By: Leibowitz, Quintanilla, Marquez, Pickett H.B. No. 459

A BILL TO BE ENTITLED

AN ACT

relating to county abatement and regulation of nuisances and certain massage parlors; providing civil and criminal penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 343.002(1), Health and Safety Code, is amended to read as follows:

(1) "Abate" means to eliminate or remedy:

(A) by removal, repair, rehabilitation, or demolition;

(B) in the case of a nuisance under Section 343.011(c)(1), (5), (9) [(8)], or (10) [(9)], by prohibition or control of access; and

(C) in the case of a nuisance under Section 343.011(c)(12) [343.011(c)(11)], by removal, remediation, storage, transportation, disposal, or other means of waste management authorized by Chapter 361.

SECTION 2. Section 343.011(c), Health and Safety Code, as amended by Chapters 388 (S.B. 680) and 1366 (H.B. 3581), Acts of the 80th Legislature, Regular Session, 2007, is reenacted and amended to read as follows:

(c) A public nuisance is:

(1) keeping, storing, or accumulating refuse on premises in a neighborhood unless the refuse is entirely contained in a closed receptacle;

(2) keeping, storing, or accumulating rubbish, including newspapers, abandoned vehicles, refrigerators, stoves, furniture, tires, and cans, on premises in a neighborhood or within 300 feet of a public street for 10 days or more, unless the rubbish or object is completely enclosed in a building or is not visible from a public street;

(3) maintaining premises in a manner that creates an unsanitary condition likely to attract or harbor mosquitoes, rodents, vermin, or disease-carrying pests;

(4) allowing weeds to grow on premises in a neighborhood if the weeds are located within 300 feet of another residence or commercial establishment;

(5) maintaining a building in a manner that is structurally unsafe or constitutes a hazard to safety, health, or public welfare because of inadequate maintenance, unsanitary conditions, dilapidation, obsolescence, disaster, damage, or abandonment or because it constitutes a fire hazard;

(6) maintaining on abandoned and unoccupied property in a neighborhood a swimming pool that is not protected with:

(A) a fence that is at least four feet high and that has a latched and locked gate; and

(B) a cover over the entire swimming pool that cannot be removed by a child;

(7) maintaining on any property in a neighborhood in a county with a population of more than 1.1 million a swimming pool that is not protected with:

(A) a fence that is at least four feet high and that has a latched gate that cannot be opened by a child; or

(B) a cover over the entire swimming pool that cannot be removed by a child;

(8) maintaining a flea market in a manner that constitutes a fire hazard;

(9) discarding refuse or creating a hazardous visual obstruction on:

(A) county-owned land; or

(B) land or easements owned or held by a special district that has the commissioners court of the county as its governing body;

(10) discarding refuse on the smaller of:

(A) the area that spans 20 feet on each side of a utility line; or

(B) the actual span of the utility easement;

(11) filling or blocking a drainage easement, failing to maintain a drainage easement, maintaining a drainage easement in a manner that allows the easement to be clogged with debris, sediment, or vegetation, or violating an agreement with the county to improve or maintain a drainage easement; or

(12) [(11)] discarding refuse on property that is not authorized for that activity.

SECTION 3. Section 343.012(a), Health and Safety Code, is amended to read as follows:

(a) A person commits an offense if:

(1) the person violates Section 343.011(b); and

(2) the nuisance remains unabated after the 10th [30th] day after the date on which the person receives notice from a county official, agent, or employee to abate the nuisance.

SECTION 4. Section 343.013(c), Health and Safety Code, is amended to read as follows:

(c) A county may bring suit under this section to prohibit or control access to the premises to prevent a continued or future violation of Section 343.011(c)(1), (5), (6), (9), or (10). The court may grant relief under this subsection only if the county demonstrates that:

(1) the person responsible for causing the public nuisance has not responded sufficiently to previous attempts to abate a nuisance on the premises, if the relief sought prohibits or controls access of a person other than the owner; or

(2) the owner of the premises knew about the nuisance and has not responded sufficiently to previous attempts to abate a nuisance on the premises, if the relief sought controls access of the owner.

SECTION 5. Section 343.021, Health and Safety Code, as amended by Chapters 388 (S.B. 680) and 1366 (H.B. 3581), Acts of the 80th Legislature, Regular Session, 2007, is reenacted and amended to read as follows:

Sec. 343.021. AUTHORITY TO ABATE NUISANCE. If a county adopts abatement procedures that are consistent with the general purpose of this chapter and that conform to this chapter, the county may abate a nuisance under this chapter:

(1) by demolition or removal;

(2) in the case of a nuisance under Section 343.011(c)(1), (5), (9), or (10), by prohibiting or controlling access to the premises;

(3) in the case of a nuisance under Section 343.011(c)(6), by:

(A) prohibiting or controlling access to the premises and installing a cover that cannot be opened by a child over the entire swimming pool; or

(B) draining and filling the swimming pool; or

(4) in the case of a nuisance under Section 343.011(c)(12) [343.011(c)(11)], by removal, remediation, storage, transportation, disposal, or other means of waste management authorized under Chapter 361.

