76R16176 SMJ-D
By Ellis S.B. No. 1268
Substitute the following for S.B. No. 1268:
By Carter C.S.S.B. No. 1268
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to notice and enforcement by municipalities of violations
1-3 of certain health and safety statutes and ordinances.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 342.006, Health and Safety Code, is
1-6 amended by amending Subsection (b), adding a new Subsection (c),
1-7 and redesignating existing Subsection (c) as Subsection (d) to read
1-8 as follows:
1-9 (b) The notice must be given:
1-10 (1) personally to the owner in writing;
1-11 (2) by letter addressed to the owner at the owner's
1-12 [post office] address as recorded in the appraisal district records
1-13 of the appraisal district in which the property is located; or
1-14 (3) if personal service cannot be obtained or the
1-15 owner's [post office] address is unknown:
1-16 (A) by publication at least twice within 10
1-17 consecutive days;
1-18 (B) by posting the notice on or near the front
1-19 door of each building on the property to which the violation
1-20 relates; or
1-21 (C) by posting the notice on a placard attached
1-22 to a stake driven into the ground on the property to which the
1-23 violation relates, if the property contains no buildings.
2-1 (c) If a municipality mails a notice to a property owner in
2-2 accordance with Subsection (b), and the United States Postal
2-3 Service returns the notice as "refused" or "unclaimed," the
2-4 validity of the notice is not affected, and the notice is
2-5 considered as delivered.
2-6 (d) The municipality in the notice of a violation may inform
2-7 the owner by certified mail, return receipt requested, that if the
2-8 owner commits another violation of the same kind or nature that
2-9 poses a danger to the public health and safety on or before the
2-10 first anniversary of the date of the notice, the municipality
2-11 without further notice may correct the violation at the owner's
2-12 expense and assess the expense against the property. If a
2-13 violation covered by a notice under this subsection occurs within
2-14 the one-year period, and the municipality has not been informed in
2-15 writing by the owner of an ownership change, then the municipality
2-16 without notice may take any action permitted by Subsections (a)(1)
2-17 and (2) and assess its expenses as provided by Section 342.007.
2-18 SECTION 2. Subchapter A, Chapter 54, Local Government Code,
2-19 is amended by adding Section 54.0045 to read as follows:
2-20 Sec. 54.0045. NOTICE FOR VIOLATIONS OF CERTAIN HEALTH AND
2-21 SAFETY ORDINANCES. (a) In enforcing an ordinance that requires a
2-22 municipality to give notice to a property owner, lienholder, or
2-23 mortgagee, a municipality must exercise due diligence to determine
2-24 the identity and address of the owner, lienholder, or mortgagee.
2-25 (b) A municipality exercises due diligence in determining
2-26 the identity and address of an owner, lienholder, or mortgagee when
2-27 it searches the following records:
3-1 (1) county real property records of the county in
3-2 which the property is located;
3-3 (2) appraisal district records of the appraisal
3-4 district in which the property is located;
3-5 (3) records of the secretary of state;
3-6 (4) assumed name records of the county in which the
3-7 property is located;
3-8 (5) tax records of the municipality; and
3-9 (6) utility records of the municipality.
3-10 (c) When a municipality mails a notice in accordance with
3-11 applicable law to a property owner, lienholder, or mortgagee of a
3-12 violation of an ordinance described by Section 54.032 or of a
3-13 related hearing or order, and the United States Postal Service
3-14 returns the notice as "refused" or "unclaimed," the validity of the
3-15 notice is not affected, and the notice is considered as delivered.
3-16 SECTION 3. Sections 54.035(a) and (b), Local Government
3-17 Code, are amended to read as follows:
3-18 (a) Notice of all proceedings before the commission panels
3-19 must be given:
3-20 (1) by personal delivery or by certified mail, return
3-21 receipt requested, to the record owners of the affected property,
3-22 and each holder of a recorded lien against the affected property,
3-23 as shown by the records in the office of the county clerk of the
3-24 county in which the affected property is located if the address of
3-25 the lienholder can be ascertained from the deed of trust
3-26 establishing the lien and/or other applicable instruments on file
3-27 in the office of the county clerk; and
4-1 (2) to all unknown owners, by posting a copy of the
4-2 notice on the front door of each improvement situated on the
4-3 affected property or as close to the front door as practicable.
4-4 (b) A notice under Subsection (a) must state the date, time,
4-5 and place of the proceeding before the commission panel. A notice
4-6 that is personally delivered must be delivered on or before the
4-7 fifth day before the date of the proceeding. A [The] notice that
4-8 is mailed or posted must [shall] be mailed or [and] posted on or
4-9 before the 10th day before the date of the proceeding [hearing
4-10 before the commission panel and must state the date, time, and
4-11 place of the hearing]. In addition, the notice must be published
4-12 in a newspaper of general circulation in the municipality on one
4-13 occasion on or before the 10th day before the date fixed for the
4-14 proceeding [hearing].
