Texas Retaliation Under § 92.331: The Six-Month Presumption and What Landlords Must Avoid

Section 92.331 of the Texas Property Code prohibits a residential landlord from retaliating against a tenant who has exercised certain protected rights.

The retaliation defense is asserted more often than it succeeds. In our experience, the cases where it actually wins tend to share one pattern: the landlord filed eviction within days of receiving a written tenant complaint about repairs, and didn’t document any independent basis for the eviction. Where there’s a contemporaneous, independently documented default, retaliation defenses usually fail. The statute establishes a six-month window during which any adverse action by the landlord (eviction, lease termination, late fees, charges, or other adverse treatment) is presumed to be retaliatory. The presumption can be rebutted, but only with clear documentation of non-retaliatory reasons. Landlords who don’t understand § 92.331 routinely lose eviction cases that were otherwise winnable. The rest of this page covers the protected acts, the six-month presumption, the landlord defenses, and the documentation practices that keep adverse actions defensible.

The basic § 92.331 prohibition

Section 92.331 prohibits a residential landlord from retaliating against a tenant for:

• Exercising a right granted by Chapter 92 or any other state or federal statute applicable to landlord-tenant relationships.
• Giving a notice to repair or exercising a remedy under Chapter 92 (including the habitability and repair-and-deduct frameworks).
• Filing a complaint with a governmental entity for enforcement of a building code or other law applicable to the property.
• Establishing or participating in a tenants’ association.
• Filing a complaint of discrimination or any other complaint with a fair housing agency.

The list of protected acts is broad. Almost any tenant-initiated assertion of legal rights against the landlord (to enforce habitability, fair housing, lockout statutes, or any other tenant protection) is a protected act under § 92.331.

What counts as retaliation

The landlord cannot, in retaliation, take any of these actions:

• Filing a forcible detainer (eviction) action.
• Reducing services.
• Increasing rent or charges.
• Refusing to renew a lease.
• Engaging in any other action that materially affects the tenant.

The list is broad. Almost any adverse action the landlord might take against a tenant can be characterized as retaliation if the timing and circumstances align.

The “materially affects” requirement excludes trivial actions; the retaliation must produce some real consequence for the tenant.

The six-month presumption

Section 92.331(b) provides that a presumption of retaliation arises if the landlord takes one of the prohibited actions within six months of the tenant’s protected act.

The presumption is significant for several reasons:

• It shifts the burden. The tenant doesn’t have to prove retaliation; the landlord has to prove non-retaliation.
• It applies broadly. Any adverse action within six months is presumptively retaliatory.
• It can defeat otherwise legitimate evictions. A tenant who is in default may still win on retaliation if the eviction was filed within six months of a protected act.

The six-month clock runs from each protected act. If the tenant has multiple protected acts, the six-month clock for each runs from that specific act. The most recent protected act sets the relevant window.

How the landlord rebuts the presumption

The landlord can rebut the retaliation presumption with evidence of non-retaliatory reasons for the adverse action. Common categories of non-retaliatory reasons:

• Tenant default. The tenant has actually failed to pay rent, has materially breached the lease, or otherwise has a clear ground for adverse action. Documentation of the default is critical, rent ledger, lease violation notices, photographs of damages.
• Pre-existing process. The adverse action was already underway before the protected act. For example, a notice of non-renewal sent months before the tenant filed a complaint.
• Property-wide change. The action affected all tenants in the property, not just the complaining tenant. Increasing rent for all units when leases renew, reducing services that no tenant uses, etc.
• Independent analysis. The action followed a thorough, contemporaneous analysis of legitimate business reasons that don’t relate to the protected act.

The rebuttal evidence must be contemporaneous with the adverse action. Documentation created after the tenant raises retaliation is suspect. The landlord’s case is strongest when the documentation predates the tenant’s protected act.

The six-month window most landlords don’t track

Here’s a small practice habit that’s saved more cases than any legal argument: from the day a tenant files a complaint, requests a repair under the habitability statute, contacts a code authority, or joins anything that looks like a tenants’ association, the date goes into a calendar with a six-month forward marker.

Most landlords don’t do this. They handle the underlying issue, the repair gets made, the complaint gets answered, and the case moves on. Six months later, the same tenant is in default for unrelated reasons and the landlord files an eviction without ever connecting it back to the earlier complaint. Then at JP trial, the tenant raises retaliation, the calendar math falls inside the six-month window, and the landlord is suddenly defending an eviction that should have been routine.

The fix is the marker. When you see a protected act, calendar the date with the words “retaliation window closes” plus the date six months later. If you have to take adverse action against the same tenant before that date, you need a clean documented basis that predates the protected act. If you can wait until after that date, the presumption doesn’t apply and the case is much cleaner.

