American Campus Communities, Inc. v. Beth Berry, Individually and on Behalf of All Others Similarly Situated

Supreme Court of Texas
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No. 21-0874
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American Campus Communities, Inc., et al.,
Petitioners,

v.

Beth Berry, et al., Individually and on Behalf of All Others
Similarly Situated,
Respondents

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On Petition for Review from the
Court of Appeals for the Third District of Texas
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Argued October 5, 2022

JUSTICE BLACKLOCK delivered the opinion of the Court.

Certification of a plaintiff class under Rule 42 converts a
conventional lawsuit into a far more complicated and consequential
case. In the history of a lawsuit, crossing the class-certification Rubicon
fundamentally changes the nature of the proceeding, imposing unique
burdens on the judicial system and raising the stakes for the parties and
their lawyers, often exponentially so. For these reasons, Rule 42 and
this Court’s precedent require a rigorous and searching judicial analysis
of the plaintiffs’ claims to ensure, prior to certification, that the claims
are suitable for class resolution. Essential to this analysis is a thorough
understanding of the substantive law governing the proffered class
claims. Only by properly understanding the legal basis for the claims
asserted can a court reliably determine the suitability of those claims
for class-action litigation.
In today’s case, we are asked what happens when the proposed
class claims are facially defective as a matter of law. In other words,
when the claims for which the plaintiffs seek class certification have no
basis in law, even taking all the allegations as true, can class
certification nevertheless be granted? The answer is no. No valid
purpose is served by authorizing class-wide litigation of a legally
baseless theory of liability on which the plaintiffs cannot recover no
matter what facts come to light during litigation. The rigorous analysis
of the claim required by Rule 42 cannot meaningfully or usefully be
performed on a facially defective claim. In such cases, including this
case, class certification must be denied.
I.
American Campus Communities, Inc. and related entities own
and manage dozens of residential properties. Four former tenants sued
American Campus, alleging that American Campus violated section
92.056(g) of the Property Code by omitting required language from its
leases. Sections 92.056 and 92.0561 of the Code create various remedies
for tenants whose landlords fail to adequately repair their properties.
TEX. PROP. CODE §§ 92.056, 92.0561. Section 92.056(g), the focus of this
litigation, requires leases to “contain language in underlined or bold

2
print that informs the tenant of the remedies available under this
section [92.056] and Section 92.0561.” Id. § 92.056(g).
The plaintiffs asked the district court to certify a class of more
than 65,000 former American Campus tenants whose leases omitted the
language required by section 92.056(g). 1 The plaintiffs claim that the
missing lease language makes American Campus strictly liable to each
class member for a statutory “civil penalty of one month’s rent plus
$500.” Id. § 92.0563(a)(3). They further claim that the absent lease
language amounts to a statutorily prohibited contractual waiver of
American Campus’s repair obligations, which, if true, would subject
American Campus to “actual damages, a civil penalty of one month’s
rent plus $2,000, and reasonable attorney’s fees.” Id. § 92.0563(b). The
plaintiffs seek an unspecified nine-figure recovery, stemming purely
from the omitted lease term. 2
Although some of the named plaintiffs allege deficiencies in
American Campus’s repair of their particular apartments, they do not
allege that other class members have experienced similar problems, and
they did not seek certification of a class of tenants whose apartments
have not been adequately repaired. Nor do they allege that any class
member suffered financial damage caused by inadequate repairs or
inadequate lease terms. Instead, they sought class certification based

1American Campus admits that, for a time, its leases did not contain
the required language. After this suit was filed in 2018, American Campus
added the provision to its current and future leases.
2 As a rough estimate of the potential liability, 65,000 violations times
$2,500 in penalties per violation equals $162,500,000. One named plaintiff
testified that the true amount sought is far higher.

3
on the theory that the omission of the statutorily required lease
language, standing alone, entitles each class member to recover
statutory damages, penalties, and attorney’s fees under sections
92.0563(a)(3) and 92.0563(b).
In addition to opposing class certification in the district court,
American Campus moved for summary judgment. Among other
grounds, it argued that the Property Code does not create the strict
liability envisioned by the plaintiffs for the mere omission of section
92.056(g)’s required lease term. American Campus reiterated these
points in its response to the class-certification motion, in which it argued
that the lawsuit amounted to an “ineffectual[] attempt to manufacture
strict-liability requirements and civil-penalty remedies that do not exist
under a plain reading of the Texas Property Code.” The district court
denied American Campus’s motion for summary judgment and then
granted the plaintiffs’ motion for class certification. American Campus
appealed the class-certification order. TEX. CIV. PRAC. & REM. CODE
§ 51.014(a)(3).
The court of appeals affirmed a modified version of the
certification order, which omits the plaintiffs’ request for class-wide
injunctive relief but authorizes class-wide litigation of the claims
alleging statutory strict liability for the missing lease term. 646 S.W.3d
857, 872 (Tex. App.—Austin 2021). The court of appeals considered
itself prohibited, in this interlocutory appeal, from considering
American Campus’s argument that the proffered class claims are legally
baseless because the Property Code does not create strict liability for
omission of the section 92.056(g) lease term. Id. at 866. This argument

4
about the nature of the plaintiffs’ claims was, in the court of appeals’
view, the proper subject of a non-appealable summary judgment motion,
not an appealable class-certification motion. Id. 3 If this is correct, then
American Campus’s argument regarding the meaning of the Property
Code cannot be passed upon by an appellate court until after final
judgment, and class-wide litigation may proceed without regard to
whether the plaintiffs are correct about the nature or existence of the
class claims.
American Campus petitioned for review in this Court. It
contends, among other arguments, that the plaintiffs’ claims have no
basis in the Property Code or in any other source of law and therefore
cannot form the basis of a proper class-certification order. We granted
the petition.
A.
The initial question is whether, in ruling on a class-certification
order, a court may consider the defendant’s argument that certification
should be denied because the plaintiff has not put forward a legally
viable theory of the defendant’s liability to the class. The court of
appeals approached this question by guarding against the encroachment
into class-certification appeals of merits questions commonly associated

3 Although denials of summary judgment are generally not appealable,
“controlling question[s] of law” may be appealed with the permission of the
trial court if the appeal “may materially advance the ultimate termination of
the litigation.” TEX. CIV. PRAC. & REM. CODE § 51.014(d). When doubt exists
regarding the law governing a claim on which class certification is sought, a
permissive appeal of a summary judgment order may be one available pathway
for clarifying the law prior to a decision on class certification. See, e.g., Mosaic
Baybrook One, L.P. v. Simien, ___ S.W.3d ___, slip op. at 27 (Tex. Apr. 21,
2023).

5
with non-appealable summary judgment motions or motions to dismiss.
The plaintiffs’ briefing echoes that concern. American Campus and its
supporting amici urge a contrary approach, under which the more
pressing concern should be to guard against authorizing costly
class-action litigation of legally baseless claims. They argue that
scrutiny of the legal underpinnings of the alleged class claim prior to
certification is required, not prohibited, by Rule 42 and that legally
baseless claims should never be the foundation from which parties and
courts undertake the expense and trouble of class-action litigation.
Under this view, the rigorous scrutiny of the plaintiffs’ claims required
at the class-certification stage is wasteful—and appeal of it doubly
wasteful—if the claim being scrutinized for its suitability for class
resolution is not actually a claim on which the plaintiffs could ever
recover. As explained below, we find the latter approach more
consistent with our precedent, with the procedural rules, and with the
efficient use of judicial resources.
Courts applying Rule 42 “must perform a ‘rigorous analysis’
before ruling on class certification to determine whether all
prerequisites to certification have been met.” Sw. Refin. Co. v. Bernal,
22 S.W.3d 425, 435 (Tex. 2000). An essential part of this “rigorous
analysis” involves “knowing how the claims can and will likely be tried.”
Id. “A trial court’s certification order must indicate how the claims will
likely be tried so that conformance with Rule 42 may be meaningfully
evaluated.” Id. The required trial plan cannot be based merely on
“assurances of counsel” about what the litigation’s future holds. Id.
Instead, the court must itself “understand the claims, defenses, relevant

