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