By Gallegos                                            H.B. No. 333
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the authority and procedures of municipalities for the
    1-3  inspection and regulation of buildings in the interest of public
    1-4  safety.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Sections 54.033(b) and (e), Local Government
    1-7  Code, are amended to read as follows:
    1-8        (b)  A commission appointed for the purpose of hearing cases
    1-9  under this subchapter shall consist of one or more five-member
   1-10  panels <five members> to be appointed for terms of two years.
   1-11        (e)  The governing body, by charter or ordinance, may provide
   1-12  for the appointment of eight or more <four> alternate members of
   1-13  the commission who shall serve in the absence of one or more
   1-14  regular members when requested to do so by the mayor or city
   1-15  manager.  The alternate members serve for the same period and are
   1-16  subject to removal in the same manner as the regular members.  A
   1-17  vacancy is filled in the same manner as a vacancy among the regular
   1-18  members.
   1-19        SECTION 2.  Section 54.034, Local Government Code, is amended
   1-20  to read as follows:
   1-21        Sec. 54.034.  PROCEEDINGS OF COMMISSION PANELS.  (a)  All
   1-22  cases to be heard by the commission may be heard by any panel of
   1-23  the commission, but <must be heard by> at least four members of a
   1-24  panel must hear a case.
    2-1        (b)  A majority of the entire <The> commission shall adopt
    2-2  rules for the entire commission in accordance with any ordinances
    2-3  adopted pursuant to this subchapter.  The rules shall establish
    2-4  procedures for use in hearings, providing ample opportunity for
    2-5  presentation of evidence and testimony by respondents or persons
    2-6  opposing charges brought by the municipality or its building
    2-7  officials relating to alleged violations of ordinances.
    2-8        (c)  The governing body of the municipality by ordinance
    2-9  shall designate the appropriate official of the municipality who
   2-10  shall present all cases before the commission panels.
   2-11        (d)  Meetings of the commission panels shall be held at the
   2-12  call of the chairman of each panel and at other times as determined
   2-13  by the commission.  All meetings of the commission and its panels
   2-14  shall be open to the public.  Each <The> chairman of a panel, or in
   2-15  the chairman's absence each <the> acting chairman, may administer
   2-16  oaths and compel the attendance of witnesses.
   2-17        (e)  Each <The> commission panel shall keep minutes of its
   2-18  proceedings showing the vote of each member on each question or the
   2-19  fact that a member is absent or fails to vote.  Each <The>
   2-20  commission panel shall keep records of its examinations and other
   2-21  official actions.  The minutes and records shall be filed
   2-22  immediately in the office of the commission as public records.
   2-23        SECTION 3.  Section 54.035, Local Government Code, is amended
   2-24  as follows:
   2-25        Sec. 54.035.  Notice.  (a)  Notice of all proceedings before
   2-26  the commission panels must be given:
   2-27              (1)  by certified mail, return receipt requested, to
    3-1  the record owners of the affected property, and each holder of a
    3-2  recorded lien against the affected property, as shown by the
    3-3  records in the office of the county clerk of the county in which
    3-4  the affected property is located if the address of the lienholder
    3-5  can be ascertained from the deed of trust establishing the lien
    3-6  and/or <or> other applicable instruments on file in the office of
    3-7  the county clerk; and
    3-8              (2)  to all unknown owners, by posting a copy of the
    3-9  notice on the front door of each improvement situated on the
   3-10  affected property or as close to the front door as practicable.
   3-11        (b)  The notice shall be mailed and posted on or before the
   3-12  10th day before the date of the hearing before the commission panel
   3-13  and must state the date, time, and place of the hearing.  In
   3-14  addition, the notice must be published in a newspaper of general
   3-15  circulation in the municipality on one occasion on or before the
   3-16  10th day before the date fixed for the hearing.
   3-17        (c)  The commission may file notice of a proceeding before a
   3-18  commission panel in the Official Public Records of Real Property in
   3-19  the county in which the affected property is located.  The filing
   3-20  of the notice is binding and constitutes notice of the proceeding
   3-21  on any subsequent recipient of any interest in the property.
