THE ATTORSEY GENERAL 

OF TEXAS 

September 21, 1987 

Honorable Kent A. Caperton 

chairman 

Jurisprudence Committee 

Texas State Senate 

P. 0. Box 2910 

Austin, Texas 78711 

Opinion No. m-790 

Re: Authority of a municipality to enact a "repair and 

deduct" ordinance 

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 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 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 an y p revision 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 resulting 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, excluding 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 Subdivision (1) or (2) of Subsection (b). 

(d) The county and district courts have 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 

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 withholds 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 complained 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, explosion, 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 otherwise 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 landlord 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 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 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 landlord 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) 

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 limitations 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 landlord had a duty to repair but had unreasonably 

failed to repair. 

p. 3739 

7 
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 

p. 3740