Blank Texas Nuisance Abatement Form

Introduction

Chapter 125 of the Texas Civil Practice & Remedies Code and Section 101.70 of the Texas Alcoholic Beverage Code are considered the “Texas Nuisance Abatement Statutes.” These statutes permit law enforcement agencies to close any piece of property involved in illegal activities, including violations of the Texas Penal Code, the Texas Alcoholic Beverage Code and the Texas Controlled Substances Act.

The Office of the Attorney General (OAG) helps Texas municipalities, local prosecutors and law enforcement agencies (including police departments, sheriff offices, task forces, the Texas Alcoholic Beverage Commission and even federal agencies such as Border Patrol) in targeting, processing and filing suit against property owners who allow public and common nuisances to exist on their property. The purpose of a nuisance abatement lawsuit is not to show or prove that the property owner is guilty of illegal acts, but rather to prove that the property owner allowed the illegal activity to occur on the property or failed to make reasonable attempts to stop it.

Many police departments have become skilled at this procedure and have great success on their own. When local law enforcement lacks the resources or experience in such cases, the OAG will send staff when requested to any area of the state to provide technical assistance in initiating the nuisance abatement process. Evidence will be compiled and sent to the OAG for review. Arrest reports, calls for police service and search warrants contained in local departmental records, as well as police officers’ and residents’ affidavits, are all used in this process. When the OAG determines that sufficient evidence exists, a lawsuit will be filed on behalf of the state. The OAG will provide legal representation for the duration of the lawsuit.

Once a property is determined to be a common nuisance, and after a successful suit, it is closed for a period of one year.1 During the pendency of the lawsuit, a temporary injunction can be requested requiring the posting of a bond by the owner to keep the property open pending final resolution of the lawsuit. If a public nuisance is found to exist due to gang activity, civil fines and jail terms for contempt of court may be imposed on those who violate the court orders.

In many instances, actual litigation is not required. When faced with the loss of income from closure, bonds adding up to thousands of dollars and the threat of forfeiture of those bonds, many owners enter into a voluntary abatement of the nuisance.

The nuisance laws can have a positive effect on locations that law enforcement agencies have spent many man-hours policing. In addition, law enforcement agencies may see large monetary savings by reducing the need to respond to these locations in the future. In several instances, businesses that have permitted illegal activity for years have been successfully closed, reducing the burden on law enforcement as well as on the immediate community.

By denying criminal offenders the use of real property as a base of operations, and by securing the property owner’s cooperation in the removal of criminal offenders, neighborhood revitalization can become a reality. Our goal at the OAG is not to abandon other conventional

1Prior to 2007, a property owner could post a penal bond to keep the property open. This provision has been removed requiring automatic closure of the property found to be a nuisance.

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methods of law enforcement at these nuisance sites, but to supplement these efforts by providing an additional tool to address illegal activity in Texas communities.

Summary

Which statutes are considered the “Texas Nuisance Abatement Statutes”?

Chapter 125 of the Texas Civil Practice & Remedies Code (CPRC)

Section 101.70 of the Texas Alcoholic Beverage Code (TABC)

Are there different kinds of nuisances addressed by the statutes?

Yes. Two kinds of nuisances are addressed:

Common (Subchapters A & C of Chapter 125 CPRC and Section 101.70 TABC)

Public (Subchapter D of Chapter 125 CPRC)

What kind of illegal activity can be addressed by the nuisance abatement statutes?

Prostitution

Obscenity

Gambling

Engaging in organized criminal activity

Delivery, possession, manufacture or use of a controlled substance

Discharge of a firearm in a public place

Reckless discharge of a firearm

Commercial manufacture, distribution or exhibition of obscene material

Aggravated assault or sexual assault

Robbery

Unlawful carrying of weapons

Murder

Continuous sexual abuse of a child

Massage therapy or services in violation of Occupations Code

Alcohol violations

Gang activity

Do apartments and motels qualify for nuisance abatement?

Yes. These are defined as multi unit residential properties under the code and are subject to nuisance abatement. These properties can also be subject to the imposition of a receiver to manage the property once a common nuisance is found to exist at the property.

What types of property can be closed?

