1-1 By: Giddings, Chisum, Lewis of Tarrant H.B. No. 1833
1-2 (Senate Sponsor - West)
1-3 (In the Senate - Received from the House April 11, 2001;
1-4 April 17, 2001, read first time and referred to Committee on
1-5 Intergovernmental Relations; May 2, 2001, reported adversely, with
1-6 favorable Committee Substitute by the following vote: Yeas 5, Nays
1-7 0; May 2, 2001, sent to printer.)
1-8 COMMITTEE SUBSTITUTE FOR H.B. No. 1833 By: West
1-9 A BILL TO BE ENTITLED
1-10 AN ACT
1-11 relating to local enforcement of certain health and safety statutes
1-12 and ordinances.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Section 552.115(a), Government Code, is amended to
1-15 read as follows:
1-16 (a) A birth or death record maintained by the bureau of
1-17 vital statistics of the Texas Department of Health or a local
1-18 registration official is excepted from the requirements of Section
1-19 552.021, except that:
1-20 (1) a birth record is public information and available
1-21 to the public on and after the 50th anniversary of the date of
1-22 birth as shown on the record filed with the bureau of vital
1-23 statistics or local registration official;
1-24 (2) a death record is public information and available
1-25 to the public on and after the 25th anniversary of the date of
1-26 death as shown on the record filed with the bureau of vital
1-27 statistics or local registration official;
1-28 (3) a general birth index or a general death index
1-29 established or maintained by the bureau of vital statistics or a
1-30 local registration official is public information and available to
1-31 the public to the extent the index relates to a birth record or
1-32 death record that is public information and available to the public
1-33 under Subdivision (1) or (2); [and]
1-34 (4) a summary birth index or a summary death index
1-35 prepared or maintained by the bureau of vital statistics or a local
1-36 registration official is public information and available to the
1-37 public; and
1-38 (5) a birth or death record is available to the chief
1-39 executive officer of a home-rule municipality or the officer's
1-40 designee if:
1-41 (A) the record is used only to identify a
1-42 property owner or other person to whom the municipality is required
1-43 to give notice when enforcing a state statute or an ordinance;
1-44 (B) the municipality has exercised due diligence
1-45 in the manner described by Section 54.035(e), Local Government
1-46 Code, to identify the person; and
1-47 (C) the officer or designee signs a
1-48 confidentiality agreement that requires that:
1-49 (i) the information not be disclosed
1-50 outside the office of the officer or designee, or within the office
1-51 for a purpose other than the purpose described by Paragraph (A);
1-52 (ii) the information be labeled as
1-53 confidential;
1-54 (iii) the information be kept securely;
1-55 and
1-56 (iv) the number of copies made of the
1-57 information or the notes taken from the information that implicate
1-58 the confidential nature of the information be controlled, with all
1-59 copies or notes that are not destroyed or returned remaining
1-60 confidential and subject to the confidentiality agreement.
1-61 SECTION 2. Sections 342.006(b) and (d), Health and Safety
1-62 Code, are amended to read as follows:
1-63 (b) The notice must be given:
1-64 (1) personally to the owner in writing;
2-1 (2) by letter addressed to the owner at the owner's
2-2 address as recorded in the appraisal district records of the
2-3 appraisal district in which the property is located; or
2-4 (3) if personal service cannot be obtained:
2-5 (A) by publication at least once;
2-6 (B) by posting the notice on or near the front
2-7 door of each building on the property to which the violation
2-8 relates; or
2-9 (C) by posting the notice on a placard attached
2-10 to a stake driven into the ground on the property to which the
2-11 violation relates[, if the property contains no buildings].