   3-22        SECTION 4.  Section 54.036, Local Government Code, is amended
   3-23  to read as follows:
   3-24        Sec. 54.036.  Functions.  A <The> commission panel may:
   3-25              (1)  order the repair, within a fixed period, of
   3-26  buildings found to be in violation of an ordinance;
   3-27              (2)  declare a building substandard in accordance with
    4-1  the powers granted by this subchapter;
    4-2              (3)  order, in an appropriate case, the immediate
    4-3  removal of persons or property found on private property, enter on
    4-4  private property to secure the removal if it is determined that
    4-5  conditions exist on the property that constitute a violation of an
    4-6  ordinance, and order action to be taken as necessary to remedy,
    4-7  alleviate, or remove any substandard building found to exist;
    4-8              (4)  issue orders or directives to any peace officer of
    4-9  the state, including a sheriff or constable or the chief of police
   4-10  of the municipality, to enforce and carry out the lawful orders or
   4-11  directives of the commission panel;
   4-12              (5)  determine the amount and duration of the civil
   4-13  penalty the municipality may recover as provided by Section 54.017.
   4-14        SECTION 5.  Section 54.037(b), Local Government Code, is
   4-15  amended to read as follows:
   4-16        (b)  To enforce any civil penalty under this subchapter, the
   4-17  municipal secretary or clerk must file with the district clerk of
   4-18  the county in which the municipality is located, a certified copy
   4-19  of the order of the commission panel  establishing the amount and
   4-20  duration of the penalty.  No other proof is required for a district
   4-21  court to enter final judgment on the penalty.
   4-22        SECTION 6.  Section 54.038, Local Government Code, is amended
   4-23  to read as follows:
   4-24        Sec. 54.038.  Vote.  The concurring vote of four members of a
   4-25  <the> commission panel is necessary to take any action under this
   4-26  subchapter and any ordinance adopted by the municipality in
   4-27  accordance with this subchapter.
    5-1        SECTION 7.  Section 54.039, Local Government Code, is amended
    5-2  to read as follows:
    5-3        Sec. 54.039.  Judicial Review.  (a)  Any owner, lienholder,
    5-4  or mortgagee of record <persons> jointly or severally aggrieved by
    5-5  any decision of a <the> commission panel may present a petition to
    5-6  a district court, duly verified, setting forth that the decision is
    5-7  illegal, in whole or in part, and specifying the grounds of the
    5-8  illegality.  The petition must be presented to the court within 30
    5-9  calendar days after the date a copy of the final decision of the
   5-10  commission panel is mailed by first class mail, certified return
   5-11  receipt requested, to all persons to whom notice is required to be
   5-12  sent under Section 54.035.  The commission panel shall mail that
   5-13  copy promptly after the decision becomes final.  In addition, an
   5-14  abbreviated copy of the order <a copy> shall be published one time
   5-15  in a newspaper of general circulation in the municipality within 10
   5-16  calendar days after the date of the mailing of the copy as provided
   5-17  by this subsection, including the street address or legal
   5-18  description of the property; the date of the hearing, a brief
   5-19  statement indicating the results of the order, and instructions
   5-20  stating where a complete copy of the order may be obtained, and a
   5-21  copy shall be filed in the office of the municipal secretary or
   5-22  clerk.
   5-23        (b)  On presentation of the petition, the court may allow a
   5-24  writ of certiorari directed to the commission panel to review the
   5-25  decision of the commission panel and shall prescribe in the writ
   5-26  the time, which may not be less than 10 days, within which a return
   5-27  on the writ must be made and served on the relator or the relator's
    6-1  attorney.
    6-2        (c)  The commission panel may not be required to return the
    6-3  original papers acted on by it.  It is sufficient for the
    6-4  commission panel to return certified or sworn copies of the papers
    6-5  or of parts of the papers as may be called for by the writ.
    6-6        (d)  The return must concisely set forth other facts as may
    6-7  be pertinent and material to show the grounds for the decision
    6-8  appealed from and shall be verified.
    6-9        (e)  The allowance of the writ does not stay proceedings on
   6-10  the decision appealed from<, but the district court, on
   6-11  application, on notice to the commission and for due cause shown,
   6-12  may grant a restraining order or injunction>.
   6-13        (f)  The district court's review shall be limited to a
   6-14  hearing under the substantial evidence rule.  <If, on a hearing by
   6-15  the district court, it appears to the court that testimony is
   6-16  necessary for the proper disposition of the matter, the court may
   6-17  take evidence or appoint a referee to take evidence as it may
   6-18  direct and report the evidence to the court with the referee's
   6-19  findings of fact and conclusions of law, which constitute a part of
   6-20  the proceedings on which the determination of the court shall be
   6-21  made.>  The court may reverse or affirm, in whole or in part, or
   6-22  may modify the decision brought up for review.
   6-23        (g)  Costs may not be allowed against the commission panel
   6-24  <unless it appears to the court that the commission acted with
   6-25  gross negligence, in bad faith, or with malice in making the
   6-26  decision appealed from>.