Any place in the State of Texas that is causing a nuisance as defined by the nuisance abatement statutes can be closed:

Businesses of all kinds

Private residences

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Apartments

Motels

Convenience stores

Any other type of location

Who can be sued?

Owner(s) of real property

Owner(s) of the business

Lessee/renter of the property

Manager of the property

Management company

The real property itself (in rem suit)

Any combination of the above

How long will the property be closed if the lawsuit goes to trial and it is determined that the property is a nuisance?

Under Chapter 125 of the Texas Civil Practice & Remedies Code, the property must be closed for a period of one year.

Under Section 101.70 of the Texas Alcoholic Beverage Code, the property must be closed for a period of up to one year.

What can the owner do to prevent the property from being closed once a judgment is entered to close the property?

Under Chapter 125 of the Texas Civil Practice & Remedies Code, the property must be closed for one year unless it is a multi unit residential property and the court has ordered a receivership in lieu of closure.

Under Section 101.70 of the Texas Alcoholic Beverage Code, the defendant can post a penal surety or cash bond of at least $1,000 for a common nuisance.

What is the standard for proving that a common nuisance exists?

Under Chapter 125 CPRC, must show that people habitually go to the subject property to commit any of the listed crimes (except the alcohol and gang crimes).

Under Section 101.70 TABC, must show that it is a place where alcoholic beverages are sold, bartered, manufactured, stored, possessed, or consumed in violation of the Alcoholic Beverage Code or under circumstances contrary to the purposes of the code.

What happens if the defendant fails to post a bond and/or violates a temporary or permanent injunctive order and the illegal activities continue to take place on the property?

For a common nuisance under Section 101.70 TABC, the defendant is subject to the following:

Loss of bond through forfeiture

Property closure for up to one year

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For a public nuisance (gang abatement), the defendant is subject to the following sentences for civil contempt:

Fine of not less than $1,000 nor more than $10,000

Confinement in jail for a term of not less than 10 nor more than 30 days

Both fine and confinement

Does the case always go to trial?

No.

A notification letter is sent to potentially cooperative property owners requesting a meeting to discuss the illegal activities that are occurring on their property. Operation guidelines to reduce illegal activities on the property will be discussed at the meeting. If the owner agrees to address the concerns of the referring agency and implement the suggestions discussed at the meeting and the referring agency observes improvement, a lawsuit is not filed. The property will be monitored for compliance.

If a lawsuit is filed, the parties may enter into an Agreed Final Judgment. The conditions of operation, amount of the bond to be posted, fees and property improvements are negotiated and incorporated into the agreement. The property is then closely monitored.

Gang Abatement

Street gangs have become a problem in smaller towns as well as the larger cities in Texas. Regardless of the town size, the nuisance abatement statutes can help address gang problems. Under Subchapter D of Chapter 125 of the Texas Civil Practice & Remedies Code, both the gang itself and the places used by the gang to conduct criminal activities can be declared public nuisances.

The nuisance abatement statutes can be useful additions to the various methods law enforcement applies to stem the tide of gang activity. Removing the availability of places for gangs to gather can be very effective in disrupting the gang culture, thus making their activities less organized and more manageable for law enforcement.

A nuisance suit under this subchapter can be brought against the person who owns the property in question, the gang member(s) or both. In a successful suit, the court can enjoin the gang member(s) from engaging in criminal activity and can issue appropriate orders to prevent the continued use of the property for organized criminal activity. Any violations of these court orders can result in civil contempt charges for the offending defendant that can include fines and/or jail time. Additionally, violation of the court order can impose criminal liability under §71.021 of the Penal Code.

Examples of the types of remedies the court can impose on gang members and locations:

The identification and delineation of “safety zones,” which typically reflect the geographic area in which the gang conducts its criminal activities.

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The imposition of curfews on identified gang members, making it illegal for them to be seen in public within the safety zone after a certain time of night.

The enforcement of non-association orders which prevent identified gang members from associating in public with other gang members identified in the lawsuit.

Targeting a Nuisance Location

The first step is to determine whether the illegal activity at the targeted property constitutes a common or public nuisance as defined in the nuisance abatement statutes. A nuisance abatement action should be considered and an investigation should be initiated if the answers to the following questions are “yes:”

Is the property used for committing the acts listed above?

