H.B. No. 1690
AN ACT
relating to common nuisance.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 125.001(3), Civil Practice and Remedies
Code, is amended to read as follows:
(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.
SECTION 2. Section 125.0015, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 125.0015. COMMON NUISANCE. (a) A person who
[knowingly] maintains a place to which persons habitually go for
the following purposes and who knowingly tolerates the activity and
furthermore fails to make reasonable attempts to abate the activity
maintains a common nuisance:
(1) discharge of a firearm in a public place as
prohibited by the Penal Code;
(2) reckless discharge of a firearm as prohibited by
the Penal Code;
(3) engaging in organized criminal activity as a
member of a combination as prohibited by the Penal Code;
(4) 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;
(9) aggravated assault as described by Section 22.02,
Penal Code;
(10) sexual assault as described by Section 22.011,
Penal Code;
(11) aggravated sexual assault as described by Section
22.021, Penal Code;
(12) robbery as described by Section 29.02, Penal
Code;
(13) aggravated robbery as described by Section 29.03,
Penal Code;
(14) unlawfully carrying a weapon as described by
Section 46.02, Penal Code;
(15) murder as described by Section 19.02, Penal Code;
or
(16) capital murder as described by Section 19.03,
Penal Code.
(b) A person maintains a common nuisance if the person[:
[(1) knowingly] maintains a multiunit residential
property to which persons habitually go to commit acts listed in
Subsection (a) and knowingly tolerates the [following] acts and
furthermore fails to make reasonable attempts to abate the 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;
[(F) unlawfully carrying a weapon as described by
Section 46.02, Penal Code;
[(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].
SECTION 3. Section 125.002, Civil Practice and Remedies
Code, is amended by amending Subsection (b) and adding Subsection
(h) to read as follows:
(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. A council
of owners, as defined by Section 81.002, Property Code, or a unit
owners' association organized under Section 82.101, Property Code,
may be sued under this subsection if the council or association
maintains, owns, uses, or is a party to the use of the common areas
of the council's or association's condominium for purposes
constituting a nuisance.
(h) A person who may bring a suit under Section 125.0015
shall consider, among other factors, whether the property owner,
the owner's authorized representative, or the operator or occupant
of the business, dwelling, or other place where the criminal acts
occurred:
(1) promptly notifies the appropriate governmental
entity or the entity's law enforcement agency of the occurrence of
criminal acts on the property; and
(2) cooperates with the governmental entity's law
enforcement investigation of criminal acts occurring at the
property.
SECTION 4. Section 125.004, Civil Practice and Remedies
Code, is amended by amending Subsections (a) and (b) and adding
Subsection (d) to read as follows:
(a) Proof that an activity described by Section 125.0015 is
frequently committed at the place involved or that the place is
frequently used for an activity described by Section 125.0015 is
prima facie evidence that the defendant knowingly tolerated
[permitted] the activity.
(b) Evidence that persons have been arrested for or
convicted of offenses for an activity described by Section 125.0015
in the place involved is admissible to show knowledge on the part of
the defendant with respect to [that] the act that 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.
(d) Notwithstanding Subsection (a), evidence that the
defendant, the defendant's authorized representative, or another
person acting at the direction of the defendant or the defendant's
authorized representative requested law enforcement or emergency
assistance with respect to an activity at the place where the common
nuisance is allegedly maintained is not admissible for the purpose
of showing the defendant tolerated the activity or failed to make
reasonable attempts to abate the activity alleged to constitute the
nuisance but may be admitted for other purposes, such as showing
that a crime listed in Section 125.0015 occurred. Evidence that the
defendant refused to cooperate with law enforcement or emergency
services with respect to the activity is admissible. The posting of
a sign prohibiting the activity alleged is not conclusive evidence
that the owner did not tolerate the activity.
SECTION 5. Section 125.044, Civil Practice and Remedies
Code, is amended by amending Subsection (b) and adding Subsection
(b-1) to read as follows:
(b) In a proceeding begun under Subsection (a):
(1) proof that acts creating a common nuisance are
frequently committed at the place is prima facie evidence that the
owner and the operator knowingly tolerated [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 nuisance is admissible to show knowledge on the part of the
owner and the operator with respect to [that] the acts that
occurred; and
(3) notwithstanding Subdivision (1), evidence that
the defendant, the defendant's authorized representative, or
another person acting at the direction of the defendant or the
defendant's authorized representative requested law enforcement or
emergency assistance with respect to an activity at the place where
the common nuisance is allegedly maintained is not admissible for
the purpose of showing the defendant tolerated the activity or
failed to make reasonable attempts to abate the activity alleged to
constitute the nuisance but may be admitted for other purposes,
such as showing that a crime listed in Section 125.0015 occurred.
Evidence that the defendant refused to cooperate with law
enforcement or emergency services with respect to the activity is
admissible.
(b-1) The posting of a sign prohibiting the activity alleged
is not conclusive evidence that the owner did not tolerate the
activity.
SECTION 6. It is the intent of the legislature that the
passage by the 79th Legislature, Regular Session, 2005, of House
Bill No. 2086 or another bill that repeals Chapter 125, Civil
Practice and Remedies Code, and adds other law governing common or
public nuisance and the amendments made by this Act shall be
harmonized, if possible, as provided by Section 311.025(b),
Government Code, so that effect may be given to each. If the
amendments made by this Act to Chapter 125, Civil Practice and
Remedies Code, and the amendments made by House Bill No. 2086 or any
other bill that repeals Chapter 125, Civil Practice and Remedies
Code, and adds other law governing common or public nuisance are
irreconcilable, it is the intent of the legislature that this Act
prevail, regardless of the relative dates of enactment of this Act
and any other bill, but only to the extent that any differences are
irreconcilable.
SECTION 7. The change in law made by this Act applies only
to a cause of action that accrues on or after the effective date of
this Act. A cause of action that accrues before the effective date
of this Act is governed by the law in effect immediately before that
date, and that law is continued in effect for that purpose.
SECTION 8. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 1690 was passed by the House on April
22, 2005, by a non-record vote; that the House refused to concur in
Senate amendments to H.B. No. 1690 on May 26, 2005, and requested
the appointment of a conference committee to consider the
differences between the two houses; and that the House adopted the
conference committee report on H.B. No. 1690 on May 29, 2005, by a
non-record vote.
______________________________
Chief Clerk of the House
I certify that H.B. No. 1690 was passed by the Senate, with
amendments, on May 23, 2005, by the following vote: Yeas 31, Nays
0; at the request of the House, the Senate appointed a conference
committee to consider the differences between the two houses; and
that the Senate adopted the conference committee report on H.B. No.
1690 on May 29, 2005, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor