By Lucio S.B. No. 891
75R6355 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) violations of the following sections of the Penal
1-22 Code:
1-23 (A) murder (Section 19.02);
1-24 (B) capital murder (Section 19.03);
2-1 (C) attempted murder or capital murder;
2-2 (D) sexual assault (Section 22.011);
2-3 (E) aggravated assault (Section 22.02);
2-4 (F) aggravated sexual assault (Section 22.021);
2-5 (G) robbery (Section 29.02);
2-6 (H) aggravated robbery (Section 29.03); or
2-7 (I) unlawfully carrying a weapon (Section
2-8 46.02); or
2-9 (6) [, or for the] delivery, possession, manufacture,
2-10 or use of a controlled substance in violation of Chapter 481,
2-11 Health and Safety Code[, maintains a common nuisance].
2-12 SECTION 2. Section 125.002(c), Civil Practice and Remedies
2-13 Code, is amended to read as follows:
2-14 (c) The bond must:
2-15 (1) be payable to the state at the county seat of the
2-16 county in which the nuisance exists;
2-17 (2) be in the penal sum of $15,000 [$10,000]; and
2-18 (3) [have sufficient sureties approved by the court;
2-19 and]
2-20 [(4)] be conditioned that the property will not be
2-21 used or permitted to be used for a place to which persons
2-22 habitually go for the purpose of an activity listed under Section
2-23 125.001 that the suit was brought to abate [prostitution or
2-24 gambling in violation of the Penal Code or for delivery or use of a
2-25 controlled substance in violation of Chapter 481, Health and Safety
2-26 Code].
2-27 SECTION 3. Section 125.003, Civil Practice and Remedies
3-1 Code, is amended by adding Subsection (f) to read as follows:
3-2 (f) In an action brought under this chapter, the court may
3-3 award a prevailing party investigative costs in addition to costs.
3-4 In determining the amount of the investigative costs, the court
3-5 shall consider:
3-6 (1) the time and labor involved, including the time
3-7 and expense of travel to investigate;
3-8 (2) the novelty and difficulty of the matter being
3-9 investigated;
3-10 (3) the expertise, reputation, and ability of the
3-11 investigator; and
3-12 (4) any other factor considered relevant by the court.
3-13 SECTION 4. Section 125.004, Civil Practice and Remedies
3-14 Code, as amended by Sections 14.04-14.06 of Chapter 76, Sections
3-15 26 and 27 of Chapter 318, and Sections 3 and 4 of Chapter 663, Acts
3-16 of the 74th Legislature, Regular Session, 1995, is amended to read
3-17 as follows:
3-18 Sec. 125.004. EVIDENCE. (a) Proof that an activity
3-19 described by Section 125.001 [prostitution or gambling in violation
3-20 of the Penal Code, that discharge of a firearm in a public place
3-21 in violation of Section 42.01(a)(9), Penal Code, that reckless
3-22 discharge of a firearm as described by Section 42.12, Penal Code,
3-23 or that the delivery or use of a controlled substance in violation
3-24 of Chapter 481, Health and Safety Code,] is frequently committed at
3-25 the place involved or that the place is frequently used for an
3-26 activity described by Section 125.001 [reckless discharge of a
3-27 firearm as described by Section 42.12, Penal Code,] is prima facie
4-1 evidence that the proprietor knowingly permitted the activity
4-2 [act].
4-3 (b) Evidence that persons have been convicted of offenses
4-4 for an activity described by Section 125.001 [gambling, committing
4-5 prostitution, discharge of a firearm in a public place in violation
4-6 of Section 42.01(a)(9), Penal Code, reckless discharge of a firearm
4-7 as described by Section 42.12, Penal Code, engaging in organized
4-8 criminal activity as a member of a combination as described by
4-9 Section 71.02, Penal Code, or delivering or using a controlled
4-10 substance in violation of Chapter 481, Health and Safety Code,] in
4-11 the place involved is admissible to show knowledge on the part of
4-12 the defendant that the act occurred. The originals or certified
4-13 copies of the papers and judgments of those convictions are
4-14 admissible in the suit for injunction, and oral evidence is
4-15 admissible to show that the offense for which a person was
4-16 convicted was committed at the place involved.
