73R9458 DWS-F
By Solis, et al. H.B. No. 1817
Substitute the following for H.B. No. 1817:
By Parra C.S.H.B. No. 1817
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to granting the commissioners courts of counties along the
1-3 Texas-Mexico border the authority to regulate the use of land in
1-4 unincorporated areas; providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subtitle B, Title 7, Local Government Code, is
1-7 amended by adding Chapter 238 to read as follows:
1-8 CHAPTER 238. BORDER COUNTY LAND MANAGEMENT AND DEVELOPMENT
1-9 SUBCHAPTER A. GENERAL PROVISIONS
1-10 Sec. 238.001. LEGISLATIVE FINDINGS; PURPOSE. (a) The
1-11 legislature finds that:
1-12 (1) the lack of regulation of building and development
1-13 in the area of the state near the border of Mexico has created
1-14 conditions that threaten the health, safety, and welfare of the
1-15 residents of and visitors to the area; and
1-16 (2) proper regulation in the area is of concern to the
1-17 entire state.
1-18 (b) The powers granted under this chapter are for the
1-19 purpose of promoting the public health, safety, and welfare and
1-20 encouraging the efficient use of land for business, commerce, and
1-21 residences.
1-22 Sec. 238.002. APPLICATION. This chapter applies only to the
1-23 unincorporated area of a county that borders the Republic of
1-24 Mexico.
2-1 (Sections 238.003-238.010 reserved for expansion
2-2 SUBCHAPTER B. LAND USE REGULATION
2-3 Sec. 238.011. LAND USE REGULATIONS GENERALLY. The
2-4 commissioners court may regulate in the area subject to this
2-5 chapter:
2-6 (1) the height, number of stories, and size of
2-7 buildings or other structures;
2-8 (2) the percentage of a lot that may be occupied by
2-9 structures;
2-10 (3) the size of yards, courts, and other open spaces;
2-11 (4) population density;
2-12 (5) the location and use of buildings, other
2-13 structures, and land for business, industrial, residential,
2-14 agricultural, or other purposes; and
2-15 (6) the placement of water and sewage facilities,
2-16 parks, recreational facilities, and other public requirements.
2-17 Sec. 238.012. COMPLIANCE WITH COMPREHENSIVE PLAN.
2-18 Regulations must be adopted in accordance with a comprehensive plan
2-19 and must be designed to:
2-20 (1) lessen congestion in the streets and roads;
2-21 (2) secure safety from flood, windstorm, fire, panic,
2-22 and other dangers;
2-23 (3) promote health and the general welfare;
2-24 (4) provide adequate light and air;
2-25 (5) prevent the overcrowding of land;
2-26 (6) avoid undue concentration of population;
2-27 (7) facilitate the adequate provision of
3-1 transportation, emergency evacuation, water, sewers, parks, and
3-2 other public requirements; or
3-3 (8) assist in developing the area into parks and
3-4 recreational areas for the residents of this state and other states
3-5 and nations.
3-6 Sec. 238.013. DISTRICTS. (a) The commissioners court may
3-7 divide the area in its county that is subject to this chapter into
3-8 districts of a number, shape, and size the court considers best for
3-9 carrying out this subchapter. Within each district, the
3-10 commissioners court may regulate the erection, construction,
3-11 reconstruction, alteration, repair, or use of buildings, other
3-12 structures, or land.
3-13 (b) The regulations must be uniform for each class or kind
3-14 of building in a district, but the regulations may vary from
3-15 district to district. The regulations shall be adopted with
3-16 reasonable consideration for, among other things, the character of
3-17 each district and its peculiar suitability for particular uses,
3-18 with a view of conserving the value of buildings and encouraging
3-19 the most appropriate use of land throughout the area.
3-20 Sec. 238.014. LAND USE AND DEVELOPMENT. (a) To exercise
3-21 the powers authorized by this chapter, the commissioners court
3-22 shall appoint a land use and development commission.
3-23 (b) The commissioners court may enter into a services
3-24 agreement with a planning agency created under Chapter 391, or with
3-25 another political subdivision, to provide assistance to the land
3-26 use and development commission in performing its functions and
3-27 responsibilities.
4-1 (c) The commission shall recommend boundaries for the
4-2 original districts and appropriate regulations for each district.
4-3 The commission must consist of a presiding officer and six
4-4 additional members, each of whom is a resident of the county. At
4-5 least one member must be a representative of agricultural interests
4-6 in the county.
