1-1 By: Gallegos (Senate Sponsor - Whitmire) H.B. No. 333
1-2 (In the Senate - Received from the House April 22, 1993;
1-3 April 26, 1993, read first time and referred to Committee on
1-4 Intergovernmental Relations; May 5, 1993, reported favorably;
1-5 May 17, 1993, recommitted to Committee on Intergovernmental
1-6 Relations; May 20, 1993, reported favorably, as amended, by the
1-7 following vote: Yeas 8, Nays 0; May 20, 1993, sent to printer.)
1-8 COMMITTEE VOTE
1-9 Yea Nay PNV Absent
1-10 Armbrister x
1-11 Leedom x
1-12 Carriker x
1-13 Henderson x
1-14 Madla x
1-15 Moncrief x
1-16 Patterson x
1-17 Rosson x
1-18 Shapiro x
1-19 Wentworth x
1-20 Whitmire x
1-21 COMMITTEE AMENDMENT NO. 1 By: Whitmire
1-22 Amend H.B. No. 333 as follows:
1-23 1. On page 2, line 59, after the sentence ending in the word
1-24 "located.", insert the following sentence:
1-25 "The notice must contain the name and address of the owner of the
1-26 affected property if that information can be determined from a
1-27 reasonable search of the instruments on file in the office of the
1-28 county clerk, a legal description of the affected property, and a
1-29 description of the proceeding."
1-30 2. On page 2, line 60, after the word "binding" insert the
1-31 following:
1-32 "on subsequent grantees, lienholders, or other transferees of an
1-33 interest in the property who acquire such interest after the filing
1-34 of the notice"
1-35 3. On page 2, line 61, after the word "property" and before
1-36 the period, insert the following:
1-37 "who acquires such interest after the filing of the notice"
1-38 4. On page 5, line 20, after the sentence ending in the word
1-39 "located.", insert the following sentence:
1-40 "The notice must contain the name and address of the owner of the
1-41 affected property if that information can be determined from a
1-42 reasonable search of the instruments on file in the office of the
1-43 county clerk, a legal description of the affected property, and a
1-44 description of the hearing."
1-45 5. On page 5, line 21, after the word "binding", insert the
1-46 following:
1-47 "on subsequent grantees, lienholders, or other transferees of an
1-48 interest in the property who acquire such interest after the filing
1-49 of the notice,"
1-50 6. On page 5, line 23, after the word "property" and before
1-51 the period, insert the following:
1-52 "who acquires such interest after the filing of the notice"
1-53 A BILL TO BE ENTITLED
1-54 AN ACT
1-55 relating to the authority and procedures of municipalities for the
1-56 inspection and regulation of buildings in the interest of public
1-57 safety.
1-58 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-59 SECTION 1. Sections 54.033(b) and (e), Local Government
1-60 Code, are amended to read as follows:
1-61 (b) A commission appointed for the purpose of hearing cases
1-62 under this subchapter shall consist of one or more five-member
1-63 panels <five members> to be appointed for terms of two years.
1-64 (e) The governing body, by charter or ordinance, may provide
1-65 for the appointment of eight or more <four> alternate members of
1-66 the commission who shall serve in the absence of one or more
1-67 regular members when requested to do so by the mayor or city
1-68 manager. The alternate members serve for the same period and are
2-1 subject to removal in the same manner as the regular members. A
2-2 vacancy is filled in the same manner as a vacancy among the regular
2-3 members.
2-4 SECTION 2. Section 54.034, Local Government Code, is amended
2-5 to read as follows:
2-6 Sec. 54.034. PROCEEDINGS OF COMMISSION PANELS. (a) All
2-7 cases to be heard by the commission may be heard by any panel of
2-8 the commission, but <must be heard by> at least four members of a
2-9 panel must hear a case.
2-10 (b) A majority of the entire <The> commission shall adopt
2-11 rules for the entire commission in accordance with any ordinances
2-12 adopted pursuant to this subchapter. The rules shall establish
2-13 procedures for use in hearings, providing ample opportunity for
2-14 presentation of evidence and testimony by respondents or persons
2-15 opposing charges brought by the municipality or its building
2-16 officials relating to alleged violations of ordinances.