   6-27        (h)  If the decision of the commission panel is affirmed or
    7-1  not substantially reversed but only modified, the district court
    7-2  shall allow to the municipality all attorney's fees and other costs
    7-3  and expenses incurred by it and shall enter a judgment for those
    7-4  items, which may be entered against the property owners as well as
    7-5  all persons found to be in occupation of the property subject to
    7-6  the proceedings before the commission panel.
    7-7        SECTION 8.  Section 54.040(b), Local Government Code, is
    7-8  amended to read as follows:
    7-9        (b)  A lienholder does not have standing to bring a
   7-10  proceeding under Section 54.039 on the ground that the lienholder
   7-11  was not notified of the proceedings before the commission panel or
   7-12  was unaware of the condition of the property, unless the lienholder
   7-13  had first appeared before the commission panel and entered an
   7-14  appearance in opposition to the proceedings.
   7-15        SECTION 9.  Section 54.041, Local Government Code, is amended
   7-16  to read as follows:
   7-17        Sec. 54.041.  COMMISSION PANEL DECISION FINAL.  If no appeals
   7-18  are taken from the decision of the commission panel within the
   7-19  required period, the decision of the commission panel is, in all
   7-20  things, final and binding.
   7-21        SECTION 10.  Section 214.001, Local Government Code, is
   7-22  amended to read as follows:
   7-23        Sec. 214.001.  Authority Regarding Substandard Building.
   7-24  (a)  A municipality may, by ordinance, require the vacation,
   7-25  relocation of occupants, securing, repair, removal, or demolition
   7-26  of a building that is:
   7-27              (1)  dilapidated, substandard, or unfit for human
    8-1  habitation<;> and <(2)> a hazard to the public health, safety, and
    8-2  welfare;
    8-3              (2)  regardless of its structural condition, unoccupied
    8-4  by its owners, lessees, or other invitees and is unsecured from
    8-5  unauthorized entry to the extent that it could be entered or used
    8-6  by vagrants or other uninvited persons as a place of harborage or
    8-7  could be entered or used by children; or
    8-8              (3)  boarded up, fenced, or otherwise secured in any
    8-9  manner if:
   8-10                    (A)  the building constitutes a danger to the
   8-11  public even though secured from entry; or
   8-12                    (B)  the means used to secure the building are
   8-13  inadequate to prevent unauthorized entry or use of the building in
   8-14  the manner described by Subdivision (2).
   8-15        (b)  The ordinance must:
   8-16              (1)  establish minimum standards for the continued use
   8-17  and occupancy of all buildings regardless of the date of their
   8-18  construction;
   8-19              (2)  provide for giving proper notice to the owner of a
   8-20  building; and
   8-21              (3)  provide for a public hearing to determine whether
   8-22  a building complies with the standards set out in the ordinance.
   8-23        (c)  A notice of a hearing sent to an owner, lienholder, or
   8-24  mortgagee under this section must include a statement that the
   8-25  owner, lienholder, or mortgagee will be required to submit at the
   8-26  hearing proof of the scope of any work that may be required to
   8-27  comply with the ordinance and the time it will take to reasonably
    9-1  perform the work.
    9-2        (d)  After the public hearing, if a building is found in
    9-3  violation of standards set out in the ordinance, the municipality
    9-4  may order that the building be vacated, secured, repaired, removed,
    9-5  or demolished by the owner within a reasonable time as provided by
    9-6  this section.  The municipality also may order that the occupants
    9-7  be relocated within a reasonable time.  If the owner does not take
    9-8  the ordered action within the allotted time, the municipality shall
    9-9  make a diligent effort to discover each mortgagee and lienholder
   9-10  having an interest in the building or in the property on which the
   9-11  building is located.  The municipality shall send to each
   9-12  identified mortgagee and lienholder a notice containing:
   9-13              (1)  an identification, which is not required to be a
   9-14  legal description, of the building and the property on which it is
   9-15  located;
   9-16              (2)  a description of the violation of municipal
   9-17  standards that is present at the building; and
   9-18              (3)  a statement that the municipality will vacate,
   9-19  secure, remove, or demolish the building or relocate the occupants
   9-20  of the building if the ordered action is not taken within a
   9-21  reasonable time.
