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Enforcing Public Health Nuisance Laws Online Class TIDRC007 Companion website: http://www.tidrc.com/onlinehealth.html Approved by Department of State Health Services Six Continuing Education Units Developed February, 2014 Last Updated on February 11, 2014 John H. Ockels, Ph.D.

Copyright (c) 2014 John H. Ockels No Claim to Original Texas State Government Works All rights reserved.


Enforcing Public Health Nuisance Laws

Enforcing Public Health Nuisance Laws TIDRC007

Contact:

John Ockels, Director Texas Illegal Dumping Resource Center ockels@tidrc.com Last Update: February 10, 2014 Welcome to the online class Enforcing Public Health Nuisance Laws. We’ll discuss two important laws here: Texas Health and Safety Code Chapter 341 Minimum Standards of Sanitation and Health Protection Measures and THSC Chapter 343 Abatement of Public Nuisances. Both of these criminal laws can be used by local governments, through local health departments or peace officers. They don’t have to be “adopted” by local governments; they are in force now throughout Texas, and have been for years. As an example, we’ll show how their provisions can be used to deal with the health nuisance effects of scrap and tires (see Section 4). Using these health/public nuisance laws along with the Litter Abatement Act (THSC Chapter 365) can be an extremely effective way to deal with tires disposed in the wrong place, tires disposed or stored anywhere that are creating a health or public nuisance, and most other things that have been illegally dumped. Just about any air, water, or land pollution will probably also be a violation of one or both of these versatile health and public nuisance laws. They can be used in conjunction with other environmental statutes, or they can just be used by themselves. Although these laws are in effect throughout Texas, neither is being used as fully as it can. Applying them on a wider scale can help protect citizens from actual and potential threats to their health. Because they can be used to resolve so many local problems, how they are used — or ignored by cities and counties — often present local political problems. My name is John Ockels, and I’m your instructor for this class. I'm the director of the Texas Illegal Dumping Resource Center, and I’ve been teaching illegal dumping and other anti-pollution classes for almost 20 years. My background in local government includes twelve years as a regional planner at Texoma Council of Governments. I live up in Denison, which is just south of the Oklahoma border.

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Enforcing Public Health Nuisance Laws

At TIDRC our mission is to help Texas cities and counties get better at responding to illegal dumping and other kinds of local pollution, including using these laws to deal more effectively with health and public nuisances. We’ve presented hundreds of daylong classes around Texas over the past six years. If you haven't attended one, I'd encourage you to do so. They're a lot of fun, you earn continuing education credits, and you might even learn something useful to you and your city, county, or district. You can find out more about our in-person classes elsewhere on the TIDRC.com website, and if you want to host a class in your community just drop me an email. We also provide DSHS-approved online classes in several other subjects in addition to this one — Illegal Dumping Enforcement; Local Control of Oil and Gas Waste; Ethics of Local Enforcement; and, Illegal Outdoor Burning; Legal / Legislative Update Related to the Profession of Code Enforcement. Our plans for 2014 include providing more of these online classes to help you stretch your training dollar and reduce the need for you to travel. To really manage your travel and training cost, check into our Continuing Student program (http:// www.tidrc.com/onlinecontinuingstudent.html). This program enables you to access all TIDRC online classes for one low annual fee, and includes some other premiums. DSHS required continuing education for code enforcement officers is defined in 25 Texas Administrative Code Section 140.168 Continuing Education. The acceptable curriculum listed at sub-section (j) in Section 140.168 names twelve specific areas where training is authorized, including (6) nuisance violations; (9) health ordinances; (10) basic processes of law related to code enforcement; and, (11) professional, supervisory or management training related to the profession of code enforcement, and those are where the subject of handling nuisance violations falls. TIDRC was authorized in April of 2011 by the Texas Department of State Health Services to add online continuing education classes to our in-person programs that we have been providing for several years. If you need a copy of that DSHS authorization for your records, just let us know. Many peace officers and firefighters also take our in-person and online classes, as authorized by their local agencies. Class Process The process we’ll follow in this class is very simple and is laid out on the Class Home Page. You’ll be asked to: 1. Register for the class so we have the required information for our records (you’ve probably already done this); 2


Enforcing Public Health Nuisance Laws

2. Thoughtfully read this document; 3. Answer 25 questions in an open-book test —the test will have objective questions from the reading material and can be taken as many times as required to get 18 correct; and, 4. Send us a simple statement that you did all the work yourself. Then we’ll send your Certificate of Completion by return email. That’s all there is to it. No problem at all. You’ll note that this reading is repetitive in places. This is intentional on my part. This material is a little complex and the two laws we examine closely are very similar. So it’s important to be very clear on the essential differences between them, hence the repetition. When you find yourself getting irritated and saying, “Yes, yes, I knew that! You’ve made the same point about a thousand times!” know that you have just made me very happy! I’d also suggest that you begin with Section 5, which is the conclusion. It makes fifteen essential points that may be important to you going forward and may help keep these two laws distinguished in your mind. If you find yourself getting confused on a particular point, please drop me an email at ockels@mac.com. I watch that account very closely, and unless I’m in the middle of teaching an in-person class or in a meeting or taking a nap, I’ll respond immediately. Since this is an online class and you may be working on it in the evening or a weekend, I’m still generally available via email then too. Finally, this class also mentions THSC Chapter 365 in a couple of places, which is the most commonly used criminal law in Texas for dealing with illegal dumping. Feel free at any time to stop your reading here and go scan or read the material at the Class Home Page for the TIDRC003: Illegal Dumping Enforcement. The shortcut to that page is: http://s.coop/1u4a0 . Class Objectives This class has the following objectives: 1. Provide accurate information on the contents of THSC Chapter 341 and THSC Chapter 343; 2. Clearly identify the violations existing in each law; 3. Show the shortcomings in the abatement processes currently available to local governments in Texas, 4. Discuss the trade-offs between using these two laws to deal with public health nuisances and public nuisances; 3


Enforcing Public Health Nuisance Laws

5. Provide an opportunity for code enforcement officers, registered sanitarians, peace officers, and firefighters to dean continuing education credits without traveling and on the schedule they determine.

Introduction This class considers the impact of two state laws on local enforcement. These are (1) THSC Chapter 341 Minimum Standards of Sanitation and Health Protection Measures and (2) THSC Chapter 343 Abatement of Public Nuisances. Copies of each of these two Texas Health and Safety Code laws are included in the Appendix to this class. We’ve also put a copy of THSC Chapter 121 Local Public Health Reorganization Act for your reference in the Appendix since there are a couple of sections of that law we’ll reference. This is the statute that allows cities and counties to establish Local Health Departments or otherwise use their local health authority (a designated physician) to keep their community clean and healthy. The laws in the Appendix include the fairly minor changes made by the 83rd State Legislature, so they are current. Both of these nuisance laws can be used by local governments with or without having an active local health department. Like all other Texas criminal laws, these two are enforced by peace officers in their jurisdictions. The violations covered by these laws are extremely common throughout Texas, so you won’t have any problem locating places they can be applied. Getting local governments to use their police powers to act is the problem with these and other criminal anti-pollution laws. Both of these laws may also be enforced by “Full Service Local Health Departments and Districts of Texas,” which is the new name the Texas Department of State Health Services is now using to refer to what were called “State-Participating Local Health Departments and Public Health Districts.” In this class, we’ll just refer to these as “Local Health Departments.” There are currently just 62 Local Health Departments that Texas cities and counties have organized, as authorized in THSC Chapter 121 Local Public Health Reorganization Act. All of these are authorized to issue citations for violations of either of these laws, and most of them do to some degree, although I recently ran across one situation where the Local Health Department was being prevented by the county sheriff from issuing citations in the unincorporated parts of the county for violations. In the sheriff’s incorrect view, only his deputies could issue citations. Of course, they weren’t enforcing these laws either, so nobody was using them; citizens had to live with the messes made by their neighbors. 4


Enforcing Public Health Nuisance Laws

This is pure silliness, of course; the State Legislature decides who can issue citations in Texas, not the local sheriff. See THSC Sec. 121.003(c) in the Appendix to read about the State Legislature’s authorization for Local Health Department inspectors to issue citations in unincorporated areas. As far as I can determine, the other Local Health Departments working in the unincorporated areas are all issuing citations when necessary for violations under these two laws. Please let me know if you run across a Local Health Department thinking that they can’t issue citations, and I’ll add them to the one I have found so far. THSC Sec. 121.003(c) also permits a commissioners court the power to “grant authority under this subsection to a county employee who is trained by a health authority appointed by the county under Section 121.021” to enforce “any law that is reasonably necessary to protect the public health” through issuing citations too out in the unincorporated areas. A “health authority” is defined at THSC Sec. 121.021 as “a physician appointed under the provisions of this chapter to administer state and local laws relating to public health within the appointing body's jurisdiction.” THSC Chapters 341 and 343 would surely be included among the laws “reasonably necessary to protect the public health” that are covered by these powers. There are plenty of Local Health Departments issuing citations, but I have not been able to locate any county where the commissioners court has appointed a county employee trained by the health authority to enforce health laws. There are also plenty of counties who have designated a county employee to serve as the “Designated Representative” of the Texas Commission on Environmental Quality — the TCEQ — to enforce THSC Chapter 366 On-Site Sewage Disposal Systems, but I haven’t yet located a county using a county employee who is trained by a health authority to enforce general health protection statutes. This might be something your county wants to consider. Both of these laws also provide for various levels of civil enforcement, so even if your city cannot get its police involved (which would be pretty rare when the policy issues are clearly identified to city management and elected officials), and some benefit from these laws could be achieved through civil enforcement. This isn’t happening much either. Enforcement of these two nuisance laws always has two parts: Part 1: Criminal and/or civil enforcement to deal with the violation itself; and, Part 2: Working with the violator to abate the underlying nuisance. It’s not difficult to identify city and county employees that can do the criminal enforcement part — police, deputy sheriffs, fire marshals, and constables all come to 5