Is there a history of arrests for one or more of these illegal activities at the property?

Will these illegal activities continue if legal action is not taken?

Does the property have a reputation as a place to frequent for one or more of these illegal activities?

Have the lives or businesses of people in the area surrounding the property suffered or been adversely affected by these illegal activities?

For the definitions of a common and public nuisance as defined by Chapter 125 of the Texas Civil Practice & Remedies Code, see Attachment A. For the definition of a common nuisance as defined by Section 101.70 of the Texas Alcoholic Beverage Code, see Attachment B.

Investigation

Most of the evidence needed to support the initiation of a nuisance abatement proceeding is contained in local law enforcement records. The evidence must be fully documented because it may be used in a court of law and discovered by the defendant. The most important evidence is that which shows that the property is a place to which persons habitually go for the purpose of those illegal activities addressed by the Texas Nuisance Abatement Statutes. This evidence can be obtained from arrest reports, citations, search warrants, incident reports, intelligence reports, complaints and calls for police service at the property. Any documentation that can be compiled indicating illegal activity on the property for a two- to three-year time period may be used as evidence. If the investigation shows that an inordinate number of calls for police service have been made and six or more arrests for the same type of illegal activity have occurred in the last six months to a year, this may be indicate a good nuisance abatement case. However, the case must be submitted to the OAG for a more definite determination to be made.

Offense reports must establish the habitual use of the property for illegal activities. It is important that the offense reports indicate that the illegal activity occurred, began or ended on the targeted property or immediately adjacent to it. In other words, the crime must be firmly associated with the target property. The reports must identify the property and be specific in the narrative as to the connection between the crime and the property. For example, to state that a prostitute or drug dealer was observed “coming out of or going into the establishment or parking lot of the property” or that the “criminal activity occurred in the establishment or on the parking

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lot of the property,” clearly connects the crime to the property. Stating that the prostitute or drug dealer was observed “on the street or roadway in front of the establishment” does not necessarily connect the crime to the property.

Site visits and/or surveillance of the property should be conducted to evaluate the physical appearance of the property and to observe the nature of the illegal activities occurring on the property. The site visits will also serve to corroborate (or refute) complaints concerning the property. If code violations of any kind are observed, representatives from any other applicable agency should be contacted to determine if a formal inspection of the property would be in order.

During the investigation, compile a case file that consists of the sections mentioned below with the described information included. Many departments have an automated database that will provide statistical information.

Summary of Illegal Activity. A general summary of the events occurring on the property and any pertinent information related to the investigation. Provide a list of all officers who have conducted investigations on the property and those officers who have made arrests on the property. Also, provide a list and give statistical data on calls for police service, general complaint citations and offense reports generated on the subject property. See Attachment A for an example of a summary of illegal activity.

Property and Property Owner Information. The legal owner of the real property must be identified by obtaining a certified copy of the recorded deed (Warranty Deed or Deed of Trust) from the county clerk’s office or a title agency. The deed will not only provide the name of the owner(s) of the real property, but it will also provide the legal description of the property. The owner(s) of the real property must not be confused with the owner of a business that may be located on the property. The legal owner may be an individual, a group of individuals (joint venture or partnership), or a corporation. Any other information that can be obtained regarding the property owner(s) may be added to this section. For example, if the owner owns any other property or businesses, or if he has a record of any kind, this information can be included. This section may also include the names, addresses, telephone numbers, driver license numbers, photographs and criminal histories of owners, managers, employees, agents or persons who may be directly involved with the ownership or management of the property.

Correspondence, Documents and Notes. Copies are needed of any correspondence, documents, notes or memos regarding the subject property. Copies of all communications between the property owner, employees, managers or any other people who have personal knowledge of the property should be included in this section. All registered or certified mail return receipts of correspondence and all documents evidencing an informal meeting with the property owner should be in this section. This will show the court that your law enforcement agency and the OAG have attempted to obtain the property owner’s cooperation to address the illegal activity before filing suit in the case.

Calls for Service Summary. Statistical information showing the total number of calls made to the property for any reason. This can help show how much more activity is reported and documented at the property in comparison to other similar properties. This

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can help show the court how much of a burden a particular property is on the resources of the referring agency.

