## In th e Court of Appeals Second App ella te District of Texas at Fort Worth

___________________________ No. 02

- 21

- 00163

- CV

___________________________

On Appeal from the 78th District Court Wichita County, Texas Trial Court No. DC78

- CV2020

- 2665
Before Kerr, Wallach, and Walker, JJ. O pinion by J ustice Ke rr 

### E LIZABETH 

### P ERRY 

### , Appellant

V


### . W ICHITA 

### F ALLS 

### H OUSING 

### A UTHORITY 

### , Appellee2 OPINION
In this forcible

- detainer case, Elizabeth Perry appeals from the trial court ’ s judgment awar ding possession of an apartment to the W ichita Fall s Ho using Authority (WFHA ). In two issues, Perry argues that the trial co urt er re d by aw arding possession to WFHA because (1) WFHA failed to p r ovide her with the requisit e statutory no tice to vacate under the Texas Property Code and (2) W FHA failed to give her notice of her rig hts unde r the Violence Against Wo men Ac t as required by
f

ed eral la w. Because WFHA failed to give Perry the sta tutorily require d notice to

vacate unde r Texas law , we reverse the trial court ’ s judgment.
I. Backg round WFHA is a f ederally supported pub lic

- housing agency (PHA ) that provides
h ousing assistance to lo w-in come indiv iduals and is governed by the Uni ted States Housing Act of 1937 and Department of Housing and Urban Development (HUD) regulati ons . See Heinert v. Wichita F alls Hous. Auth. , 441 S.W.3d 810, 816 (Tex. App.

— Amarillo 2014, no pet.) ( stating that as a federally subsidized housing authority,

“ WFHA is governed by the United States Housing Act of 1937 and its attendant regulations ”)

. “ Among other things, federal law dictates much of the content of public [-] housing leases , requiri ng the inclusion of v ario u s provisions and prohibiting other provisions. ” Id. ; see 24 C.F.R. § 966.4 (2016) (“ Lease R equirements ”).
In Ma rch 2020, Per ry entered into a “dwelling lease ” with WFHA

. Consistent with HUD regulation s , t h e lease p rovided that W FHA could “ terminate or ref u se to3 renew this Lease for serious or rep eated violations of Resident ’ s obligations under any
section of this Lease or for other good cause. ” See 24 C.F.R. § 966.4 ( l ) ( 2 )(i ) , (iii)

. If WFHA terminate d th e lease, the lease required WFHA to give Perry written n otice of
le ase termi nation th at include d the s pecific grounds for termination and in for m ed
Perr y of her rights (1) “ to make such re pl y as [she] may w ish ” ; (2) to e xamine
manage ment ’ s d ocu ments “ directly relevant to the termination or evic tion ” ; and ( 3 ) t o request a hearing in accordance with t he current griev ance proc ed ure, which was

“ posted in the Management Office and incorpora ted herei n by reference. ” See id. § 966.4 ( l ) (3)(ii )

. T h e lease also provide d th at “ [n ] otice t o vacate may be com bined w ith and r un concurrently with notice of lease termination. ” See id. § 966.4 ( l ) (3)(ii i )

. The lease further provided that WF HA w ould a nnually r e
- ex amine Perry ’ s cir cumstances to det ermine if ther e had been any changes that would “ af fect r ent, eli gibil ity [,] and appro pr iateness of a part ment size

. ” The lease req uired Pe rr y to atten d

a re

- examination intervi ew and to pr ovide WFHA wit h “ suc h i nformation and certif ications as may b e nece ssa ry ” for it to conduct its review

. The lease s tated tha t f

ailure to attend the inte rv i e w “ on the designated date and tim e ” was “ considered a serious violation of [the] lease and ground s for term inatio n o f [the] lease. ” On Ju ly 29, 202 0, WFHA sent Perry a written notice informing her that her r e
examina tion inter view was scheduled fo r S epte mb er 3, 2020, and listing the documents that she was required to provide to WFHA at the interview