Enforcing Public Health Nuisance Laws

mind, along with Local Health Department employees. Issuing a citation for an offender to appear in a JP or municipal court shouldn’t be difficult at all, once the peace officers are trained and directed to enforce these two laws, and criminal enforcement is by far the most common approach used to handle Part 1. Training and using city/county employees to do civil enforcement — if this is the approach the local government wants to take — seems pretty straight forward too, with few restrictions in the laws as to whom the local government designates to perform these duties. This approach remains rarely undertaken by local governments, but available. (It’s a little funny that civil enforcement is so rarely used, at least in the case of THSC Chapter 341, since the State Legislature uses language making civil enforcement mandatory at THSC Sec. 341.092(b), but more about that below.) However, the job of working with the violator to get the health nuisance abated is a separate problem: peace officers are neither empowered nor trained to do this part of the job, and there is nothing in these laws indicating that civil enforcement includes forced abatement. Criminal and civil enforcement officers can do the “Part 1” job of issuing a citation or notice of violation and getting the violator before a judge, but not the “Part 2 Abatement.” ONLY Local Health Departments or county staff trained by an appointed health authority can address the abatement issue when the violation is of THSC Chapter 341, and ONLY courts can order abatement for THSC Chapter 343 violations. There’s more about “who can do what” below, including a discussion of how most Local Health Departments in Texas simply do not follow the abatement process established by the State Legislature in THSC Chapter 341. Not following these provisions generally assures that many specific health nuisances will actually be around longer than necessary. When local governments simply don’t follow the mandatory processes established by the State Legislature, problems can persist. Since these are primarily criminal laws, municipal code enforcement officers are not authorized to enforce them criminally. However, local ordinance officers need to know the criminal provisions of both of these laws. If handling a problem as a code violation isn’t working, code enforcement officers need to know the criminal laws to be used if the local policy is to pull the local police department into the process. I can’t see any restriction in THSC Chapter 341 in a city assigning civil enforcement of that law to code enforcement officers, but you’ll want to discuss this possibility with your city attorney before doing so. So this class will be looking at two valuable laws that can be used to protect the health of citizens, but which are not, in fact, widely understood or used. 6


Enforcing Public Health Nuisance Laws

(1) Each can be criminally enforced (the most common approach) by: Any peace officer; A trained Local Health Department employee; and/or, A county employee trained by the appointed health authority. (2) Each can be enforced civilly (rarely used, but available) by: A trained Local Health Department employee; and/or, Trained city or county staff assigned with civil enforcement responsibilities. (3) The mandatory abatement process in THSC Chapter 341 can be undertaken by: A trained Local Health Department employee; and/or, A county employee trained by the appointed health authority. (4) Upon conviction of a violation under THSC Chapter 343, the presiding judge is mandated by the statute to order the violation be abated. No such judicial power is available for violations of THSC Chapter 341. Any of the three entities shown in (1) can write the criminal citation — and that’s the word used in THSC Sec. 121.003(c). Civil enforcement (2) is rarely used, but available. The abatement process (3) can only be undertaken by the two entities shown in THSC Chapter 341, and (4) is ordered by the judge upon conviction of THSC Chapter 343 violations.

Actions of the 83rd State Legislature Recent Changes to THSC Chapter 341 The 83rd State Legislature added several provisions and expanded certain sections of this law. These changes were generally in force from September 1, 2013 but are not yet shown in many online versions of this state statute (the copies in the Appendix have been updated). These additions (except for one new provision) affect Sec. 341.0357 through Sec. 341.042, and are outside the scope of this class. These pertain to various issues concerning public water supply contained in Subchapter C. Other than these modifications, the only other action the 83rd State Legislature completed pertaining to this law was the addition of Sec. 341.019 (Mosquito Control on Uninhabited Residential Property), which this class will discuss. Recent Changes to THSC Chapter 343 There was only one change to this law by the 83rd State Legislature. It was the addition of THSC Sec. 343.011(c)(13) covering surface discharge from an on-site sewage disposal system as defined by Section 366.002. The State Legislature created a new public nuisance for this violation. 7


Enforcing Public Health Nuisance Laws

This was probably an unnecessary change, since the public health nuisances in THSC Sec. 341.011(5), THSC Sec. 341.013(c), and THSC Sec. 341.014 already cover these situations and may be enforced in more areas than THSC Chapter 343. Some years ago I spoke with one of its authors about why THSC Chapter 343 didn’t address sewage issues. His response was that this law’s mandatory 30-day notice from the county before an actual violation had occurred [see Sec. 343.012(a)(2)] made it impractical to use it on sewage issues, even those in rural areas. Usually protecting the health of the community necessitates moving faster in these situations. THSC Sec. 341 seems better to use in urgent situations: it has no notice requirement before a citation can be issued, and local health authorities are mandated to become involved in forcing abatement — although they generally don’t. When it was written, THSC Chapter 343 was primarily focused on providing a statutory basis for forcing the abatement of substandard structures in rural Harris County. In these cases a 30-day notice period makes sense. Over the years THSC Chapter 343 has been expanded to cover many kinds of public nuisances and now applies to every county in Texas. I’m not at all sure why an officer would decide to use the new THSC Chapter 343.011(c)(13) to deal with a sewage issue rather than the more powerful THSC Chapter 341. Usually sewage situations need to be responded to promptly, not following the 30-day warning notice required in THSC Chapter 343. Other than those minor changes, these two laws were left intact by the State Legislature. The problem, as this class will hopefully explain, has to do with getting local governments to use them to deal with health and public nuisances. Overall, I’d say that they are potentially very valuable but under used. Discussion Sequence and Contents The structure we’ll follow in getting into this material is this: Welcome [Page 1] Class Process [2] Class Objectives [3] Introduction [4] Actions of the 83rd State Legislature [7] Discussion Sequence and Contents [8] 1. THSC Chapter 341 Minimum Standards of Sanitation and Health Protection Measures [Page 10] 8


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A. Where Chapter 341 Can Be Used [12] B. Relevant Sections of the Law [12] C. Twelve Defined Public Health Nuisances [THSC Sec. 341.011] [14] D. Very Useful General Definition of a Public Health Nuisance [THSC Sec. 341.013(C)] [16] E. Disposal of Human Excreta (THSC Sec. 341.014) [18] F.

Mosquito Control on Abandoned Properties (THSC Sec. 341.019) [19]

G. Criminal Enforcement [20] (1) Criminal Penalties (THSC Sec. 341.091) [21] (2) Who Can Issue a Citation [21] (3) No Notice Requirement Before Citation Can Be Issued [21] (4) No Authority For Peace Officer to Order Abatement [21] (5) No Authority For Judge to Order Abatement Upon Conviction [22] H. Civil Enforcement (THSC Sec. 341.092) [23] I.

Mandatory (But Ignored) Process to Abate Nuisance (THSC Sec. 341.012) [25] (1) Responsibilities of Parties [26] (2) What the State Legislature Has Mandated to Happen [27] (3) What Actually Happens in Most Cases [27] (4) How Local Health Departments Actually Impede Abatement [28] (5) What’s Preventing the Use of THSC Sec. 341.012? [29]

J.

Problems with the Criminal Enforcement of THSC Chapter 341 [30]

2. THSC Chapter 343 Abatement of Public Nuisances [32] A. Where Chapter 343 Can Be Used [34] B. Important Definitions [35] C. Thirteen Defined Public Nuisances [37] D. Criminal Enforcement [41] (1) Criminal Penalties (THSC Sec. 343.011) [42]

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(2) Who Can Issue a Citation [42] (3) 30-Day Warning Notice Required Before Citation Can Be Issued [42] (4) No Authority For Peace Officer to Order Abatement [42] (5) Judge Must Order Abatement Upon Conviction [43] E. Civil Injunctions (THSC Sec. 343.012) [43] F.

County Optional Abatement Process [48]

3. Comparing These Two Laws [52] A. Abatement Concepts [52] B. Comparison of the Laws [61] 4. Practical Application: Controlling Scrap Tires [63] 5. Conclusion [72] 6. Appendix [75] THSC Chapter 341 [75] THSC Chapter 343 [84] THSC Chapter 121 [94] Enforcement and Abatement Charts [Following Page 107]

We’ll use these section numbers in the rest of the document to help keep things straight. Section 1. THSC Chapter 341 Minimum Standards of Sanitation and Health Protection Measures Local health departments commonly use this law to deal with specific health nuisances — it provides the statutory basis for inspecting food service establishments, for instance — but it can do a lot more. Structurally, Chapter 341 is a fairly long statute, but the first few sections can be used to deal with general illegal dumping and other activities resulting in public health nuisances. Since waste dumped in the wrong place generally has bad public health results too, we recommend that officers using THSC Chapter 365 to deal with illegal dumping also routinely charge THSC Chapter 341 violations as a way of focusing on the health nuisance aspect of the dumping.

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The 83rd State Legislature has added THSC Sec. 341.019, which addresses local government (city and county) entry of abandoned or vacant residential properties to abate places where mosquitoes are breeding. At this point, “abatement” under this law is “limited to the treatment with a mosquito larvicide of stagnant water in which mosquitoes are breeding,” and notices have to be posted by government. When code enforcement is not able to successfully resolve a situation, police may become involved to enforce provisions of this law. If your police department has never enforced this law before, they may be confusing it with code enforcement and not want to respond. However, this particular law is just another criminal law — it’s just one that most police have never been trained to use. Local police already enforce other parts of the Health and Safety Code — such as Chapter 481 Texas Controlled Substances Act; Chapter 482 Simulated Controlled Substances; Chapter 483 Dangerous Drugs; and, Chapter 485 Abusable Volatile Chemicals — so using Chapters 341 and 343 should present nothing technicality difficult. Bosses just have to make a local policy decision for officers to start using them.

Note on “Sanitary” The definitions in THSC Chapter 341 (at Sec. 341.011) are not as lengthy as those found in THSC Chapter 343. One of them, however, is particularly interesting: THSC Sec. 341.011(7)  "Sanitary" means a condition of good order and cleanliness that precludes the probability of disease transmission. When you combine that definition with the general requirement in THSC Sec. 341.013(a) for a person to keep his property clean, you can see the wide applicability that the State Legislature intended for this law: THSC Sec. 341.013 (a) Premises occupied or used as residences or for business or pleasure shall be kept in a sanitary condition. Failure to maintain these premises in a sanitary condition would apparently be a violation of this law: Sec. 341.091.  CRIMINAL PENALTY. (a) A person commits an offense if the person violates this chapter or a rule adopted under this chapter [$10 to $200 fine for first offense in JP or Municipal Court]. The State Legislature has given local governments a useful tool for assuring that virtually all premises in their jurisdictions are kept in a “sanitary” condition. Deciding how widely to apply this general concept is pretty well left to local governments, but it’s interesting that the State Legislature decided to include residences in this law. There are some situations where having this enforcement power could be useful.