SECTION 6. Section 343.022(a), Health and Safety Code, as amended by Chapters 388 (S.B. 680) and 1366 (H.B. 3581), Acts of the 80th Legislature, Regular Session, 2007, is reenacted and amended to read as follows:

(a) The abatement procedures adopted by the commissioners court must be administered by a regularly salaried, full-time county employee. A person authorized by the person administering the abatement program may administer:

(1) the prohibition or control of access to the premises to prevent a violation of Section 343.011(c)(1), (5), (6), (9), or (10);

(2) the removal or demolition of the nuisance; and

(3) the abatement of a nuisance described by Section 343.011(c)(12) [343.011(c)(11)].

SECTION 7. Section 343.022(c), Health and Safety Code, is amended to read as follows:

(c) The notice must state:

(1) the specific condition that constitutes a nuisance;

(2) that the person receiving notice shall abate the nuisance before the[:

[(A) 31st day after the date on which the notice is served, if the person has not previously received a notice regarding a nuisance on the premises; or

[(B)] 10th business day after the date on which the notice is served[, if the person has previously received a notice regarding a nuisance on the premises];

(3) that failure to abate the nuisance may result in:

(A) abatement by the county;

(B) assessment of costs to the person responsible for causing the nuisance when that person can be identified; and

(C) a lien against the property on which the nuisance exists, if the person responsible for causing the nuisance has an interest in the property;

(4) that the county may prohibit or control access to the premises to prevent a continued or future nuisance described by Section 343.011(c)(1), (5), (6), (9), or (10); and

(5) that the person receiving notice is entitled to submit a written request for a hearing before the[:

[(A) 31st day after the date on which the notice is served, if the person has not previously received a notice regarding a nuisance on the premises; or

[(B)] 10th business day after the date on which the notice is served[, if the person has previously received a notice regarding a nuisance on the premises].

SECTION 8. Section 343.0235, Health and Safety Code, is amended to read as follows:

Sec. 343.0235. USE OF COUNTY FUNDS. A county is entitled to use any money available under other law for a cleanup or remediation of private property to abate a nuisance described by Section 343.011(c)(1), (5), (9), or (10).

SECTION 9. Chapter 234, Local Government Code, is amended by adding Subchapter D to read as follows:

SUBCHAPTER D. MASSAGE PARLORS IN CERTAIN COUNTIES

Sec. 234.101. DEFINITIONS. In this subchapter:

(1) "Massage parlor" means a massage establishment that allows:

(A) a nude or partially nude employee to provide massage therapy or other massage services to a customer;

(B) any individual to engage in sexual contact in the massage establishment; or

(C) any individual to practice massage therapy in the nude or in clothing designed to arouse or gratify the sexual desire of any individual.

(2) "Nude" and "sexual contact" have the meanings assigned by Section 455.202, Occupations Code.

Sec. 234.102. APPLICABILITY. This subchapter applies only to a county with a population of 3.3 million or more.

Sec. 234.103. AUTHORITY TO REGULATE. To promote public health, safety, and welfare, the commissioners court of a county by order may prohibit or otherwise regulate massage parlors located in the unincorporated area of the county.

Sec. 234.104. INJUNCTION. A district or county attorney may bring suit to enjoin the operation of a massage parlor in violation or threatened violation of a prohibition or other regulation adopted under this subchapter.

Sec. 234.105. CIVIL PENALTY. (a) A person who violates a prohibition or regulation adopted by the county under this subchapter is liable to the county for a civil penalty of not more than $1,000 for each violation. Each day a violation continues is considered a separate violation for purposes of assessing the civil penalty.

(b) A county may bring suit in a district court to recover a civil penalty authorized by Subsection (a).

Sec. 234.106. CRIMINAL PENALTY. (a) A person commits an offense if the person intentionally or knowingly operates a massage parlor in violation of a prohibition or regulation adopted under this subchapter by the commissioners court.

(b) An offense under this section is a Class A misdemeanor.

Sec. 234.107. CUMULATIVE EFFECT. Authority under this subchapter is cumulative of other authority that a county has to regulate massage parlors and does not limit that other authority.

SECTION 10. The change in law made by Section 343.012, Health and Safety Code, as amended by this Act, applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense was committed before that date.

SECTION 11. This Act takes effect September 1, 2009.