4-15 SECTION 4. Section 54.039(a), Local Government Code, is
4-16 amended to read as follows:
4-17 (a) Any owner, lienholder, or mortgagee of record jointly or
4-18 severally aggrieved by any decision of a commission panel may
4-19 present a petition to a district court, duly verified, setting
4-20 forth that the decision is illegal, in whole or in part, and
4-21 specifying the grounds of the illegality. The petition must be
4-22 presented to the court within 30 calendar days after the date a
4-23 copy of the final decision of the commission panel is personally
4-24 delivered or mailed by first class mail, certified return receipt
4-25 requested, to all persons to whom notice is required to be sent
4-26 under Section 54.035. The commission panel shall mail that copy
4-27 promptly after the decision becomes final. In addition, an
5-1 abbreviated copy of the order shall be published one time in a
5-2 newspaper of general circulation in the municipality within 10
5-3 calendar days after the date of the mailing of the copy as provided
5-4 by this subsection, including the street address or legal
5-5 description of the property; the date of the hearing, a brief
5-6 statement indicating the results of the order, and instructions
5-7 stating where a complete copy of the order may be obtained, and a
5-8 copy shall be filed in the office of the municipal secretary or
5-9 clerk.
5-10 SECTION 5. Subchapter B, Chapter 54, Local Government Code,
5-11 is amended by adding Section 54.020 to read as follows:
5-12 Sec. 54.020. ALTERNATIVE ENFORCEMENT PROCEDURES. (a) A
5-13 municipality by ordinance may adopt a procedure for an
5-14 administrative adjudication hearing under which an administrative
5-15 penalty may be imposed for the enforcement of an ordinance
5-16 described by Section 54.012.
5-17 (b) A procedure adopted under this section must entitle the
5-18 person charged with violating an ordinance to a hearing and must
5-19 provide for:
5-20 (1) the period during which a hearing shall be held;
5-21 (2) the appointment of a hearing officer with
5-22 authority to administer oaths and issue orders compelling the
5-23 attendance of witnesses and the production of documents; and
5-24 (3) the amount and disposition of administrative
5-25 penalties, costs, and fees.
5-26 (c) A municipal court may enforce an order of a hearing
5-27 officer compelling the attendance of a witness or the production of
6-1 a document.
6-2 (d) A citation or summons issued as part of a procedure
6-3 adopted under this section must:
6-4 (1) notify the person charged with violating the
6-5 ordinance that the person has the right to a hearing; and
6-6 (2) provide information as to the date, time, and
6-7 place of the hearing.
6-8 (e) The original or a copy of the summons or citation shall
6-9 be kept as a record in the ordinary course of business of the
6-10 municipality and is rebuttable proof of the facts it states.
6-11 (f) The person who issued the citation or summons is not
6-12 required to attend a hearing under this section.
6-13 (g) A person charged with violating an ordinance who fails
6-14 to appear at a hearing authorized under this section is considered
6-15 to admit liability for the violation charged.
6-16 (h) At a hearing under this section, the hearing officer
6-17 shall issue an order stating:
6-18 (1) whether the person charged with violating an
6-19 ordinance is liable for the violation;
6-20 (2) the amount of a penalty, cost, or fee assessed
6-21 against the person and the deadline for payment; and
6-22 (3) if applicable, the date by which the person must
6-23 comply with the ordinance.
6-24 (i) An order issued under this section may be filed with the
6-25 clerk or secretary of the municipality. The clerk or secretary
6-26 shall keep the order in a separate index and file. The order may
6-27 be recorded using microfilm, microfiche, or data processing
7-1 techniques.
7-2 (j) An order issued under this section against a person
7-3 charged with an ordinance violation may be enforced by:
7-4 (1) filing a civil suit for the collection of a
7-5 penalty assessed against the person; and
7-6 (2) obtaining an injunction that:
7-7 (A) prohibits specific conduct that violates the
7-8 ordinance; or
7-9 (B) requires specific conduct necessary for
7-10 compliance with the ordinance.
7-11 (k) A person who is found by a hearing officer to have
7-12 violated an ordinance may appeal the determination by filing a
7-13 petition in municipal court before the 31st day after the date the
7-14 hearing officer's determination is filed. An appeal does not stay
7-15 enforcement and collection of the judgment unless the person,
7-16 before filing the appeal, posts a bond with an agency designated
7-17 for that purpose by the municipality.