Over the years, I’ve had many, many code enforcement officers assure me that their

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police would “never” enforce Chapter 341. However, after the chief of police, head of code enforcement, city manager, and city attorney meet to discuss how using these laws can help in many situations, this policy usually changes pretty fast. There is simply no good argument for local police to refuse to enforce specific state criminal laws, and no city would want to go on record as adopting such a position. Usually what’s being reflected in these “refusals” is a simple lack of knowledge, which can be easily fixed, and sometimes a confusion of these health nuisance violations with municipal codes. Also, note the wide range of entities to which THSC Chapter 341 applies, including local governments themselves. This is pretty common in Texas anti-pollution laws: they cover just about everybody: THSC Sec. 341.011(5)  "Person" means an individual, corporation, organization, government, business trust, partnership, association, or any other legal entity.

1. A. Where Chapter 341 Can Be Used This law can be used at all locations both inside cities and throughout the unincorporated areas of the county, without limit. When we look at THSC Chapter 343, we’ll see one of the major differences between these two statutes: Chapter 343 is restricted to the unincorporated areas of the county and then only to those areas not carried as “agricultural” on local tax rolls. Moreover, some of the specific violations discussed in Chapter 343 only apply to very specific areas, such as platted subdivisions in those unincorporated areas. But Chapter 341 has none of these restrictions. It applies to all areas within and outside cities, including such places as “agricultural” land, rural oil well exploration and production sites, and all other public and private property. Notice also that this is a state criminal law created for all of us by the State Legislature. Therefore, no city or county must “adopt” it before it is in effect. While you are reading this sentence, THSC Chapter 341 is in force throughout your county and within every city therein. The only question is whether a particular city or county is enforcing it. 1. B. Relevant Sections of the Law THSC Chapter 341 (Minimum Standards of Sanitation and Health Protection Measures) is a very long statute, running to 51 pages in print format. The primary reason for this is that this law is really divided into two sections: (1) those sections well 12


Enforcing Public Health Nuisance Laws

study that include the health nuisance provisions; and, (2) those sections we will not study that cover drinking water standards and a few other things. The sections on which we’ll be focusing are: SUBCHAPTER A. GENERAL PROVISIONS Sec. 341.001.  Definitions. Sec. 341.002.  Rules for Sanitation And Health Protection. SUBCHAPTER B. NUISANCES AND GENERAL SANITATION Sec. 341.011.  Nuisance. Sec. 341.012.  Abatement of Nuisance. Sec. 341.013.  Garbage, Refuse, and Other Waste. Sec. 341.014.  Disposal of Human Excreta. Sec. 341.015.  Sanitation of Ice Plants. Sec. 341.016.  Sanitation of Businesses; Occupational Health and Safety. Sec. 341.017.  Sanitation Facilities for Railroad Maintenance-Of-Way Employees. Sec. 341.018.  Rodent Control. Sec. 341.019.  Mosquito Control On Uninhabited Residential Property. SUBCHAPTER E. AUTHORITY OF HOME-RULE MUNICIPALITIES Sec. 341.081.  Authority of Home-Rule Municipalities Not Affected. Sec. 341.082.  Appointment of Environmental Health Officer in Certain Home-Rule Municipalities. SUBCHAPTER F. PENALTIES Sec. 341.091.  Criminal Penalty. Sec. 341.092.  Civil Enforcement. However, other sections — which we’ll not study in this class — may also be useful to officers dealing with specific situations or locations. Subchapter C, for instance, addresses the state sanitation standards for drinking water and the protection of public water supplies and bodies of water, including the state laws pertaining to the use of graywater. If you need accurate information on these topics, that is the subchapter to use. Note that Subchapter C has its own criminal and civil penalties (see Sec. 341.047 and Sec. 341.048). The general criminal and civil penalties for the public health nuisances described in Subchapter B are found in Sec. 341.091 and Sec. 341.092 (these are the provisions we’ll be using). Don’t confuse these two sets of penalties. Subchapter D provides additional statutes applicable to certain facilities used by the public. If you have a specific interest in any of these locations, consulting Subchapter D will give you the additional laws the State Legislature has provided to deal with these 13


Enforcing Public Health Nuisance Laws

locations. Generally, the basic public health nuisance provisions we’ll be studying cover all of these locations pretty well. But you may have a specific situation where these additional provisions can help. Penalties for their violation are at Sections 341.047 and 341.048: Sec. 341.061.  Toilet Facilities. Sec. 341.062.  Public Buildings. Sec. 341.063.  Sanitation of Bus Line, Airline, and Coastwise Vessel. Sec. 341.064.  Swimming Pools and Bathhouses. Sec. 341.065.  School Buildings and Grounds. Sec. 341.066.  Tourist Courts, Hotels, Inns, and Rooming Houses. Sec. 341.067.  Fairgrounds, Public Parks, and Amusement Centers. Sec. 341.068.  Restroom Availability Where the Public Congregates. Sec. 341.069.  Access To Restroom Facilities. Sec. 341.0695.  Interactive Water Features and Fountains. So THSC Chapter 341 is really composed of three statutes: one to deal with general health nuisances (the part that interests us for this class); one to deal with drinking water and graywater; and, one to deal with a few very specific locations. So don’t get put-off by how long the law is, and just pick the parts you want to use (they’re pretty much at the front). In fact, it would probably be less confusing if the State Legislature simply took the pages that make up Subchapters C and D and set them aside under new statutory headings. 1.C. Twelve Defined Public Health Nuisances [THSC Sec. 341.011] Our primary area of interest is Sec. 341.011, which defines the twelve common health nuisances that this law specifically covers. This section of the law is just below. Notice, for instance, nuisance (3); this is the provision used by health departments as their statutory basis for inspecting restaurants. Of course, health departments are not limited to enforcing this one provision; they — and local police, deputies, constables, fire marshals, and other peace officers — can write citations for any of the violations in this law. Some of these provisions are better to use to focus on the health impact of the waste dumped than others. Also, notice nuisance (12), which is the catch-all; you could cite this particular one to deal with the health effects of many situations. THSC Sec. 341.011. NUISANCE. Each of the following is a public health nuisance: (1) a condition or place that is a breeding place for flies and that is in a populous area 14


Enforcing Public Health Nuisance Laws

[Note: “populous” is undefined in this law — the Merriam-Webster dictionary defines the word as meaning “densely populated” or “having a large population,” so this could apply to a city or perhaps a platted subdivision in the unincorporated area]; (2) spoiled or diseased meats intended for human consumption; (3) a restaurant, food market, bakery, other place of business, or vehicle in which food is prepared, packed, stored, transported, sold, or served to the public and that is not constantly maintained in a sanitary condition [Note: This is the provision authorizing restaurant inspections by Local Health Departments; peace officers can apply this too]; (4) a place, condition, or building controlled or operated by a state or local government agency that is not maintained in a sanitary condition; (5) sewage, human excreta, wastewater, garbage, or other organic wastes deposited, stored, discharged, or exposed in such a way as to be a potential instrument or medium in disease transmission to a person or between persons; (6) a vehicle or container that is used to transport garbage, human excreta, or other organic material and that is defective and allows leakage or spilling of contents; (7) a collection of water in which mosquitoes are breeding in the limits of a municipality or a collection of water that is a breeding area for Culex quinquefasciatus mosquitoes that can transmit diseases regardless of the collection's location other than a location or property where activities meeting the definition of Section 11.002(12)(A), Water Code, occur; (8) a condition that may be proven to injuriously affect the public health and that may directly or indirectly result from the operations of a bone boiling or fat rendering plant, tallow or soap works, or other similar establishment; (9) a place or condition harboring rats in a populous area; (10) the presence of ectoparasites, including bedbugs, lice, and mites, suspected to be disease carriers in a place in which sleeping accommodations are offered to the public; (11) the maintenance of an open surface privy or an overflowing septic tank so that the contents may be accessible to flies; and, (12) an object, place, or condition that is a possible and probable medium of disease transmission to or between humans [Note: This the “catch-all provision and is widely used; however, we suggest

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using THSC Sec. 341.013(c) as a better general provision.] Code enforcement officers will immediately note that these twelve violations address many of the the same issues that municipal codes do. The language might be different, but the general concepts are about the same. These twelve provisions, however, are defined by the State Legislature in this statute as criminal violations. They are also in force in your city right now, along with the codes — although often unknown to local police, code enforcement officers, prosecutors, and judges. So, what’s their value if they often duplicate municipal codes? Inside a city they are the point at which city police can become involved, moving a situation that had been seen as a code violation up to the next level — now it is a criminal violation, with possible jail time for continued offenses. Out in the county, where there are no municipal codes, this list of twelve public health nuisances can be used by law enforcement to help their jurisdiction maintain a minimum level of cleanliness — like a set of “codes for rural areas.” There’s no reason that rural areas of Texas have to be filthy. In fact, it’s the policy of the State Legislature that rural Texas be maintained in a sanitary condition. The folks who live in these areas deserve to have the health laws enforced by their elected officials. 1. D. Very Useful General Definition of a Public Health Nuisance [THSC Sec. 341.013(c)] This is an extremely useful provision, especially for local peace officers. Of course, with or without a Local Health Department or a functioning health authority handling abatement under THSC Sec. 341.012, local police and deputies can enforce THSC Chapter 341 and get the violator in front of a judge. However, in many parts of Texas if law enforcement fails to enforce THSC Chapter 341, the harmful effects of un-abated health nuisances will continue to be present. This is especially true for unincorporated areas in counties not having a formally organized Local Health Department. In these locations, if deputies, constables, and fire marshals don’t enforce this law, there is simply no one else to do so. In considering this law, its good to reflect that not all “criminals” are big dudes stealing things, cooking meth, and beating on women; some “criminals” are very, very small — bacteria — who will put more people in the hospital than one big looser on drugs normally would. The “protect and serve” motto of local police includes protecting the citizens from the effects of these “littlest criminals” too. There are four things blocking local law enforcement from using THSC Chapter 341 to protect the people: (1) the persistent wrong idea that local police don’t enforce the Health & Safety Code (of course they do: that’s where all the anti-drug laws are 16