2-17 (c) The governing body of the municipality by ordinance
2-18 shall designate the appropriate official of the municipality who
2-19 shall present all cases before the commission panels.
2-20 (d) Meetings of the commission panels shall be held at the
2-21 call of the chairman of each panel and at other times as determined
2-22 by the commission. All meetings of the commission and its panels
2-23 shall be open to the public. Each <The> chairman of a panel, or in
2-24 the chairman's absence each <the> acting chairman, may administer
2-25 oaths and compel the attendance of witnesses.
2-26 (e) Each <The> commission panel shall keep minutes of its
2-27 proceedings showing the vote of each member on each question or the
2-28 fact that a member is absent or fails to vote. Each <The>
2-29 commission panel shall keep records of its examinations and other
2-30 official actions. The minutes and records shall be filed
2-31 immediately in the office of the commission as public records.
2-32 SECTION 3. Section 54.035, Local Government Code, is amended
2-33 as follows:
2-34 Sec. 54.035. Notice. (a) Notice of all proceedings before
2-35 the commission panels must be given:
2-36 (1) by certified mail, return receipt requested, to
2-37 the record owners of the affected property, and each holder of a
2-38 recorded lien against the affected property, as shown by the
2-39 records in the office of the county clerk of the county in which
2-40 the affected property is located if the address of the lienholder
2-41 can be ascertained from the deed of trust establishing the lien
2-42 and/or <or> other applicable instruments on file in the office of
2-43 the county clerk; and
2-44 (2) to all unknown owners, by posting a copy of the
2-45 notice on the front door of each improvement situated on the
2-46 affected property or as close to the front door as practicable.
2-47 (b) The notice shall be mailed and posted on or before the
2-48 10th day before the date of the hearing before the commission panel
2-49 and must state the date, time, and place of the hearing. In
2-50 addition, the notice must be published in a newspaper of general
2-51 circulation in the municipality on one occasion on or before the
2-52 10th day before the date fixed for the hearing.
2-53 (c) The commission may file notice of a proceeding before a
2-54 commission panel in the Official Public Records of Real Property in
2-55 the county in which the affected property is located. The filing
2-56 of the notice is binding and constitutes notice of the proceeding
2-57 on any subsequent recipient of any interest in the property.
2-58 SECTION 4. Section 54.036, Local Government Code, is amended
2-59 to read as follows:
2-60 Sec. 54.036. Functions. A <The> commission panel may:
2-61 (1) order the repair, within a fixed period, of
2-62 buildings found to be in violation of an ordinance;
2-63 (2) declare a building substandard in accordance with
2-64 the powers granted by this subchapter;
2-65 (3) order, in an appropriate case, the immediate
2-66 removal of persons or property found on private property, enter on
2-67 private property to secure the removal if it is determined that
2-68 conditions exist on the property that constitute a violation of an
2-69 ordinance, and order action to be taken as necessary to remedy,
2-70 alleviate, or remove any substandard building found to exist;
3-1 (4) issue orders or directives to any peace officer of
3-2 the state, including a sheriff or constable or the chief of police
3-3 of the municipality, to enforce and carry out the lawful orders or
3-4 directives of the commission panel;
3-5 (5) determine the amount and duration of the civil
3-6 penalty the municipality may recover as provided by Section 54.017.
3-7 SECTION 5. Section 54.037(b), Local Government Code, is
3-8 amended to read as follows:
3-9 (b) To enforce any civil penalty under this subchapter, the
3-10 municipal secretary or clerk must file with the district clerk of
3-11 the county in which the municipality is located, a certified copy
3-12 of the order of the commission panel establishing the amount and
3-13 duration of the penalty. No other proof is required for a district
3-14 court to enter final judgment on the penalty.
3-15 SECTION 6. Section 54.038, Local Government Code, is amended
3-16 to read as follows:
3-17 Sec. 54.038. Vote. The concurring vote of four members of a
3-18 <the> commission panel is necessary to take any action under this
3-19 subchapter and any ordinance adopted by the municipality in
3-20 accordance with this subchapter.