   9-22        (e) <(d)>  As an alternative to the procedure prescribed by
   9-23  Subsection (d) <(e)>, the municipality may make a diligent effort
   9-24  to discover each mortgagee and lienholder before conducting the
   9-25  public hearing and may give them a notice of and an opportunity to
   9-26  comment at the hearing.  In addition, the municipality may file
   9-27  notice of the hearing in the Official Public Records of Real
   10-1  Property in the county in which the property is located.  The
   10-2  filing of the notice is binding and constitutes notice of the
   10-3  hearing on any subsequent recipient of any interest in the
   10-4  property.  If the municipality operates under this subsection, the
   10-5  order issued by the municipality may specify a reasonable time as
   10-6  provided by this section for the building to be vacated, secured,
   10-7  repaired, removed, or demolished by the owner or for the occupants
   10-8  to be relocated by the owner and an additional reasonable time as
   10-9  provided by this section for the ordered action to be taken by any
  10-10  of the mortgagees or lienholders in the event the owner fails to
  10-11  comply with the order within the time provided for action by the
  10-12  owner.  Under this subsection, the municipality is not required to
  10-13  furnish any notice to a mortgagee or lienholder other than a copy
  10-14  of the order in the event the owner fails to timely take the
  10-15  ordered action.
  10-16        (f)  Within 10 days after the date that the order is issued,
  10-17  the municipality shall:
  10-18              (1)  file a copy of the order in the office of the
  10-19  municipal secretary or clerk; and
  10-20              (2)  publish in a newspaper of general circulation in
  10-21  the municipality in which the building is located a notice
  10-22  containing:
  10-23                    (A)  the street address or legal description of
  10-24  the property;
  10-25                    (B)  the date of the hearing;
  10-26                    (C)  a brief statement indicating the results of
  10-27  the order; and
   11-1                    (D)  instructions stating where a complete copy
   11-2  of the order may be obtained.
   11-3        (g)  After the hearing, the municipality shall promptly mail
   11-4  by certified mail, return receipt requested, a copy of the order to
   11-5  the owner of the building, and if the owner does not take the
   11-6  ordered action within the allotted time, the municipality shall
   11-7  promptly mail by certified mail, return receipt requested, a copy
   11-8  of the order to any lienholder or mortgagee of the building.  The
   11-9  municipality shall use the records in the office of the county
  11-10  clerk in the county in which the building is located to determine,
  11-11  if possible, the identity and address of any owner, lienholder, or
  11-12  mortgagee of the building.
  11-13        (h)  In conducting a hearing authorized under this section,
  11-14  the municipality shall require the owner, lienholder, or mortgagee
  11-15  of the building to within 30 days:
  11-16              (1)  secure the building from unauthorized entry; or
  11-17              (2)  repair, remove, or demolish the building, unless
  11-18  the owner or lienholder establishes at the hearing that the work
  11-19  cannot reasonably be performed within 30 days.
  11-20        (i)  If the municipality allows the owner, lienholder, or
  11-21  mortgagee more than 30 days to repair, remove, or demolish the
  11-22  building, the municipality shall establish specific time schedules
  11-23  for the commencement and performance of the work and shall require
  11-24  the owner, lienholder, or mortgagee to secure the property in a
  11-25  reasonable manner from unauthorized entry while the work is being
  11-26  performed, as determined by the hearing official.
  11-27        (j)  A municipality may not allow the owner, lienholder, or
   12-1  mortgagee more than 90 days to repair, remove, or demolish the
   12-2  building or fully perform all work required to comply with the
   12-3  order unless the owner, lienholder, or mortgagee:
   12-4              (1)  submits a detailed plan and time schedule for the
   12-5  work at the hearing; and
   12-6              (2)  establishes at the hearing that the work cannot
   12-7  reasonably be completed within 90 days because of the scope and
   12-8  complexity of the work.
   12-9        (k)  If the municipality allows the owner, lienholder, or
  12-10  mortgagee more than 90 days to complete any part of the work
  12-11  required to repair, remove, or demolish the building, the
  12-12  municipality shall require the owner, lienholder, or mortgagee to
  12-13  regularly submit progress reports to the municipality to
  12-14  demonstrate that the owner, lienholder, or mortgagee has complied
  12-15  with the time schedules established for commencement and
  12-16  performance of the work.  The order may require that the owner,
  12-17  lienholder, or mortgagee appear before the hearing official or the
  12-18  hearing official's designee to demonstrate compliance with the time
  12-19  schedules.
  12-20        (l)  In a public hearing to determine whether a building
  12-21  complies with the standards set out in an ordinance adopted under
  12-22  this section, the owner, lienholder, or mortgagee has the burden of
  12-23  proof to demonstrate the scope of any work that may be required to
  12-24  comply with the ordinance and the time it will take to reasonably
  12-25  perform the work.