Enforcing Public Health Nuisance Laws

located); (2) ignorance of the content of this particular; (3) fear of getting things wrong; and, (4) general fear of change. Health nuisance situations can become complex, and it is always good to have a trained health professional available to act on behalf of the health authority or to give advice to peace officers enforcing this law. However, such a technically trained health professional is not always available, and the peace officer may be the only person who can take action. But this does not have to present overwhelming difficulties. Thankfully, there is one section of THSC Chapter 341 that can be used to deal with just about any health nuisance. Officers can easily learn and apply this one section, designed to eliminate the hideouts of those “littlest criminals.” Here’s the criminal section that the State Legislature has provided: THSC Sec. 341.013(c) Waste products, offal, polluting material, spent chemicals, liquors, brines, garbage, rubbish, refuse, used tires, or other waste of any kind may not be stored, deposited, or disposed of in a manner that may cause the pollution of the surrounding land, the contamination of groundwater or surface water, or the breeding of insects or rodents. This important section covers just about any actual and possible (notice the word “may”) public health nuisance that might impact a community. Notice that this definition easily includes illegally dumped materials of just about any kind — since those items are almost always actually or potentially polluting air, land, or water resources or breeding insects or rodents — as well as things like stored scrap tires. If a situation meets the very broad criteria in this section — no matter where the situation is located — then the officer can confidentially charge the violation. Note that there is no warning or waiting period required before enforcement can commence, as there is in THSC Chapter 343; a citation for having the public health nuisance can be issued immediately. Although there is no provision in this law for local officers to allow grace time to clean up a health nuisance, many do. In effect, this is the same as issuing a warning notice to the violator. “I’m going to give you five days — or whatever — to clean this up. When I come back, if it’s still a mess I’m giving you a citation and you can discuss matters with the judge.” In fact, we’ll see in section 1.I. below that only a local health authority can extend time to a violator to abate a health nuisance under THSC Chapter 341. But local police officers take this “warning” approach frequently, generally with the full support of local elected officials and prosecutors. We’re big advocates of the idea that all peace officers can learn and use THSC Sec. 17


Enforcing Public Health Nuisance Laws

341.013(c) to deal with public health nuisances through out their jurisdiction. It shouldn’t be overlooked that this is a criminal violation and is often easily spotted from public places. Consequently, health nuisances described by this provision — and those more specific twelve violations described in THSC Sec. 341.011 — can often provide probable cause for property entry. 1. E. Disposal of Human Excreta (THSC Sec. 341.014) THSC Sec. 341.014. DISPOSAL OF HUMAN EXCRETA. (a) Human excreta in a populous area shall be disposed of through properly managed sewers, treatment tanks, chemical toilets, or privies constructed and maintained in conformity with the department's specifications, or by other methods approved by the department. The disposal system shall be sufficient to prevent the pollution of surface soil, the contamination of a drinking water supply, the infection of flies or cockroaches, or the creation of any other public health nuisance. (b) Effluent from septic tanks constructed after September 4, 1945, shall be disposed of through: (1) a subsurface drainage field designed in accordance with good public health engineering practices; or (2) any other method that does not create a public health nuisance. (c) A privy may not be constructed within 75 feet of a drinking water well or of a human habitation, other than a habitation to which the privy is appurtenant, without approval by the local health authority or the board. A privy may not be constructed or maintained over an abandoned well or over a stream. (d) The superstructure and floor surrounding the seat riser and hopper device of a privy constructed and maintained in conformity with the department's specifications shall be kept in a sanitary condition at all times and must have adequate lighting and ventilation. (e) Material and human excreta removed from a privy vault or from any other place shall be handled in a manner that does not create a public health nuisance. The material and human excreta may not be deposited within 300 feet of a highway unless buried or treated in accordance with the instructions of the local health authority or the board. This particular section at THSC Chapter 341.014 was probably more useful in an earlier day, but the defined health nuisances at THSC Sec. 341.011(5) and (11) are probably more useful today. Additionally, the general provision at THSC Sec. 341.013(c) would also apply to most situations where sewage disposal is an issue. However, I can imagine situations in which a temporary privy has been built in some remote area that 18


Enforcing Public Health Nuisance Laws

fails to meet one or more of these provisions, especially this in THSC Sec. 341.014(a). Anyone disposing of this waste by dumping would probably be in violation of these sections too. This could become important when you consider that human body waste is specifically excluded from the law most frequently used to deal with illegal dumping, THSC Chapter 365 LITTER. Often officers dealing with sewage dumping, when they realize that they cannot use THSC Chapter 365, try to deal with sewage cases as violations of the state water pollution laws. While that approach might work in some cases — for instance, when a person is discharging sewage from a mobile home through a pipe into the borrow ditch or other water course is probably a violation of TWC Sec. 7.145, a felony — the specific sewage provisions of THSC Chapter 341 might better fit many situations. The water pollution laws carry extremely stiff penalties; officers may find that many sewage-related situations are better handled with the provisions of THSC Chapter 341, with it’s less-severe penalties. As is true with many other environmental criminal laws, the provisions of THSC Sec. 341.014 are not well-studied and, therefore, not widely used.

1. F.

Mosquito Control on Abandoned Properties (THSC Sec. 341.019)

This provision is new with the last State Legislature and will no-doubt be useful in dealing with many potentially dangerous situations. Sec. 341.019.  MOSQUITO CONTROL ON UNINHABITED RESIDENTIAL PROPERTY. (a)  Notwithstanding any other law, a municipality, county, or other local health authority may abate, without notice, a public health nuisance under Section 341.011(7) that: (1)  is located on residential property that is reasonably presumed to be abandoned or that is uninhabited due to foreclosure; and (2)  is an immediate danger to the health, life, or safety of any person. (b)  A public official, agent, or employee charged with the enforcement of health, environmental, or safety laws may enter the premises described by Subsection (a) at a reasonable time to inspect, investigate, or abate the nuisance. (c)  In this section, abatement is limited to the treatment with a mosquito larvicide of stagnant water in which mosquitoes are breeding. (d)  The public official, agent, or employee shall post on the front door of the residence a notice stating: (1)  the identity of the treating authority; (2)  the purpose and date of the treatment; 19


Enforcing Public Health Nuisance Laws

(3)  a description of the areas of the property treated with larvicide; (4)  the type of larvicide used; and (5)  any known risks of the larvicide to humans or animals. This new law, however, is only applicable to two very narrow situations as defined in THSC Sec. 341.011: (7) a collection of water in which mosquitoes are breeding in the limits of a municipality or a collection of water that is a breeding area for Culex quinquefasciatus mosquitoes that can transmit diseases regardless of the collection's location other than a location or property where activities meeting the definition of Section 11.002(12)(A), Water Code, occur. It would be nice if the response limitation in (c) was removed and a wider set of choices was available to the inspector, such as draining the water from wherever it was trapped, introducing minnows, or filling-in a place with dirt. If an inspector is legitimately at a location under this law and wants to dump stagnant water out of a trash can, for instance, he is probably going to do so. The law might as well give him the authority to abate the mosquito-breeding place “in any reasonable manner” rather than restrict abatement to the use of a larvicide. 1.G. Criminal Enforcement Violations of this law can be handled as criminal or civil violations by local agencies, although very few agencies use the civil approach. There’s no particular reason for this other than the easier criminal enforcement provisions and lack of awareness as to the possibility and process of civil enforcement. I’ve found just one JP who refused to enforce this law because the word “offense” wasn’t used as he thought it should. Everybody else handling these violations that I’ve found seem to be happy with the language. The criminal provision reads as follows: Sec. 341.091. CRIMINAL PENALTY. (a) A person commits an offense if the person violates this chapter or a rule adopted under this chapter. A person commits an offense if the person violates a permitting or inspection requirement imposed under Section 341.064(n) or a closure order issued under Section 341.064(o). An offense under this section is a misdemeanor punishable by a fine of not less than $10 or more than $200. (b) If it is shown on the trial of the defendant that the defendant has been convicted of an offense under this chapter within a year before the date on which the offense being tried occurred, the defendant shall be punished by a fine of not less than $10 or more than $1,000, confinement in jail for not more than 30 days, or both.

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Enforcing Public Health Nuisance Laws

(c) Each day of a continuing violation is a separate offense. 1.G. (1) Criminal Penalties (THSC Sec. 341.091) The punishments for these violations are at THSC Sec. 341.091 (criminal) and Sec. 341.092 (civil). The criminal penalty sets a fine of from $10 to $200 for the first offense, and a penalty for a subsequent conviction — as long as it happens within one year following the prior conviction — of a fine of $10 to $1,000 and/or up to 30 days in the county jail. The first conviction can be in JP or municipal court, but a subsequent case — if handled as a subsequent prosecution rather than as “another first” violation — must move up to the county court (since there is the possibility of jail time involved). Consequently, since these cases can be handled as a criminal or civil matter, one strategy might be to prosecute the first violation in the JP or Municipal court and then handle subsequent violations — no matter how long since the first conviction — as a civil violation in the same court. (There is no time period between convictions found in the civil penalty section at THSC Sec. 341.092.) Since there is no jail time possible in civil enforcement, the second and subsequent cases could (if treated as a civil violation) stay in front of the same judge, which could be good from an enforcement continuity perspective. 1.G.(2) Who Can Issue a Citation Since this is a criminal violation, any peace officer can issue a citation for criminal violation. Additionally, THSC Section 121.003 allows Local Health Departments and county employees trained by health authorities to also issue citations to force the violator to appear in court. Other city and county employees — such as municipal code enforcement officers — are not authorized to issue citations for these violations (they are neither peace officers nor health department staff), so they will need to establish working relations with their police department and Local Health Department and rely on those agencies issuing citations when required. 1.G.(3) No Notice Requirement Before Citation Can Be Issued There are no notice or “warning” requirements before a criminal citation or a civil notice of violation can be issued under this law. There is a “reasonable time to abate” provision that applies to Local Health Departments and health authorities working with a violator on abatement under THSC Sec. 341.012, but don’t confuse this with thinking a notice requirement exists before a criminal citation can be issued. When an officers sees a violation, he or she can issue a citation at that point, send a copy to the Local Health Department to begin the THSC Sec. 341.012 abatement process, and go to the next call. 1.G.(4) No Authority For Peace Officer to Order Abatement

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Enforcing Public Health Nuisance Laws