7-18 SECTION 6. Sections 214.001(d), (g), and (p), Local
7-19 Government Code, are amended to read as follows:
7-20 (d) After the public hearing, if a building is found in
7-21 violation of standards set out in the ordinance, the municipality
7-22 may order that the building be vacated, secured, repaired, removed,
7-23 or demolished by the owner within a reasonable time as provided by
7-24 this section. The municipality also may order that the occupants
7-25 be relocated within a reasonable time. If the owner does not take
7-26 the ordered action within the allotted time, the municipality shall
7-27 make a diligent effort to discover each mortgagee and lienholder
8-1 having an interest in the building or in the property on which the
8-2 building is located. The municipality shall personally deliver or
8-3 send by certified mail, return receipt requested, to each
8-4 identified mortgagee and lienholder a notice containing:
8-5 (1) an identification, which is not required to be a
8-6 legal description, of the building and the property on which it is
8-7 located;
8-8 (2) a description of the violation of municipal
8-9 standards that is present at the building; and
8-10 (3) a statement that the municipality will vacate,
8-11 secure, remove, or demolish the building or relocate the occupants
8-12 of the building if the ordered action is not taken within a
8-13 reasonable time.
8-14 (g) After the hearing, the municipality shall promptly mail
8-15 by certified mail, return receipt requested, or personally
8-16 deliver a copy of the order to the owner of the building and to any
8-17 lienholder or mortgagee of the building. The municipality shall
8-18 use its best efforts to determine the identity and address of any
8-19 owner, lienholder, or mortgagee of the building. If a notice is
8-20 mailed according to this subsection and the United States Postal
8-21 Service returns the notice as "refused" or "unclaimed," the
8-22 validity of the notice is not affected, and the notice shall be
8-23 deemed as delivered.
8-24 (p) A hearing under this section may be held by a civil
8-25 municipal court, an administrative hearing officer, or a panel of
8-26 not more than 12 members appointed by the governing body of the
8-27 municipality.
9-1 SECTION 7. Section 214.0012(a), Local Government Code, is
9-2 amended to read as follows:
9-3 (a) Any owner, lienholder, or mortgagee of record of
9-4 property jointly or severally aggrieved by an order of a
9-5 municipality issued under Section 214.001 may file in district
9-6 court a verified petition setting forth that the decision is
9-7 illegal, in whole or in part, and specifying the grounds of the
9-8 illegality. The petition must be filed by an owner, lienholder, or
9-9 mortgagee within 30 calendar days after the respective dates a copy
9-10 of the final decision of the municipality is personally delivered
9-11 or mailed to them by first class mail, certified return receipt
9-12 requested, or such decision shall become final as to each of them
9-13 upon the expiration of each such 30 calendar day period.
9-14 SECTION 8. Section 683.075, Transportation Code, is amended
9-15 by amending Subsections (a), (b), and (c) to read as follows:
9-16 (a) The procedures for the abatement and removal of a public
9-17 nuisance under this subchapter must provide not less than 10 days'
9-18 notice of the nature of the nuisance. The notice [and] must be
9-19 personally delivered or sent by certified mail with a five-day
9-20 return requested to:
9-21 (1) the last known registered owner of the nuisance;
9-22 (2) each lienholder of record of the nuisance; and
9-23 (3) the owner or occupant of:
9-24 (A) the property on which the nuisance is
9-25 located; or
9-26 (B) if the nuisance is located on a public
9-27 right-of-way, the property adjacent to the right-of-way.
10-1 (b) The notice must state that:
10-2 (1) the nuisance must be abated and removed not later
10-3 than the 10th day after the date on which the notice was personally
10-4 delivered or mailed; and
10-5 (2) any request for a hearing must be made before that
10-6 10-day period expires.
10-7 (c) If the post office address of the last known registered
10-8 owner of the nuisance is unknown or if the owner cannot be located,
10-9 notice may be placed on the nuisance [or, if the owner is located,
10-10 hand delivered].
10-11 SECTION 9. The changes in law made by this Act relating to a
10-12 notice of a violation of a statute or a municipal ordinance apply
10-13 only to a notice that is given on or after the effective date of
10-14 this Act. A notice that is given before the effective date of this
10-15 Act is governed by the law in effect immediately before the
10-16 effective date, and that law is continued in effect for that
10-17 purpose.
10-18 SECTION 10. This Act takes effect September 1, 1999.
10-19 SECTION 11. The importance of this legislation and the
10-20 crowded condition of the calendars in both houses create an
10-21 emergency and an imperative public necessity that the
10-22 constitutional rule requiring bills to be read on three several
10-23 days in each house be suspended, and this rule is hereby suspended.