4-7 (d) The commissioners court shall appoint a presiding
4-8 officer. The members serve two-year terms. In making the initial
4-9 appointments of the other members, the commissioners court shall
4-10 designate the members for staggered terms of one and two years. In
4-11 the event of resignation, end of term, or a vacancy, the court
4-12 shall appoint new members. The court shall fill a vacancy in the
4-13 office of presiding officer by appointment. The commission may
4-14 employ a secretary, an acting secretary, and other technical or
4-15 clerical personnel.
4-16 (e) A member of the commission is entitled to compensation
4-17 in an amount set by the commissioners court. A member of the
4-18 commission may also be entitled to expenses actually incurred while
4-19 serving on the commission as provided by order of the commissioners
4-20 court.
4-21 (f) The commission shall make a preliminary report and hold
4-22 public hearings on that report before submitting a final report to
4-23 the commissioners court. The commissioners court may not take
4-24 action or hold a public hearing until it has received the final
4-25 report of the commission. In preparing the final report the
4-26 commission shall consult with and consider recommendations of any
4-27 regional planning council having the county within its region.
5-1 (g) Before the 10th day before the hearing date, written
5-2 notice of each public hearing before the commission on a proposed
5-3 change in a classification in the district shall be sent to:
5-4 (1) each owner of affected property or to the person
5-5 who renders the property for county taxes; and
5-6 (2) each owner of property that is located within 200
5-7 feet of property affected by the change or to the person who
5-8 renders the property for county taxes.
5-9 (h) The notice may be served by depositing it, postage paid
5-10 and properly addressed, in the United States mail.
5-11 Sec. 238.015. PROCEDURE GOVERNING ADOPTION OF REGULATIONS
5-12 AND DISTRICT BOUNDARIES. (a) The commissioners court may not
5-13 adopt, alter, or repeal a regulation or district boundary unless it
5-14 has:
5-15 (1) received the recommendation of the land use and
5-16 development commission concerning the proposed action; and
5-17 (2) held a public hearing on the proposed action at
5-18 which all interested parties have an opportunity to be heard.
5-19 (b) Notice of the time, place, and subject of the hearing
5-20 shall be published in a newspaper of general circulation in the
5-21 county not later than the 15th day before the date of the hearing.
5-22 (c) The commission may not make a recommendation to the
5-23 commissioners court under this section unless it first holds a
5-24 public hearing on the matter. Before the 10th day before the date
5-25 of the hearing, written notice of the hearing shall be given to
5-26 each owner of property directly affected by the recommendation and
5-27 each person owning property within 200 feet of the affected
6-1 property. Notice may be by publication in a newspaper of general
6-2 circulation in the county or may be served by depositing it,
6-3 properly addressed with postage paid, in the United States mail not
6-4 later than the 10th day before the date of the hearing.
6-5 (d) If a proposed change to a regulation or boundary is
6-6 protested in accordance with this subsection, the proposed change
6-7 must receive, in order to take effect, the affirmative vote of at
6-8 least four-fifths of all members of the commissioners court. The
6-9 protest must be signed by:
6-10 (1) owners of property constituting at least 20
6-11 percent of the area affected by the proposed change; or
6-12 (2) owners of property constituting 20 percent of the
6-13 area included in the lots or parcels of land adjoining the area
6-14 affected by the proposed change.
6-15 (e) The commissioners court shall establish reasonable
6-16 regulations as to the time, place, and form for filing protests to
6-17 proposed changes.
6-18 Sec. 238.016. SPECIAL EXCEPTION. (a) Any of the following
6-19 persons may petition the commissioners court for a special
6-20 exception to a regulation adopted by the commissioners court:
6-21 (1) a person aggrieved by the regulation; or
6-22 (2) any officer, department, board, or bureau of the
6-23 county or of a municipality in the county.
6-24 (b) The commissioners court shall hold a public hearing on
6-25 the petition and shall publish notice of the hearing before the
6-26 15th day before the date of the hearing in a newspaper of general
6-27 circulation in the county.
7-1 (c) Except as provided by Subsection (d), the commissioners
7-2 court may grant a petition for a special exception by majority
7-3 vote.
7-4 (d) If a proposed special exception to a regulation is
7-5 protested in accordance with this subsection, the proposed special
7-6 exception must receive, in order to take effect, the affirmative
7-7 vote of at least four-fifths of all members of the commissioners
7-8 court. The protest must be presented at the hearing and signed by
7-9 the owners of at least 20 percent of:
7-10 (1) the lots covered by the proposed exception; or
7-11 (2) the lots immediately adjacent to the rear of the
7-12 lots covered by the proposed exception extending 200 feet from
7-13 those lots or from the street frontage of the opposite lots.