This law contains no provision for peace officers to order an abatement, although this happens every day in Texas. The approach taken is often: “I’ll be back next Wednesday, and if you have this mess cleaned up — and can give me a landfill receipt showing the proper disposal of this waste — I’ll let you off with a warning. But if I come back and this mess is still here, you’re headed for a judge.” What peace officers are empowered to do under this statute is to issue a citation, but these informal warnings are often used to help get the violator moving on the eventual abatement, especially in counties having no Local Health Department. Occasionally a warning citation is actually written. This helps reinforce the “I’ll be back” statement from the officer, but most commonly this is handled orally. We advocate actually issuing a warning citation in the circumstances where officers want to allow some unofficial compliance time. It documents the interaction between the citizen and the officer and creates a reminder that may help the violator remember to comply. We also suggest deputies telling the violator that he must put the warning notice on his refrigerator so his wife can help him remember the “I’ll be back” date. Wives have probably helped remind more men to abate more health nuisances in back yards than all the Local Health Departments in Texas combined. 1.G.(5) No Authority For Judge to Order Abatement Upon Conviction There are no provisions in this law for a judge to order an abatement of a health nuisance upon conviction, and most JPs and Municipal judges are careful not to issue these orders. What judges often tell those convicted of a violation is, “Mr. Smith, each day that mess is out there is a separate violation. Now, I can’t order you to clean that mess — it’s simply not provided for in the law — but I can assure you that, until that problem is fixed, you’ll be back in here regularly, facing new fines and court costs on each visit. Have a nice day, and bring your wife with you the next time you’re in here on this.” Compare this absence of judicial authority to order an abatement upon conviction of THSC Chapter 341 with THSC Sec. 343.012 (e) The court shall order abatement of the nuisance if the defendant is convicted of an offense under this section. In the public nuisance law covering most of the unincorporated areas (THSC Chapter 343) court-order abatement upon conviction is mandatory; but under the most commonly used public health nuisance law (THSC Chapter 341), no such power is granted the court. Officers deciding which of these laws to use should take these different approaches to abatement into their considerations, along with the other significant differences between these two laws (see Section 3. Comparing These Two Laws). On every THSC Sec. 341 public health nuisance case where the local health authority has not acted to force abatement, the judge should be asking the Local 22


Enforcing Public Health Nuisance Laws

Health Authority why they are not following the mandatory abatement process the State Legislature provided in THSC Sec. 341.012. Where the health authority follows the process at THSC Sec. 341.012, there will be fewer court cases (at least, some of the repeat cases for the same violation will be avoided). If there is no Local Health Authority present, there are fewer good abatement options. 1.H. Civil Enforcement (THSC Sec. 341.092) Violations under this law can be handled as criminal or civil violations by local agencies, although very few agencies use the civil approach. There’s no particular reason for this other than the easier criminal enforcement provisions and lack of awareness as to the possibility of civil enforcement. The civil provision reads as follows: Sec. 341.092. CIVIL ENFORCEMENT. (a) A person may not cause, suffer, allow, or permit a violation of this chapter or a rule adopted under this chapter. (b) A person who violates this chapter or a rule adopted under this chapter shall be assessed a civil penalty. A person who violates a permitting or inspection requirement imposed under Section 341.064(n) or a closure order issued under Section 341.064(o) shall be assessed a civil penalty. A civil penalty under this section may not be less than $10 or more than $200 for each violation and for each day of a continuing violation. [Note: The State Legislature has mandated a civil penalty to be assessed for these violations, but without restricting the use of criminal penalties. However, I can find no county applying these mandatory civil penalty provisions. When defendants appear before judges for violating this law, it’s almost always to respond to a criminal citation.] (c) If it is shown on the trial of the defendant that the defendant has previously violated this section, the defendant shall be assessed a civil penalty of not less than $10 or more than $1,000 for each violation and for each day of a continuing violation. (d) If it appears that a person has violated, is violating, or is threatening to violate this chapter, a rule adopted under this chapter, a permitting or inspection requirement imposed under Section 341.064(n), or a closure order issued under Section 341.064(o), the department, a county, a municipality, or the attorney general on request by the district attorney, criminal district attorney, county attorney, or, with the approval of the governing body of the municipality, the attorney for the municipality may institute a civil suit in a district court for: (1) injunctive relief to restrain the person from continuing the violation or threat of violation; 23


Enforcing Public Health Nuisance Laws

(2) the assessment and recovery of a civil penalty; or (3) both injunctive relief and a civil penalty. [Note: I have had many discussions with city and county officers and attorneys and I have yet to find a location that has sought an injunction for an actual or threatened violation of THSC Chapter 341.] (e) The department is a necessary and indispensable party in a suit brought by a county or municipality under this section. (f) On the department's request, or as otherwise provided by this chapter, the attorney general shall institute and conduct a suit in the name of the state for injunctive relief, to recover a civil penalty, or for both injunctive relief and civil penalty. (g) The suit may be brought in Travis County, in the county in which the defendant resides, or in the county in which the violation or threat of violation occurs. (h) In a suit under this section to enjoin a violation or threat of violation of this chapter, a rule adopted under this chapter, a permitting or inspection requirement imposed under Section 341.064(n), or a closure order issued under Section 341.064(o), the court shall grant the state, county, or municipality, without bond or other undertaking, any injunction that the facts may warrant, including temporary restraining orders, temporary injunctions after notice and hearing, and permanent injunctions. (i) Civil penalties recovered in a suit brought under this section by a county or municipality through its own attorney shall be equally divided between: (1) the state; and, (2) the county or municipality that first brought the suit. (j) The state is entitled to civil penalties recovered in a suit instituted by the attorney general. THSC Sec. 341.092 deals with civil enforcement of violations of Chapter 341, and mandates a civil penalty in these cases: (b) A person who violates this chapter or a rule adopted under this chapter shall be assessed a civil penalty. Not to worry, however, because I can’t find anywhere in Texas that there has ever been a civil penalty assessed in one of these cases. Again, notice the use of the word “shall� by the State Legislature in structuring punishment in these health nuisance cases, a directive ignored by local governments in this section as in the THSC Sec. 341.012 abatement procedures. There is an interesting provision for the civil penalty in subsequent violations: it ranges from $10 to $1,000 with each day of an ongoing offense being a separate 24


Enforcing Public Health Nuisance Laws

violation. While a subsequent criminal violation must be charged within one year of the first conviction, there is no “within one year” time period associated with a subsequent civil charge. So for jurisdictions using this law, one strategy might be to bring the first charge as a criminal violation under Sec. 341.091, and then bring any subsequent charge — as long as the violator is around — as a civil violation in the same court. This will increase the pressure on subsequent violators without getting lost with a small case in the county court system. So a good strategy for local governments using this law to stop illegal dumping would be to have local law enforcement officers file criminal charges for violations of Sec. 341.013(c), calling each day a separate initial violation, and handling subsequent violations as civil charges before the same judge. This is a good law to use for small-scale illegal dumping violations, but things would be a whole lot better if local health authorities would actually use the abatement process established by the State Legislature in Sec. 341.012 (used inside a city or out in the county) and generally use this law in more situations. 1.I. Mandatory (But Ignored) Process to Abate Nuisance (THSC Sec. 341.012) If a person possesses a property having a public health nuisance, he or she has already been directed by the State Legislature to abate that nuisance as soon as he or she becomes aware of its existence. This is the basic policy of the State of Texas expressed in (a) of this section. Contrast this with a similar provision in THSC Chapter 343 that requires a person to cure a public nuisance within 30 days of having been notified by the county of their obligation to do so. Under THSC Chapter 341, however, a person is simply expected by the State Legislature to keep a place he “possesses” clean of public health nuisances. That’s simply a requirement of property ownership or other possession. This is a little-known requirement in state law and it can become the basis for a public education campaign. [For example, imagine a brochure called “Be a Good Texas Property Owner” showing the twelve public health nuisances of THSC Sec. 341.011, the general requirement of THSC Sec. 341.013(c), and section (a) requiring a person to keep his property clean or run the risk of being found guilty of having committed a crime.] The rest of Sec. 341.012 describes the steps for a local health authority and prosecutor to force the property possessor to act properly. If a person had taken care of his property as the State Legislature directed in (a), there would be no need for these other provisions. The section of this law addressing abatement reads: Sec. 341.012. ABATEMENT OF NUISANCE. (a) A person shall abate a public health nuisance existing in or on a place the person 25


Enforcing Public Health Nuisance Laws

possesses as soon as the person knows that the nuisance exists. (b) A local health authority who receives information and proof that a public health nuisance exists in the local health authority's jurisdiction shall issue a written notice ordering the abatement of the nuisance to any person responsible for the nuisance. The local health authority shall at the same time send a copy of the notice to the local municipal, county, or district attorney. (c) The notice must specify the nature of the public health nuisance and designate a reasonable time within which the nuisance must be abated. (d) If the public health nuisance is not abated within the time specified by the notice, the local health authority shall notify the prosecuting attorney who received the copy of the original notice. The prosecuting attorney: (1) shall immediately institute proceedings to abate the public health nuisance; or (2) request the attorney general to institute the proceedings or provide assistance in the prosecution of the proceedings, including participation as an assistant prosecutor when appointed by the prosecuting attorney. 1.I.(1) Responsibilities of Parties A. The “law enforcement� part of using this law is handled by the police, deputy, or Local Health Department by the issuance of a citation to appear before a judge. This shouldn’t be confused with the abatement steps under THSC Sec. 341.012; B. The Local Health Department or the county employee trained and representing the local health authority is the initial point of contact with the violator as far as getting the health nuisance abated is concerned. This person will 1. Determine the amount of time to allow for abatement; 2. Issue the notice to abate; 3. Assure a copy of the notice goes to the prosecutor; 4. Return after the time has passed to verify abatement; and, 5. Notify the prosecuting attorney that abatement has or has not happened. C. The local prosecuting attorney (and the law provides for local choices as to which prosecutor to use) will immediate institute proceedings to get the violator before a judge so that a formal court order may be entered directing

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Enforcing Public Health Nuisance Laws

abatement of the nuisance. 1.I.(2) What the State Legislature Has Mandated to Happen Notice the mandatory order of the State Legislature for the following steps: (1) A person possessing a place with a health nuisance shall abate the nuisance as soon as he or she discovers it exists – not when ordered to do so by the government; (2) The local health authority shall notify the possessor of the property in writing of the existence of the health nuisance on the property and set a time period to abate the nuisance; (3) The local health authority shall at the same time send a copy of the notice to the jurisdiction’s prosecuting attorney; (4) If the health nuisance is not abated within the time period specified, the local health authority shall notify the prosecuting attorney who had received notice; and, (5) The prosecuting attorney shall take the offender to court and seek a court order forcing abatement. 1.I.(3) What Actually Happens in Most Cases THSC Sec. 341.012 is a sound procedure, beginning with the State Legislature recognizing the responsibility of the property possessor to act without prior notice to keep his property clean. The rest of the section then describes reasonable actions by local government to bring pressure on the violator to clean his mess. This seems like a reasonable approach to me and has been the law for many years in Texas, but I’ve never been able to find a health authority in Texas that actually follows it. What normally happens is that the health department inspector will notify the property possessor of the violation and set a time for the mess to be abated. But there will be no copy of the notice given to the prosecutor at all, even though that is a mandatory step. In the event that the time set by the officer passes and the nuisance hasn’t been abated, the officer will not notify the prosecuting attorney. Instead, the officer will then put on his “law enforcement hat” and give an initial citation to the property possessor to bring him into JP or Municipal court. There, once a hearing takes place, the JP will find the property possessor guilty of having the violation, but will not generally order the abatement (since the criminal enforcement powers of the judge set forth in Sec. 341.091 don’t include being able to order a cleanup).

