73R8109 DLF-D
By Bailey, et al. H.B. No. 186
Substitute the following for H.B. No. 186:
By Schechter C.S.H.B. No. 186
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to civil remedies for certain nuisances.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Sections 125.001, 125.021, and 125.041, Civil
1-5 Practice and Remedies Code, are amended to read as follows:
1-6 Sec. 125.001. Common Nuisance. (a) A person maintains a
1-7 common nuisance if that person <who> knowingly maintains a place to
1-8 which persons habitually go for the purpose of:
1-9 (1) prostitution or gambling in violation of the Penal
1-10 Code;
1-11 (2) <or for> the delivery or use of a controlled
1-12 substance in violation of Chapter 481, Health and Safety Code;
1-13 (3) discharging a firearm; or
1-14 (4) using a deadly weapon for an unlawful purpose,
1-15 including frightening, harming, or threatening to harm a person
1-16 <maintains a common nuisance>.
1-17 (b) Maintenance of a place for discharging a firearm is not
1-18 a common nuisance if the firearm is discharged during the course
1-19 of:
1-20 (1) wildlife hunting authorized by law;
1-21 (2) the official law enforcement duties of a law
1-22 enforcement officer;
1-23 (3) the provision of security services authorized
1-24 under the Private Investigators and Private Security Agencies Act
2-1 (Article 4413(29bb), Vernon's Texas Civil Statutes); or
2-2 (4) any other activity in which the discharge of a
2-3 firearm is authorized by law.
2-4 (c) This section does not apply to discharge of a firearm on
2-5 a bona fide firing range, skeet shooting range, or other sport
2-6 shooting range.
2-7 (d) In this section:
2-8 (1) "Firearm" has the meaning assigned by Section
2-9 46.01, Penal Code.
2-10 (2) "Deadly weapon" includes a club, explosive weapon,
2-11 knife, knuckles, or hoax bomb as those terms are defined by Section
2-12 46.01, Penal Code.
2-13 Sec. 125.021. Public Nuisance. (a) The habitual use or the
2-14 threatened or contemplated habitual use of any place for any of the
2-15 following purposes is a public nuisance:
2-16 (1) gambling, gambling promotion, or communicating
2-17 gambling information prohibited by law;
2-18 (2) promotion or aggravated promotion of prostitution;
2-19 (3) compelling prostitution;
2-20 (4) commercial manufacture, commercial distribution,
2-21 or commercial exhibition of obscene material;
2-22 (5) commercial exhibition of live dances or other acts
2-23 depicting real or simulated sexual intercourse or deviate sexual
2-24 intercourse;
2-25 (6) engaging in a voluntary fight between a man and a
2-26 bull if the fight is for a thing of value or a championship, if a
2-27 thing of value is wagered on the fight, or if an admission fee for
3-1 the fight is directly or indirectly charged, as prohibited by law;
3-2 <or>
3-3 (7) manufacturing, delivering, or using a controlled
3-4 substance in violation of Chapter 481, Health and Safety Code;
3-5 (8) discharging a firearm; or
3-6 (9) using a deadly weapon for an unlawful purpose,
3-7 including frightening, harming, or threatening to harm a person.
3-8 (b) Use of a place for discharging a firearm is not a public
3-9 nuisance if the firearm is discharged during the course of:
3-10 (1) wildlife hunting authorized by law;
3-11 (2) the official law enforcement duties of a law
3-12 enforcement officer;
3-13 (3) the provision of security services authorized
3-14 under the Private Investigators and Private Security Agencies Act
3-15 (Article 4413(29bb), Vernon's Texas Civil Statutes); or
3-16 (4) any other activity in which the discharge of a
3-17 firearm is authorized by law.
3-18 (c) This section does not apply to discharge of a firearm on
3-19 a bona fide firing range, skeet shooting range, or other sport
3-20 shooting range.
3-21 (d) In this section:
3-22 (1) "Firearm" has the meaning assigned by Section
3-23 46.01, Penal Code.
3-24 (2) "Deadly weapon" includes a club, explosive weapon,
3-25 knife, knuckles, or hoax bomb as those terms are defined by Section
3-26 46.01, Penal Code.
3-27 Sec. 125.041. DEFINITIONS <PUBLIC NUISANCE>. In this
4-1 subchapter:
4-2 (1) "Common nuisance" is a nuisance described by
4-3 Section 125.001.
4-4 (2) "Public nuisance" is a nuisance described by
4-5 Section 125.021 <For the purposes of this subchapter, a public
4-6 nuisance is considered to exist at a place if one or more of the
4-7 following acts occurs at that place on a regular basis:>
4-8 <(1) gambling, gambling promotion, or communication of
4-9 gambling information, as prohibited by Chapter 47, Penal Code;>
4-10 <(2) promotion or aggravated promotion of
4-11 prostitution, as prohibited by Chapter 43, Penal Code;>
4-12 <(3) compelling prostitution, as prohibited by Chapter
4-13 43, Penal Code;>
4-14 <(4) commercial manufacture, commercial distribution,
4-15 or commercial exhibition of material that is obscene, as defined by
4-16 Section 43.21, Penal Code;>
4-17 <(5) commercial exhibition of a live dance or other
4-18 act in which a person engages in real or simulated sexual
4-19 intercourse or deviate sexual intercourse, as defined by Section
4-20 43.01, Penal Code; or>
4-21 <(6) manufacture, delivery, or use of a controlled
4-22 substance in violation of Chapter 481, Health and Safety Code>.
4-23 SECTION 2. Sections 125.004(a) and (b), Civil Practice and
4-24 Remedies Code, are amended to read as follows:
4-25 (a) Proof that an act described by Section 125.001(a)
4-26 <prostitution or gambling in violation of the Penal Code or that
4-27 the delivery or use of a controlled substance in violation of
5-1 Chapter 481, Health and Safety Code> is frequently committed at the
5-2 place involved is prima facie evidence that the proprietor
5-3 knowingly permitted the act.
5-4 (b) Evidence that persons have been convicted of an offense
5-5 described by Section 125.001(a)(1) or (2) or an offense related to
5-6 conduct described by Section 125.001(a)(3) or (4) <gambling,
5-7 committing prostitution, or delivering or using a controlled
5-8 substance> in the place involved is admissible to show knowledge on
5-9 the part of the defendant that the act occurred. The originals or
5-10 certified copies of the papers and judgments of those convictions
5-11 are admissible in the suit for injunction, and oral evidence is
5-12 admissible to show that the offense for which a person was
5-13 convicted was committed at the place involved.
5-14 SECTION 3. Section 125.045(a), Civil Practice and Remedies
5-15 Code, is amended to read as follows:
5-16 (a) If, in any judicial proceeding under Subchapter B, a
5-17 court determines that a person has maintained a place at which a
5-18 public nuisance existed, the court shall require the person to
5-19 execute a bond. The bond must:
5-20 (1) be payable to the state at the county seat of the
5-21 county in which the nuisance existed;
5-22 (2) be in the amount set by the court, but not less
5-23 than $5,000 or more than $10,000;
5-24 (3) have sufficient sureties approved by the court;
5-25 and
5-26 (4) be conditioned that the person will not allow a
5-27 public nuisance to exist at the place.
6-1 SECTION 4. Subchapter C, Chapter 125, Civil Practice and
6-2 Remedies Code, is amended by adding Section 125.046 to read as
6-3 follows:
6-4 Sec. 125.046. ADDITIONAL REMEDIES; RECEIVER. (a) If, in
6-5 any judicial proceeding under Subchapter A or B, a court determines
6-6 that a person is maintaining an apartment building or other
6-7 multi-family dwelling that is a common nuisance or that is a place
6-8 at which a public nuisance exists or existed, the court may on its
6-9 own motion or the motion of any party render any order reasonable
6-10 and necessary to abate the nuisance or to prevent incidents
6-11 relating to the nuisance from reoccurring, including the
6-12 appointment of a receiver to manage the place at which the nuisance
6-13 is maintained or exists or existed.
6-14 (b) A receiver appointed under this section may not be
6-15 appointed for a period longer than one year.
6-16 (c) The court shall determine the management duties of the
6-17 receiver, the amount to be paid the receiver, and the payment
6-18 periods. The receiver shall be paid out of money deposited into
6-19 the registry of the court by the owner of the place at which the
6-20 nuisance exists or existed.
6-21 SECTION 5. This Act applies only to a cause of action that
6-22 accrues on or after the effective date of this Act. An action that
6-23 accrued before the effective date of this Act is governed by the
6-24 law in effect at the time the action accrued, and that law is
6-25 continued in effect for that purpose.
6-26 SECTION 6. The importance of this legislation and the
6-27 crowded condition of the calendars in both houses create an
7-1 emergency and an imperative public necessity that the
7-2 constitutional rule requiring bills to be read on three several
7-3 days in each house be suspended, and this rule is hereby suspended,
7-4 and that this Act take effect and be in force from and after its
7-5 passage, and it is so enacted.