2-12 (d) In a notice provided under this section, a municipality
2-13 may inform the owner by regular mail and a posting on the property,
2-14 or by personally delivering the notice, that if the owner commits
2-15 another violation of the same kind or nature that poses a danger to
2-16 the public health and safety on or before the first anniversary of
2-17 the date of the notice, the municipality without further notice may
2-18 correct the violation at the owner's expense and assess the expense
2-19 against the property. If a violation covered by a notice under
2-20 this subsection occurs within the one-year period, and the
2-21 municipality has not been informed in writing by the owner of an
2-22 ownership change, then the municipality without notice may take any
2-23 action permitted by Subsections (a)(1) and (2) and assess its
2-24 expenses as provided by Section 342.007.
2-25 SECTION 3. Section 54.033(b), Local Government Code, is
2-26 amended to read as follows:
2-27 (b) A commission appointed for the purpose of hearing cases
2-28 under this subchapter shall consist of one or more [five-member]
2-29 panels, each composed of at least five members, to be appointed for
2-30 terms of two years.
2-31 SECTION 4. Subchapter A, Chapter 54, Local Government Code,
2-32 is amended by adding Section 54.006 to read as follows:
2-33 Sec. 54.006. NONSEVERABILITY OF CERTAIN CONSOLIDATED
2-34 OFFENSES. Section 3.04(a), Penal Code, does not apply to two or
2-35 more offenses consolidated or joined for trial under Section 3.02,
2-36 Penal Code, if each of the offenses is:
2-37 (1) for the violation of an ordinance described by
2-38 Section 54.012;
2-39 (2) punishable by fine only; and
2-40 (3) tried in a municipal court, regardless of whether
2-41 the court is a municipal court of record.
2-42 SECTION 5. Section 54.034(a), Local Government Code, is
2-43 amended to read as follows:
2-44 (a) All cases to be heard by the commission may be heard by
2-45 any panel of the commission. A majority of the [, but at least
2-46 four] members of a panel must hear a case.
2-47 SECTION 6. Section 54.035, Local Government Code, is amended
2-48 by amending Subsections (a) and (b) and adding Subsections (d),
2-49 (e), and (f) to read as follows:
2-50 (a) Notice of all proceedings before the commission panels
2-51 must be given:
2-52 (1) by personal delivery or by certified mail, return
2-53 receipt requested, to the record owners of the affected property,
2-54 and each holder of a recorded lien against the affected property,
2-55 as shown by the records in the office of the county clerk of the
2-56 county in which the affected property is located if the address of
2-57 the lienholder can be ascertained from the deed of trust
2-58 establishing the lien and/or other applicable instruments on file
2-59 in the office of the county clerk; and
2-60 (2) to all unknown owners, by posting a copy of the
2-61 notice on the front door of each improvement situated on the
2-62 affected property or as close to the front door as practicable.
2-63 (b) The notice must be posted and either personally
2-64 delivered or [shall be] mailed [and posted] on or before the 10th
2-65 day before the date of the hearing before the commission panel and
2-66 must state the date, time, and place of the hearing. In addition,
2-67 the notice must be published in a newspaper of general circulation
2-68 in the municipality on one occasion on or before the 10th day
2-69 before the date fixed for the hearing.
3-1 (d) A municipality must exercise due diligence to determine
3-2 the identity and address of a property owner or lienholder to whom
3-3 the municipality is required to give notice.
3-4 (e) A municipality exercises due diligence in determining
3-5 the identity and address of a property owner or lienholder when it
3-6 searches the following records:
3-7 (1) county real property records of the county in
3-8 which the property is located;
3-9 (2) appraisal district records of the appraisal
3-10 district in which the property is located;
3-11 (3) records of the secretary of state, if the property
3-12 owner or lienholder is a corporation, partnership, or other
3-13 business association;
3-14 (4) assumed name records of the county in which the
3-15 property is located;
3-16 (5) tax records of the municipality; and
3-17 (6) utility records of the municipality.
3-18 (f) When a municipality mails a notice in accordance with
3-19 this section to a property owner or lienholder and the United
3-20 States Postal Service returns the notice as "refused" or
3-21 "unclaimed," the validity of the notice is not affected, and the
3-22 notice is considered delivered.
