By Harris S.B. No. 642
75R502 DAK-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to common nuisances and the investigation and abatement of
1-3 those nuisances by the attorney general; making an appropriation.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 125.001, Civil Practice and Remedies
1-6 Code, as amended by Section 14.03 of Chapter 76, Section 25 of
1-7 Chapter 318, and Section 2 of Chapter 663, Acts of the 74th
1-8 Legislature, Regular Session, 1995, is amended to read as follows:
1-9 Sec. 125.001. COMMON NUISANCE. A person who knowingly
1-10 maintains a place to which persons habitually go for the following
1-11 purposes maintains a common nuisance:
1-12 (1) [purpose of] prostitution or gambling in violation
1-13 of the Penal Code;
1-14 (2) [, for the purpose of] discharge of a firearm in a
1-15 public place in violation of Section 42.01(a)(9), Penal Code;
1-16 (3) [, for the purpose of] reckless discharge of a
1-17 firearm as described by Section 42.12, Penal Code;
1-18 (4) [, for the purpose of] engaging in organized
1-19 criminal activity as a member of a combination as described by
1-20 Section 71.02, Penal Code;
1-21 (5) public lewdness in violation of Section 21.07,
1-22 Penal Code;
1-23 (6) obscene activity in violation of Subchapter B,
1-24 Chapter 43, Penal Code;
2-1 (7) indecent exposure in violation of Section 21.08,
2-2 Penal Code; or
2-3 (8) [, or for the] delivery, possession, manufacture,
2-4 or use of a controlled substance in violation of Chapter 481,
2-5 Health and Safety Code[, maintains a common nuisance].
2-6 SECTION 2. Section 125.002(c), Civil Practice and Remedies
2-7 Code, is amended to read as follows:
2-8 (c) The bond must:
2-9 (1) be payable to the state at the county seat of the
2-10 county in which the nuisance exists;
2-11 (2) be in the penal sum of $10,000; and
2-12 (3) [have sufficient sureties approved by the court;
2-13 and]
2-14 [(4)] be conditioned that the property will not be
2-15 used or permitted to be used for a place to which persons
2-16 habitually go for the purpose of an activity listed under Section
2-17 125.001 that the suit was brought to abate [prostitution or
2-18 gambling in violation of the Penal Code or for delivery or use of a
2-19 controlled substance in violation of Chapter 481, Health and Safety
2-20 Code].
2-21 SECTION 3. Section 125.003, Civil Practice and Remedies
2-22 Code, is amended by adding Subsection (f) to read as follows:
2-23 (f) In an action brought under this chapter, the court may
2-24 award a prevailing party investigative costs in addition to costs.
2-25 In determining the amount of the investigative costs, the court
2-26 shall consider:
2-27 (1) the time and labor involved, including the time
3-1 and expense of travel to investigate;
3-2 (2) the novelty and difficulty of the matter being
3-3 investigated;
3-4 (3) the expertise, reputation, and ability of the
3-5 investigator; and
3-6 (4) any other factor considered relevant by the court.
3-7 SECTION 4. Section 125.004, Civil Practice and Remedies
3-8 Code, as amended by Sections 14.04-14.06 of Chapter 76, Sections
3-9 26 and 27 of Chapter 318, and Sections 3 and 4 of Chapter 663, Acts
3-10 of the 74th Legislature, Regular Session, 1995, is amended to read
3-11 as follows:
3-12 Sec. 125.004. EVIDENCE. (a) Proof that an activity
3-13 described by Section 125.001 [prostitution or gambling in violation
3-14 of the Penal Code, that discharge of a firearm in a public place
3-15 in violation of Section 42.01(a)(9), Penal Code, that reckless
3-16 discharge of a firearm as described by Section 42.12, Penal Code,
3-17 or that the delivery or use of a controlled substance in violation
3-18 of Chapter 481, Health and Safety Code,] is frequently committed at
3-19 the place involved or that the place is frequently used for an
3-20 activity described by Section 125.001 [reckless discharge of a
3-21 firearm as described by Section 42.12, Penal Code,] is prima facie
3-22 evidence that the proprietor knowingly permitted the activity
3-23 [act].
3-24 (b) Evidence that persons have been convicted of offenses
3-25 for an activity described by Section 125.001 [gambling, committing
3-26 prostitution, discharge of a firearm in a public place in violation
3-27 of Section 42.01(a)(9), Penal Code, reckless discharge of a firearm
4-1 as described by Section 42.12, Penal Code, engaging in organized
4-2 criminal activity as a member of a combination as described by
4-3 Section 71.02, Penal Code, or delivering or using a controlled
4-4 substance in violation of Chapter 481, Health and Safety Code,] in
4-5 the place involved is admissible to show knowledge on the part of
4-6 the defendant that the act occurred. The originals or certified
4-7 copies of the papers and judgments of those convictions are
4-8 admissible in the suit for injunction, and oral evidence is
4-9 admissible to show that the offense for which a person was
4-10 convicted was committed at the place involved.
4-11 (c) Evidence of the general reputation of the place involved
4-12 is admissible to show the existence of the nuisance.
