1-1     By:  West                                             S.B. No. 1544
 1-2           (In the Senate - Filed March 9, 2001; March 14, 2001, read
 1-3     first time and referred to Committee on Intergovernmental
 1-4     Relations; April 19, 2001, reported adversely, with favorable
 1-5     Committee Substitute by the following vote:  Yeas 7, Nays 0;
 1-6     April 19, 2001, sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 1544                    By:  West
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to local enforcement of certain health and safety statutes
1-11     and ordinances.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13           SECTION 1.  Subsection (a), Section 552.115, Government Code,
1-14     is amended to read as follows:
1-15           (a)  A birth or death record maintained by the bureau of
1-16     vital statistics of the Texas Department of Health or a local
1-17     registration official is excepted from the requirements of Section
1-18     552.021, except that:
1-19                 (1)  a birth record is public information and available
1-20     to the public on and after the 50th anniversary of the date of
1-21     birth as shown on the record filed with the bureau of vital
1-22     statistics or local registration official;
1-23                 (2)  a death record is public information and available
1-24     to the public on and after the 25th anniversary of the date of
1-25     death as shown on the record filed with the bureau of vital
1-26     statistics or local registration official;
1-27                 (3)  a general birth index or a general death index
1-28     established or maintained by the bureau of vital statistics or a
1-29     local registration official is public information and available to
1-30     the public to the extent the index relates to a birth record or
1-31     death record that is public information and available to the public
1-32     under Subdivision (1) or (2); [and]
1-33                 (4)  a summary birth index or a summary death index
1-34     prepared or maintained by the bureau of vital statistics or a local
1-35     registration official is public information and available to the
1-36     public; and
1-37                 (5)  a birth or death record is available to the chief
1-38     executive officer of a home-rule municipality or the officer's
1-39     designee if:
1-40                       (A)  the record is used only to identify a
1-41     property owner or other person to whom the municipality is required
1-42     to give notice when enforcing a state statute or an ordinance;
1-43                       (B)  the municipality has exercised due diligence
1-44     in the manner described by Section 54.035(e), Local Government
1-45     Code, to identify the person; and
1-46                       (C)  the officer or designee signs a
1-47     confidentiality agreement that requires that:
1-48                             (i)  the information not be disclosed
1-49     outside the office of the officer or designee, or within the office
1-50     for a purpose other than the purpose described by Paragraph (A);
1-51                             (ii)  the information be labeled as
1-52     confidential;
1-53                             (iii)  the information be kept securely;
1-54     and
1-55                             (iv)  the number of copies made of the
1-56     information or the notes taken from the information that implicate
1-57     the confidential nature of the information be controlled, with all
1-58     copies or notes that are not destroyed or returned remaining
1-59     confidential and subject to the confidentiality agreement.
1-60           SECTION 2.  Subsections (b) and (d), Section 342.006, Health
1-61     and Safety Code, are amended to read as follows:
1-62           (b)  The notice must be given:
1-63                 (1)  personally to the owner in writing;
1-64                 (2)  by letter addressed to the owner at the owner's
 2-1     address as recorded in the appraisal district records of the
 2-2     appraisal district in which the property is located; or
 2-3                 (3)  if personal service cannot be obtained:
 2-4                       (A)  by publication at least once;
 2-5                       (B)  by posting the notice on or near the front
 2-6     door of each building on the property to which the violation
 2-7     relates; or
 2-8                       (C)  by posting the notice on a placard attached
 2-9     to a stake driven into the ground on the property to which the
2-10     violation relates[, if the property contains no buildings].
2-11           (d)  In a notice provided under this section, a municipality
2-12     may inform the owner by regular mail and a posting on the property,
2-13     or by personally delivering the notice, that if the owner commits
2-14     another violation of the same kind or nature that poses a danger to
2-15     the public health and safety on or before the first anniversary of
2-16     the date of the notice, the municipality without further notice may
2-17     correct the violation at the owner's expense and assess the expense
2-18     against the property.  If a violation covered by a notice under
2-19     this subsection occurs within the one-year period, and the
2-20     municipality has not been informed in writing by the owner of an
2-21     ownership change, then the municipality without notice may take any
2-22     action permitted by Subsections (a)(1) and (2) and assess its
2-23     expenses as provided by Section 342.007.