. When Perry4 f

ailed to appe ar for her interv iew, WFHA notified her in w riting that her interview

was res cheduled for S eptem ber 10 , 2020. Perry did not attend t he second interview

. That same day

— September 10, 20 20

— WFHA no tified Per ry in wri ti ng that because she had b reached the lease by fai ling to attend the two re

- examination appointments , the lease would be terminated on O c tober 3 1 , 2020, an d she mus t

vac ate th e prem ises by that date. In conformi ty with the l ease ’s terms a nd HUD

re gulations , t he lea se
- termination notic e stated the specific grounds for termination 1
and info rmed Perry of her right s to r eply to t he notice , to examine WFHA ’ s documents direct ly relev an t to her termina tion and eviction, a nd to request a hea ring

u n der the gri e vance procedure

. See id. § 966.4 ( l ) ( 3 )(ii)

. The notice explained that if
Perr y did not vacate the premises by the October 31 deadl ine, WFHA would file a forcible

- detainer action ag ainst her. Also on Sep tember 10, Perry signed (1 ) an

“ Evi ction Delivery Certif ic ation ” indicat i ng that she had received the lease

termination notice a nd (2) a “ Delivery R ec eipt of VIOL ENCE AGAINST W O MEN
RE AUTHORIZATION A CT ( VAWA ). ” Perry did not reply to the l ease
- ter mination noti ce or avail he rse lf of the
g r ievance procedu re. She failed to vacate the proper t y , and on December 9 , 2020,

1 On appeal, Perry do es not dispute that she brea ched the lease for the specific grounds stated in the leas e
- ter m ination notice : her failure to attend the r e
- exami na tion inter view

.5 WFHA sued her for f orcible detainer

. The justice court awarded possession of the property to WFHA, and Perry appealed to d istri ct cou rt fo r a t rial de novo. 2 During the tr ial de no vo, Donna Lewis , an employee in WFHA ’ s Occupanc y Department, testified tha t she had mailed the leas e
- termin at ion notic e to P erry and that the termination notice was attac h ed to Perry ’ s do or. T hrough Lewi s , WFHA introduc ed into e vidence ( 1) the le ase; (2) the notifications of the two lease re

examination appointments ; (3) the lease

- termination notice; ( 4 ) the signed evictio n

delivery certification ; 3 and ( 5 ) the sig ned VAWA delivery rec e ipt

. When P erry ’ s

at torney asked Lewis on cross

- examination what the VAW A d elive ry receip t was

“ sup posed to indicate the receipt of , ” Lewi s responded , “ When I serve the evict ion, I also add the VAWA paperwork with the e viction

. . . [a] nd I also mail it to her. ” Lewis

w e n t on to e xpl ain what the VA WA paper work included : [Le w is ]: Oka y . T he form that I sent to them was attachment 3, Certification of Domestic Violence , Sexual Assault or Stalking

. This is what I sent to them when I sent t he eviction. I send o ne to their door and I also se nt it through the mail.

2 I n evic tion cases, a j ustic e c o urt ’ s judgment is appea led to count y court. Se e Tex. R. Civ. P. 510.10 ( c)

. But t he 7 8 th Dis trict Court , like all W ichita Co unty distr ict court s, “ has the civil jurisdiction of a county court. ” Tex. Gov ’ t C o de Ann

. § 24.132 (b) ; see i d. § § 24.132 (d) , . 180 (c)

.
3 Although Lewis test if

i ed that the lease

- termination notice w as attached to Perry ’ s door

— which could b e interpreted as implying that Perry was not at home whe n the l ease
- termination notice was delivered

— th e “ Eviction D elive ry Cert ificat ion ” indic at ed that she was home and accep ted d elive ry o f t he notice

. In any e vent, Perry doe s not dispute that she received the notice.6 Q. (By [P erry ’ s c ounsel]) An d how ma n y forms is that ? A. It ’ s two forms. It ’ s backwards and