7-14 Sec. 238.017. BOARD OF ADJUSTMENT. (a) The commissioners
7-15 court in a county with a population of more than 250,000 may
7-16 provide for the appointment of a board of adjustment and authorize
7-17 the board of adjustment, in appropriate cases and subject to
7-18 appropriate conditions and safeguards, to make special exceptions
7-19 to the regulations adopted under this subchapter. The exceptions
7-20 must be consistent with the general purposes and intent of the
7-21 regulations and comprehensive plan.
7-22 (b) A board of adjustment consists of five members appointed
7-23 by the commissioners court for terms of two years. The
7-24 commissioners court may remove a board member for cause on a
7-25 written charge after a public hearing. A vacancy on the board
7-26 shall be filled for the unexpired term by a person appointed by the
7-27 commissioners court. Each case before the board of adjustment must
8-1 be heard by at least four members.
8-2 (c) The board shall elect from its membership a presiding
8-3 officer to serve for any tenure the board determines, not to exceed
8-4 the member's term on the board. The board may elect other
8-5 officers.
8-6 (d) The commissioners court may provide for the appointment
8-7 of four alternate board members to serve in the absence of one or
8-8 more regular members. An alternate member serves for the same
8-9 period as a regular member and is subject to removal in the same
8-10 manner as a regular member. A vacancy among the alternate members
8-11 is filled in the same manner as a vacancy among the regular
8-12 members.
8-13 (e) The board shall adopt rules consistent with regulations
8-14 adopted under this subchapter. Meetings of the board are held at
8-15 the call of the presiding officer and at other times as determined
8-16 by the board. The presiding officer or acting presiding officer
8-17 may administer oaths and compel the attendance of witnesses. All
8-18 meetings of the board must be open to the public.
8-19 (f) A member of the board is entitled to compensation in an
8-20 amount set by the commissioners court. A member of the board may
8-21 also be entitled to expenses actually incurred while serving on the
8-22 board as provided by order of the commissioners court.
8-23 Sec. 238.018. POWERS OF BOARD OF ADJUSTMENT. The board of
8-24 adjustment may:
8-25 (1) hear and decide appeals involving allegations that
8-26 there is an error in an action by an administrative official in the
8-27 enforcement of this subchapter or in the enforcement of an order or
9-1 regulation adopted under this subchapter;
9-2 (2) hear and decide special exceptions to an order if
9-3 the commissioners court requires the board to do so; and
9-4 (3) authorize on appeal in specific cases a variance
9-5 from an order that is not contrary to the public interest if,
9-6 because of special circumstances, a literal enforcement of the
9-7 order will result in unnecessary hardship and if under the variance
9-8 the spirit of the regulation will be observed and substantial
9-9 justice will be done.
9-10 Sec. 238.019. APPEALS TO BOARD OF ADJUSTMENT. (a) A person
9-11 aggrieved by, or any officer, department, board, or bureau of the
9-12 county or of a municipality affected by, any action of an
9-13 administrative official designated to enforce this subchapter or a
9-14 regulation adopted under this subchapter may appeal to the board of
9-15 adjustment.
9-16 (b) The appeal must be taken within a reasonable time after
9-17 the action from which the appeal is taken. The board of adjustment
9-18 shall provide rules setting time limits for taking appeals. An
9-19 appeal is taken by filing with the officer from whose action the
9-20 appeal is taken and with the board of adjustment a written notice
9-21 of appeal stating the reasons for the appeal. The officer with
9-22 whom the notice is filed shall promptly transmit to the board all
9-23 papers constituting the record of the action from which the appeal
9-24 is taken.
9-25 (c) The board shall schedule a hearing on the appeal to be
9-26 held within a reasonable time and give notice to all parties
9-27 involved and to the public. At the hearing a party may appear in
10-1 person or by agent or attorney. The board shall decide the appeal
10-2 within a reasonable time after the hearing.
10-3 (d) In disposing of an appeal, the board, in compliance with
10-4 this subchapter, may affirm or reverse, wholly or partly, or modify
10-5 the action from which the appeal is taken. In granting relief, the
10-6 board has all the powers of the officer from whose action the
10-7 appeal is taken.
10-8 (e) The concurring vote of four members of the board is
10-9 required to reverse an action of an administrative officer of the
10-10 county.
10-11 Sec. 238.020. APPEAL FROM BOARD OF ADJUSTMENT. (a) Any
10-12 taxpayer, officer, department, board, or bureau of the county or of
10-13 a municipality or any person aggrieved by a decision of the board
10-14 of adjustment may appeal the decision by presenting a verified
10-15 petition to a court of competent jurisdiction stating that the
10-16 decision is illegal, in whole or in part, and specifying the nature
10-17 of the illegality. The petition must be filed not later than the
10-18 10th day after the date of the decision of the board.