6
facts, and applicable substantive law in order to make a meaningful
determination of the certification issues.” Id. (emphasis added).
Just as a district court asked to certify a class must “understand”
the “applicable substantive law in order to make a meaningful
determination of the certification issues,” a court of appeals likewise
must analyze the claim’s suitability for class resolution in light of the
“substantive law” governing the claim. Union Pac. Res. Grp., Inc. v.
Hankins, 111 S.W.3d 69, 72 (Tex. 2003) (cleaned up). “It is settled that
in reviewing a class certification order, we must evaluate ‘the claims,
defenses, relevant facts, and applicable substantive law.’”
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 316 (Tex. 2008)
(Jefferson, C.J., dissenting) (quoting Bernal, 22 S.W.3d at 435)
(emphasis added).
It is true, as the court of appeals observed, that disputed
questions of law about the nature of the claim would normally be
addressed in dispositive motions that cannot immediately be appealed
if they are denied. But this does not prohibit a court hearing a
class-certification appeal from considering disputes of law that are
necessary to discharge its duty under Rule 42 to properly understand
the law governing the claim. To the contrary, such disputes must be
addressed in a class-certification appeal when properly raised. Hankins,
111 S.W.3d at 72–73 (“The substantive law . . . must be taken into
consideration in determining whether the purported class can meet the
certification prerequisites under Rule 42.”).
In Union Pacific Resources Group, Inc. v. Hankins, for example,
the court of appeals declined to consider the impact of an intervening

7
decision of this Court that affected the relief available on the plaintiffs’
claim. The court of appeals had reasoned that “an appellate court’s
review of a class certification order should not include examining the
merits of claims or defenses” which must “remain for resolution at
another stage of litigation.” Id. at 72 (cleaned up). We disapproved of
that approach because it caused the court of appeals to “ignore
applicable substantive law crucial to understanding the claims and
defenses in the case.” Id. (cleaned up). Although the required analysis
of the governing law at the class-certification stage “is far less searching
than a trial on the merits,” the correct “substantive law” governing the
claim “must be taken into consideration.” Id. at 72–73. The court of
appeals had an obligation to correctly identify and understand the
governing law, which it had not discharged. We proceeded to analyze
the claim in light of a correct understanding of the law, which resulted
in reversal of class certification. Id. at 75.
In Exxon Mobil Corp. v. Gill, we again considered whether the
lower courts had correctly construed one of our decisions when ruling on
class certification. 299 S.W.3d 124, 127–28 (Tex. 2009). We noted that
“while deciding the merits of the suit in order to determine . . . its
maintainability as a class action is not appropriate . . . the substantive
law . . . must be taken into consideration in determining whether the
purported class can meet the certification prerequisites.” Id. at 126
(cleaned up). We held that the lower courts had not correctly understood
the law, and we concluded that “[w]hen a class has been certified based
on a significant misunderstanding of the law . . . ‘remand to the trial
court is appropriate so that it may determine the effect . . . on the

8
requirements for class certification.’” Id. at 129 (quoting BMG Direct
Mktg., Inc. v. Peake, 178 S.W.3d 763, 778 (Tex. 2005)).
This Court’s precedent emphasizes repeatedly that judicial
analysis of whether a claim satisfies Rule 42 must be “meaningful” and
“rigorous.” E.g., Bernal, 22 S.W.3d at 435; Henry Schein, Inc. v.
Stromboe, 102 S.W.3d 675, 688 (Tex. 2002); State Farm Mut. Auto. Ins.
Co. v. Lopez, 156 S.W.3d 550, 555 (Tex. 2004). Meaningful, rigorous
analysis of a claim necessarily entails the adoption of some coherent
understanding of the law governing the claim. Whether it is the
plaintiffs’ understanding of the claim, the defendant’s understanding, or
a third option on which the court settles, a Rule 42 analysis cannot
usefully be undertaken without identifying the claim’s nature and
requirements based on a correct understanding of the applicable law.
Here, however, neither the district court nor the court of appeals
adopted an understanding of the substantive law governing the
plaintiffs’ proffered class claims, instead deferring this essential task to
another day, after certification. This was error. “[C]ourts can hardly
evaluate the claims, defenses, or applicable law without knowing what
that law is.” Compaq Comput. Corp. v. Lapray, 135 S.W.3d 657, 672
(Tex. 2004).
The district court’s class-certification order notes the parties’
disagreement about the nature—indeed, the very existence—of the
plaintiffs’ statutory strict-liability claims. The order indicates, however,
that the court viewed legal questions such as whether the claims exist
and what the claims require not as predicate questions essential to a
proper Rule 42 analysis, but instead as among the “questions of law or

