78R12449 SLO-D


By:  Giddings, Uresti, Bohac                                      H.B. No. 2813

Substitute the following for H.B. No. 2813:                                   

By:  Gattis                                                   C.S.H.B. No. 2813


A BILL TO BE ENTITLED
AN ACT
relating to public and common nuisances; providing a penalty. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Subchapter A, Chapter 125, Civil Practice and Remedies Code, is amended by amending Section 125.001 and adding Section 125.0015 to read as follows: Sec. 125.001. DEFINITIONS. In this chapter: (1) "Common nuisance" is a nuisance described by Section 125.0015. (2) "Public nuisance" is a nuisance described by Section 125.062 or 125.063. (3) "Multiunit residential property" means improved real property with at least three dwelling units, including an apartment building, condominium, hotel, or motel. The term does not include: (A) a property in which each dwelling unit is occupied by the owner of the property; or (B) a single-family home or duplex. Sec. 125.0015. COMMON NUISANCE. (a) A person who knowingly maintains a place to which persons habitually go for the following purposes maintains a common nuisance: (1) [prostitution or gambling in violation of the Penal Code; [(2)] discharge of a firearm in a public place as prohibited by the [in violation of Section 42.01(a)(9),] Penal Code; (2) [(3)] reckless discharge of a firearm as prohibited by the [described by Section 42.12,] Penal Code; (3) [(4)] engaging in organized criminal activity as a member of a combination as prohibited by the [described by Section 71.02,] Penal Code; [or] (4) [(5)] delivery, possession, manufacture, or use of a controlled substance in violation of Chapter 481, Health and Safety Code; (5) gambling, gambling promotion, or communicating gambling information as prohibited by the Penal Code; (6) prostitution, promotion of prostitution, or aggravated promotion of prostitution as prohibited by the Penal Code; (7) compelling prostitution as prohibited by the Penal Code; or (8) commercial manufacture, commercial distribution, or commercial exhibition of obscene material as prohibited by the Penal Code. (b) A person maintains a common nuisance if the person: (1) knowingly maintains a multiunit residential property [described by Subsection (c)] to which persons habitually go to commit the following acts: (A) aggravated assault as described by Section 22.02, Penal Code; (B) sexual assault as described by Section 22.011, Penal Code; (C) aggravated sexual assault as described by Section 22.021, Penal Code; (D) robbery as described by Section 29.02, Penal Code; (E) aggravated robbery as described by Section 29.03, Penal Code; [or] (F) unlawfully carrying a weapon as described by Section 46.02, Penal Code; [and] (G) murder as described by Section 19.02, Penal Code; or (H) capital murder as described by Section 19.03, Penal Code; and (2) has failed to make reasonable attempts to abate such acts. [(c) Subsection (b) applies only to a multiunit residential property, as that term is defined by Section 125.041, that is located in a municipality.] SECTION 2. Section 125.002, Civil Practice and Remedies Code, is amended to read as follows: Sec. 125.002. SUIT TO ABATE COMMON NUISANCE; BOND. (a) A suit to enjoin and abate a common nuisance may be brought by an individual, by the attorney general, or by a district, county, or city attorney. The suit must be brought in the county in which it is alleged to exist against the person who is maintaining or about to maintain the nuisance. The suit must be brought in the name of the state if brought by the attorney general or a district or county attorney, in the name of the city if brought by a city attorney, or in the name of the individual if brought by a private citizen. Verification of the petition or proof of personal injury by the acts complained of need not be shown. For purposes of this subsection, personal injury may include economic or monetary loss. (b) A person may bring a suit under Subsection (a) against any person who maintains, owns, uses, or is a party to the use of a place for purposes constituting a nuisance under this subchapter and may bring an action in rem against the place itself. (c) Service of any order, notice, process, motion, or ruling of the court on the attorney of record of a cause pending under this subchapter is sufficient service of the party represented by an attorney. (d) A person who violates a temporary or permanent injunctive order under this subchapter is subject to the following sentences for civil contempt: (1) a fine of not less than $1,000 or more than $10,000; (2) confinement in jail for a term of