10-19 (b) On presentation of the petition, the court may issue a
10-20 writ of certiorari directed to the board of adjustment to review
10-21 the board's decision. The writ must prescribe the time within
10-22 which a return must be made and served on the relator's attorney.
10-23 This time may not be before the 10th day after the date of issuance
10-24 of the writ. The return date may be extended by the court. The
10-25 issuance of the writ does not stay proceedings on the decision
10-26 appealed, but the court on application, and after notice to the
10-27 board and a showing of good cause, may grant a restraining order.
11-1 (c) The board is not required to return the original papers
11-2 on which it acted but may return certified copies of them or of
11-3 portions that are called for in the writ. The return must
11-4 concisely state any other facts that may be pertinent and material
11-5 to show the grounds of the decision appealed. The return must be
11-6 verified.
11-7 (d) If it appears to the court at the hearing that testimony
11-8 is necessary for the proper disposition of the matter, the court
11-9 may take evidence or appoint a referee to take evidence as it
11-10 directs and report findings of fact and conclusions of law to the
11-11 court. The report is a part of the proceedings on which the
11-12 court's determination shall be made. The court may reverse or
11-13 affirm, wholly or partly, or may modify the decision appealed.
11-14 Costs may not be assessed against the board unless the court
11-15 determines the board acted with gross negligence, bad faith, or
11-16 malice in its decision.
11-17 Sec. 238.021. ENFORCEMENT; REMEDIES. (a) The commissioners
11-18 court may adopt orders to enforce this subchapter or an order or a
11-19 regulation adopted under this subchapter.
11-20 (b) If a building or other structure is erected,
11-21 constructed, reconstructed, altered, repaired, converted, or
11-22 maintained or if a building, other structure, or land is used in
11-23 violation of this subchapter or an order or regulation adopted
11-24 under this subchapter, the appropriate county authority, in
11-25 addition to other remedies, may institute appropriate action to:
11-26 (1) prevent the unlawful action or use;
11-27 (2) restrain, correct, or abate the violation;
12-1 (3) prevent the occupancy of the building, other
12-2 structure, or land; or
12-3 (4) prevent any illegal act, conduct, business, or use
12-4 on or about the premises.
12-5 Sec. 238.022. CONFLICT WITH OTHER LAWS; EXCEPTIONS. (a) If
12-6 a statute or an order, ordinance, or regulation of the state, a
12-7 political subdivision, or another governmental agency conflicts
12-8 with an order or regulation adopted under this chapter, the more
12-9 restrictive standard applies to the extent of the conflict.
12-10 (b) This subchapter does not authorize the commissioners
12-11 court to require the removal or destruction of property that exists
12-12 and that is actually and necessarily used in a public service at
12-13 the time the commissioners court implements this subchapter.
12-14 (Sections 238.023-238.030 reserved for expansion
12-15 SUBCHAPTER C. CODES
12-16 Sec. 238.031. AUTHORITY TO ADOPT AND ENFORCE BUILDING,
12-17 ELECTRICAL, MECHANICAL, GAS, FIRE, AND PLUMBING CODE. (a) The
12-18 commissioners court of a county may adopt a building, electrical,
12-19 mechanical, gas, fire, or plumbing code or another code regulating
12-20 the construction, alteration, reconstruction, or razing of
12-21 structures and may adopt rules necessary to administer and enforce
12-22 those codes. An adopted code applies to the area subject to this
12-23 chapter.
12-24 (b) The commissioners court and a municipality in the county
12-25 may contract with each other for the administration and enforcement
12-26 of any adopted code.
12-27 Sec. 238.032. CONTENT OF CODES. (a) A code adopted under
13-1 this subchapter may apply to a commercial, residential, or public
13-2 building constructed in an area to which this chapter applies.
13-3 (b) An adopted building code must conform to a national
13-4 building code published by the Southern Building Code Congress or
13-5 the Building Officials and Code Administrators International or
13-6 must establish protective measures that provide equivalent
13-7 protection as determined by the Texas Department of Housing and
13-8 Community Affairs.
13-9 (c) An adopted electrical code must conform to the National
13-10 Electrical Code published by the National Fire Protection
13-11 Association or must establish protective measures that provide
13-12 equivalent protection as determined by the Texas Department of
13-13 Housing and Community Affairs.
13-14 (d) An adopted plumbing code must conform to a national
13-15 plumbing code published by the Southern Building Code Congress or
13-16 the Building Officials and Code Administrators International or
13-17 must establish protective measures that provide equivalent
13-18 protection as determined by the Texas Department of Housing and
13-19 Community Affairs.