3-23 SECTION 7. Section 54.038, Local Government Code, is amended
3-24 to read as follows:
3-25 Sec. 54.038. VOTE. A majority [The concurring] vote of the
3-26 [four] members voting on a matter [of a commission panel] is
3-27 necessary to take any action under this subchapter and any
3-28 ordinance adopted by the municipality in accordance with this
3-29 subchapter.
3-30 SECTION 8. Section 54.039(a), Local Government Code, is
3-31 amended to read as follows:
3-32 (a) Any owner, lienholder, or mortgagee of record jointly or
3-33 severally aggrieved by any decision of a commission panel may
3-34 present a petition to a district court, duly verified, setting
3-35 forth that the decision is illegal, in whole or in part, and
3-36 specifying the grounds of the illegality. The petition must be
3-37 presented to the court within 30 calendar days after the date a
3-38 copy of the final decision of the commission panel is personally
3-39 delivered or mailed by first class mail, certified return receipt
3-40 requested, to all persons to whom notice is required to be sent
3-41 under Section 54.035. The commission panel shall personally
3-42 deliver or mail that copy promptly after the decision becomes
3-43 final. In addition, an abbreviated copy of the order shall be
3-44 published one time in a newspaper of general circulation in the
3-45 municipality within 10 calendar days after the date of the delivery
3-46 or mailing of the copy as provided by this subsection, including
3-47 the street address or legal description of the property; the date
3-48 of the hearing, a brief statement indicating the results of the
3-49 order, and instructions stating where a complete copy of the order
3-50 may be obtained, and a copy shall be filed in the office of the
3-51 municipal secretary or clerk.
3-52 SECTION 9. Subchapter C, Chapter 54, Local Government Code,
3-53 is amended by adding Section 54.044 to read as follows:
3-54 Sec. 54.044. ALTERNATIVE PROCEDURE FOR ADMINISTRATIVE
3-55 HEARING. (a) As an alternative to the enforcement processes
3-56 described by this subchapter, a municipality by ordinance may adopt
3-57 a procedure for an administrative adjudication hearing under which
3-58 an administrative penalty may be imposed for the enforcement of an
3-59 ordinance described by Section 54.032 or adopted under Section
3-60 214.001(a)(1).
3-61 (b) A procedure adopted under this section must entitle the
3-62 person charged with violating an ordinance to a hearing and must
3-63 provide for:
3-64 (1) the period during which a hearing shall be held;
3-65 (2) the appointment of a hearing officer with
3-66 authority to administer oaths and issue orders compelling the
3-67 attendance of witnesses and the production of documents; and
3-68 (3) the amount and disposition of administrative
3-69 penalties, costs, and fees.
4-1 (c) A municipal court may enforce an order of a hearing
4-2 officer compelling the attendance of a witness or the production of
4-3 a document.
4-4 (d) A citation or summons issued as part of a procedure
4-5 adopted under this section must:
4-6 (1) notify the person charged with violating the
4-7 ordinance that the person has the right to a hearing; and
4-8 (2) provide information as to the time and place of
4-9 the hearing.
4-10 (e) The original or a copy of the summons or citation shall
4-11 be kept as a record in the ordinary course of business of the
4-12 municipality and is rebuttable proof of the facts it states.
4-13 (f) The person who issued the citation or summons is not
4-14 required to attend a hearing under this section.
4-15 (g) A person charged with violating an ordinance who fails
4-16 to appear at a hearing authorized under this section is considered
4-17 to admit liability for the violation charged.
4-18 (h) At a hearing under this section, the hearing officer
4-19 shall issue an order stating:
4-20 (1) whether the person charged with violating an
4-21 ordinance is liable for the violation; and
4-22 (2) the amount of a penalty, cost, or fee assessed
4-23 against the person.
4-24 (i) An order issued under this section may be filed with the
4-25 clerk or secretary of the municipality. The clerk or secretary
4-26 shall keep the order in a separate index and file. The order may
4-27 be recorded using microfilm, microfiche, or data processing
4-28 techniques.