3-21 SECTION 7. Section 54.039, Local Government Code, is amended
3-22 to read as follows:
3-23 Sec. 54.039. Judicial Review. (a) Any owner, lienholder,
3-24 or mortgagee of record <persons> jointly or severally aggrieved by
3-25 any decision of a <the> commission panel may present a petition to
3-26 a district court, duly verified, setting forth that the decision is
3-27 illegal, in whole or in part, and specifying the grounds of the
3-28 illegality. The petition must be presented to the court within 30
3-29 calendar days after the date a copy of the final decision of the
3-30 commission panel is mailed by first class mail, certified return
3-31 receipt requested, to all persons to whom notice is required to be
3-32 sent under Section 54.035. The commission panel shall mail that
3-33 copy promptly after the decision becomes final. In addition, an
3-34 abbreviated copy of the order <a copy> shall be published one time
3-35 in a newspaper of general circulation in the municipality within 10
3-36 calendar days after the date of the mailing of the copy as provided
3-37 by this subsection, including the street address or legal
3-38 description of the property; the date of the hearing, a brief
3-39 statement indicating the results of the order, and instructions
3-40 stating where a complete copy of the order may be obtained, and a
3-41 copy shall be filed in the office of the municipal secretary or
3-42 clerk.
3-43 (b) On presentation of the petition, the court may allow a
3-44 writ of certiorari directed to the commission panel to review the
3-45 decision of the commission panel and shall prescribe in the writ
3-46 the time, which may not be less than 10 days, within which a return
3-47 on the writ must be made and served on the relator or the relator's
3-48 attorney.
3-49 (c) The commission panel may not be required to return the
3-50 original papers acted on by it. It is sufficient for the
3-51 commission panel to return certified or sworn copies of the papers
3-52 or of parts of the papers as may be called for by the writ.
3-53 (d) The return must concisely set forth other facts as may
3-54 be pertinent and material to show the grounds for the decision
3-55 appealed from and shall be verified.
3-56 (e) The allowance of the writ does not stay proceedings on
3-57 the decision appealed from<, but the district court, on
3-58 application, on notice to the commission and for due cause shown,
3-59 may grant a restraining order or injunction>.
3-60 (f) The district court's review shall be limited to a
3-61 hearing under the substantial evidence rule. <If, on a hearing by
3-62 the district court, it appears to the court that testimony is
3-63 necessary for the proper disposition of the matter, the court may
3-64 take evidence or appoint a referee to take evidence as it may
3-65 direct and report the evidence to the court with the referee's
3-66 findings of fact and conclusions of law, which constitute a part of
3-67 the proceedings on which the determination of the court shall be
3-68 made.> The court may reverse or affirm, in whole or in part, or
3-69 may modify the decision brought up for review.
3-70 (g) Costs may not be allowed against the commission panel
4-1 <unless it appears to the court that the commission acted with
4-2 gross negligence, in bad faith, or with malice in making the
4-3 decision appealed from>.
4-4 (h) If the decision of the commission panel is affirmed or
4-5 not substantially reversed but only modified, the district court
4-6 shall allow to the municipality all attorney's fees and other costs
4-7 and expenses incurred by it and shall enter a judgment for those
4-8 items, which may be entered against the property owners as well as
4-9 all persons found to be in occupation of the property subject to
4-10 the proceedings before the commission panel.
4-11 SECTION 8. Section 54.040(b), Local Government Code, is
4-12 amended to read as follows:
4-13 (b) A lienholder does not have standing to bring a
4-14 proceeding under Section 54.039 on the ground that the lienholder
4-15 was not notified of the proceedings before the commission panel or
4-16 was unaware of the condition of the property, unless the lienholder
4-17 had first appeared before the commission panel and entered an
4-18 appearance in opposition to the proceedings.
4-19 SECTION 9. Section 54.041, Local Government Code, is amended
4-20 to read as follows:
4-21 Sec. 54.041. COMMISSION PANEL DECISION FINAL. If no appeals
4-22 are taken from the decision of the commission panel within the
4-23 required period, the decision of the commission panel is, in all
4-24 things, final and binding.
4-25 SECTION 10. Section 214.001, Local Government Code, is
4-26 amended to read as follows:
4-27 Sec. 214.001. Authority Regarding Substandard Building.
4-28 (a) A municipality may, by ordinance, require the vacation,
4-29 relocation of occupants, securing, repair, removal, or demolition
4-30 of a building that is:
4-31 (1) dilapidated, substandard, or unfit for human
4-32 habitation<;> and <(2)> a hazard to the public health, safety, and
4-33 welfare;
4-34 (2) regardless of its structural condition, unoccupied
4-35 by its owners, lessees, or other invitees and is unsecured from
4-36 unauthorized entry to the extent that it could be entered or used
4-37 by vagrants or other uninvited persons as a place of harborage or
4-38 could be entered or used by children; or
4-39 (3) boarded up, fenced, or otherwise secured in any
4-40 manner if:
4-41 (A) the building constitutes a danger to the
4-42 public even though secured from entry; or
4-43 (B) the means used to secure the building are
4-44 inadequate to prevent unauthorized entry or use of the building in
4-45 the manner described by Subdivision (2).
4-46 (b) The ordinance must:
4-47 (1) establish minimum standards for the continued use
4-48 and occupancy of all buildings regardless of the date of their
4-49 construction;
4-50 (2) provide for giving proper notice to the owner of a
4-51 building; and
4-52 (3) provide for a public hearing to determine whether
4-53 a building complies with the standards set out in the ordinance.
4-54 (c) A notice of a hearing sent to an owner, lienholder, or
4-55 mortgagee under this section must include a statement that the
4-56 owner, lienholder, or mortgagee will be required to submit at the
4-57 hearing proof of the scope of any work that may be required to
4-58 comply with the ordinance and the time it will take to reasonably
4-59 perform the work.
4-60 (d) After the public hearing, if a building is found in
4-61 violation of standards set out in the ordinance, the municipality
4-62 may order that the building be vacated, secured, repaired, removed,
4-63 or demolished by the owner within a reasonable time as provided by
4-64 this section. The municipality also may order that the occupants
4-65 be relocated within a reasonable time. If the owner does not take
4-66 the ordered action within the allotted time, the municipality shall
4-67 make a diligent effort to discover each mortgagee and lienholder
4-68 having an interest in the building or in the property on which the
4-69 building is located. The municipality shall send to each
4-70 identified mortgagee and lienholder a notice containing:
5-1 (1) an identification, which is not required to be a
5-2 legal description, of the building and the property on which it is
5-3 located;
5-4 (2) a description of the violation of municipal
5-5 standards that is present at the building; and
5-6 (3) a statement that the municipality will vacate,
5-7 secure, remove, or demolish the building or relocate the occupants
5-8 of the building if the ordered action is not taken within a
5-9 reasonable time.
5-10 (e) <(d)> As an alternative to the procedure prescribed by
5-11 Subsection (d) <(e)>, the municipality may make a diligent effort
5-12 to discover each mortgagee and lienholder before conducting the
5-13 public hearing and may give them a notice of and an opportunity to
5-14 comment at the hearing. In addition, the municipality may file
5-15 notice of the hearing in the Official Public Records of Real
5-16 Property in the county in which the property is located. The
5-17 filing of the notice is binding and constitutes notice of the
5-18 hearing on any subsequent recipient of any interest in the
5-19 property. If the municipality operates under this subsection, the
5-20 order issued by the municipality may specify a reasonable time as
5-21 provided by this section for the building to be vacated, secured,
5-22 repaired, removed, or demolished by the owner or for the occupants
5-23 to be relocated by the owner and an additional reasonable time as
5-24 provided by this section for the ordered action to be taken by any
5-25 of the mortgagees or lienholders in the event the owner fails to
5-26 comply with the order within the time provided for action by the
5-27 owner. Under this subsection, the municipality is not required to
5-28 furnish any notice to a mortgagee or lienholder other than a copy
5-29 of the order in the event the owner fails to timely take the
5-30 ordered action.
5-31 (f) Within 10 days after the date that the order is issued,
5-32 the municipality shall:
5-33 (1) file a copy of the order in the office of the
5-34 municipal secretary or clerk; and
5-35 (2) publish in a newspaper of general circulation in
5-36 the municipality in which the building is located a notice
5-37 containing:
5-38 (A) the street address or legal description of
5-39 the property;
5-40 (B) the date of the hearing;
5-41 (C) a brief statement indicating the results of
5-42 the order; and
5-43 (D) instructions stating where a complete copy
5-44 of the order may be obtained.
