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79R1637 MFC-D
By: Hochberg H.B. No. 2086
A BILL TO BE ENTITLED
AN ACT
relating to abatement of certain nuisances; providing a penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 6, Civil Practice and Remedies Code, is
amended by adding Chapter 138 to read as follows:
CHAPTER 138. NUISANCES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 138.001. DEFINITIONS. In this chapter:
(1) "Combination" and "criminal street gang" have the
meanings assigned by Section 71.01, Penal Code.
(2) "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.
(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.
(4) "Nuisance" means a nuisance maintained as
described by Subchapter B.
Sec. 138.002. CHAPTER NOT APPLICABLE TO BOOKSTORE OR MOVIE
THEATER. Notwithstanding any other provision of this chapter, this
chapter does not authorize an action to enjoin and abate a nuisance
against any enterprise whose sole business is that of a bookstore or
movie theater.
[Sections 138.003–138.050 reserved for expansion]
SUBCHAPTER B. MAINTENANCE OF NUISANCES
Sec. 138.051. KNOWING MAINTENANCE OF PLACE TO WHICH PERSONS
HABITUALLY GO FOR CERTAIN PURPOSES. A person maintains a nuisance
if the person knowingly maintains a place to which persons
habitually go for the following purposes:
(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.
Sec. 138.052. MAINTENANCE OF MULTIUNIT RESIDENTIAL
PROPERTY TO WHICH PERSONS HABITUALLY GO TO COMMIT CERTAIN ACTS. A
person maintains a nuisance if the person:
(1) knowingly maintains a multiunit residential
property 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;
(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.
Sec. 138.053. COMBINATION OR CRIMINAL STREET GANG. (a) A
combination or a criminal street gang is a nuisance if the
combination or gang engages in gang activity at least five times
during a period of six months or less.
(b) A person maintains a nuisance if the person knowingly
maintains a place habitually used by a combination or criminal
street gang engaging in gang activity.
[Sections 138.054–138.100 reserved for expansion]
SUBCHAPTER C. INITIATION OF ACTION
Sec. 138.101. WHO MAY BRING AN ACTION. (a) An action to
enjoin and abate a nuisance may be brought by:
(1) the attorney general;
(2) a district, county, or municipal attorney; or
(3) an individual.
(b) The action must be brought in the name of:
(1) the state if brought by the attorney general or a
district or county attorney;
(2) the municipality if brought by a municipal
attorney; or
(3) the individual if brought by a private citizen.
Sec. 138.102. REQUEST FOR MEETING. (a) The voters of an
election precinct in which a 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, municipal
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.
(b) The written request must be signed by at least:
(1) 10 percent of the registered voters of the
election precinct in which the 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.
Sec. 138.103. NOTICE OF MEETING. The district attorney,
municipal attorney, or county attorney receiving a request under
Section 138.102 may:
(1) post notice of the purpose, time, and place of the
meeting at either the county courthouse of the county or the
municipal hall of the municipality in which the place that is the
subject of the complaints is located and publish the notice in a
newspaper of general circulation published in that county or
municipality; and
(2) serve the notice, by personal service, to the
owner and the operator of the place.
Sec. 138.104. MEETING; FINDINGS. (a) On receipt of a
request under Section 138.102 and posting of notice under Section
138.103, the district attorney, municipal attorney, or county
attorney may appoint a person to conduct the meeting at a location
as near as practical to the place that is the subject of the
complaints.
(b) After the meeting, the person appointed to conduct the
meeting shall report the findings to the district attorney,
municipal attorney, or county attorney who appointed the person.
Sec. 138.105. INITIATION OF PROCEEDINGS. The district
attorney, municipal attorney, or county attorney shall evaluate the
findings of the person appointed to conduct the meeting under
Section 138.104. On a determination by the attorney that a nuisance
exists or is likely to be created, the attorney may initiate
appropriate available proceedings against the persons owning or
operating the place at which the nuisance exists or is likely to be
created.
[Sections 138.106–138.150 reserved for expansion]
SUBCHAPTER D. PROCEDURE
Sec. 138.151. VENUE. An action to enjoin and abate a
nuisance must be brought in the county in which it is alleged to
exist.
Sec. 138.152. PETITION. The petition to enjoin and abate a
nuisance:
(1) need not be verified; and
(2) need not show proof of personal injury, including
economic or monetary loss.
Sec. 138.153. ACTION INVOLVING USE OF REAL PROPERTY. A
person may bring an action to enjoin and abate a nuisance involving
the use of real property:
(1) against any person who maintains, owns, uses, or
engages in gang activity at the property; or
(2) in rem against the property itself.