  12-26        (m) <(e)>  If the building is not vacated, secured, repaired,
  12-27  removed, or demolished, or the occupants are not relocated within
   13-1  the allotted time, the municipality may vacate, secure, remove, or
   13-2  demolish the building or relocate the occupants at its own expense.
   13-3        (n) <(f)>  If a municipality incurs expenses under Subsection
   13-4  (m) <(e)>, the municipality may assess the expenses on, and the
   13-5  municipality has a lien against, unless it is a homestead as
   13-6  protected by the Texas Constitution, the property on which the
   13-7  building was located.  The lien is extinguished if the property
   13-8  owner or another person having an interest in the legal title to
   13-9  the property reimburses the municipality for the expenses.  The
  13-10  lien arises and attaches to the property at the time the notice of
  13-11  the lien is recorded and indexed in the office of the county clerk
  13-12  in the county in which the property is located.  The notice must
  13-13  contain the name and address of the owner if that information can
  13-14  be determined with a reasonable effort, a legal description of the
  13-15  real property on which the building was located, the amount of
  13-16  expenses incurred by the municipality, and the balance due.
  13-17        (o) <(g)>  If the notice is given and the opportunity to
  13-18  repair, remove, or demolish the building is afforded to each
  13-19  mortgagee and lienholder as authorized by Subsection <(c) or> (d)
  13-20  or (e), the lien is a privileged lien subordinate only to tax liens
  13-21  and all previously recorded bona fide mortgage liens attached to
  13-22  the real property to which the municipality's lien attaches.
  13-23        SECTION 11.  Subchapter A, Chapter 214, Local Government
  13-24  Code, is amended by adding Section 214.0012 to read as follows:
  13-25        Sec. 214.0012.  JUDICIAL REVIEW.  (a)  Any owner, lienholder,
  13-26  or mortgagee of record of property jointly or severally aggrieved
  13-27  by an order of a municipality issued under Section 214.001 may file
   14-1  in district court a verified petition setting forth that the
   14-2  decision is illegal, in whole or in part, and specifying the
   14-3  grounds of the illegality.  The petition must be filed by an owner,
   14-4  lienholder, or mortgagee within 30 calendar days after the
   14-5  respective dates a copy of the final decision of the municipality
   14-6  is mailed to them by first class mail, certified return receipt
   14-7  requested, or such decision shall become final as to each of them
   14-8  upon the expiration of each such 30 calendar day period.
   14-9        (b)  On the filing of the petition, the court may issue a
  14-10  writ of certiorari directed to the municipality to review the order
  14-11  of the municipality and shall prescribe in the writ the time within
  14-12  which a return on the writ must be made, which must be longer than
  14-13  10 days, and served on the relator or the relator's attorney.
  14-14        (c)  The municipality may not be required to return the
  14-15  original papers acted on by it, but it is sufficient for the
  14-16  municipality to return certified or sworn copies of the papers or
  14-17  of parts of the papers as may be called for by the writ.
  14-18        (d)  The return must concisely set forth other facts as may
  14-19  be pertinent and material to show the grounds of the decision
  14-20  appealed from and shall be verified.
  14-21        (e)  The issuance of the writ does not stay proceedings on
  14-22  the decision appealed from.
  14-23        (f)  Appeal in the district court shall be limited to a
  14-24  hearing under the substantial evidence rule.  The court may reverse
  14-25  or affirm, in whole or in part, or may modify the decision brought
  14-26  up for review.
  14-27        (g)  Costs may not be allowed against the municipality.
   15-1        (h)  If the decision of the municipality is affirmed or not
   15-2  substantially reversed but only modified, the district court shall
   15-3  allow to the municipality all attorney's fees and other costs and
   15-4  expenses incurred by it and shall enter a judgment for those items,
   15-5  which may be entered against the property owners, lienholders, or
   15-6  mortgagees as well as all persons subject to the proceedings before
   15-7  the municipality.
   15-8        SECTION 12.  The changes in law made by this Act apply only
   15-9  to proceedings or actions instituted on or after the effective date
  15-10  of this Act.  Proceedings or actions instituted before the
  15-11  effective date of this Act are covered by the law in effect when
  15-12  the proceeding or action was instituted, and the former law is
  15-13  continued in effect for that purpose.
  15-14        SECTION 13.  This Act takes effect September 1, 1993.
  15-15        SECTION 14.  The importance of this legislation and the
  15-16  crowded condition of the calendars in both houses create an
  15-17  emergency and an imperative public necessity that the
  15-18  constitutional rule requiring bills to be read on three several
  15-19  days in each house be suspended, and this rule is hereby suspended.