HBA-NLM C.S.S.B. 1268 76(R)BILL ANALYSIS Office of House Bill AnalysisC.S.S.B. 1268 By: Ellis Urban Affairs 5/14/1999 Committee Report (Substituted) BACKGROUND AND PURPOSE Currently, a municipality does not have specific authority to send a notice of nuisance to a property owner's address, which is supplied by the appraisal district. Also, some property owners do not accept certified mail, causing the mail to be returned as refused or unclaimed. C.S.S.B. 1268 authorizes a municipality to send a notice of a nuisance violation to the address listed in the property owner's appraisal district record, and provides that notices returned to a municipality by the U.S. Postal Service marked "refused" or "unclaimed" are considered delivered. This bill provides that a municipality must exercise due diligence to determine the identity and address of a property owner, lienholder, or mortgagee, when enforcing an ordinance that requires a municipality to give notice to the property owner, lienholder, or mortgagee. This bill also provides that when a municipality mails a notice to a property owner, lienholder, or mortgagee of a violation of a certain ordinance or of a related hearing or order, and it is returned as "refused" or "unclaimed," the validity of the notice is not affected, and the notice is considered as delivered. It authorizes a municipality by ordinance to adopt a procedure for an administrative adjudication hearing under which an administrative penalty is authorized to be imposed in order to enforce certain ordinances. In addition, this bill authorizes the notice for removal and abatement of a public nuisance to be placed on the nuisance, if the post office address of the last known registered owner of the nuisance is unknown or if the owner cannot be located. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 342.006, Health and Safety Code, by amending Subsection (b) and adding a new Subsection (c), as follows: (b) Provides that the nuisance notice required by this section must be given by letter addressed to the owner at the owner's address, rather than the owner's post office address, as recorded in the appraisal district records of the appraisal district in which the property is located. (c) Provides that, if a municipality mails a notice to property owner in accordance with this section and the United States Postal Service returns the notice as "refused" or "unclaimed," the validity of the notice is not affected, and the notice is considered as delivered. (d) Redesignated from existing Subsection (c). SECTION 2. Amends Subchapter A, Chapter 54, Local Government Code, by adding Section 54.0045, as follows: Sec. 54.0045. NOTICE FOR VIOLATIONS OF CERTAIN HEALTH AND SAFETY ORDINANCES. (a) Provides that a municipality must exercise due diligence to determine the identity and address of a property owner, lienholder, or mortgagee, when enforcing an ordinance that requires a municipality to give notice to the property owner, lienholder, or mortgagee. (b) Provides that a municipality exercises due diligence when determining the identity and address of an owner, lienholder, or mortgagee, when it searches certain specified records. (c) Provides that when a municipality mails a notice in accordance with applicable law to a property owner, lienholder, or mortgagee of a violation of an ordinance described by Section 54.032 (Ordinances Subject to Quasi-Judicial Enforcement), Local Government Code, or of a related hearing or order, and the United States Postal Service returns the notice as "refused" or "unclaimed," the validity of the notice is not affected, and the notice is considered as delivered. SECTION 3. Amends Sections 54.035(a) and (b), Local Government Code, as follows: (a) Provides that notice of all proceedings before the panel of the Building and Standards Commission (commission panel) must be given by personal delivery, in addition to certified mail, return receipt requested, to the record owners of the affected property, and to each holder of a recorded lien against the property, as shown by the records in the office of the county clerk of the county in which the affected property is located if the address of the lienholder can be ascertained from the deed of trust establishing the lien and/or other applicable instruments on file in the office of the county clerk. (b) Provides that a notice under Subsection (a) must state the date, time, and place of the proceeding before the commission panel. Provides that a notice that is personally delivered must be delivered on or before five days before the proceeding. Provides that a notice that is mailed or posted must be mailed or posted on or before 10 days before the date of the proceeding. Deletes text requiring notice to be mailed and posted 10 days prior to the hearing before the commission panel and must state the date, time, and place of the hearing. Makes a conforming change. SECTION 4. Amends Section 54.039(a), Local Government Code, to make a conforming change. SECTION 5. Amends Subchapter B, Chapter 54, Local Government Code, by adding Section 54.020, as follows: Sec. 54.020. ALTERNATIVE ENFORCEMENT PROCEDURES. (a) Authorizes a municipality by ordinance to adopt a procedure for an administrative adjudication hearing under which an administrative penalty is authorized to be imposed to enforce an ordinance described by Section 