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Enforcing Public Health Nuisance Laws

1.I.(4) How Local Health Departments Actually Impede Abatement Considering THSC Sec. 341.012(b) through (d) as consisting in four separate steps, the process followed by every Local Health Department I have found only completely does one of them: it provides a notice to the violator with a required “abate by” date. The rest of the process is ignored. Guess what? If you only do 25% of a process, you won’t get the desired result. So by beginning the abatement process — without providing the required notice to the prosecuting attorney — and then issuing a criminal citation as soon as the violator shows that he is not going to abate the health nuisance, the Local Health Department in effect puts the case — now for the violation itself, not the failure to abate — into the wrong court to achieve abatement. Under the criminal penalties described in THSC Sec. 341.091, neither the JP nor Municipal judge has the authority to order an abatement. About all they can do is to fine the violator and tell him they’ll see him again soon as long as the problem continues. When you combine the fact that the court considering the criminal complaint does not have the authority to order an abatement with the fact that there is an additional time lag between the issuance of the initial criminal citation by the Local Health Department and the actual court appearance by the violator, you will probably conclude that this approach certainly delays dealing with the actual abatement issue. Admittedly, some JPs will overstep their authority and order a cleanup of a THSC Chapter 341 mess, but this is actually a bad idea. First, it can’t be relied upon to always work. As soon as the judge realizes that he or she has no authority to order these abatements, they will stop. Secondly, if a person has failed to abate a health nuisance on a property he owns, there may be good reasons for this — lack of money being the most common. These issues can be examined in the proper court to see how real they are under conditions where the rights of the accused are recognized and he is properly represented. This can only happen where the process established by the State Legislature is followed. If the Local Health Department had continued with the other three steps in the abatement procedure the State Legislature established, a prosecutor would have either (1) simply failed to do his job as described by the State Legislature (and that could be the story in the local newspaper); or, (2) the prosecutor would have the violator before a judge who could issue an order to abate, with the possibilities of a contempt of court hearing if the order to abate is ignored. By beginning the abatement process and then, when meeting a little resistance, suddenly switching to the criminal enforcement process, the Local Health Department prevents the failure to abate issue from ever being brought before a 28


Enforcing Public Health Nuisance Laws

judge who has the power to act. We think this is a bad policy that actually helps to keep Texas dirtier than it has to be by failing to follow the directions of the State Legislature. So, why would a Local Health Department approach the abatement of health nuisances in such a way that they assured the mess would actually be around longer than it had to be? 1.I.(5) What’s Preventing the Use of THSC Sec. 341.012? When I’ve explained this process to Local Health Department leaders, they usually get a slight smile of awareness on their face when the see that the processes they have established (1) ignore state law; and, (2) probably result in delaying the actual abatement process. So the first question is “Do the managers at the Local Health Department know this section of state law?” This is usually the beginning issue. I have had such managers read the law and immediately assure me that “Well, prosecutors won’t help, and they don’t want to know about these cases.” That’s a good example of what is correctly called “arrogance.” The actual definition of “to arrogate” is “to assume the right to make a decision in an area where one doesn’t have the authority to do so,” such as deciding what a local prosecutor does or does not want to know about. If a local prosecutor does NOT want to get involved in the abatement issues, fine. Let the newspaper stories be about his failure to act, not about the Local Health Department’s failure to notify his office. And, who knows? Your community may be blessed with a local prosecutor who has decided to do his or her best to follow the mandates of the State Legislature as best as they can. Moreover, in some communities the question of “Why is a our town so dirty?” is attracting sufficient public attention as to become a political issue. Local prosecutors — who will, after all, bear the weight of failure to abate public health nuisances in their community as this law become better known — should be given the opportunity to decide what they want to do on these cases. That can’t happen as long as the Local Health Department is failing to notify them of the problems. I’ve had health department managers tell me, “We put the extra copy of the initial abatement notice in a drawer someplace” rather than send it over to the prosecutor. That’s fairly puzzling when you think about it, since it takes just about no effort at all for the Local Health Department to send a copy of the notice up the street to the prosecutor. As I say, Local Health Departments should let newspaper stories about unabated messes be about how the prosecutor’s office is failing to follow state law, not about 29


Enforcing Public Health Nuisance Laws

how the Local Health Department has decided to not notify the prosecutor, as law requires. Admittedly, it may well be that some property possessor simply doesn’t have the resources to abate a mess that he has allowed to grow on his property over several years. Or, he may have the resources and simply not want to use them to abate the nuisance. Whether the resources are available or not is a matter to be worked out by a prosecutor and judge who actually has the authority to examine the accused under oath and get to the bottom of his financial situation. It may well be that when the prosecutor’s office contacts the violator about a scheduled court hearing and encourages him to be represented by an attorney, the violator will see dollar signs before his eyes and become more cooperative. Using the mandated process set by the State Legislature is the correct way to deal with these issues by increasing scrutiny and pressure on the violator who fails (or refuses) to abate the nuisance. Taking any other “home made” approach simply boils down to local officials making processes up and ignoring state laws. 1.J. Problems with the Criminal Enforcement of THSC Chapter 341 There are not a lot of problems with local governments using this law that I can see. (A) The primary problem is that the law is simply not very well known. Nor is it widely realized that enforcement is not limited to Local Health Authorities: police, deputies, fire marshals, and any other sort of Texas peace officer can enforce this law in their jurisdictions. (B) Police rarely know that health nuisance violations are criminal violations that may well constitute probable cause supporting a warrant for property access. This is true of most environmental criminal laws. Police who know the environmental criminal laws frequently use them as probable cause for entry. (C) Sometimes a code enforcement officer discovers this law and has a perfect situation in which it could be used, but when the code officer finds that she needs to get the police involved, the code enforcement officer drops the idea. It’s sometimes seen as easier to continue to be ineffective with familiar tools that go to the trouble of trying to persuade the police department to help. (D) There’s also the issue of the large physical size of this law (about 50 pages), since it’s really three separate statutes combined. Besides appearing a little overwhelming, one could easily get parts of these sections confused. Be sure not to use the criminal and civil penalties in Sections 341.041 and 341.042 for the public health nuisance cases. Those only apply to some of the water-related sections in the 30


Enforcing Public Health Nuisance Laws

imbedded law. The right criminal and civil penalty sections to use are at Sec. 341.091 and Sec. 341.092. (E) There is a weakness in the whole way this law deals with the abatement issue. Personally, I think it would be great if this law mandated JPs and Municipal Judges to require a convicted violator to abate the mess or be subject to civil contempt of court. The fact that Local Health Departments don’t understand their requirements under THSC Sec. 341.012, as discussed above, delays the abatement process itself, and helps perpetuate the myth that a person can do whatever he wants on his own property, including violate criminal health laws. (F) Those agencies using this law for some specialized reason — such as using THSC Section 341.011(3) as the basis for restaurant inspections — often completely ignore the fact that the same inspector can legally issue citations for the eleven other health nuisances defined in that section as well as for violations of THSC Sec. 341.013(c) and others. I understand specialization, but when a Local Health Department inspector is (a) on site for a restaurant inspection inside a city; (b) spots some other mess (such as sewage out behind the restaurant); (c) fails to issue the appropriate citation for that second violation of THSC Chapter 341; and, (d) then actually calls the sewage violation in to the city as a code violation for city response — and this happens more than you’d imagine — there is clearly a policy problem. If a Local Health Department inspector reports violations of this law to the city code enforcement office (as a probable code violation), one of three things is probably happening: (1) the Local Health Department inspector has not received adequate training in enforcing this law and doesn’t realize that he can enforce all of its provisions himself; (2) the inspector is lazy and wants to palm his work off onto the city; or, (3) Local Health Department management is trying to avoid using their own resources by intentionally passing these “dual jurisdiction” cases to the city. When a municipal code enforcement manager realizes that his or her department is receiving reports of violations from the Local Health Department, it’s time for a “Big Meeting.” If the violations reported were actually violations of THSC Chapter 341, why isn’t the Health Department handling them? However, I’ve yet to find a situation where code enforcement officers were reporting code violations to the Local Health Department as probable violations of THSC Chapter 341 for the health department to handle. But I have certainly seen it work the other way around. (G) This last problem with using this law actually applies to both THSC Chapters 341 and 343, but we’ll discuss it here. As was mentioned in the Introduction, the local

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local sheriff may simply not want anyone except his officers issuing citations AND at the same time refuses to use his officers for this purpose. As a result, the citizens are put at risk from the responsible local officials simply not dealing with routine health nuisance violations. The State Legislature has provided health nuisance laws that can, if used, offer real protection to the people of Texas. Only the State Legislature may designate who can issue citations in various situations. For these two laws, the State Legislature has given citation-issuing powers to certified peace officers AND to local health departments acting in the unincorporated areas, if the commissioners court for the county agreed to authorize these powers to their health department at the time of its creation. When the sheriff decides to not “authorize” health department staff to issue citations, unless he is reflecting the earlier documented will of the commissioners court, he is simply overstepping his powers. The result is that nobody is enforcing the state laws protecting public health. Why do current commissioners and health department administrators not verify the actions of the founding commissioners court by checking the original court order creating the agency? Why should citizens have to suffer the consequences when local governments act in this manner? Section 2. THSC Chapter 343 Abatement of Public Nuisances This law closely follows THSC Chapter 341 as it also identifies and seeks to control nuisances to public health. Unlike THSC Chapter 341, however, this law is enforceable only in the unincorporated areas of the county, not including land there being carried on the appraisal rolls as agricultural. By using both THSC Chapters 341 and 343, a county can cover all of its unincorporated areas, using the different provisions and approaches in the two laws that are best for the county. Originally limited to larger counties, since 1999 THSC Chapter 343 has been applicable in the unincorporated areas of all Texas counties. Like THSC Chapter 341, this law can be enforced criminally by Any peace officer; A trained Local Health Department employee; and/or, A county employee trained by the appointed health authority. This law is particularly useful in that it also provides county governments with the powers to abate nuisances themselves in situations where violators won’t clean up their property voluntarily, provided that the county adopts a set of procedures designed to provide maximum protection to the property holder.