-- both si des. Perry did not tes tify.
The trial co urt found for WF HA and si gned a possession jud gment in WFHA ’ s f

avor that als o awar ded WFHA attorney ’ s fees and court costs. Perry su perseded t he judgment and remain s in poss essi on of the apar tment
. At Perry ’ s re quest, the trial court filed findi ngs of fact and conclusi ons of law

. See T ex. R. Civ. P . 296, 29 7

. Perry ha s appealed , ra ising two not ice

- related issue s challenging the trial court ’ s legal conclusion s that “ [a] ll lega l notices and pre requisites to granti ng an eviction hav e been me t ” and that “ [t]he evi dence presented i s sufficient

to e stablish that [WFHA] is entitled to a ju dgmen t for possession of the pr emises,

c osts of court, and attorney ’ s fee s. ”
II. Standard of R eview We review the trial court ’ s legal con cl usions de novo. BMC Software B elg

. , N.V. v. Mar chand , 83 S.W.3d 789, 794 (Tex. 2002 )

. We may review conclusions of l a w to determine their correctness based upon the facts, but we wil l not reverse because of an erroneous conclusion if the trial court render ed the pr oper judgment. City o f Austin
v. Whitt ington , 384 S.W.3d 766, 779 n.10 (Tex. 2012) (citing BMC Software , 83 S.W. 3d at 794 ) ; H.E.B., L.L.C. v. Ardinger , 369 S.W.3d 496, 513 ( Tex. App.

— Fort Worth 2012, no pet.). That is, because a trial court ’ s conc lusions o f law are not binding on us, we will n ot reverse a trial court ’ s jud gment based on an incorrect conclusion of la w when7 the controlling findings of fact support the judgment on a correct legal theory. Wise Elec. Coop., Inc. v. Am. Hat Co. , 476 S.W. 3d 671, 6 79 (Tex. App.

— Fort Wo rth 2015, no pet. ).
III. Forcible Detainer
In h er first issue, Perry asserts that the tria l court should not have granted WFHA judgment on its for cible

- detainer claim bec ause WFHA failed to comply with
the Texas Property Code ’s notice

- to

- vacate re quiremen ts. Because f orc ible detainer is a statutory ca use of action under the Texas Property Code , a landlord must stri ctly comply with it s re qu ireme nts
. Geters v. Baytown
Hou s. Auth. , 430 S.W.3d 578 , 584 (Tex. App.

— Hous ton [ 14th Dist.] 2014, no pet. ); Kennedy v. And over Place Apartment s , 203 S.W.3d 495 , 497 (Tex. App.

— Houston [14th
Dist. ] 2006, n o pet .). Se e generally Tex. P rop . Code Ann. § § 24.001

– .0 11. Under Texas Property C ode Section 24.002, a tenant com mits a forcib le de tain er by re fusing to

sur ren der possession of real property after the landlord has lawfully terminate d the

tenant ’s right to poss ession. See Tex. P rop . Code Ann. § 24.002(a ) ; Kenne dy , 203 S.W.3d at 497

. Section 24.002 requires a landlord to make a wri tt en dema nd for
pos session and to compl y with S ection 24.005 ’ s notice

- to

- vacate requirements. Tex. Prop . Code Ann. § 24.002(b). P roper notice is an element of a forcible

- detainer
action. Fashakin v. Fe d. Home Loan Mortg. Corp

. , No. 14

- 11

- 01079

- CV,
2013 WL 1316694 , at *2 (T ex. App.

— Houston [14th Dist.] Apr. 2, 2013, pet. denied ) (mem. op.).8 He re, Perry asserts that WFHA failed to com ply w ith Section 24.005 ’ s notice

to

- vacate re quirements

. When, as here , the occ upant is a tenant under a writte n l ease , the landlord must giv e a defaulting te n ant at leas t three days ’ written notice to va cate before filin g a forcible -d etainer suit, unless th e p arties have contracted in writing for a larger or smaller notice period