Sec. 138.154. SERVICE. Service of any order, notice,
process, motion, or ruling of the court on the attorney of record of
an action under this chapter is sufficient service of the party
represented by an attorney.
Sec. 138.155. BOND. (a) If, after notice and hearing on a
request by a petitioner for a temporary injunction, a court
determines that the petitioner is likely to succeed on the merits in
an action brought under this subchapter, the court shall require
that the defendant execute a bond.
(b) The bond must:
(1) be payable to the state at the county seat of the
county in which the place is located;
(2) be in the amount set by the court, but not less
than $1,000 or more than $10,000;
(3) have sufficient sureties approved by the court;
and
(4) be conditioned that the defendant will not
knowingly maintain a nuisance to exist at the place.
Sec. 138.156. NOTICE OF LIS PENDENS. (a) In an action to
enjoin and abate a nuisance, the petitioner may file a notice of lis
pendens and a certified copy of an order of the court in the office
of the county clerk in each county in which the land is located.
(b) The notice of lis pendens:
(1) must conform to the requirements of Section
12.007, Property Code; and
(2) constitutes notice as provided by Section 13.004,
Property Code.
(c) A certified copy of an order of the court filed in the
office of the county clerk:
(1) constitutes notice of the terms of the order; and
(2) binds subsequent purchasers and lienholders.
Sec. 138.157. EVIDENCE. In an action to enjoin or abate a
nuisance involving certain activity at a place:
(1) proof that an activity is frequently committed at
the place or that the place is frequently used for an activity is
prima facie evidence that the defendant knowingly permitted the
activity, unless the activity is conspiring to commit gang
activity;
(2) evidence that persons have been arrested for or
convicted of offenses for an activity at the place is admissible to
show knowledge on the part of the defendant that the activity
occurred;
(3) originals or certified copies of the papers and
judgments of arrests or convictions described by Subdivision (2)
are admissible;
(4) oral evidence is admissible to show that the
offense for which a person was arrested or convicted was committed
at the place; and
(5) evidence of the general reputation of the place is
admissible to show the existence of the nuisance.
Sec. 138.158. TRIAL ON THE MERITS. If an appeal is not
taken by a party temporarily enjoined under this chapter, the
parties are entitled to a full trial on the merits not later than
the 90th day after the date of the temporary injunctive order.
[Sections 138.159–138.200 reserved for expansion]
SUBCHAPTER E. ENFORCEMENT
Sec. 138.201. COURT ORDER. (a) If judgment in an action
under this chapter is in favor of the petitioner, the court shall
enter an order:
(1) enjoining the defendant from maintaining or
participating in the nuisance; and
(2) ordering that the defendant abate the nuisance.
(b) The court may include in its order other reasonable
requirements to prevent the use or maintenance of the place as a
nuisance.
(c) For a nuisance described by Section 138.053, the court
may include in its order other reasonable requirements to prevent
the combination or gang from engaging in future gang activities.
Sec. 138.202. VIOLATION OF COURT ORDER. A court that finds
a person in violation of a temporary or permanent injunctive order
issued to enjoin or abate a nuisance may find the person in civil
contempt and order the person to:
(1) pay a fine of not less than $1,000 or more than
$10,000;
(2) be confined to jail for a term of not less than 10
or more than 30 days; or
(3) submit to both the fine and confinement.
Sec. 138.203. ACTION IN REM; BOND. (a) If a person brings
an action to enjoin and abate a nuisance in rem, a judgment in favor
of the petitioner is a judgment in rem against the property as well
as a judgment against the defendant.
(b) The judgment must order that the real property where the
nuisance exists be closed for one year after the date of judgment
unless the defendant or the property owner, lessee, or tenant of the
property posts bond.
(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 the activity that is the nuisance.
Sec. 138.204. VIOLATION OF BOND; SUING ON BOND IF COURT
ORDER VIOLATED. (a) If a condition of a bond filed or an injunctive
order entered to enjoin or abate a nuisance at a place is violated,
the district, county, or municipal attorney of the county in which
the place is located or the attorney general shall sue on the bond
in the name of the state.
(b) If the attorney general originates the action, the whole
sum shall be forfeited as a penalty to the state. If the action is
originated by any office other than the attorney general, the whole
sum shall be forfeited as a penalty to the originating entity.
(c) On violation of any condition of the bond or of the
injunctive order and subsequent to forfeiture of the bond, the real
property where the nuisance exists shall be ordered closed for one
year from the date of the order of bond forfeiture.