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This statute also contains interesting citizen suit provisions whereby parties other than the county can bring civil actions against persons who refuse to abate health nuisances on their property. One major difference between this law and THSC Chapter 341 has to do with the “notice before citation” requirements of each. THSC Chapter 341 has no such no such requirement; officers may issue a citation immediately. It’s only during the abatement process described in THSC Sec. 341.012 and managed by the Local health Department that the “time to abate” question arises. But the original citation for the violation can be issued immediately. Moreover, the fact that an active citation for a violation is working it’s way toward JP or Municipal Court may, in some situations, put pressure on the violator to abate the mess voluntarily before the court date arrives, THSC Chapter 343, however, works a little differently. It requires that a potential violator be given 30 days following notice from the county to abate a public nuisance before a citation can be issued. An recent attempt by the Legislature to decrease this time to 10 business days from the current 30 days was not successful. So as the law reads now, no actual violator has been committed until a period of 30 days has passed since the county first notified the guy. The language describing this waiting period is found in Section 343.012, which sets the criminal penalty for a violation. As in the case of the law first discussed, THSC Chapter 343 establishes a positive responsibility on each of us not to permit a nuisance: THSC Sec. 343.011 (b) A person may not cause, permit, or allow a public nuisance under this section. Notice that this particular section does not contain language “... when notified to cease by law authorities.” The State Legislature has established that each person already has an ongoing legal duty to eradicate health nuisances on the property he or she controls. That’s just part of responsible property ownership. But in cases where the violator is ignoring this basic responsibility to keep his property clean, a JP Court may have to get involved. Should that happen, the legal process begins with the county issuing a formal notice. No particular form is required for the notice, and many counties begin the process with an officer simply hand-delivering a notice to the property possessor that he will be in formal violation of this law if a period of 30 days passes and the mess has not been abated. Even then, however, the court won't get involved in the process until a citation has been actually issued, which can't happen under this law until 30 days following the giving of notice by the county. You can see how this “mandatory 30-day waiting before citation issuance” requirement differs between this law and the immediate issuance of a citation allowed 33


Enforcing Public Health Nuisance Laws

under THSC Chapter 341. And there may, in one case, be even a little more grace time allowed. When we get into the details of the law, note that in section THSC Sec. 343.011(c)(2), there is an additional ten days grace time allowed to handle some public nuisances before a citation is actually issued. Although a grace period to clean up and avoid a citation are given under this law, the State Legislature has established that it is still the responsibility of a person owning or controlling property to keep it free of public health nuisances, as described at THSC 343.011(b). This makes sense; the county should not have to be in the business of providing formal notice to each property owner before the guy does anything whatsoever. As in the case of THSC Chapter 341, this law can become the basis for widespread public education in a community. For many Texans, simply informing them of their responsibility to keep their property clean is sufficient to achieve compliance. 2. A. Where Chapter 343 Can Be Used This law was originally limited to covering the unincorporated areas of Harris County, where it was used primarily to deal with substandard structures. Now it applies to all 254 counties in Texas, but not in all parts of those counties. Generally, from the definition of “premises” in THSC Sec. 343.002 — because many of the violations will happen on “premises” — about one-half of the specific violations in this law are designed to be applied specifically on private property. Some are restricted even further to “neighborhoods,” which you’ll read below are platted subdivisions (approved by the commissioners court or not) on private property. Other of the specific statutes apply to both private and public lands. So be sure to closely read the physical area of applicability for each of the specific violations in this law before using it. This is very easy, and will immediately become apparent when we begin to look at the violations. Additionally, this law applies only to the unincorporated parts of all Texas counties. However, it does not apply to these areas: (1) “Agriculture land,” which means land that qualifies for tax appraisal under Subchapter C or D, Chapter 23, Tax Code; (2) A site or facility that is permitted and regulated by a state agency to do the activity described as a “public nuisance” in the law; and, (3) A site or facility that is licensed or permitted under THSC Chapter 361 (the

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Texas Solid Waste Disposal Act), and is creating a “public nuisance” in the process as described under this law. These exempted areas make some sense, I suppose. The first gives a pass to farmers for creating public nuisances on their actually agricultural land. This seldom includes the acre where the farmhouse itself sits, however, so this law applies there. This is the only criminal environmental law where “agricultural land” is excluded from coverage. (One other law, THSC Chapter 365, which handles illegal dumping, can’t be used for solid waste or litter generated by farmers, but even that law can be used to stop illegal dumping of just about everything else on “agricultural land.”) Additionally, all of the major misdemeanor and felony environmental violations found in Texas Water Code, Chapter 7, Subchapter E, apply to “agricultural land.” It’s just this one law — THSC Chapter 343 — that is not worried about public nuisances on “agricultural land.” What most officers do, when faced with public health nuisances that are on “agricultural land,” is to simply apply to general provisions of THSC Sec. 341.013(c) or one of the twelve public health nuisances, if it has been violated. In the other two cases, activities and sites regulated by a state agency or where there are landfills or other solid waste disposal processing or disposal activities underway are regulated by other sections of state law and regulations. However, this exemption of these places also is found only in THSC Chapter 343. Violations of THSC Chapter 341 (public health nuisance), THSC Chapter 365 (legal dumping), and TWC Chapter 7, Subchapter E (major environmental crimes) all apply to these areas along with the state regulations and any permits and orders that have been issued by an agency. So if there is an apparent violation of this law going on, but it is on “agricultural land,” peace officers and Local Health Authority inspectors may have to use THSC Sec. 341.013(c) or another THSC Chapter 341 provision to deal with these situations. The fact of the matter is that virtually any violation of THSC Chapter 343 is probably also a violation of THSC Chapter 341 prohibiting public health nuisances. 2.B. Important Definitions One should always thoroughly read the definitions used in the various Texas environmental laws. For example, if you are trying to use THSC Chapter 365 to deal with illegal dumping of “solid waste” or “litter,” it’s a very good idea to read the definitions of these two materials contained in that statute. Generally, the environmental laws use a slightly different meaning for many words than one would find in the dictionary. THSC Chapter 343 has a number of important definitions that are frequently used in the description of the individual violations. Here are all of the definitions from Sec. 35


Enforcing Public Health Nuisance Laws

343.012: THSC Sec. 343.002.  DEFINITIONS. In this chapter: (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), (9), or (10), by prohibition or control of access; and (C)  in the case of a nuisance under Section 343.011(c)(12), by removal, remediation, storage, transportation, disposal, or other means of waste management authorized by Chapter 361. (2)  "Building" means a structure built for the support, shelter, or enclosure of a person, animal, chattel, machine, equipment, or other moveable property. (3)  "Garbage" means decayable waste from a public or private establishment or restaurant. The term includes vegetable, animal, and fish offal and animal and fish carcasses, but does not include sewage, body waste, or an industrial byproduct. (4)  "Neighborhood" means: (A)  a platted subdivision; or (B)  property contiguous to and within 300 feet of a platted subdivision. (5)  "Platted subdivision" means a subdivision that has its approved or unapproved plat recorded with the county clerk of the county in which the subdivision is located. (6)  "Premises" means all privately owned property, including vacant land or a building designed or used for residential, commercial, business, industrial, or religious purposes. The term includes a yard, ground, walk, driveway, fence, porch, steps, or other structure appurtenant to the property. (7)  "Public street" means the entire width between property lines of a road, street, way, thoroughfare, or bridge if any part of the road, street, way, thoroughfare, or bridge is open to the public for vehicular or pedestrian traffic. (8)  "Receptacle" means a container that is composed of durable material and designed to prevent the discharge of its contents and to make its contents inaccessible to animals, vermin, or other pests. (9)  "Refuse" means garbage, rubbish, paper, and other decayable and nondecayable waste, including vegetable matter and animal and fish carcasses. (10)  "Rubbish" means nondecayable waste from a public or private establishment or 36


Enforcing Public Health Nuisance Laws

residence. (11) "Weeds" means all rank and uncultivated vegetable growth or matter that: (A)  has grown to more than 36 inches in height; or (B)  may create an unsanitary condition or become a harborage for rodents, vermin, or other disease-carrying pests, regardless of the height of the weeds. (12)  "Flea market" means an outdoor or indoor market, conducted on nonresidential premises, for selling secondhand articles or antiques, unless conducted by a religious, educational, fraternal, or charitable organization. When you are reading the specific thirteen violations that appear in the next section, note how frequently some of these definitions are use, such as “Building,” “Garbage,” “Neighborhood,” “Premises,” “Refuse,” and “Rubbish.” Some of these are unexpected. Note they definition of a “weed” has two possible meanings: those that are over 3 feet high but also those that are much less that that but that can be used as a place for various pests to hide. I spoke with a gentleman who had been one of the original drafters of this provision, and he told me that considerable time was spent debating among the drafters as to just what the word “vermin” referred. If weeds were high enough to hide a snake, was that sufficient? How about chest-high on a rat, so he could hunker down if he was spotted — are those high enough to be weeds? The definition used in many city ordinance might be based on height alone, and be actually less inclusive than this second definition of a rural “weed.” Also note that “premises” refers to virtually all private property in rural Texas. If there is a public nuisance on private property in rural Texas, this law is specifically designed to use to solve this problem. The point of this is to underscore to not assume the definitions used in a particular set of municipal ordinances or elsewhere are the same ones as used in this particular law. 2. C. Thirteen Defined Public Nuisances This law describes thirteen situations that constitute a public nuisance. Again, be careful to apply the specific definitions from THSC Sec. 343.002 when they are used in a violation. Sec. 343.011. PUBLIC NUISANCE. (a) This section applies only to the unincorporated area of a county. (b) A person may not cause, permit, or allow a public nuisance under this section.

