79(R) HB 1690 - Senate Committee Report version


                                                                                


By:  Keel, et al. (Senate Sponsor - West)                         H.B. No. 1690
	(In the Senate - Received from the House April 25, 2005; 
April 26, 2005, read first time and referred to Committee on State 
Affairs; May 18, 2005, reported adversely, with favorable 
Committee Substitute by the following vote:  Yeas 8, Nays 0; 
May 18, 2005, sent to printer.)


COMMITTEE SUBSTITUTE FOR H.B. No. 1690                                   By:  Madla


A BILL TO BE ENTITLED

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 knowingly tolerates 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[:
			[(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(b), Civil Practice and Remedies 
Code, is amended 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.
	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 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.
	SECTION 5.  Section 125.044(b), Civil Practice and Remedies 
Code, is amended 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 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.
	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.                           



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