. Tex. P rop . Code Ann. § 24.00 5(a ). 4 But “[ i] f the l eas e or applicable la w require s th e landlord to giv e a tenant an opportunity to respond to a notice of pr opose d eviction, a notice to vacate may not be given until the period provided for the tenant to respond to the evicti on notice has expired. ” Id. § 24.00 5(e).
P erry’ s lease gave h er t he right to reply to a lease

- termination n otice and t he right to reque st a hearing in accordanc e wit h the grievance procedure

. Although
neither the lease nor the lease

- termination notice specifie d the period in which Perry was required to respond to the no tice or to request a grievance hearing, Section 24.005(e) applies because both the lease and th e HUD regulations require WFHA t o give Perry an opportunity to respond, either through a reply or by requesting a grievance hearing. See 24 C.F.R. § 966.4( l )(3)( ii) ; Tex. Prop. Code Ann. § 24.00 5(e); Kennedy , 203 S.W.3d at 498 ( concluding that lease stati ng that a termination notic e

must “advise the Tenant that he/she has 10 days within which to discuss the proposed termination of tenancy with the Landlord” requires an opportunity to respond under Section 24.005(e)); see also Briones v. Brazos Bend Vi lla Ap ar tments,

4 A no tice to vacate is conside red a demand for p ossession for purposes of Section 24.0 02(b). T ex. Prop. Co de Ann. § 2 5.005(h).9 438 S.W.3d 808, 814 (Tex. App.

— Houston [14th Dist.] 2014, no pet.) ( applying Section 24.005(e) where lease required landlord to give tenant “10 day s within which to discuss the proposed [lease] termination”) ; Geters , 430 S.W.3d at 586 (conc luding
that under Kennedy and Section 24.005(e), landlord should have provided tenant with a second notice to vacate where lease stated that tenant had a “right to make such reply as [she] may wish and

. . . to request a hearing in accordance with the curr ent Gr i evance Procedure” )

. An d becau se Section 24

. 005 (e) applies, WFHA could not combine its notice to vacate with its lease

- termination notice ; it was re quired to send Perry a sep arate, later notice to va cate
. See Kennedy , 203 S.W.3d at 49 8 ( “ Und er [ Secti on 24. 0 05 (e) ’ s] plain la nguage, when the lease requires an op por tunity to respond to a proposed e vict ion a nd [S] ection 24. 005 t hus applies, the landlord must provi de a separate, la ter notice to va cate. ” ); see also Briones , 438 S.W.3d at 814

– 15 (relying on Kenn ed y and Geters and con cluding t hat in case invo lving HUD

subsidized tenant, landlord ’ s c ombined notice of termination and to vaca te pr emises did n ot constitute required s t atutory notice to v acat e required by Section 24.005 (e) );
Geters , 430 S.W.3d at 58 1 n.2, 585

– 86 ( con cludi ng tha t even though l ease subject to HUD regula tions “ stated that notice to vacate may be combined with a nd run concurrently with notice of lease termi nation , ” Section 24.005 (e) re quired landlord to pr ovi de t enant with a notice to va cate a f ter the per iod to r esp ond to the lease

terminatio n notice had e xpired )

.10 WFHA co unters that it was not required to send P erry a separate notice to

vacat e under Section 24.005 (e) because federal

- housing re gu lations

— not th e Texas Property Code

—govern WFHA’s notice obli gations and that feder al law thus preempts state law to t he extent the two conflict

. See Caro v. Hous. Auth . of A ustin , 794 S.W.2d 901, 906 (Tex. App.