2-24           SECTION 3.  Subsection (b), Section 54.033, Local Government
2-25     Code, is amended to read as follows:
2-26           (b)  A commission appointed for the purpose of hearing cases
2-27     under this subchapter shall consist of one or more [five-member]
2-28     panels, each composed of at least five members, to be appointed for
2-29     terms of two years.
2-30           SECTION 4.  Subchapter A, Chapter 54, Local Government Code,
2-31     is amended by adding Section 54.006 to read as follows:
2-32           Sec. 54.006.  NONSEVERABILITY OF CERTAIN CONSOLIDATED
2-33     OFFENSES.  Section 3.04(a), Penal Code, does not apply to two or
2-34     more offenses consolidated or joined for trial under Section 3.02,
2-35     Penal Code, if each of the offenses is:
2-36                 (1)  for the violation of an ordinance described by
2-37     Section 54.012;
2-38                 (2)  punishable by fine only; and
2-39                 (3)  tried in a municipal court, regardless of whether
2-40     the court is a municipal court of record.
2-41           SECTION 5.  Subsection (a), Section 54.034, Local Government
2-42     Code, is amended to read as follows:
2-43           (a)  All cases to be heard by the commission may be heard by
2-44     any panel of the commission.  A majority of the[, but at least
2-45     four] members of a panel must hear a case.
2-46           SECTION 6.  Section 54.035, Local Government Code, is amended
2-47     by amending Subsections (a) and (b) and adding Subsections (d),
2-48     (e), and (f) to read as follows:
2-49           (a)  Notice of all proceedings before the commission panels
2-50     must be given:
2-51                 (1)  by personal delivery or by certified mail, return
2-52     receipt requested, to the record owners of the affected property,
2-53     and each holder of a recorded lien against the affected property,
2-54     as shown by the records in the office of the county clerk of the
2-55     county in which the affected property is located if the address of
2-56     the lienholder can be ascertained from the deed of trust
2-57     establishing the lien and/or other applicable instruments on file
2-58     in the office of the county clerk; and
2-59                 (2)  to all unknown owners, by posting a copy of the
2-60     notice on the front door of each improvement situated on the
2-61     affected property or as close to the front door as practicable.
2-62           (b)  The notice must be posted and either personally
2-63     delivered or [shall be] mailed [and posted] on or before the 10th
2-64     day before the date of the hearing before the commission panel and
2-65     must state the date, time, and place of the hearing.  In addition,
2-66     the notice must be published in a newspaper of general circulation
2-67     in the municipality on one occasion on or before the 10th day
2-68     before the date fixed for the hearing.
2-69           (d)  A municipality must exercise due diligence to determine
 3-1     the identity and address of a property owner or lienholder to whom
 3-2     the municipality is required to give notice.
 3-3           (e)  A municipality exercises due diligence in determining
 3-4     the identity and address of a property owner or lienholder when it
 3-5     searches the following records:
 3-6                 (1)  county real property records of the county in
 3-7     which the property is located;
 3-8                 (2)  appraisal district records of the appraisal
 3-9     district in which the property is located;
3-10                 (3)  records of the secretary of state, if the property
3-11     owner or lienholder is a corporation, partnership, or other
3-12     business association;
3-13                 (4)  assumed name records of the county in which the
3-14     property is located;
3-15                 (5)  tax records of the municipality; and
3-16                 (6)  utility records of the municipality.
3-17           (f)  When a municipality mails a notice in accordance with
3-18     this section to a property owner or lienholder and the United
3-19     States Postal Service returns the notice as "refused" or
3-20     "unclaimed," the validity of the notice is not affected, and the
3-21     notice is considered delivered.