Offense Reports. Copies of all arrest reports generated on the property for the last three years. Please provide a subsection for each category of offense that has occurred on the property. For example, place copies of all the arrest reports for narcotic violations in one section, alcohol violations in one section, prostitution cases in one section, assault cases in one section, etc. While the property is under investigation, all arresting officers should provide written narratives for each arrest report. It is important that the prosecuting attorney be provided with all pertinent arrest reports up to the date of the court hearing, as the nuisance will have to be proven to be ongoing. If there are additional reports that can be obtained from other agencies with jurisdiction over the crime(s) involved (ex. DEA, FBI, etc.), those reports or information should be obtained and included, if possible.

Final Dispositions. Copies of all final dispositions or pending actions against any person arrested on the property for any of the illegal activities addressed by the statutes during a three-year period. Convictions of arrested persons and pending actions will support the allegation that the owner knew the illegal activity was occurring on the property.

Search Warrants. Copies of all search warrants served at the property, search warrant returns, and all arrest reports related to the search warrants should be included in this section. The probable cause articulated in the search warrants may contain additional information that will aid in the prosecution of the case.

Arrest Warrants. Generate a summary of all active arrest warrants for persons who listed the subject property as their residence. This will identify individuals who have no legal relationship to the property yet claim it as their residence, or it may identify individuals who may be contributing to the problems on the property.

Officer Declarations. Officer declarations should be obtained from every officer currently patrolling the neighborhood where the property is located and from those who have previously patrolled the neighborhood. Officer declarations should also be obtained from every officer who has made an arrest, assisted on calls for police service or conducted investigations on the property. The declaration should state any observations of illegal activity, the officer’s involvement with the property, the property’s reputation and the officer’s professional opinion of the property and general knowledge of the history and reputation of the property. This can be done in affidavit or memorandum form.

Citizen Declarations. Citizens living in the vicinity of the property or persons associated with the property can provide helpful information regarding the illegal activities occurring on the property. Written statements in the form of letters, affidavits or declarations from citizens can be persuasive evidence. If a citizen is threatened by anyone, or if an act of violence has been committed against him or her, a request can be made for the court to order that any personal information obtained remain confidential.

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Declarations or Affidavits from Interviews. Interviews conducted with citizens, informants and suspects will be very helpful to the case. They can aid in proving that the property has a reputation for illegal activities and can shed some light on other aspects of the property’s history, such as who frequents the property, the types of concerns that they have with the property, what they have observed at the property, how the property is maintained, how the illegal activity adversely affects your law enforcement agency, etc. Each statement should be documented, signed and notarized; in other words, it should be a written statement in the form of a signed declaration or affidavit.

Regulatory Agency Inspections. All documents regarding investigations or inspections by regulatory agencies should be included in this section. Please provide a subsection for each applicable regulatory agency. The governing agency should coordinate its efforts with inspectors and investigators of regulatory agencies – this will not only benefit the case by providing additional evidence, but may also improve the property and help revitalize a deteriorating neighborhood. The property owners may make necessary improvements when they are issued citations for code violations. Since most illegal activities gravitate to neighborhoods that are poorly lit and maintained, such improvements may discourage illegal activity from occurring. Once you have contacted the regulatory agency and citations for code violations have been issued, you must keep communicating with the agency regarding the status and progress of the code violations. Regulatory agencies may differ in each city or county. Below is a list of the types of inspections that may be relevant to your jurisdiction. Telephone numbers can be found in the blue city or county government pages of your local telephone directory.

Building (planning and development)

Fire Marshal

Noise Pollution

Housing Code Enforcement

Restaurant & Food Business

County Health Department Services

County Environmental Health Services

Texas Alcoholic Beverage Commission

County Sheriff’s Office

Videotapes and Photographs. Videotapes and photographs of illegal and/or disruptive activity on the property make excellent evidence. This evidence will provide demonstrative proof of how the property is maintained and how it is a nuisance to the neighborhood.

General Complaint Citations. Copies of all general complaint citations that have been issued on the property for the last three years or for whatever period the property has been operating.

Miscellaneous. Items in this section should include information that may not be categorized in any other section of the notebook, but that will be helpful or relevant in prosecuting the case.

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