Texas Notice to Vacate vs. Notice to Pay Rent or Vacate After SB 38

Under Tex. Prop. Code s. 24.005(a), the landlord "must give a tenant who defaults or holds over beyond the end of the rental term or renewal period at least three days' written notice to vacate the premises before the landlord files a forcible detainer suit, unless the parties have contracted for a shorter or longer notice period in a written lease or agreement" (quoted from the statute). For nonpayment, the tenant's payment history decides which form you may use. Text in force from 1 January 2026, after SB 38. This is not legal advice.

Nonpayment: which form

Section 24.005(a) has two nonpayment rules, quoted from the statute:

"In a forcible detainer suit against a tenant whose right of possession is terminated based solely on nonpayment of rent and who was not late or delinquent in paying rent to the landlord before the month in which the notice is given, written notice under this section shall be given in the form of a notice to pay rent or vacate."

"In a forcible detainer suit against a tenant whose right of possession is terminated based on nonpayment of rent and who was late or delinquent in paying rent to the landlord before the month in which the notice is given, written notice under this section may be given in the form of either a notice to pay rent or vacate or a notice to vacate."

In short: a tenant being terminated solely for nonpayment who was not late before the month of the notice must get the pay-or-vacate form ("shall"). A tenant who was already late or delinquent before that month may get either form ("may"). The statute does not define "late or delinquent" or prescribe wording for either notice. That is not in the Property Code; ask the justice court clerk or a Texas attorney.

Which notice? Decision table

Situation	Notice	Source
Terminating solely for nonpayment; tenant not late or delinquent before the month of the notice	Notice to pay rent or vacate (required)	s. 24.005(a)
Terminating based on nonpayment; tenant was late or delinquent before that month	Either a notice to pay rent or vacate or a notice to vacate	s. 24.005(a)
Tenant defaults on something other than rent	Written notice to vacate, at least three days unless the lease or agreement sets another period. The pay-or-vacate sentences speak only of nonpayment.	s. 24.005(a)
Term or renewal period ended, tenant stays	Notice to vacate, plus the s. 91.001 termination requirements	s. 24.005(a); s. 91.001
Tenant at will or by sufferance	At least three days' written notice to vacate, unless a written lease or agreement sets another period	s. 24.005(b)
Building bought at a tax or trustee's foreclosure sale under a lien superior to the lease; tenant timely pays and is not otherwise in default; purchaser will not continue the lease	"at least 30 days' written notice to vacate"	s. 24.005(b)

Subsections (c) and (d) cover occupants who entered by forcible entry; this article does not.

Holdovers and s. 91.001

The last sentence of s. 24.005(a): "A landlord who files a forcible detainer suit on grounds that the tenant is holding over beyond the end of the rental term or renewal period must also comply with the tenancy termination requirements of Section 91.001." Section 91.001(a) says "A monthly tenancy or a tenancy from month to month may be terminated by the tenant or the landlord giving notice of termination to the other." Under (b), where the rent-paying period is at least one month, "the tenancy terminates on whichever of the following days is the later: (1) the day given in the notice for termination; or (2) one month after the day on which the notice is given." Under (e), (a) to (d) "do not apply if" the parties "agreed in an instrument signed by both parties on a different period of notice to terminate the tenancy or that no notice is required," or "there is a breach of contract recognized by law." The text says "also comply," so our reading is two separate requirements; whether one letter can do both is not stated. Ask an attorney.

Delivery and other subsections

Section 24.005(f-3): "A notice required by this section must be delivered using at least one of the following methods": mail (first class, registered, certified, or a delivery service); "delivery to the inside of the premises, in a conspicuous place"; "hand delivery to any tenant of the premises who is 16 years of age or older"; or "if the parties have agreed in writing, electronic communication, including e-mail or other electronic means." Under (f-4), (f-3) "does not apply if the tenant actually receives the notice." Where the lease or applicable law requires an opportunity to respond to a proposed eviction, (e) lets the notice period "run concurrently" with it; (c-1) addresses federal notice requirements. Counting the days is in s. 24.0042; see our companion article on counting days.

What SB 38 changed (enrolled text)

Effective 1 January 2026 (SB 38 Sec. 18(a)); the changes "apply only to an eviction suit in which the petition is filed on or after January 1, 2026" (Sec. 17). Earlier suits keep the prior law.
Sec. 3 amended the heading to "NOTICE REQUIRED BEFORE FILING CERTAIN EVICTION SUITS," bracketing "TO VACATE PRIOR TO" and "SUIT" as removed.
Sec. 4 amended (a) and (e) and added (c-1), (f-3), (f-4). The enrolled copy of (a) shows no struck words, but our plain-text copy loses underlining, so we cannot tell which sentences of (a) are new; check the bill page.
In (e), SB 38 struck "not be given until" and "notice has expired" and substituted the concurrent-running language.
Sec. 15(1) repealed (f), (f-1), (f-2), (g), (h), and (i); the bill does not print their text, so we do not describe them.

Common mistakes

Sending a plain notice to vacate to a tenant who was not late before the month of the notice, when the ground is solely nonpayment.
Assuming three days without reading the lease, which may set a shorter or longer period.
Treating a holdover as only a three-day matter and skipping s. 91.001.
Delivering by a method outside (f-3), or by e-mail without a written agreement, and then being unable to show the tenant actually received it (see (f-4)).
Filing before the period has run; count under s. 24.0042.
Applying pre-2026 rules to a petition filed on or after 1 January 2026.

Currency: s. 24.005 History: "Acts 2015, 84th Leg., R.S., Ch. 1198 (S.B. 1367), Sec. 1, eff. January 1, 2016," then "Acts 2025, 89th Leg., R.S., Ch. 960 (S.B. 38), Sec. 3," "Sec. 4," and "Sec. 15(1), eff. January 1, 2026." s. 91.001 History: "Acts 1983, 68th Leg., p. 3625, ch. 576, Sec. 1, eff. Jan. 1, 1984. Amended by Acts 1985, 69th Leg., ch. 200, Sec. 3, eff. Aug. 26, 1985," no later amendment printed.

Sources

Tex. Prop. Code s. 24.005 — Texas Legislature, Property Code
Tex. Prop. Code s. 24.0042 — Texas Legislature, Property Code
Tex. Prop. Code s. 91.001 — Texas Legislature, Property Code

Related guides

Informational only, not legal advice. Statute text checked against the Texas Property Code (Chapters 1, 24, 91 and 92) as published by the Texas Legislative Council on October 5, 2026. Statutes change every legislative session and a court may read them differently than a summary does; for a dispute, an eviction or anything expensive to get wrong, talk to a Texas landlord-tenant attorney.

Want the complete picture? The Texas Small Landlord Compliance Guide puts the deposit, notice and eviction rules of Property Code Chapters 24, 91 and 92 in one place, with each rule cited to the text in force since SB 38.

Get the guide — $29