4-13 [(g) Proof that organized criminal activity by a member of a
4-14 combination or a criminal street gang as described by Section
4-15 71.02, Penal Code, is frequently committed at a place or proof that
4-16 a place is frequently used for engaging in organized criminal
4-17 activity by a member of a combination or a criminal street gang as
4-18 described by Section 71.02, Penal Code, is prima facie evidence
4-19 that the proprietor knowingly permitted the act, unless the act
4-20 constitutes conspiring to commit an offense as described by Section
4-21 71.02, Penal Code.]
4-22 SECTION 5. Section 101.70, Alcoholic Beverage Code, is
4-23 amended by amending Subsection (c) and adding Subsections (e), (f),
4-24 (g), and (h) to read as follows:
4-25 (c) The plaintiff is not required to give a bond. The final
4-26 judgment is a judgment in rem against the property and a judgment
4-27 against the defendant. If the court finds against the defendant,
5-1 on final judgment it shall order that the place where the nuisance
5-2 exists be closed for one year [or less] and until the owner,
5-3 lessee, tenant, or occupant gives bond in cash [with sufficient
5-4 surety as approved by the court] in the penal sum of at least
5-5 $5,000 [$1,000]. The bond must be payable to the state and
5-6 conditioned:
5-7 (1) that this code will not be violated;
5-8 (2) that no person will be permitted to resort to the
5-9 place to drink alcoholic beverages in violation of this code; and
5-10 (3) that the defendant will pay all fines, costs, and
5-11 damages assessed against him for any violation of this code.
5-12 (e) If a condition of a bond filed or an injunctive order
5-13 entered under this section is violated, the attorney general or a
5-14 district, county, or city attorney of the county in which the
5-15 property is located shall sue on the bond in the name of the state.
5-16 In that suit, the whole sum shall be forfeited as a penalty. On
5-17 violation of any condition of the bond or of the injunctive order
5-18 and subsequent to forfeiture of the bond, the place where the
5-19 nuisance exists shall be ordered closed for one year from the date
5-20 of the order of bond forfeiture, and the premises shall be ordered
5-21 sealed shut. If suit on bond is initiated by the attorney
5-22 general's office, bond is forfeited to the state. If suit on bond
5-23 is initiated by a district or county attorney, bond is forfeited to
5-24 the county. If suit on bond is initiated by a city attorney, bond
5-25 is forfeited to the city.
5-26 (f) Proof that violations of this code or the Penal Code are
5-27 frequently committed at the place involved is prima facie evidence
6-1 that the proprietor knowingly permitted the act.
6-2 (g) Evidence that persons have been convicted of or cited
6-3 for violating this code or the Penal Code at the premises involved
6-4 is admissible to show knowledge on the part of the defendant that
6-5 the act occurred. The originals or certified copies of the papers
6-6 and judgments of those convictions or citations are admissible in
6-7 the suit for injunction, and oral evidence is admissible to show
6-8 that the offense for which a person was convicted or cited was
6-9 committed at the place involved.
6-10 (h) Evidence of the general reputation of the place involved
6-11 is admissible to show the existence of the nuisance.
6-12 SECTION 6. Section 402.009, Government Code, is amended to
6-13 read as follows:
6-14 Sec. 402.009. AUTHORITY TO EMPLOY AND COMMISSION PEACE
6-15 OFFICERS. The attorney general may employ and commission [as]
6-16 peace officers [not more than five persons at any one time as
6-17 investigators] for the purposes of law enforcement and [the limited
6-18 purpose of] assisting the attorney general in carrying out the
6-19 duties of that office [relating to prosecution assistance and crime
6-20 prevention].
6-21 SECTION 7. (a) The attorney general is appropriated all
6-22 fees assessed and all recovered expenses obtained in actions
6-23 brought by the attorney general under Chapter 125, Civil Practice
6-24 and Remedies Code, and Section 101.70, Alcoholic Beverage Code.
6-25 (b) Recovered expenses appropriated under Subsection (a) of
6-26 this section include investigative costs, witness fees, attorney's
6-27 fees, and deposition expenses.
7-1 (c) Money appropriated under this section may be spent by
7-2 the attorney general only for the purpose of bringing actions under
7-3 Chapter 125, Civil Practice and Remedies Code, and Section 101.70,
7-4 Alcoholic Beverage Code.
7-5 SECTION 8. (a) This Act takes effect September 1, 1997.
7-6 (b) This Act applies only to conduct that occurs on or after
7-7 the effective date of this Act. Conduct violating the penal law
7-8 of this state occurs on or after the effective date of this Act if
7-9 any element of the violation occurs on or after that date.
7-10 (c) Conduct that occurs before the effective date of this
7-11 Act is governed by the law in effect at the time the conduct
7-12 occurred, and that law is continued in effect for that purpose.
7-13 SECTION 9. The importance of this legislation and the
7-14 crowded condition of the calendars in both houses create an
7-15 emergency and an imperative public necessity that the
7-16 constitutional rule requiring bills to be read on three several
7-17 days in each house be suspended, and this rule is hereby suspended.