— Au stin 1991, writ denied) (re c ognizing that when Congre ss entrust s a federal agency to make a nd enf orce regula tio ns to carry out a federal s tat ute, t hose regulations “ may have preemptive effect upon State law ” and
conclu ding that f edera l- housi ng regulation a t iss ue pre empted state common law to
the extent t he two conflicted). Specifically , W FHA ar gue s t hat 2 4 C.F. R. § 966. 4( l ) (3)(ii i)— which pr ovides that “ [a] notic e to vacate which is required by State or local law may be combined with, or run concurrently wi th, a notice of lease termination under paragraph ( l ) (3)(i) of this section ”— conflict s with Secti on 24.005(e ) and thu s impl iedly preempt s it. Thus, WFHA argues, it was not required to send Perry

a separate notice to vacate because the September 10, 2 02 0 lease

- termination notice

—

w hich notified Perry that WFHA would terminate her lease on Oc tober 31, 20 20, and

n ot ified her that she was required to vacate the property by that date —c omplied with federal la w. Fed eral law or regulations may implie d ly preempt state law if the state law actually conflict s with federal l aw or regulations

. See, e .g. , MCI Sa les & Ser v., Inc

. v. Hinto n , 3 29 S.W.3d 475 , 482 (Tex. 2010 ) (citing C ipo llone v. Liggett Grp. , Inc. , 505 U.S. 504, 516 , 112 S . Ct. 2608, 2617 ( 1992 )) ; BIC Pen Corp. v. Carte r , 251 S.W.3d 500 ,11 5 04 (Tex. 2008 ) ( citing Great Dane Trailers, Inc. v. Est

. of We ll s

, 52 S .W.3d 7 37 , 743 (Tex.
2001 )). “ A state law actually conflicts wit h a federal law when compliance with both is impossible or when the state l aw ‘ stands as an obstacle to the accomplishment and execution of the full purposes and objecti ves of Congre ss. ’” MCI Sales , 329 S.W.3d at 482 ( quoting Hines v. Davidowit z

, 312 U .S. 52, 67 , 61 S. Ct. 399, 404 (1941 )) ; see United
States v. Locke , 529 U.S. 89 , 109, 120 S. Ct. 1135, 1148 (2000)

. When a state law conflicts with a federal law , i t is preempted a nd has no effect

. Great Dane Trailers , 52 S .W.3d at 743 (citing Maryland v. Loui sia na , 451 U.S. 725, 746 , 101 S. Ct. 2114,
2128

– 29 (1981 )) ; see U.S. Const. art. VI, cl. 2 ( “ This Constitution, and the Laws of t he
U nited S tates which sh all be made in Pursuan ce the reof ; . . . sh all be the supreme Law
of th e Land;

. . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. ” ). But “[w]e presume federal law does not bar the state ’ s exerc ise of
its historic police powers unless Congre ss clearly e xpres ses the intent to preempt such
state action. ” Damian v. Bell Helicopter Textron , Inc. , 352 S.W.3d 124, 133 (Tex. App.

— Fort Worth 2011, pet. denied) ( citing N.Y. State Conf

. of Blue C ross & Bl ue Shield Pl ans v. Tr avelers Ins. Co. , 514 U.S. 645, 655, 11 5 S. Ct . 1 671, 1676 (1995) ). Here, WFHA has the burden to demonstrate preemption. S ee Secured Evn ’t Mgmt., Inc. v. Tex. Nat. Res. Conservation Comm ’n , 97 S.W.3d 246, 25 2 (Tex. App.

— Austi n 200 2, p et. denied) ( citing S ilkwood v. Kerr

–

McGee Corp. , 464 U.S. 2 38, 255,
104 S. Ct. 615 , 625 (1984); Boon Ins. Agency, Inc. v. Am. Airlines, Inc. , 17 S. W.3d 52,
55 (Tex. App.

— Austin 2000, pet. denied) ). But WFHA has not met its burden here

.12 First, compli ance with both state l aw and f e deral law is not imposs ible. While
many provisions of 2 4 C.F.R. § 966.4

— which imposes certain requirements on PHA
leases —a re mandatory, 2 4 C.F.R. § 966.4 ( l ) (3)(ii i) is not : “ A notic e to vacate which is required by State or lo cal l aw m ay be combine d with, or run concurrently with , a

no tice of lease termination under pa rag raph ( l )(3)(i) of this section .” 2 4 C.F.R. § 966.4 ( l ) (3) (ii i) (emphasis added). In other words, federal law allows a PHA to

com bine the two notices but does no t req uire it do so. Th us, comp liance with both
fe deral law a nd Tex as law is not impossible here. 5
Secon d, WFHA has not pointed us to C o ngress ’ s purposes and objectives , much less explained how Property Code Section 24.005 (e) “ stand s as an obstacle to the accom plis hment and exe c ution ” of those purposes and obj ective s. MCI Sales , 329 S.W.3 d at 482