9
fact common to the class.” TEX. R. CIV. P. 42(a). Thus, the unresolved
doubt about whether the Property Code actually creates the cause of
action asserted by the plaintiffs became a reason to grant class
certification—so that this common question of law could be resolved
uniformly. This is an example of the “certify now and worry later”
approach to class certification, which we have rejected on multiple
occasions. Bernal, 22 S.W.3d at 435; Peake, 178 S.W.3d at 776–77. The
well-established requirement that courts must understand the
substantive law applicable to a claim before ruling on class certification
is meaningless if legal questions necessary to determining the existence
or elements of the claim need not be considered until after certification.
The court of appeals likewise disclaimed responsibility to
correctly understand the law governing the proffered class claims. The
court instead held that it could not address this question, which it
considered a matter of summary judgment and therefore outside the
scope of the interlocutory appeal of the class-certification order. 646
S.W.3d at 865. But in refusing to consider the defendants’ arguments
about the nature and existence of the claims, the court of appeals
essentially defaulted to the plaintiffs’ understanding of the claims. It
proceeded to analyze the amenability to class resolution of the claims as
understood by the plaintiffs—without ever asking whether that
understanding accurately interprets Chapter 92 of the Property Code,
the substantive law governing the claims. We have held, however, that
at the class-certification stage, “a court must go beyond the pleadings”
to “understand” the “applicable substantive law.” Hankins, 111 S.W.3d
at 72 (cleaned up). The question is not whether the plaintiff has pleaded

10
and argued a claim that, if it exists, would be suitable for class
resolution. The question, instead, is whether, under the “applicable
substantive law,” the claim—as the law, not the plaintiff, defines it—is
truly suitable for class resolution.
The courts’ obligation to understand the law governing a proposed
class claim comes not just from our precedent but from Rule 42 itself,
which the precedent interprets. Correctly identifying the elements of
the claim is an essential, foundational step in the class-certification
process, which cannot be put off until after certification. See TEX. R. CIV.
P. 42(c)(1)(D)(i). Likewise, a court cannot know whether the “claims or
defenses of the representative parties are typical of the claims or
defenses of the class” without knowing what the claims actually are.
TEX. R. CIV. P. 42(a). And we cannot know whether “questions of law or
fact common to the members of the class predominate” without
accurately identifying what those questions will be when the claim is
litigated under a correct understanding of the law. TEX. R. CIV. P.
42(b)(3). 4
It serves no constructive purpose to ask only whether the claim
as theorized by the plaintiffs satisfies requirements such as typicality or
predominance. Ultimately, the claim must be tried based on a correct
understanding of the law. It is of course possible to conduct litigation
based on an incorrect understanding of the law, but any resulting

4 Deferring legal questions about the nature and existence of the class
claims until after certification leaves both the defendant and the absent class
members without a clear understanding of the class claims. Absent class
members may not be able to make a well-informed decision whether to opt out
if they do not yet know which class claims are legally viable.

11
judgment will be reversed, and the parties will be made to relitigate the
case based on the correct law. Thus, to know whether common questions
will ultimately predominate—not in a defective proceeding based on the
incorrect law, but in a valid proceeding whose result will survive
appeal—we must know what the law is. Again, as we observed in
Compaq Computer Corp. v. Lapray, “courts can hardly evaluate the
claims, defenses, or applicable law [as required by Rule 42] without
knowing what that law is.” 135 S.W.3d at 672.
B.
The plaintiffs rely heavily on this Court’s statement in Intratex
Gas Co. v. Beeson that “[d]eciding the merits of the suit in order to
determine the scope of the class or its maintainability as a class action
is not appropriate.” 22 S.W.3d 398, 404 (Tex. 2000). We have since
repeated that statement, and we do not overrule it here, as far as it goes.
Gill, 299 S.W.3d at 126. Although we have on occasion cautioned
against “deciding the merits of the suit” at the class-certification stage,
we have never confronted the question presented by this case—whether
a class claim that is facially defective as a matter of law may
nevertheless survive a class-certification appeal and proceed towards
futile and wasteful class-wide litigation.
The issue in Intratex, for example, was not whether questions of
law about the nature or existence of the claim must be avoided at the
class-certification stage, lest courts prematurely decide the merits.
Intratex involved a class defined essentially as “anyone injured by the
defendant.” As a result, there was “no way of ascertaining whether a
given person [was] a member of the class until a determination of

