Untitled Texas Attorney General Opinion ( 1974 )

Txmz ATTORNEY GENERAL
OF TEKAS
Aus-rm. T- 787ll
August 22, 1974
The Honorable Chet Brooks Opinion No. H- 377
Chairman, Senate Committee
on Human Resources Re: Application and construc-
Texas State Senate tion of Art. 5236c, V. T.C.S.,
Austin, Texas 78711 concerning rights of landlords
and tenants.,
Dear Senator Brooks:
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 des-
cribing 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, contra-
dictory, 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 innkeeper-
lodger 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 re-
occupy 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 Abandon-
ment 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