not less than 10 or more than 30 days; or (3) both fine and confinement. (e) If judgment is in favor of the petitioner, the court shall grant an injunction ordering the defendant to abate the nuisance and enjoining the defendant from maintaining or participating in the nuisance and may include in its order reasonable requirements to prevent the use or maintenance of the place as a nuisance. If the petitioner brings an action in rem, the judgment is a judgment in rem against the property as well as a judgment against the defendant. The judgment must order that the place where the nuisance exists be closed for one year after the date of judgment unless the defendant or the real property owner, lessee, or tenant of the property posts bond. (f) [(c)] The bond must: (1) be payable to the state at the county seat of the county in which the nuisance exists; (2) be in the penal sum of $10,000; (3) have sufficient sureties approved by the court; and (4) be conditioned that the property will not be used or permitted to be used for prostitution or gambling in violation of the Penal Code or for delivery, possession, manufacture, or use of a controlled substance in violation of Chapter 481, Health and Safety Code. (g) In an action brought under this chapter, the petitioner may file a notice of lis pendens in the office of the county clerk. If the petitioner files the notice, a subsequent purchaser or mortgagee who acquires an interest in the property takes the property subject to the enforcement proceeding and subsequent orders of the court. SECTION 3. Section 125.003(c), Civil Practice and Remedies Code, is amended to read as follows: (c) A person may not continue the enjoined activity pending appeal or trial on the merits of an injunctive order entered in a suit brought under this subchapter. Not later than the 90th day after the date of the injunctive order, the appropriate court of appeals shall hear and decide an appeal taken by a party enjoined under this subchapter. If an appeal is not taken by a party temporarily enjoined under this article, the parties are [party is] entitled to a full trial on the merits not later than the 90th day after the date of the temporary injunctive order. SECTION 4. Sections 125.004(a) and (b), Civil Practice and Remedies Code, are amended to read as follows: (a) Proof that an activity described by Section 125.0015 [125.001] is frequently committed at the place involved or that the place is frequently used for an activity described by Section 125.0015 [125.001] is prima facie evidence that the defendant [proprietor] knowingly permitted the activity. (b) Evidence that persons have been arrested for or convicted of offenses for an activity described by Section 125.0015 [125.001] in the place involved is admissible to show knowledge on the part of the defendant that the act occurred. The originals or certified copies of the papers and judgments of those arrests or convictions are admissible in the suit for injunction, and oral evidence is admissible to show that the offense for which a person was arrested or convicted was committed at the place involved. SECTION 5. Section 125.042(a), Civil Practice and Remedies Code, is amended to read as follows: (a) The voters of an election precinct in which a common [public] nuisance is alleged to exist or is alleged to be likely to be created, or the voters in an adjacent election precinct, may request the district attorney, city attorney, or county attorney having geographical jurisdiction of the place that is the subject of the voters' complaints to authorize a meeting at which interested persons may state their complaints about the matter. To be valid to begin proceedings under this section, the written request must be signed by at least: (1) 10 percent of the registered voters of the election precinct in which the common [public] nuisance is alleged to exist or is alleged to be likely to be created; or (2) 20 percent of the voters of the adjacent election precinct. SECTION 6. Sections 125.044 and 125.045, Civil Practice and Remedies Code, are amended to read as follows: Sec. 125.044. FINDINGS. (a) After the meeting, the person appointed to conduct the meeting shall report the findings to the district attorney, city attorney, or county attorney who appointed the person. The district attorney, city attorney, or county attorney, on finding by the attorney that a common [public] nuisance exists or is likely to be created, may initiate appropriate available proceedings against the persons owning or operating the place at which the common [public] nuisance exists or is likely to be created. (b) In a proceeding begun under Subsection (a): (1) proof that acts creating a