54.012 (Civil Action), Local Government Code. (b) Provides that a procedure adopted under this section must entitle the person charged with violating an ordinance to a hearing and must provide for the period during which a hearing is required to be held, the appointment of a hearing officer with authority to administer oaths and issue orders compelling the attendance of witnesses and the production of documents, and the amount and disposition of administrative penalties, costs, and fees. (c) Authorizes a municipal court to enforce an order of a hearing officer compelling the attendance of a witness or the production of a document. (d) Specifies the provisions that a citation or summons issued as part of a procedure adopted under this section must contain. (e) Requires the original or a copy of the summons or citation to be kept as a record in the ordinary course of business of the municipality and is rebuttable proof of the facts it states. (f) Provides that the person who issued the citation or summons is not required to attend a hearing under this section. (g) Provides that a person charged with violating an ordinance who fails to appear at a hearing authorized under this section is considered to admit liability for the violation charged. (h) Specifies the provisions that the hearing officer is required to state in an order issued under this section, at a hearing under this section. (i) Authorizes an order issued under this section to be filed with the clerk or secretary of the municipality, who is required to keep the order in a separate index and file. Authorizes the order to be recorded using microfilm, microfiche, or data processing techniques. (j) Specifies the means by which an order issued under this section against a person charged with an ordinance violation is authorized to be enforced. (k) Authorizes a person who is found by a hearing officer to have violated an ordinance, to appeal the determination by filing a petition in municipal court before 31 days after the hearing officer's determination is filed. Provides that an appeal does not stay enforcement and collection of the judgment unless the person, before filing the appeal, posts a bond with an agency designated for that purpose by the municipality. SECTION 6. Amends Sections 214.001(d), (g), and (p), Local Government Code, to require the municipality to personally deliver or send by certified mail, return receipt requested, to each identified mortgagee and lienholder a notice containing certain information. Authorizes a hearing under this section to be held by an administrative hearing officer, or a panel of not more than 12 members appointed by a governing body of the municipality, in addition to a civil municipal court. Makes conforming changes. SECTION 7. Amends Section 214.0012(a), Local Government Code, to make a conforming change. SECTION 8. Amends Section 683.075, Transportation Code, to authorize the notice for removal and abatement of a public nuisance to be placed on the nuisance, if the post office address of the last known registered owner of the nuisance is unknown or if the owner cannot be located. Deletes the provision authorizing the notice to be hand delivered if the owner is located. Makes conforming changes. SECTION 9.Makes application of this Act prospective, as it applies to a notice of a violation of a municipal ordinance or statute. SECTION 10.Effective date: September 1, 1999. SECTION 11.Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE C.S.S.B. 1268 redesignates SECTIONS 2 (effective date and prospective clause) and 3 (emergency clause) of the original bill to SECTIONS 9 (prospective clause), 10 (effective date), and 11 (emergency clause) of the substitute. This substitute adds new SECTION 2, which amends Subchapter A, Chapter 54, Local Government Code, by adding Section 54.0045. For further explanation, please refer to the Section-by-Section Analysis in this document. This substitute adds new SECTION 3, which amends Sections 54.035(a) and (b), Local Government Code. For further explanation, please refer to the Section-by-Section Analysis in this document. This substitute adds new SECTION 4, which amends Section 54.039(a), Local Government Code. For further explanation, please refer to the Section-by-Section Analysis in this document. This substitute adds new SECTION 5, which amends Subchapter B, Chapter 54, Local Government Code, by adding Section 54.020. For further explanation, please refer to the Section-by-Section Analysis in this document. This substitute adds new SECTION 6, which amends Sections 214.001(d), (g), and (p), Local Government Code. For further explanation, please refer to the Section-by-Section Analysis in this document. This substitute adds new SECTION 7, which amends Sections 214.0012(a), Local Government Code. For further explanation, please refer to the Section-by-Section Analysis in this document. This substitute adds new SECTION 8, which amends Section 683.075, Transportation Code. For further explanation, please refer to the Section-by-Section Analysis in this document. This substitute also modifies the prospective clause in SECTION 9 to make application of this Act prospective as it applies to a notice of a violation of a municipal ordinance or statute. The original bill made application of Section 342.006, Health and Safety Code, as amended by this Act prospective.