3-22           SECTION 7.  Section 54.038, Local Government Code, is amended
3-23     to read as follows:
3-24           Sec. 54.038.  VOTE.  A majority [The concurring] vote of the
3-25     [four] members voting on a matter [of a commission panel] is
3-26     necessary to take any action under this subchapter and any
3-27     ordinance adopted by the municipality in accordance with this
3-28     subchapter.
3-29           SECTION 8.  Subsection (a), Section 54.039, Local Government
3-30     Code, is amended to read as follows:
3-31           (a)  Any owner, lienholder, or mortgagee of record jointly or
3-32     severally aggrieved by any decision of a commission panel may
3-33     present a petition to a district court, duly verified, setting
3-34     forth that the decision is illegal, in whole or in part, and
3-35     specifying the grounds of the illegality.  The petition must be
3-36     presented to the court within 30 calendar days after the date a
3-37     copy of the final decision of the commission panel is personally
3-38     delivered or mailed by first class mail, certified return receipt
3-39     requested, to all persons to whom notice is required to be sent
3-40     under Section 54.035.  The commission panel shall personally
3-41     deliver or mail that copy promptly after the decision becomes
3-42     final.  In addition, an abbreviated copy of the order shall be
3-43     published one time in a newspaper of general circulation in the
3-44     municipality within 10 calendar days after the date of the delivery
3-45     or mailing of the copy as provided by this subsection, including
3-46     the street address or legal description of the property; the date
3-47     of the hearing, a brief statement indicating the results of the
3-48     order, and instructions stating where a complete copy of the order
3-49     may be obtained, and a copy shall be filed in the office of the
3-50     municipal secretary or clerk.
3-51           SECTION 9.  Subchapter C, Chapter 54, Local Government Code,
3-52     is amended by adding Section 54.044 to read as follows:
3-53           Sec. 54.044.  ALTERNATIVE PROCEDURE FOR ADMINISTRATIVE
3-54     HEARING.  (a)  As an alternative to the enforcement processes
3-55     described by this subchapter, a municipality by ordinance may adopt
3-56     a procedure for an administrative adjudication hearing under which
3-57     an administrative penalty may be imposed for the enforcement of an
3-58     ordinance described by Section 54.032 or adopted under Section
3-59     214.001(a)(1).
3-60           (b)  A procedure adopted under this section must entitle the
3-61     person charged with violating an ordinance to a hearing and must
3-62     provide for:
3-63                 (1)  the period during which a hearing shall be held;
3-64                 (2)  the appointment of a hearing officer with
3-65     authority to administer oaths and issue orders compelling the
3-66     attendance of witnesses and the production of documents; and
3-67                 (3)  the amount and disposition of administrative
3-68     penalties, costs, and fees.
3-69           (c)  A municipal court may enforce an order of a hearing
 4-1     officer compelling the attendance of a witness or the production of
 4-2     a document.
 4-3           (d)  A citation or summons issued as part of a procedure
 4-4     adopted under this section must:
 4-5                 (1)  notify the person charged with violating the
 4-6     ordinance that the person has the right to a hearing; and
 4-7                 (2)  provide information as to the time and place of
 4-8     the hearing.
 4-9           (e)  The original or a copy of the summons or citation shall
4-10     be kept as a record in the ordinary course of business of the
4-11     municipality and is rebuttable proof of the facts it states.
4-12           (f)  The person who issued the citation or summons is not
4-13     required to attend a hearing under this section.
4-14           (g)  A person charged with violating an ordinance who fails
4-15     to appear at a hearing authorized under this section is considered
4-16     to admit liability for the violation charged.
4-17           (h)  At a hearing under this section, the hearing officer
4-18     shall issue an order stating:
4-19                 (1)  whether the person charged with violating an
4-20     ordinance is liable for the violation; and
4-21                 (2)  the amount of a penalty, cost, or fee assessed
4-22     against the person.
4-23           (i)  An order issued under this section may be filed with the
4-24     clerk or secretary of the municipality.  The clerk or secretary
4-25     shall keep the order in a separate index and file.  The order may
4-26     be recorded using microfilm, microfiche, or data processing
4-27     techniques.