12
ultimate liability as to that person [was] made.” Intratex, 22 S.W.3d at
404. We held it was improper to define a class in a way that premised a
person’s class membership on the merits of his claim. Id. at 405. 5 We
did not hold that courts following our instruction to subject class claims
to a rigorous pre-certification analysis based on the governing law must
abandon this effort when it overlaps with the merits. To the contrary,
we acknowledged that consideration of the “legal issues comprising the
plaintiff’s cause of action” may be required in order for the court “to
make a reasoned determination of the certification issues.” Id. at 404
(cleaned up). We have often similarly observed that overlap with the
merits is frequently unavoidable in a Rule 42 analysis. Gill, 299 S.W.3d
at 126 (collecting cases).
In Southwest Refining Co. v. Bernal, we wrote that “it may not be
an abuse of discretion to certify a class that could later fail.” 22 S.W.3d
at 435. By observing that not all potential merits defects undermine
class certification, we did not hold that a fundamental
misunderstanding of the nature or elements of the class claim does not
undermine class certification. Instead, we wrote that a “certification
order must indicate how the claims will likely be tried so that
conformance with Rule 42 may be meaningfully evaluated.” Id. Such a
“meaningful evaluation,” which will often overlap to some extent with
the merits, is entirely useless if the claim is facially defective such that,
under a correct view of the law, it will not “likely be tried.”

5Accord Ford Motor Co. v. Sheldon, 22 S.W.3d 444, 454 (Tex. 2000)
(following Intratex, rejecting a proposed class definition based “on a
determination of the merits” of each class member’s claim, which improperly
“creates a fail-safe class”).

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Finally, in State Farm v. Lopez, we reversed the class-certification
order because the lower court “certif[ied] a class without formulating a
trial plan confirming that it has rigorously analyzed the requirements
of Rule 42.” 156 S.W.3d at 557. In addition to seeking reversal of the
class-certification order on this ground, State Farm also argued that the
class claims failed on the merits for various reasons, including facial
legal defects. Id. We declined to reach those issues, but we neither said
nor suggested that facial legal defects in a class claim cannot be
considered in a class-certification appeal. We observed that the district
court had not yet had the opportunity to address the legal questions
raised by State Farm, we suggested we could perhaps have reached
some of those questions, but we elected not to reach them “[g]iven the
state of the record.” Id. In today’s case, by contrast, the district court
has already denied a summary judgment motion challenging the
plaintiffs’ understanding of the class claims, and the issue is fully
presented by the parties for our review.
To be sure, the court’s task at the class-certification stage is not
to set out to decide the merits of the lawsuit. Instead, the court’s task is
to correctly understand the law governing the nature and elements of
the claim and to gauge the claim’s suitability for class resolution on the
basis of that understanding. Rule 42’s provisions are wholly consistent
with a court’s obligation, as part of its rigorous analysis of the class
claim, to understand the law applicable to the claim and to determine
whether the claim inexorably must fail under that law. If a careful
assessment of the law governing the claim indicates that the claim is
legally baseless, the court need not shy away from that conclusion

14
merely because it implicates the merits. Ultimately, the court’s duty
under Rule 42 to conduct a meaningful analysis of the proposed claim
under the governing law is more fundamental than any procedural
preference for avoiding premature resolution of the merits.
Identifying the substantive law governing the claim can be a
clarifying exercise. It may indicate that one side or the other is likely,
perhaps certain, to lose. This overlap with the merits is not a reason for
courts to avoid undertaking the rigorous analysis required by Rule 42
and our precedent. Rigorous, meaningful judicial analysis of the law
governing a lawsuit at an early stage of the case helps parties to
correctly understand their legal rights and to better analyze prospects
for a just settlement. The law requires rigorous judicial analysis of class
claims prior to certification to ensure that the extraordinary class-action
mechanism is reserved for genuinely well-suited cases. There is no
exception to this requirement for cases in which correctly understanding
the applicable law reveals which party is likely to win.
To the extent that interlocutory appeal of class-certification
orders facilitates early answers from appellate courts to purely legal
questions about the law governing the class claims, this provides a
benefit to both the parties and the courts, all of whom avoid wasting
time and resources on misconceived proceedings that are doomed to
reversal after a later appeal. Courts cannot be blind to the reality that
certifying a class may, practically speaking, dictate the outcome of the
litigation by fundamentally changing the parties’ incentives to settle.
Certifying a class based on a non-existent or mistakenly conceived
claim—a claim on which the class could never validly recover regardless