13-20 Sec. 238.033. BUILDING PERMIT; APPLICATION. (a) The
13-21 commissioners court may require that a person may not construct a
13-22 building described by Section 238.032(a) in an area to which this
13-23 chapter applies unless the person obtains a building permit issued
13-24 in accordance with this subchapter.
13-25 (b) A person may apply for a building permit by providing to
13-26 the commissioners court:
13-27 (1) a plan of the proposed building containing any
14-1 information required by the commissioners court; and
14-2 (2) an application fee in an amount set by the
14-3 commissioners court.
14-4 Sec. 238.034. COUNTY ORDERS RELATING TO CERTAIN BUILDINGS.
14-5 (a) A county by order may require the vacation, relocation of
14-6 occupants, securing, removal, or demolition of a building that is:
14-7 (1) dilapidated, substandard, or unfit for human
14-8 habitation; and
14-9 (2) a hazard to the public health, safety, and
14-10 welfare.
14-11 (b) The order must:
14-12 (1) establish minimum standards for the continued use
14-13 and occupancy of a building regardless of the date of its
14-14 construction;
14-15 (2) provide for giving proper notice to the owner of a
14-16 building; and
14-17 (3) provide for a public hearing to determine whether
14-18 a building complies with the standards set out in the order.
14-19 Sec. 238.035. INSPECTIONS. (a) The county shall inspect a
14-20 building subject to this subchapter to determine whether the
14-21 building complies with any adopted codes.
14-22 (b) The commissioners court may provide that a county
14-23 employee or an employee of another governmental entity under
14-24 intergovernmental contract may perform the inspection.
14-25 (c) A building inspector may enter and perform the
14-26 inspection at a reasonable time at any stage of the building's
14-27 construction or after completion of the building.
15-1 (d) On or before the date that construction of a building
15-2 subject to this subchapter is completed, the owner of the building
15-3 shall request in writing that the county inspect the building for
15-4 compliance with any adopted codes.
15-5 (e) The county shall issue a final certificate of compliance
15-6 to the owner of a building inspected under this section if the
15-7 inspector determines, after an inspection of the completed
15-8 building, that the building complies with all adopted codes.
15-9 Sec. 238.036. FEES. (a) The commissioners court may
15-10 develop a fee schedule based on building type and may set and
15-11 charge fees for an inspection, for the issuance of a building
15-12 permit, and for a final certificate of compliance under this
15-13 subchapter.
15-14 (b) The fees must be set in amounts necessary to cover the
15-15 cost of administering and enforcing this subchapter.
15-16 (c) The county shall deposit fees received under this
15-17 subchapter in a special fund in the county treasury. Money in the
15-18 special fund may be used only for the administration and
15-19 enforcement of regulations adopted under this chapter, except
15-20 surplus money in the fund may be used for any other purpose.
15-21 Sec. 238.037. INJUNCTION. The appropriate attorney
15-22 representing the county in the district court may seek injunctive
15-23 relief against the owner, the owner's representative with control
15-24 over the building, or the occupier of a building that the county
15-25 determines violates an adopted code to prevent the violation or
15-26 threatened violation of the code.
15-27 (Sections 238.038-238.040 reserved for expansion
16-1 SUBCHAPTER D. PENALTIES
16-2 Sec. 238.041. CRIMINAL PENALTY. (a) A person commits an
16-3 offense if the person violates this chapter, an order or a
16-4 regulation adopted under this chapter, or a code adopted under this
16-5 chapter. Each day that a violation occurs constitutes a separate
16-6 offense.
16-7 (b) An offense under this section is a Class C misdemeanor.
16-8 Sec. 238.042. CIVIL PENALTY. (a) The appropriate attorney
16-9 representing the county in civil cases may file a civil action to
16-10 recover a civil penalty against:
16-11 (1) a person who violates this chapter or an order, a
16-12 regulation, or code adopted under this chapter; or
16-13 (2) the owner or the owner's representative with
16-14 control over a building that the county determines violates an
16-15 adopted code.
16-16 (b) The civil penalty may not exceed $200 for each day on
16-17 which the violation exists. In determining the amount of the
16-18 penalty, the court shall consider the seriousness of the violation.
16-19 (c) The county shall deposit amounts collected under this
16-20 section in the special fund described by Section 238.036(c).
16-21 SECTION 2. This Act takes effect September 1, 1993.
16-22 SECTION 3. The importance of this legislation and the
16-23 crowded condition of the calendars in both houses create an
16-24 emergency and an imperative public necessity that the
16-25 constitutional rule requiring bills to be read on three several
16-26 days in each house be suspended, and this rule is hereby suspended.