5-45 (g) After the hearing, the municipality shall promptly mail
5-46 by certified mail, return receipt requested, a copy of the order to
5-47 the owner of the building, and if the owner does not take the
5-48 ordered action within the allotted time, the municipality shall
5-49 promptly mail by certified mail, return receipt requested, a copy
5-50 of the order to any lienholder or mortgagee of the building. The
5-51 municipality shall use the records in the office of the county
5-52 clerk in the county in which the building is located to determine,
5-53 if possible, the identity and address of any owner, lienholder, or
5-54 mortgagee of the building.
5-55 (h) In conducting a hearing authorized under this section,
5-56 the municipality shall require the owner, lienholder, or mortgagee
5-57 of the building to within 30 days:
5-58 (1) secure the building from unauthorized entry; or
5-59 (2) repair, remove, or demolish the building, unless
5-60 the owner or lienholder establishes at the hearing that the work
5-61 cannot reasonably be performed within 30 days.
5-62 (i) If the municipality allows the owner, lienholder, or
5-63 mortgagee more than 30 days to repair, remove, or demolish the
5-64 building, the municipality shall establish specific time schedules
5-65 for the commencement and performance of the work and shall require
5-66 the owner, lienholder, or mortgagee to secure the property in a
5-67 reasonable manner from unauthorized entry while the work is being
5-68 performed, as determined by the hearing official.
5-69 (j) A municipality may not allow the owner, lienholder, or
5-70 mortgagee more than 90 days to repair, remove, or demolish the
6-1 building or fully perform all work required to comply with the
6-2 order unless the owner, lienholder, or mortgagee:
6-3 (1) submits a detailed plan and time schedule for the
6-4 work at the hearing; and
6-5 (2) establishes at the hearing that the work cannot
6-6 reasonably be completed within 90 days because of the scope and
6-7 complexity of the work.
6-8 (k) If the municipality allows the owner, lienholder, or
6-9 mortgagee more than 90 days to complete any part of the work
6-10 required to repair, remove, or demolish the building, the
6-11 municipality shall require the owner, lienholder, or mortgagee to
6-12 regularly submit progress reports to the municipality to
6-13 demonstrate that the owner, lienholder, or mortgagee has complied
6-14 with the time schedules established for commencement and
6-15 performance of the work. The order may require that the owner,
6-16 lienholder, or mortgagee appear before the hearing official or the
6-17 hearing official's designee to demonstrate compliance with the time
6-18 schedules.
6-19 (l) In a public hearing to determine whether a building
6-20 complies with the standards set out in an ordinance adopted under
6-21 this section, the owner, lienholder, or mortgagee has the burden of
6-22 proof to demonstrate the scope of any work that may be required to
6-23 comply with the ordinance and the time it will take to reasonably
6-24 perform the work.
6-25 (m) <(e)> If the building is not vacated, secured, repaired,
6-26 removed, or demolished, or the occupants are not relocated within
6-27 the allotted time, the municipality may vacate, secure, remove, or
6-28 demolish the building or relocate the occupants at its own expense.
6-29 (n) <(f)> If a municipality incurs expenses under Subsection
6-30 (m) <(e)>, the municipality may assess the expenses on, and the
6-31 municipality has a lien against, unless it is a homestead as
6-32 protected by the Texas Constitution, the property on which the
6-33 building was located. The lien is extinguished if the property
6-34 owner or another person having an interest in the legal title to
6-35 the property reimburses the municipality for the expenses. The
6-36 lien arises and attaches to the property at the time the notice of
6-37 the lien is recorded and indexed in the office of the county clerk
6-38 in the county in which the property is located. The notice must
6-39 contain the name and address of the owner if that information can
6-40 be determined with a reasonable effort, a legal description of the
6-41 real property on which the building was located, the amount of
6-42 expenses incurred by the municipality, and the balance due.
6-43 (o) <(g)> If the notice is given and the opportunity to
6-44 repair, remove, or demolish the building is afforded to each
6-45 mortgagee and lienholder as authorized by Subsection <(c) or> (d)
6-46 or (e), the lien is a privileged lien subordinate only to tax liens
6-47 and all previously recorded bona fide mortgage liens attached to
6-48 the real property to which the municipality's lien attaches.