15
of the facts—raises the stakes of a lawsuit that ought to have no stakes
at all. Class litigation of such a defective claim is plainly not “superior
to other available methods”—such as Rule 91a motions—“for the fair
and efficient adjudication of the controversy.” TEX. R. CIV. P. 42(b)(3).
We held in Gill that “[w]hen a class has been certified based on a
significant misunderstanding of the law,” reversal of class certification
and remand for reconsideration is required. 299 S.W.3d at 129. In this
case, rather than misunderstanding the law governing the claims, the
lower courts declined to adopt any understanding of the claims at all,
instead deferring that task to later in the litigation. This error likewise
requires reversal of the class-certification order, which was entered
without the rigorous analysis required by Rule 42 and our precedent.
II.
We confronted a similar situation in Hankins, in which the court
of appeals deferred its responsibility to understand the governing law at
the class-certification stage. In that case, we analyzed the law ourselves
and disposed of the appeal rather than remanding to the court of
appeals. We will do the same here.
Section 92.056(g) of the Property Code provides: “A lease must
contain language in underlined or bold print that informs the tenant of
the remedies available under this section and Section 92.0561.” The
Legislature’s creation of this legal right, however, does not
automatically authorize a suit to vindicate the right. See Brown v. De
La Cruz, 156 S.W.3d 560, 568–69 (Tex. 2004). Instead, we must
determine whether the statute takes the additional step of authorizing
a lawsuit to enforce the right the statute creates. Id. at 565.

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The plaintiffs suggest two avenues by which Chapter 92 might
authorize a claim premised solely on the omission of the section
92.056(g) lease term. First, they point to section 92.0563(a)(3): “A
tenant’s judicial remedies under Section 92.056 shall include . . . a
judgment against the landlord for a civil penalty of one month’s rent
plus $500[.]” Section 92.056 includes subsection (g). As the plaintiffs
see it, any violation of section 92.056, including a violation of subsection
(g), gives rise to “judicial remedies under Section 92.056,” including the
civil penalty. This is incorrect.
Section 92.0563 attaches a civil penalty to “[a] tenant’s judicial
remedies under Section 92.056.” We must therefore consult section
92.056 to determine what qualifies as a “judicial remed[y] under Section
92.056” and whether a claim for absent lease language is among those
remedies. Section 92.056(b) provides: “A landlord is liable to a tenant
as provided by this subchapter if” the requirements of subsections (b)(1)
through (b)(6) are satisfied. Nothing in subsection (b) mentions required
lease language. Instead, subsection (b) creates a limited cause of action
for a tenant who is dissatisfied with his landlord’s efforts to repair a
dangerous condition. This is the sole “judicial remed[y] under Section
92.056.” Subsection (a) is a limitation on the liability created by
subsection (b). Subsections (c) and (d) provide greater detail about when
the liability-triggering requirements of subsection (b) are satisfied.
Subsections (e) and (f) describe remedies available to a tenant who
establishes the landlord’s liability under subsection (b).
Subsection (g), the only provision the plaintiffs allege American
Campus violated on a class-wide basis, appears as a stand-alone

