78R5167 SLO-F
By: Giddings 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) engaging in a voluntary fight between a man and a
bull if the fight is for a thing of value or a championship, if a
thing of value is wagered on the fight, or if an admission fee for
the fight is directly or indirectly charged, as prohibited by law
[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;
(3) reckless discharge of a firearm as prohibited by
the [described by Section 42.12,] Penal Code;
(4) engaging in organized criminal activity as a
member of a combination as prohibited by the [described by Section
71.02,] Penal Code; [or]
(5) delivery, possession, manufacture, or use of a
controlled substance in violation of Chapter 481, Health and Safety
Code;
(6) gambling, gambling promotion, or communicating
gambling information as prohibited by the Penal Code;
(7) prostitution, promotion of prostitution, or
aggravated promotion of prostitution as prohibited by the Penal
Code;
(8) compelling prostitution as prohibited by the Penal
Code; or
(9) 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, is about to use, 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 125.001 is
frequently committed at the place involved or that the place is
frequently used for an activity described by Section 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, in any judicial
proceeding, a court determines that a person has maintained a place
at which a common [public] nuisance existed, the court shall
require the 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 person will not 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.
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 B, Chapter 125, Civil Practice and
Remedies Code, and Section 125.041, Civil Practice and Remedies
Code, are repealed.
SECTION 9. 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.