Sec. 138.205. COSTS. A party successfully bringing an
action to enjoin or abate a nuisance may recover reasonable
expenses incurred in prosecuting the action, including
investigative costs, court costs, witness fees, and deposition
fees.
Sec. 138.206. ATTORNEY'S FEES. (a) In an action to enjoin
or abate a nuisance, the court may award a prevailing party
reasonable attorney's fees in addition to costs.
(b) In determining the amount of attorney's fees, the court
shall consider:
(1) the time and labor involved;
(2) the novelty and difficulty of the questions;
(3) the expertise, reputation, and ability of the
attorney; and
(4) any other factor considered relevant by the court.
Sec. 138.207. ADDITIONAL REMEDIES. If any party to a
nuisance action under this chapter does not cease and desist
creating and maintaining a 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 municipal 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.
Sec. 138.208. RECEIVERSHIP. (a) A court that determines
that a person is maintaining a multiunit residential property that
is a nuisance 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.
(b) A receiver appointed under this section may not be
appointed for a period longer than one year.
(c) The court shall determine the management duties of the
receiver, the amount to be paid the receiver, the method of payment,
and the payment periods.
(d) A receiver appointed under this section shall continue
to manage the property during the pendency of any appeal relating to
the nuisance or the appointment of the receiver.
(e) A receiver appointed by the court may:
(1) take control of the property;
(2) collect rents due on the property;
(3) make or have made any repairs necessary to bring
the property into compliance with minimum standards in local
ordinances;
(4) make payments necessary for the maintenance or
restoration of utilities to the property;
(5) purchase materials necessary to accomplish
repairs;
(6) renew existing rental contracts and leases;
(7) enter into new rental contracts and leases;
(8) affirm, renew, or enter into a new contract
providing for insurance coverage on the property; and
(9) exercise all other authority that an owner of the
property would have except for the authority to sell the property.
(f) Expenditures of money by the receiver in excess of
$10,000 under Subsections (e)(3) and (5) must be approved in
advance by the court.
(g) On the completion of the receivership, the receiver
shall file with the court a full accounting of all costs and
expenses incurred in the repairs, including reasonable costs for
labor and subdivision, and all income received from the property.
[Sections 138.209–138.250 reserved for expansion]
SUBCHAPTER F. APPEAL
Sec. 138.251. DISCONTINUATION OF ACTIVITIES PENDING TRIAL
OR APPEAL. A person may not continue the enjoined activity pending
appeal or trial on the merits of an injunctive order entered in an
action brought under this chapter.
Sec. 138.252. TIME OF APPEAL. 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 chapter.
[Sections 138.253-138.300 reserved for expansion]
SUBCHAPTER G. NUISANCE ABATEMENT FUND
Sec. 138.301. DEFINITIONS. In this subchapter:
(1) "Fund" means a nuisance abatement fund.
(2) "Nuisance abatement" means an activity taken by a
municipality to reduce the occurrences of a nuisance under this
chapter.
Sec. 138.302. APPLICABILITY. This subchapter applies only
to a municipality with a population of 1.5 million or more.
Sec. 138.303. NUISANCE ABATEMENT FUND. (a) A municipality
to which this subchapter applies shall create a fund as a separate
account in the treasury of the municipality.
(b) 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 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.
Sec. 138.304. USE OF FUND. The money in the fund may be used
only for the purpose of ongoing nuisance abatement, including:
(1) regular and overtime compensation for nuisance
abatement or enforcement personnel; and
(2) hiring additional personnel for nuisance
abatement as needed.
SECTION 2. Section 41.005(b), Civil Practice and Remedies
Code, is amended to read as follows:
(b) The exemption provided by Subsection (a) does not apply
if:
(1) the criminal act was committed by an employee of
the defendant;
(2) the defendant is criminally responsible as a party
to the criminal act under the provisions of Chapter 7, Penal Code;
(3) the criminal act occurred at a location where, at
the time of the criminal act, the defendant was maintaining a
[common] nuisance under the provisions of Chapter 138 [125, Civil
Practice and Remedies Code,] and had not made reasonable attempts
to abate the nuisance; or
(4) the criminal act resulted from the defendant's
intentional or knowing violation of a statutory duty under
Subchapter D, Chapter 92, Property Code, and the criminal act
occurred after the statutory deadline for compliance with that
duty.
SECTION 3. Chapter 125, Civil Practice and Remedies Code,
is repealed.
SECTION 4. 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 at the time the cause of action
accrued, and that law is continued in effect for that purpose.
SECTION 5. This Act takes effect September 1, 2005.