4-28           (j)  An order issued under this section against a person
4-29     charged with an ordinance violation may be enforced by:
4-30                 (1)  filing a civil suit for the collection of a
4-31     penalty assessed against the person; and
4-32                 (2)  obtaining an injunction that:
4-33                       (A)  prohibits specific conduct that violates the
4-34     ordinance; or
4-35                       (B)  requires specific conduct necessary for
4-36     compliance with the ordinance.
4-37           (k)  A person who is found by a hearing officer to have
4-38     violated an ordinance may appeal the determination by filing a
4-39     petition in municipal court before the 31st day after the date the
4-40     hearing officer's determination is filed.  An appeal does not stay
4-41     enforcement and collection of the judgment unless the person,
4-42     before filing the appeal, posts a bond with an agency designated
4-43     for that purpose by the municipality.
4-44           SECTION 10.  Section 214.001, Local Government Code, is
4-45     amended by amending Subsections (d) and (g) and adding Subsection
4-46     (r) to read as follows:
4-47           (d)  After the public hearing, if a building is found in
4-48     violation of standards set out in the ordinance, the municipality
4-49     may order that the building be vacated, secured, repaired, removed,
4-50     or demolished by the owner within a reasonable time as provided by
4-51     this section.  The municipality also may order that the occupants
4-52     be relocated within a reasonable time.  If the owner does not take
4-53     the ordered action within the allotted time, the municipality shall
4-54     make a diligent effort to discover each mortgagee and lienholder
4-55     having an interest in the building or in the property on which the
4-56     building is located.  The municipality shall personally deliver or
4-57     send by certified mail, return receipt requested, to each
4-58     identified mortgagee and lienholder a notice containing:
4-59                 (1)  an identification, which is not required to be a
4-60     legal description, of the building and the property on which it is
4-61     located;
4-62                 (2)  a description of the violation of municipal
4-63     standards that is present at the building; and
4-64                 (3)  a statement that the municipality will vacate,
4-65     secure, remove, or demolish the building or relocate the occupants
4-66     of the building if the ordered action is not taken within a
4-67     reasonable time.
4-68           (g)  After the hearing, the municipality shall promptly mail
4-69     by certified mail, return receipt requested, or personally
 5-1     deliver a copy of the order to the owner of the building and to any
 5-2     lienholder or mortgagee of the building.  The municipality shall
 5-3     use its best efforts to determine the identity and address of any
 5-4     owner, lienholder, or mortgagee of the building.  [If a notice is
 5-5     mailed according to this subsection and the United States Postal
 5-6     Service returns the notice as "refused" or "unclaimed," the
 5-7     validity of the notice is not affected, and the notice shall be
 5-8     deemed as delivered.]
 5-9           (r)  When a municipality mails a notice in accordance with
5-10     this section to a property owner, lienholder, or mortgagee and the
5-11     United States Postal Service returns the notice as "refused" or
5-12     "unclaimed," the validity of the notice is not affected, and the
5-13     notice is considered delivered.
5-14           SECTION 11.  Subchapter A, Chapter 214, Local Government
5-15     Code, is amended by adding Section 214.005 to read as follows:
5-16           Sec. 214.005.  PROPERTY BID OFF TO MUNICIPALITY.  A
5-17     municipality may adopt an ordinance under Section 214.001(a) that
5-18     applies to property that has been bid off to the municipality under
5-19     Section 34.01(j), Tax Code.
5-20           SECTION 12.  Subsection (a), Section 214.0012, Local
5-21     Government Code, is amended to read as follows:
5-22           (a)  Any owner, lienholder, or mortgagee of record of
5-23     property jointly or severally aggrieved by an order of a
5-24     municipality issued under Section 214.001 may file in district
5-25     court a verified petition setting forth that the decision is
5-26     illegal, in whole or in part, and specifying the grounds of the
5-27     illegality.  The petition must be filed by an owner, lienholder, or
5-28     mortgagee within 30 calendar days after the respective dates a copy
5-29     of the final decision of the municipality is personally delivered
5-30     or mailed to them by first class mail, certified return receipt
5-31     requested, or such decision shall become final as to each of them
5-32     upon the expiration of each such 30 calendar day period.