4-29 (j) An order issued under this section against a person
4-30 charged with an ordinance violation may be enforced by:
4-31 (1) filing a civil suit for the collection of a
4-32 penalty assessed against the person; and
4-33 (2) obtaining an injunction that:
4-34 (A) prohibits specific conduct that violates the
4-35 ordinance; or
4-36 (B) requires specific conduct necessary for
4-37 compliance with the ordinance.
4-38 (k) A person who is found by a hearing officer to have
4-39 violated an ordinance may appeal the determination by filing a
4-40 petition in municipal court before the 31st day after the date the
4-41 hearing officer's determination is filed. An appeal does not stay
4-42 enforcement and collection of the judgment unless the person,
4-43 before filing the appeal, posts a bond with an agency designated
4-44 for that purpose by the municipality.
4-45 SECTION 10. Section 214.001, Local Government Code, is
4-46 amended by amending Subsections (d) and (g) and adding Subsection
4-47 (r) to read as follows:
4-48 (d) After the public hearing, if a building is found in
4-49 violation of standards set out in the ordinance, the municipality
4-50 may order that the building be vacated, secured, repaired, removed,
4-51 or demolished by the owner within a reasonable time as provided by
4-52 this section. The municipality also may order that the occupants
4-53 be relocated within a reasonable time. If the owner does not take
4-54 the ordered action within the allotted time, the municipality shall
4-55 make a diligent effort to discover each mortgagee and lienholder
4-56 having an interest in the building or in the property on which the
4-57 building is located. The municipality shall personally deliver or
4-58 send by certified mail, return receipt requested, to each
4-59 identified mortgagee and lienholder a notice containing:
4-60 (1) an identification, which is not required to be a
4-61 legal description, of the building and the property on which it is
4-62 located;
4-63 (2) a description of the violation of municipal
4-64 standards that is present at the building; and
4-65 (3) a statement that the municipality will vacate,
4-66 secure, remove, or demolish the building or relocate the occupants
4-67 of the building if the ordered action is not taken within a
4-68 reasonable time.
4-69 (g) After the hearing, the municipality shall promptly mail
5-1 by certified mail, return receipt requested, or personally
5-2 deliver a copy of the order to the owner of the building and to any
5-3 lienholder or mortgagee of the building. The municipality shall
5-4 use its best efforts to determine the identity and address of any
5-5 owner, lienholder, or mortgagee of the building. [If a notice is
5-6 mailed according to this subsection and the United States Postal
5-7 Service returns the notice as "refused" or "unclaimed," the
5-8 validity of the notice is not affected, and the notice shall be
5-9 deemed as delivered.]
5-10 (r) When a municipality mails a notice in accordance with
5-11 this section to a property owner, lienholder, or mortgagee and the
5-12 United States Postal Service returns the notice as "refused" or
5-13 "unclaimed," the validity of the notice is not affected, and the
5-14 notice is considered delivered.
5-15 SECTION 11. Subchapter A, Chapter 214, Local Government Code,
5-16 is amended by adding Section 214.005 to read as follows:
5-17 Sec. 214.005. PROPERTY BID OFF TO MUNICIPALITY. A
5-18 municipality may adopt an ordinance under Section 214.001(a) that
5-19 applies to property that has been bid off to the municipality under
5-20 Section 34.01(j), Tax Code.
5-21 SECTION 12. Section 214.0012(a), Local Government Code, is
5-22 amended to read as follows:
5-23 (a) Any owner, lienholder, or mortgagee of record of
5-24 property jointly or severally aggrieved by an order of a
5-25 municipality issued under Section 214.001 may file in district
5-26 court a verified petition setting forth that the decision is
5-27 illegal, in whole or in part, and specifying the grounds of the
5-28 illegality. The petition must be filed by an owner, lienholder, or
5-29 mortgagee within 30 calendar days after the respective dates a copy
5-30 of the final decision of the municipality is personally delivered
5-31 or mailed to them by first class mail, certified return receipt
5-32 requested, or such decision shall become final as to each of them
5-33 upon the expiration of each such 30 calendar day period.
5-34 SECTION 13. Section 683.075, Transportation Code, is amended
5-35 to read as follows:
5-36 Sec. 683.075. NOTICE. (a) The procedures for the abatement
5-37 and removal of a public nuisance under this subchapter must provide
5-38 not less than 10 days' notice of the nature of the nuisance. The
5-39 notice [and] must be personally delivered or sent by certified mail
5-40 with a five-day return requested to:
5-41 (1) the last known registered owner of the nuisance;
5-42 (2) each lienholder of record of the nuisance; and
5-43 (3) the owner or occupant of:
5-44 (A) the property on which the nuisance is
5-45 located; or
5-46 (B) if the nuisance is located on a public
5-47 right-of-way, the property adjacent to the right-of-way.
5-48 (b) The notice must state that:
5-49 (1) the nuisance must be abated and removed not later
5-50 than the 10th day after the date on which the notice was personally
5-51 delivered or mailed; and
5-52 (2) any request for a hearing must be made before that
5-53 10-day period expires.
5-54 (c) If the post office address of the last known registered
5-55 owner of the nuisance is unknown, notice may be placed on the
5-56 nuisance or, if the owner is located, personally delivered [hand
5-57 delivered].
5-58 (d) If notice is returned undelivered, action to abate the
5-59 nuisance shall be continued to a date not earlier than the 11th day
5-60 after the date of the return.
5-61 SECTION 14. Subchapter E, Chapter 683, Transportation Code,
5-62 is amended by adding Section 683.0765 to read as follows:
5-63 Sec. 683.0765. ALTERNATIVE PROCEDURE FOR ADMINISTRATIVE
5-64 HEARING. A municipality by ordinance may provide for an
5-65 administrative adjudication process under which an administrative
5-66 penalty may be imposed for the enforcement of an ordinance adopted
5-67 under this subchapter. If a municipality provides for an
5-68 administrative adjudication process under this section, the
5-69 municipality shall use the procedure described by Section 54.044,
6-1 Local Government Code.
6-2 SECTION 15. Section 683.077(a), Transportation Code, is
6-3 amended to read as follows:
6-4 (a) Procedures adopted under Section 683.074 or 683.0765 may
6-5 not apply to a vehicle or vehicle part:
6-6 (1) that is completely enclosed in a building in a
6-7 lawful manner and is not visible from the street or other public or
6-8 private property; or
6-9 (2) that is stored or parked in a lawful manner on
6-10 private property in connection with the business of a licensed
6-11 vehicle dealer or junkyard, or that is an antique or special
6-12 interest vehicle stored by a motor vehicle collector on the
6-13 collector's property, if the vehicle or part and the outdoor
6-14 storage area, if any, are:
6-15 (A) maintained in an orderly manner;
6-16 (B) not a health hazard; and
6-17 (C) screened from ordinary public view by
6-18 appropriate means, including a fence, rapidly growing trees, or
6-19 shrubbery.
6-20 SECTION 16. The changes in law made by this Act apply only
6-21 to a notice that is given on or after the effective date of this
6-22 Act. A notice that is given before the effective date of this Act
6-23 is governed by the law in effect immediately before the effective
6-24 date, and that law is continued in effect for that purpose.
6-25 SECTION 17. (a) This Act takes effect September 1, 2001.
6-26 (b) The change in law made by this Act by the addition of
6-27 Section 54.006, Local Government Code, applies only to an offense
6-28 committed on or after the effective date of this Act. For purposes
6-29 of this section, an offense is committed before the effective date
6-30 of this Act if any element of the offense occurs before that date.
6-31 (c) An offense committed before the effective date of this
6-32 Act is covered by the law in effect when the offense was committed,
6-33 and the former law is continued in effect for that purpose.
6-34 * * * * *