. Con gress ’ s purpose is the “ul timate touchstone ” i n every pr eemption case

. Damian , 352 S.W.3d at 133 (c iting Retail Clerks Int’ l Ass ’n , Local
1625 v. Schermerhor n , 37 5 U.S. 96, 103 , 84 S. Ct. 2 19, 223 (1963); Delta Air Li nes , Inc. v. Bla ck , 116 S.W.3d 745 , 748 (Tex. 2003) (op. on reh’ g) ). As our sister court has pointed
out, “The operation of public housing by [public housing authorities] is subject to

5 WFHA cites to cases from other jur isdictions that address the preemptive effect of o ther subsections of 2 4 C.F.R. § 966.4

. See Moore v. Hous. Auth. of New Have n , No. CVNH 9303

- 5688, 1993 WL 525051 , at *2–3 (Conn. Sup er. Ct. Nov. 22, 1 993 ) ; D el

. Stat e Hous. Aut h./Clark ’s Corner v. Just

. of the Peace Ct. 16 , No. 07A

- 11

- 004WLW, 2008 WL 4120038 , at * 4–5 (Del. Super. Ct. Aug. 8, 2008 ); V .I. Hous. Auth. v. Edward s , 30 V.I. 3 , 6– 8 ( V.I. 1994 )

. N one address 2 4 C.F.R. § 966 .4 ( l ) (3)(ii i) or the preempt ive effect of any o ther permissive subsections of 24 C.F.R. § 966.4 , and we thus do not find the m p ersua sive.13 comprehensive federal regula tion. Amo ng other thing s, fede ral law di ctates much of
the content of publi c housing leases, requiring the incl usion of various provisions and prohib it ing other provisions.” H einert , 441 S.W.3d at 816 (qu oting Sager v. Hous.
Comm ’n of Anne Arundel Cnty. , 855 F . S upp. 2d 524, 5 31 (D. Md

. 2012) (m em. op .) ).
E ven so, because 2 4 C.F.R. § 966.4 ( l ) (3)(ii i) allow s— but does not require —a state

law

- mandated notic e to vacate to be combined with a lease

- termi nation notice , we

cannot see how Section 24.005 (e) , which is a pa rt of state

- cour t ev ictio n procedur es ,
st ands a s an obstacle t o the federal regulation of public housing. Having rejected WFHA ’ s preemption argume nt and reviewing the trial court ’ s legal concl usions de novo, we hold that the trial court erred by con cluding t hat “ [a] ll leg a l notice s and pre r equisi tes to granti ng an ev iction have been me t” and that “ [t]he evidence presented is sufficient to e stablish that [W FHA] is entitled to a ju dgment for possession of the pr emises , c osts of court, and attorney ’ s fees ” because WFHA ’ s fail ure to give Perry a separ ate , l ater notice to vacate as Section 24.005 (e) requires was f

atal to its forcible

- detainer action

. See Briones , 438 S.W.3d at 814

– 15 ; Geters , 430 S.W.3d at 585

– 86 ; Kennedy , 203 S.W.3d at 49 8. We thus s ustain Perry’ s first issue, whic h is dispositiv e of t his ap peal. See Tex. R. App. P. 47.1.
IV. Conclusion Having sustained Perry ’s dispositive first issue, we reverse the trial court ’ s judgment and render judgment that WFHA take nothing. See Briones , 438 S.W. 3d at 8 15 ; Geters , 430 S.W.3d at 58 6; Kenne dy , 20 3 S.W .3d at 49 8.14 /s/ Elizabeth Kerr E lizabeth Kerr Justice
De livered: May 12, 2022