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.