4-17 (c) Evidence of the general reputation of the place involved
4-18 is admissible to show the existence of the nuisance.
4-19 [(g) Proof that organized criminal activity by a member of a
4-20 combination or a criminal street gang as described by Section
4-21 71.02, Penal Code, is frequently committed at a place or proof that
4-22 a place is frequently used for engaging in organized criminal
4-23 activity by a member of a combination or a criminal street gang as
4-24 described by Section 71.02, Penal Code, is prima facie evidence
4-25 that the proprietor knowingly permitted the act, unless the act
4-26 constitutes conspiring to commit an offense as described by Section
4-27 71.02, Penal Code.]
5-1 SECTION 5. Subchapter C, Chapter 125, Civil Practice and
5-2 Remedies Code, is amended by adding Sections 125.047-125.049 to
5-3 read as follows:
5-4 Sec. 125.047. SUIT ON BOND OR TO ENFORCE INJUNCTION.
5-5 (a) If a condition of a bond filed or an injunctive order entered
5-6 under this subchapter is violated, the attorney general or a
5-7 district, county, or city attorney of the county in which the
5-8 property is located shall sue on the bond in the name of the state.
5-9 In that suit, the whole sum shall be forfeited as a penalty. On
5-10 violation of any condition of the bond or of the injunctive order
5-11 and subsequent to forfeiture of the bond, the place where the
5-12 nuisance exists shall be ordered closed for one year from the date
5-13 of the order of bond forfeiture. If suit on bond is initiated by
5-14 the attorney general's office, bond is forfeited to the state. If
5-15 suit on bond is initiated by a district or county attorney, bond is
5-16 forfeited to the county. If suit on bond is initiated by a city
5-17 attorney, bond is forfeited to the city.
5-18 (b) The party bringing a suit under Subsection (a) may
5-19 recover reasonable expenses incurred in prosecuting the suit,
5-20 including investigative costs, court costs, reasonable attorney's
5-21 fees, witness fees, and deposition fees.
5-22 Sec. 125.048. APPEAL. (a) A person may not continue an
5-23 enjoined activity pending appeal or trial on the merits of an
5-24 injunctive order entered in a suit brought under this subchapter.
5-25 (b) Not later than the 90th day after the date of the
5-26 injunctive order, the appropriate court of appeals shall hear and
5-27 decide an appeal taken by a party enjoined under this subchapter.
6-1 If an appeal is not taken by a party temporarily enjoined under
6-2 this subchapter, the party is entitled to a full trial on the
6-3 merits not later than the 90th day after the date of the temporary
6-4 injunctive order.
6-5 Sec. 125.049. BOOKSTORE OR MOVIE THEATER. This subchapter
6-6 does not allow a suit to enjoin and abate a common nuisance against
6-7 an enterprise whose sole business is that of a bookstore or movie
6-8 theater.
6-9 SECTION 6. Subchapter A, Chapter 101, Alcoholic Beverage
6-10 Code, is amended by adding Section 101.015 to read as follows:
6-11 Sec. 101.015. REASONABLE ATTORNEY'S FEES AND INVESTIGATIVE
6-12 COSTS. In an action brought under this chapter, the court may
6-13 award the prevailing party reasonable attorney's fees and
6-14 investigative costs, in addition to costs. In determining the
6-15 amount of attorney's fees and investigative costs, the court shall
6-16 consider:
6-17 (1) the time and labor involved, including the time
6-18 and expense of travel to investigate;
6-19 (2) the novelty and difficulty of the questions;
6-20 (3) the expertise, reputation, and ability of the
6-21 attorney; and
6-22 (4) any other factor considered relevant by the court.