This isn’t sophisticated. It’s calendar discipline. But the absence of it produces a meaningful percentage of the retaliation cases we see at trial, and those cases are mostly preventable.

Common retaliation scenarios

• Scenario 1: Tenant complains, landlord fires back. Tenant calls the city about a building code issue on March 1. Landlord files eviction on March 15 for unpaid rent that’s been outstanding since January. The eviction faces the retaliation presumption. The landlord must show the eviction was based on the genuine rent delinquency, not the city complaint. Documentation of rent demands, prior notices, and landlord’s normal practice on rent delinquency is critical.
• Scenario 2: Tenant invokes repair-and-deduct, landlord raises rent. Tenant invokes § 92.0561 in April. Landlord raises the rent at the next renewal in October. The landlord must show that rent was raised across all tenants or for clear market reasons, not just for this tenant.
• Scenario 3: Tenant joins tenants’ association, landlord refuses renewal. Tenant joins a tenants’ association in February. Landlord declines to renew the lease in July. Six-month window has passed if filing in July uses February as the trigger; the renewal decision is fact-specific.
• Scenario 4: Tenant complains about habitability, landlord files lease-violation eviction. Tenant complains about mold in May. Landlord files eviction in July for an unrelated lease violation (unauthorized pet). The lease-violation case faces the retaliation presumption. The landlord must show the violation is real and consistent with how the landlord treats other tenants.

What landlords should keep on file

To defeat the retaliation presumption, landlords should:

• Document defaults contemporaneously. Rent ledgers, late fee assessments, notices of violation, all dated and stored as they occur, not reconstructed after a dispute arises.
• Standardize policies. Apply the same standards to all tenants, same late fee schedule, same lease violation response, same renewal criteria. Inconsistent treatment supports retaliation claims.
• Document business decisions. When raising rent, refusing renewal, or making any adverse decision, document the business reasons in a memo or email at the time of the decision.
• Avoid timing coincidences. If a tenant has just exercised a protected right, delay non-urgent adverse actions if possible until the six-month window has passed (or document genuine non-retaliatory reasons for the timing).
• Train property managers. Property managers who don’t know about § 92.331 take adverse actions without considering retaliation analysis. Training prevents the most common timing-related mistakes.
• Preserve communications. Email exchanges, voicemails, and text messages with tenants should be preserved. They often contain evidence supporting either retaliation or non-retaliation.

Tenant strategy: invoking retaliation as a defense

In an eviction case, the tenant typically raises retaliation as an affirmative defense:

• The tenant identifies the protected act (the habitability complaint, the city complaint, the repair-and-deduct invocation, etc.) with date.
• The tenant identifies the landlord’s adverse action (the eviction filing) with date.
• The tenant shows the action falls within six months of the protected act.
• The presumption shifts the burden to the landlord to show non-retaliation.

In some cases, the tenant can also raise retaliation as a counterclaim for damages, though SB 38 limits counterclaims in JP eviction cases. The tenant may need to bring a separate damages action in higher courts to recover for retaliation.

What we tell clients facing this

• Time the adverse action carefully. Retaliation is most often a timing problem. A landlord who waits until the six-month window passes substantially weakens the retaliation case.
• Build the file before action. If the landlord has been carefully documenting tenant defaults, the rebuttal evidence is already in the file when adverse action is contemplated.
• Address the tenant’s underlying complaint. If the protected act was a legitimate habitability complaint, fixing the issue often defuses the broader dispute. A retaliation claim is harder to maintain when the underlying complaint has been resolved.
• Consider settlement. Disputes that involve retaliation defenses can be expensive and uncertain to litigate. Settlement (cash for keys, agreed move-out date, mutual release) often produces better outcomes than litigation.
• Don’t engage in conduct that looks retaliatory. Even when there’s a legitimate basis for adverse action, the appearance of retaliation can shape the JP’s decision. Communications should be professional, focused on the legitimate business reason, and free of emotional or punitive language.

Common retaliation mistakes

• Filing eviction immediately after a tenant complaint. The most obvious retaliation pattern. Even when the eviction is legitimate, the timing creates the presumption.
• Singling out a specific tenant. Adverse action against the complaining tenant, while leaving similarly situated tenants alone, supports retaliation claims.
• Inflammatory communications. Emails or letters that mention the protected act, complain about the tenant’s complaints, or otherwise show retaliatory intent are devastating evidence.
• Failing to document the default. Even legitimate evictions face problems if the documentation supporting the default is thin or hastily created.
• Using rent increases as punishment. Rent increases timed within the six-month window face the retaliation presumption. Property-wide increases on standard renewal cycles are easier to defend than targeted increases.
• Refusing to renew without explanation. A landlord can typically refuse to renew a lease at the natural expiration, but doing so within six months of a protected act faces the retaliation presumption. Document business reasons.