17
requirement at the end of section 92.056 and plays no role in the cause
of action described by subsections (a) through (f). Indeed, the
Legislature added subsection (g) to the statute in 2007 without giving
any indication that this new lease-language requirement affects the
pre-existing judicial remedy authorized by the rest of section 92.056. Act
of May 25, 2007, 80th Leg., R.S., ch. 917, § 5, sec. 92.056, 2007 Tex. Gen.
Laws 2316, 2317. The “judicial remedies under section 92.056,” which
include the civil penalties sought by the plaintiffs, do not include a claim
for omitted lease language.
Second, the plaintiffs rely on section 92.0563(b):
A landlord who knowingly violates Section 92.006 by
contracting orally or in writing with a tenant to waive the
landlord’s duty to repair under this subchapter shall be
liable to the tenant for actual damages, a civil penalty of
one month’s rent plus $2,000, and reasonable attorney’s
fees.
The plaintiffs contend that American Campus’s omission of the section
92.056(g) lease term describing tenants’ repair rights amounts to
“contracting orally or in writing with a tenant to waive the landlord’s
duty to repair under this subchapter.” This is incorrect. The “landlord’s
duty to repair under this subchapter” is a creature of statute, not of
contract. This statutory duty binds landlords whether or not it also
appears in a lease. A lease’s failure to mention the statutory duty is in
no sense a waiver of the statutory duty. Section 92.0563(b) authorizes
a claim against a landlord who knowingly contracts to waive his
statutory duties, not a claim against a landlord who fails to state his
statutory duties in his leases.

18
For these reasons, the plaintiffs’ understanding of the claims
authorized by Chapter 92 cannot be squared with the statutory text.
The statute authorizes lawsuits over defective or untimely repairs,
under certain circumstances. And it authorizes lawsuits against
landlords who contract to waive their statutory obligations. It does not
authorize lawsuits, or any kind of monetary recovery, against landlords
who omit from their leases the provision required by section 92.056(g).
It is surely true, as the plaintiffs point out, that omitting the required
lease language might leave tenants unaware of their repair rights and
therefore less likely to assert rights the Legislature has afforded them.
And it is surely true that authorizing lawsuits for omission of the lease
term would encourage compliance by landlords and more robustly
empower tenants. These are considerations for the Legislature, which
has chosen to write a statute that provides multiple judicial remedies
for tenants but does not authorize lawsuits for the mere omission from
a lease of the provision required by section 92.056(g). 6
In the end, a proper understanding of the substantive law
applicable to the proposed class claims indicates that no such claims
exist. Rule 42, however, required the district court to identify the
elements of the claims. See TEX. R. CIV. P. 42(c)(1)(D)(i). Of course, a

6American Campus argues that the mere omission of a lease term is
not a concrete injury sufficient under the Constitution to confer standing on a
plaintiff. The U.S. Supreme Court has recently wrestled with similar
arguments regarding legislative attempts to confer standing based on
“informational injury” alone. TransUnion LLC v. Ramirez, 141 S. Ct. 2190,
2214 (2021). We need not address these arguments here, however. The
Legislature has not attempted to authorize lawsuits based solely on omitted
lease language, so we have no reason to decide whether any such attempt
would implicate constitutional limitations on the judicial power.

19
claim that does not exist has no elements. Rarely is the folly of certifying
a class based on an improperly theorized claim more vivid than when,
as here, the class’s proffered claims are no claim at all. Because the
tenants’ proposed class claims have no basis in law, the “rigorous
analysis” necessary to certify a class cannot meaningfully be performed,
and reversal of the class certification is required. TEX. R. CIV. P. 42(a).
American Campus correctly notes that the claim section 92.056
actually authorizes is particularly ill-suited for class resolution. Each
claim under section 92.056 for inadequate repairs will turn on the
individual circumstances of each claimant, so individual issues would
predominate over any class-wide issues. However, we need not analyze
the suitability for class certification of the claim the plaintiffs could have
alleged under Chapter 92. The issue is whether the claims the plaintiffs
did allege, properly understood in light of the law governing the claims,
satisfy the prerequisites of Rule 42. It borders on the farcical to ask
whether class-wide questions will predominate over individual
questions in the litigation of claims that do not exist. When the proposed
class claims have no basis in law, as is the case here, class certification
must be denied so that “other available methods for the fair and efficient
adjudication of the controversy” may be pursued. TEX. R. CIV. P.
42(b)(3).
III.
The court of appeals’ judgment is reversed, the district court’s
order certifying a class is reversed, and the case is remanded to the
district court for further proceedings consistent with this opinion.

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James D. Blacklock
Justice

OPINION DELIVERED: April 21, 2023

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