilities from a utility company if as a practicalmatter theutility lines of the company are not reasonably available;or (2)to furnish securityguards. (d)The tenant’s notice under Subsection (a) must be in writing only if the tenant’s lease is inwriting and requireswritten notice.
See also PropertyCode, §92.053 (imposingburden of proof on tenant to enforce remediesunder section 92.052).

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” Section 92.056 sets forth specific provisions regarding landlord

liabilityand tenant remedies,with the remedies enforceableonly by a judicialorder, 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 landlordhas had a reasonable **time,** considering the nature of the problem and the reasonable availabilityofmaterials, labor,andutilities 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 conditionbefore 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 orbefore the seventhday after the date thenotice 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 judicialremedies: (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 resulting from the condition until the condition is repaired or remedied; (3)a judgment against the landlord for one month's rentplus $100; (4)~ a judgment against the landlord for the amount of the tenant'sactualdamages; or (5) court costs and attorney'sfees, excluding any attorney's fees for a cause of action for damages relating to a personal injury. (c)A tenantwho elects to terminate the lease is entitled to a pro rata refund of rent from the

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date of termination or the date the tenantmoves out, whichever is later. and to a refund of the tenant's security deposit as requiredby law. but is not entitled to a remedy provided by Subdivision (1) or (2)of Subsection (b). (d)The county and district courtshave exclusive 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 retaliationfor an alleged failureof the landlord toremedy or repair a defect: (a)If after a landlord notifies a tenant of

the penalties under this section the tenantwithholds payment of any part of the rent owed .the landlord in retaliation for an alleged failureby the landlord to repair or remedy a condition complained of by the tenant, the tenant is liable to the landlord for: (1)onemonth's rentplus $100;and (2)attorney's fees. (b) Notice under this section must be in writingand may be given in person,by mail, or by delivery to thepremises. Section 92.054 of the Property Code is the only provision in subchapter B that permits a rent offset under certain specified circumstances,but onlypursuant to a judgmentof a county or district court, andprovides the following:

(a)If a condition results from an insured casualty loss, such as fire, smoke., hail, explosion, or a similar cause. the period for repair does not begin until the landlord receives the insuranceproceeds. (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 tenantmay terminate the lease by

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givingwrittennotice to the other any timebefore repairs are completed. If the lease is terminated, the tenant is entitled only to a pro rata refund of rent from thedate the tenant **moves** out and to a refund of any securitydeposit otherwise requiredby law. (c) If after a casualty loss the rental premises **are** partially unusable for residential purposes and if the casualty loss isnot caused by thenegligenceor fault of the tenant,amember 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 landlord and tenantmay 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 tenantunder this subchapterare in lieu of existing 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 andduties. Otherwise, this subchapter does not affect anv other right of a landlord or tenant under contract, statutory law, or common law that is consistentwith the purposes of this subchapter or any right a landlord or tenant may have to bring an action for personal injury or property damageunder the law of this state. This subchapter does not impose obligationson a landlord or tenant other than those expressly stated in this subchapter. (Emphasisadded.) Generally, the governingbodies 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 limitationplaced upon localbodies in regard to entering a field of legislation,by the constitutionand statutes,does not extend to thoseordinances that are permittedby or are in harmony with constitutional and statutory provisions, even though, in doing so, governingbodies may be said to be entering a field occupiedby general legislativeenactments. Prescott v. City of

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supra. Borger, The Texas SupremeCourthas declared:
A limitationon the power of home rule cities by general law or charter may be either an express limitationor one arisingby implication. ‘Sucha limitation will not be implied, however. unless the provisions of the general law or of the charter are clear and compelling to that end.’ Glassv. Smith, 150Tex. 632, 244 S.W.2d 645. The intention of the Leaislature to imnose such limitationsmust ’ -

appear with unmistakable clarity.’ City of Sweetwaterv. Geron, Tex. Sup., 388 S.W.2d 550.
Lower ColoradoRiver Authorityv. 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 preemptedif legislationexpresslyprohibits 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 conflictwith state law even when the state law does not occupy the field. See Attorney General OpinionsJM-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-tenantrights. Accordingly,we conclude that a municipalitymay not enact an ordinance that would permit a tenant to deduct fromhis rentpayment those amounts that the tenant expended to repair a deficiency in the rental property that the landlord had a duty to repairbuthad 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 leasedpremises; accordingly, a home rule city is effectively precluded from enacting a so-called “repairand deduct” ordinance thatwould 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 failedto repair.

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JIM MATTOX Attorney General of Texas
MARY KELLER ExecutiveAssistantAttorney General
JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General
RICK GILPIN Chairman,Opinion Committee Preparedby Jim Moellinger AssistantAttorney General

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