common [public] nuisance are frequently committed at the place is prima facie evidence that the owner and the operator knowingly permitted the acts; and (2) evidence that persons have been arrested for or convicted of offenses involving acts at the place that create a common [public] nuisance is admissible to show knowledge on the part of the owner and the operator that the acts occurred. (c) The originals or certified copies of the papers and judgments of the arrests or convictions described by Subdivision (2) of Subsection (b) are admissible in a suit for an injunction, and oral evidence is admissible to show that the offense for which a person was arrested or convicted was committed at the place involved. Sec. 125.045. REMEDIES. (a) If, after notice and hearing on a request by a petitioner for a temporary injunction [in any judicial proceeding], a court determines that the petitioner is likely to succeed on the merits in a suit brought under Section 125.002 [a person has maintained a place at which a public nuisance existed], the court shall require that the defendant [person to] execute a bond. The bond must: (1) be payable to the state at the county seat of the county in which the nuisance existed; (2) be in the amount set by the court, but not less than $5,000 or more than $10,000; (3) have sufficient sureties approved by the court; and (4) be conditioned that the defendant [person] will not knowingly maintain [allow] a common [public] nuisance to exist at the place. (b) If any party to a court case fails to cease and desist creating and maintaining a common [public] nuisance within the time allowed by the court, a political subdivision may: (1) discontinue the furnishing of utility services by the political subdivision to the place at which the nuisance exists; (2) prohibit the furnishing of utility service to the place by any public utility holding a franchise to use the streets and alleys of the political subdivision; (3) revoke the certificate of occupancy of the place; (4) prohibit the use of city streets, alleys, and other public ways for access to the place during the existence of the nuisance or in furtherance of the nuisance; and (5) use any other legal remedy available under the laws of the state. (c) If a condition of a bond filed or an injunctive order entered under this subchapter is violated, the district, county, or city attorney of the county in which the property is located or the attorney general may sue on the bond in the name of the state. In the event the attorney general originates the suit, the whole sum shall be forfeited as a penalty to the state. In the event the suit is originated by any office other than the attorney general, the whole sum shall be forfeited as a penalty to the originating entity. SECTION 7. Section 125.046(a), Civil Practice and Remedies Code, is amended to read as follows: (a) If, in any judicial proceeding under Subchapter A [or B], a court determines that a person is maintaining a multiunit residential property that is a common nuisance [or a multiunit residential property at which a public nuisance exists], the court may, on its own motion or on the motion of any party, order the appointment of a receiver to manage the property or render any other order allowed by law as necessary to abate the nuisance. SECTION 8. Subchapter C, Chapter 125, Civil Practice and Remedies Code, is amended by adding Section 125.047 to read as follows: Sec. 125.047. NUISANCE ABATEMENT FUND. (a) In this section: (1) "Fund" means a nuisance abatement fund. (2) "Nuisance abatement" means an activity taken by a municipality to reduce the occurrences of a common or public nuisance. (b) This section applies only to a municipality with a population of 1.5 million or more. (c) A municipality shall create a fund as a separate account in the treasury of the municipality. (d) The fund consists of: (1) money awarded the municipality in an action under this chapter; (2) money awarded the municipality under a settlement to an action under this chapter; (3) fines resulting from code enforcement citations issued by the municipality for conduct defined as a common or public nuisance under this chapter; (4) bonds forfeited to the municipality under this chapter; and (5) donations or grants made to the municipality for the purpose of nuisance abatement. (e) The money in the fund may be used only for the purpose of ongoing nuisance abatement. That purpose includes: (1) regular and overtime compensation for nuisance abatement or enforcement personnel; and (2) hiring additional personnel for nuisance abatement as needed. SECTION 9. Sections 125.061-125.063, Civil Practice and Remedies Code, are amended to read as follows: Sec. 125.061. DEFINITIONS. In this subchapter: (1) "Combination"[, "combination"] and "criminal street gang" have the meanings assigned by Section 71.01, Penal Code. (2) "Continuously or regularly" means at least five times in a period of not more than six months. (3) "Gang activity" means the following types of conduct: (A) organized criminal activity as described by Section 71.02, Penal Code; (B) terroristic threat as described by Section 22.07, Penal Code; (C) coercing, soliciting, or inducing gang membership as described by Section 22.015, Penal Code; (D) criminal trespass as described by Section 30.05, Penal Code; (E) disorderly conduct as described by Section 42.01, Penal Code; (F) criminal mischief as described by Section 28.03, Penal Code, that causes a pecuniary loss of $500 or more; (G) a graffiti offense in violation of Section 28.08, Penal Code, that: (i) causes a pecuniary loss of $500 or more; or (ii) occurs at a school, an institution of higher education, a place of worship or human cemetery, a public monument, or a community center that provides medical, social, or educational programs; (H) a weapons offense in violation of Chapter 46, Penal Code; or (I) unlawful possession of a substance or other item in violation of Chapter 481, Health and Safety Code. Sec. 125.062. PUBLIC NUISANCE; COMBINATION. A combination or criminal street gang that continuously or regularly associates in gang [organized criminal] activities [as described by Section 71.02, Penal Code,] is a public nuisance. Sec. 125.063. PUBLIC NUISANCE; USE OF PLACE. The habitual use of a place by a combination or criminal street gang for engaging in gang [organized criminal] activity [as described by Section 71.02, Penal Code,] is a public nuisance. SECTION 10. Section 125.064(b), Civil Practice and Remedies Code, is amended to read as follows: (b) Any person who habitually associates with others to engage in gang [organized criminal] activity as a member of a combination or criminal street gang may be made a defendant in the suit. Any person who owns or is responsible for maintaining a place that is habitually used for engaging in gang [organized criminal] activity [as described by Section 71.02, Penal Code,] may be made a defendant in the suit. SECTION 11. Section 125.065, Civil Practice and Remedies Code, is amended to read as follows: Sec. 125.065. COURT ORDER. (a) If the court finds that a combination or criminal street gang constitutes a public nuisance, the court may enter an order: (1) enjoining a defendant in the suit from engaging in the gang [organized criminal] activities of the combination or gang; and (2) imposing other reasonable requirements to prevent the combination or gang from engaging in future gang activities. (b) If the court finds that a place is habitually used in a manner that constitutes a public nuisance, the court may include in its order reasonable requirements to prevent the use of the place for gang [organized criminal] activity. SECTION 12. Subchapter D, Chapter 125, Civil Practice and Remedies Code, is amended by adding Section 125.0675 to read as follows: Sec. 125.0675. INJUNCTION FOR SPECIFIED PERIOD. In addition to any other order that may be issued under this subchapter or other law, a court of appeals or a trial court acting under Section 125.067(b) or (c) may issue an injunctive order under this subchapter that expires not later than the 180th day after the date a temporary injunctive order is issued under Section 125.065. SECTION 13. Section 125.069, Civil Practice and Remedies Code, is amended to read as follows: Sec. 125.069. USE OF PLACE; EVIDENCE. In an action brought under this subchapter, proof that gang [organized criminal] activity by a member of a combination or a criminal street gang [as described by Section 71.02, Penal Code,] is frequently committed at a place or proof that a place is frequently used for engaging in gang [organized criminal] activity by a member of a combination or a criminal street gang [as described by Section 71.02, Penal Code,] is prima facie evidence that the proprietor knowingly permitted the act, unless[,] the act constitutes conspiring to commit gang activity [an offense as described by Section 71.02]. SECTION 14. Subchapter B, Chapter 125, Civil Practice and Remedies Code, and Section 125.041, Civil Practice and Remedies Code, are repealed. SECTION 15. This Act takes effect September 1, 2003, and applies only to a cause of action that accrues on or after that date. An action that accrued before the effective date of this Act is governed by the law applicable to the action immediately before the effective date of this Act, and that law is continued in effect for that purpose.