5-33           SECTION 13.  Section 683.075, Transportation Code, is amended
5-34     to read as follows:
5-35           Sec. 683.075.  NOTICE.  (a)  The procedures for the abatement
5-36     and removal of a public nuisance under this subchapter must provide
5-37     not less than 10 days' notice of the nature of the nuisance.  The
5-38     notice [and] must be personally delivered or sent by certified mail
5-39     with a five-day return requested to:
5-40                 (1)  the last known registered owner of the nuisance;
5-41                 (2)  each lienholder of record of the nuisance; and
5-42                 (3)  the owner or occupant of:
5-43                       (A)  the property on which the nuisance is
5-44     located; or
5-45                       (B)  if the nuisance is located on a public
5-46     right-of-way, the property adjacent to the right-of-way.
5-47           (b)  The notice must state that:
5-48                 (1)  the nuisance must be abated and removed not later
5-49     than the 10th day after the date on which the notice was personally
5-50     delivered or mailed; and
5-51                 (2)  any request for a hearing must be made before that
5-52     10-day period expires.
5-53           (c)  If the post office address of the last known registered
5-54     owner of the nuisance is unknown, notice may be placed on the
5-55     nuisance or, if the owner is located, personally delivered [hand
5-56     delivered].
5-57           (d)  If notice is returned undelivered, action to abate the
5-58     nuisance shall be continued to a date not earlier than the 11th day
5-59     after the date of the return.
5-60           SECTION 14.  Subchapter E, Chapter 683, Transportation Code,
5-61     is amended by adding Section 683.0765 to read as follows:
5-62           Sec. 683.0765.  ALTERNATIVE PROCEDURE FOR ADMINISTRATIVE
5-63     HEARING.  A municipality by ordinance may provide for an
5-64     administrative adjudication process under which an administrative
5-65     penalty may be imposed for the enforcement of an ordinance adopted
5-66     under this subchapter.  If a municipality provides for an
5-67     administrative adjudication process under this section, the
5-68     municipality shall use the procedure described by Section 54.044,
5-69     Local Government Code.
 6-1           SECTION 15.  Subsection (a), Section 683.077, Transportation
 6-2     Code, is amended to read as follows:
 6-3           (a)  Procedures adopted under Section 683.074 or 683.0765 may
 6-4     not apply to a vehicle or vehicle part:
 6-5                 (1)  that is completely enclosed in a building in a
 6-6     lawful manner and is not visible from the street or other public or
 6-7     private property; or
 6-8                 (2)  that is stored or parked in a lawful manner on
 6-9     private property in connection with the business of a licensed
6-10     vehicle dealer or junkyard, or that is an antique or special
6-11     interest vehicle stored by a motor vehicle collector on the
6-12     collector's property, if the vehicle or part and the outdoor
6-13     storage area, if any, are:
6-14                       (A)  maintained in an orderly manner;
6-15                       (B)  not a health hazard; and
6-16                       (C)  screened from ordinary public view by
6-17     appropriate means, including a fence, rapidly growing trees, or
6-18     shrubbery.
6-19           SECTION 16.  The changes in law made by this Act apply only
6-20     to a notice that is given on or after the effective date of this
6-21     Act.  A notice that is given before the effective date of this Act
6-22     is governed by the law in effect immediately before the effective
6-23     date, and that law is continued in effect for that purpose.
6-24           SECTION 17.  (a)  This Act takes effect September 1, 2001.
6-25           (b)  The change in law made by this Act by the addition of
6-26     Section 54.006, Local Government Code, applies only to an offense
6-27     committed on or after the effective date of this Act.  For purposes
6-28     of this section, an offense is committed before the effective date
6-29     of this Act if any element of the offense occurs before that date.
6-30           (c)  An offense committed before the effective date of this
6-31     Act is covered by the law in effect when the offense was committed,
6-32     and the former law is continued in effect for that purpose.
6-33                                  * * * * *