6-23 SECTION 7. Section 101.70, Alcoholic Beverage Code, is
6-24 amended by amending Subsection (c) and adding Subsections (e), (f),
6-25 (g), and (h) to read as follows:
6-26 (c) The plaintiff is not required to give a bond. The final
6-27 judgment is a judgment in rem against the property and a judgment
7-1 against the defendant. If the court finds against the defendant,
7-2 on final judgment it shall order that the place where the nuisance
7-3 exists be closed for one year [or less] and until the owner,
7-4 lessee, tenant, or occupant gives bond in cash [with sufficient
7-5 surety as approved by the court] in the penal sum of at least
7-6 $5,000 [$1,000]. The bond must be payable to the state and
7-7 conditioned:
7-8 (1) that this code will not be violated;
7-9 (2) that no person will be permitted to resort to the
7-10 place to drink alcoholic beverages in violation of this code; and
7-11 (3) that the defendant will pay all fines, costs, and
7-12 damages assessed against him for any violation of this code.
7-13 (e) If a condition of a bond filed or an injunctive order
7-14 entered under this section is violated, the attorney general or a
7-15 district, county, or city attorney of the county in which the
7-16 property is located shall sue on the bond in the name of the state.
7-17 In that suit, the whole sum shall be forfeited as a penalty. On
7-18 violation of any condition of the bond or of the injunctive order
7-19 and subsequent to forfeiture of the bond, the place where the
7-20 nuisance exists shall be ordered closed for one year from the date
7-21 of the order of bond forfeiture, and the premises shall be ordered
7-22 sealed shut. If suit on bond is initiated by the attorney
7-23 general's office, bond is forfeited to the state. If suit on bond
7-24 is initiated by a district or county attorney, bond is forfeited to
7-25 the county. If suit on bond is initiated by a city attorney, bond
7-26 is forfeited to the city.
7-27 (f) Proof that violations of this code are frequently
8-1 committed at the place involved is prima facie evidence that the
8-2 proprietor knowingly permitted the act.
8-3 (g) Evidence that persons have been convicted of or cited
8-4 for violating this code at the premises involved is admissible to
8-5 show knowledge on the part of the defendant that the act occurred.
8-6 The originals or certified copies of the papers and judgments of
8-7 those convictions or citations are admissible in the suit for
8-8 injunction, and oral evidence is admissible to show that the
8-9 offense for which a person was convicted or cited was committed at
8-10 the place involved.
8-11 (h) Evidence of the general reputation of the place involved
8-12 is admissible to show the existence of the nuisance.
8-13 SECTION 8. (a) The attorney general is appropriated all
8-14 fees assessed and all recovered expenses obtained in actions
8-15 brought by the attorney general under Chapter 125, Civil Practice
8-16 and Remedies Code, and Chapter 101, Alcoholic Beverage Code.
8-17 (b) Recovered expenses appropriated under Subsection (a) of
8-18 this section include investigative costs, witness fees, attorney's
8-19 fees, and deposition expenses.
8-20 (c) Money appropriated under this section may be spent by
8-21 the attorney general only for the purpose of bringing actions under
8-22 Chapter 125, Civil Practice and Remedies Code, and Chapter 101,
8-23 Alcoholic Beverage Code.
8-24 SECTION 9. (a) This Act takes effect September 1, 1997.
8-25 (b) This Act applies only to conduct that occurs on or after
8-26 the effective date of this Act. Conduct violating the penal law
8-27 of this state occurs on or after the effective date of this Act if
9-1 any element of the violation occurs on or after that date.
9-2 (c) Conduct that occurs before the effective date of this
9-3 Act is governed by the law in effect at the time the conduct
9-4 occurred, and that law is continued in effect for that purpose.
9-5 SECTION 10. The importance of this legislation and the
9-6 crowded condition of the calendars in both houses create an
9-7 emergency and an imperative public necessity that the
9-8 constitutional rule requiring bills to be read on three several
9-9 days in each house be suspended, and this rule is hereby suspended.