6-49 SECTION 11. Subchapter A, Chapter 214, Local Government
6-50 Code, is amended by adding Section 214.0012 to read as follows:
6-51 Sec. 214.0012. JUDICIAL REVIEW. (a) Any owner, lienholder,
6-52 or mortgagee of record of property jointly or severally aggrieved
6-53 by an order of a municipality issued under Section 214.001 may file
6-54 in district court a verified petition setting forth that the
6-55 decision is illegal, in whole or in part, and specifying the
6-56 grounds of the illegality. The petition must be filed by an owner,
6-57 lienholder, or mortgagee within 30 calendar days after the
6-58 respective dates a copy of the final decision of the municipality
6-59 is mailed to them by first class mail, certified return receipt
6-60 requested, or such decision shall become final as to each of them
6-61 upon the expiration of each such 30 calendar day period.
6-62 (b) On the filing of the petition, the court may issue a
6-63 writ of certiorari directed to the municipality to review the order
6-64 of the municipality and shall prescribe in the writ the time within
6-65 which a return on the writ must be made, which must be longer than
6-66 10 days, and served on the relator or the relator's attorney.
6-67 (c) The municipality may not be required to return the
6-68 original papers acted on by it, but it is sufficient for the
6-69 municipality to return certified or sworn copies of the papers or
6-70 of parts of the papers as may be called for by the writ.
7-1 (d) The return must concisely set forth other facts as may
7-2 be pertinent and material to show the grounds of the decision
7-3 appealed from and shall be verified.
7-4 (e) The issuance of the writ does not stay proceedings on
7-5 the decision appealed from.
7-6 (f) Appeal in the district court shall be limited to a
7-7 hearing under the substantial evidence rule. The court may reverse
7-8 or affirm, in whole or in part, or may modify the decision brought
7-9 up for review.
7-10 (g) Costs may not be allowed against the municipality.
7-11 (h) If the decision of the municipality is affirmed or not
7-12 substantially reversed but only modified, the district court shall
7-13 allow to the municipality all attorney's fees and other costs and
7-14 expenses incurred by it and shall enter a judgment for those items,
7-15 which may be entered against the property owners, lienholders, or
7-16 mortgagees as well as all persons subject to the proceedings before
7-17 the municipality.
7-18 SECTION 12. The changes in law made by this Act apply only
7-19 to proceedings or actions instituted on or after the effective date
7-20 of this Act. Proceedings or actions instituted before the
7-21 effective date of this Act are covered by the law in effect when
7-22 the proceeding or action was instituted, and the former law is
7-23 continued in effect for that purpose.
7-24 SECTION 13. This Act takes effect September 1, 1993.
7-25 SECTION 14. The importance of this legislation and the
7-26 crowded condition of the calendars in both houses create an
7-27 emergency and an imperative public necessity that the
7-28 constitutional rule requiring bills to be read on three several
7-29 days in each house be suspended, and this rule is hereby suspended.
7-30 * * * * *
7-31 Austin,
7-32 Texas
7-33 May 20, 1993
7-34 Hon. Bob Bullock
7-35 President of the Senate
7-36 Sir:
7-37 We, your Committee on Intergovernmental Relations to which was
7-38 referred H.B. No. 333, have had the same under consideration, and I
7-39 am instructed to report it back to the Senate with the
7-40 recommendation that it do pass, as amended, and be printed.
7-41 Armbrister,
7-42 Chairman
7-43 * * * * *
7-44 WITNESSES
7-45 FOR AGAINST ON
7-46 ___________________________________________________________________
7-47 Name: David Mintz x
7-48 Representing: Tx Apartment Associ.
7-49 City: Austin
7-50 -------------------------------------------------------------------
7-51 Name: James McCarley -Asst City Manager x
7-52 Representing: City of Plano
7-53 City: Plano
7-54 -------------------------------------------------------------------
7-55 Name: Walter Fisher x
7-56 Representing: TML
7-57 City: Austin
7-58 -------------------------------------------------------------------
7-59 Name: Beatrice Link x
7-60 Representing: City of Houston
7-61 City: Houston
7-62 -------------------------------------------------------------------
7-63 Name: Joan Douglas x
7-64 Representing: City of Houston
7-65 City: Houston
7-66 -------------------------------------------------------------------