San Antonio Eviction Lawyer - Bexar County Eviction Attorney - Trey Wilson Attorney in San Antonio, Texas wrote:
Chapter 92 of the Texas Property Code prohibits retaliation by a landlord against a tenant. See TEX. PROP. CODE § 92.331. Section 92.331(a) provides in part that:
"[a] landlord may not retaliate against a tenant by taking an action described by Subsection (b) because the tenant. . . in good faith exercises or attempts to exercise against a landlord a right or remedy granted to the tenant by lease, municipal ordinance, or federal or state statute. . . ."
Subsection (b) provides that the landlord
"may not, within six months after the date of the tenant's action under subsection (a), retaliate against the tenant" by taking certain actions including filing an eviction proceeding or "engaging, in bad faith, in a course of conduct that materially interferes with the tenant's rights under the tenant's lease."
See TEX. PROP. CODE ANN. § 92.331(b)(1) & (b)(5)
When a landlord is determined to have filed an eviction action in retaliation for legal conduct of a tenant (as described in the statute), the tenant may recover a civil penalty and attorneys' fees against the landlord.
Further, retaliation may be asserted by a tenant as an absolute defense in a suit for eviction. See TEX. PROP. CODE ANN. § 92.335.
Crafty tenants often allege retaliation because of the powerful and absolute of this defense. However, under Section 92.332(b), an eviction or lease termination does not constitute retaliation where the tenant is delinquent in rent when the landlord gives notice to vacate or files an eviction action. TEX.PROP.CODE ANN. § 92.332(b)(1) ("an eviction is not retaliation when "the tenant is delinquent in rent when the landlord gives notice to vacate or files an eviction action." Hernandez v. Gallardo, No. 08-12-00178-CV, 2014 Tex. App. LEXIS 11878, at *12-13 (Tex. App.-El Paso October 29, 2014, pet. denied).
That is, section 92.332 expressly permits the landlord to file an eviction proceeding for delinquent rent or other material breaches of the lease as provided in section 92.332. See id., §§ 92.331(b)(1) and 92.332. Accordingly, where a tenant asserts the affirmative defense of retaliation, an eviction court should consider the following:
(i) the timing of the landlord's issuance of the lease termination or notice of eviction; and
(ii) the status of the tenant's payment obligations at that time.
If the landlord can demonstrate that the tenant owed rent or was otherwise in default at the time that the notice to vacate is issued, then the tenant most often cannot carry his burden under the affirmative defense of retaliation. See Moore vs. Hurtado, __ S.W. 3d Memorandum Opinion -- (Tex.App. -- Amarillo June 16, 2015)