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(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; Note: This section applies to “refuse,” which has a wide definition, in “neighborhoods,” (platted subdivisions and contiguous property within 300 feet of a platted subdivision). For instance, many small neighborhoods, located in an unincorporated area near Lake Texoma in Grayson County, are covered by this law, as are the residents' practices in keeping, storing, or accumulating refuse. There is no requirement for the plat to have even been approved by the commissioners court; (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; Note: This section, like the one before it, also applies to neighborhoods located in unincorporated areas as well as all locations within 300 feet of a public street anywhere in the unincorporated areas of the county. As a great deal of rural dumping occurs within 300 feet of a public street somewhere, this section can be effectively used to reduce visible waste throughout unincorporated areas of Texas. Tolerance of trash-heaps and abandoned things in rural areas and neighborhoods reduces property values and can be controlled through this section of the law. Note the additional ten days to be added to the thirty-day notice period; (3) maintaining premises in a manner that creates an unsanitary condition likely to attract or harbor mosquitoes, rodents, vermin, or disease-carrying pests; Note: Here the term “premises” does not simply apply to unincorporated “neighborhoods,” but includes most privately owned rural locations (except agricultural property). For example, the owner of an illegal tire dump is probably always in violation of this law, even though his property is located outside a platted subdivision, as long as the tires have been dumped on nonagricultural land. The mosquitoes that breed in the water trapped in his dumped tires have no problem swarming to the backyards of the homes located nearby. This also goes for the rats and rattlesnakes that may regularly roam from their homes in the tire pile. The point behind this, and many other such provisions in state law that impose some degree of limit on how we use our personal property, is this: we are free to use our property in any way we 38


Enforcing Public Health Nuisance Laws

wish, as long as we don’t commit a crime or violate the rights of our neighbors to peacefully use their own property. [If the tires were on unincorporated land that is carried on tax rolls as “agricultural,” the correct move is probably to abandon the thought as using THSC Chapter 343 and turn to THSC Sec. 341.013(c). This is a good example of how knowing both of these laws can help get the job done in rural Texas.]; (4) allowing weeds to grow on premises in a neighborhood if the weeds are located within 300 feet of another residence or commercial establishment; Note: Note the two definitions of “weeds” used in this statute. (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; Note: This law applies to a building anywhere in the unincorporated area of any county in Texas (except agricultural land). It is not restricted to dilapidated structures in rural neighborhoods, although it can be effectively used to address these places too. For example, if a rural “building” (again, please note the wide definition of this word in THSC Sec. 343.002) is partially destroyed by fire, or abandoned, it may easily become an unsafe playing location for kids ... or a place to use drugs. The owner would be in violation of this law for allowing this nuisance to remain unabated; (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; Note: These pools on abandoned and unoccupied property in rural Texas have to have both a gate and pool cover. However, as public nuisance (7) below indicates, in larger counties (Harris, Dallas, Tarrant, Bexar, and Travis) all pools in platted subdivisions on unincorporated land have to have either a cover or latched fence. This applies to all pools in these largest counties, and is not limited to those on abandoned and unoccupied properties. (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

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Enforcing Public Health Nuisance Laws

(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; Note: Dumping refuse by an individual in easements is certainly covered by this statute, although the provisions of the Texas Litter Abatement Act (THSC Chapter 365) could perhaps be more easily used. If the county refused to cut weeds at a rural intersection and these weeds were creating a “hazardous visual obstruction,” the county government itself would perhaps be in violation of this section itself; (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; Note: Under this definition, a landowner who dumps on his or her own property under a power-line easement (as long as location wasn’t on “agricultural” property) would, in addition to the more commonly used anti-dump law — THSC Chapter 365 Litter Abatement — be in violation of this provision, THSC Sec. 341.013(c), and possibly others. Remember that THSC Sec. 341.013(c) can be used for violations on “agricultural” property as can THSC Chapter 365. (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; (12) discarding refuse on property that is not authorized for that activity; or, Note: This is a provision added by the legislature several years ago that seems to overlap THSC Chapter 365, but actually gives the enforcement officer a way to address dumping without applying the “weight or volume” provisions of that statute. In unincorporated areas, using this provision or THSC Sec. 341.013(c) may be the beginning point for stopping illegal dumping. Larger charges are available if need be but these two are good starting places when the officer wants to get the process underway; (13) surface discharge from an on-site sewage disposal system as defined by Section 366.002. (Effective September 1, 2013). Note: Given the availability of several specific provisions to handle sewage violations in THSC Chapter 341 — including the general provision at THSC 40


Enforcing Public Health Nuisance Laws

Sec. 341.013(c) — the practical usefulness of this new provision would seem questionable. Its inclusion as a new public nuisance is the first time sewage violations have been introduced into this law. Variances Under THSC Sec. 343.0111, a local commissioners court has the power to grant a variance to a classification of public nuisance, as long as the court follows mandated procedures recording the logic of their decision. I know of no case where the commissioners court has issued such a variance, and I would suspect that doing so could be politically unpopular. Granting waivers to state criminal laws that protect the health of the voters can’t be a good idea. 2.D. Criminal Enforcement Like THSC Chapter 341, violations under this law can be handled as criminal or civil violations (through injunctions) by local agencies, although very few agencies use the civil approach. There’s no particular reason for this other than the easier criminal enforcement provisions and lack of awareness as to the possibility of seeking injunctions. The criminal penalty provision reads as follows: Sec. 343.012.  CRIMINAL PENALTY. (a) A person commits an offense if: (1)  the person violates Section 343.011(b); and (2)  the nuisance remains unabated after the 30th day after the date on which the person receives notice from a county official, agent, or employee to abate the nuisance. (b)  An offense under this section is a misdemeanor punishable by a fine of not less than $50 or more than $200. (c)  If it is shown on the trial of the defendant that the defendant has been previously convicted of an offense under this section, the defendant is punishable by a fine of not less than $200 or more than $1,000, confinement in jail for not more than six months, or both. (d)  Each day a violation occurs is a separate offense. (e)  The court shall order abatement of the nuisance if the defendant is convicted of an offense under this section. Note that each day of an ongoing violation is a separate violation. However, since an actual “violation” of this law does not occur until 30 days following the reception of formal notice and the continued presence of the public nuisance, exactly how to apply

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Enforcing Public Health Nuisance Laws

Section (d) is not clear. Would each new violation only be triggered by the expiration of its own 30-day warning period, or would the initial 30-day warning serve as notice for all subsequent citations? If it is anticipated that a particular situation will require multiple visits to the JP to cure, officers might want to use THSC Chapter 341 instead of this law. The “each day of a continuing violation is a separate offense” concept is found in that law too [see Sec. 341.091(c)], but there is no possibly confusing 30-day wait required in that law prior to the issuance of subsequent citations. For convenience and clarity, we usually advocate using THSC Sec. 341.013(c) in situations where both of these laws are simultaneously violated. 2.D. (1) Criminal Penalties (THSC Sec. 343.012) The punishments for these violations are at THSC Sec. 343.012 (criminal) and Sec. 342.013 (injunctions). The criminal penalty sets a fine of from $50 to $200 for the first offense, and a penalty for a subsequent conviction — no matter how long after the first conviction — of a fine of $200 to $1,000 and/or up to six months in the county jail. Compare the six months of maximum confinement for a person with a second conviction under this law (no matter how long ago the first conviction was) to the maximum jail time of 30 days for re-offenders under THDC Chapter 341 (and then, only for new convictions that happen within one year of the past). 2.D.(2) Who Can Issue a Citation This law works in the same manner as THSC Chapter 341. Since this is a criminal violation, any peace officer can issue a citation for a criminal violation. Additionally, THSC Section 121.003 allows Local Health Departments and county employees trained by health authorities to also issue citations or the violator to appear in court. Other county employees are not authorized to issue citations for these violations (they are neither peace officers nor health department staff). 2.D.(3) 30-Day Warning Notice Required Before Citation Can Be Issued This law requires 30-day notice to be given before the offense actually takes place, the question of “Who can give notice?” occasionally arises. There is no particular format specified for this 30-day notice, but issuing the notice by “Certified Mail, Return Receipt Requested” by county staff — or in person in written form by a peace officer — probably makes sense. Don’t confuse this 30-Day warning pre-offense notice with the written notice given under THSC Sec. 341.012 by Local Health Departments as part of the abatement process under that statute. 2.D.(4) No Authority For Peace Officer To Order Abatement This law contains no provision for peace officers to order an abatement, although this happens every day in Texas. The approach taken is often: “Here’s your courtesy notice. I’ll be back in 30 days, and if you have this mess cleaned up — and can give 42


Enforcing Public Health Nuisance Laws

me a landfill receipt showing the proper disposal of any waste — we’re done. But if I come back and this mess is still here, I’ll issue a citation and you’ll be headed for a judge.” Be sure to require a landfill receipt on all formal and informal abatement processes. Not doing so may only result in illegal dumping. Note that the abatement supervision process assigned to Local Health Authorities in THSC Sec. 341.012 does not apply to these THSC Chapter 343 cases. 2.D.(5) Judge Must Order Abatement Upon Conviction This law differs from THSC Chapter 341 in several important ways, including this point. This statute, at THSC Sec. 343.012(e), requires the court to order the abatement of the public nuisance upon conviction for the violation. When judges think that they have power to order an abatement of THSC Chapter 341 violations, it is usually this provision they incorrectly have in mind. 2.E. Civil Injunctions (THSC Sec. 343.012) Under this section, counties as well as affected persons may stop actual or anticipated violations of THSC Chapter 343 through injunctions issued by a county or district court. In smaller counties, this would presumably include injunctions issued by the Constitutional County Court, presided over by the County Judge. This is certainly an under-used provision of this law, which could easily result in an unresponsive violator finding himself in a hearing to determine if his disobeying the court order should be considered to be civil contempt of court (with its open-ended sentencing to achieve compliance). Here’s the language of that section: Sec. 343.013.  INJUNCTION. (a) A county or district court may by injunction prevent, restrain, abate, or otherwise remedy a violation of this chapter in the unincorporated area of the county. (b)  A county or a person affected or to be affected by a violation under this chapter, including a property owner, resident of a neighborhood, or organization of property owners or residents of a neighborhood, may bring suit under Subsection (a). If the court grants the injunction, the court may award the plaintiff reasonable attorney's fees and court costs. (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), (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 43


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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. (d)  In granting relief under Subsection (c), the court: (1)  may not, in a suit brought under Section 343.011(c)(10), prohibit or control access by the owner or operator of a utility line or utility easement to that utility line or utility easement; and (2)  may not prohibit the owner of the premises from accessing the property but may prohibit a continued or future violation. The provision at (c) is interesting to consider. It only covers Section 343.011(c)(1), (6), (9), or (10) and includes the court prohibiting access to the premises to prevent continued violations. These four sections are: Sec. 343.011. PUBLIC NUISANCE. (1) keeping, storing, or accumulating refuse on premises in a neighborhood unless the refuse is entirely contained in a closed receptacle; (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; (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; So if a person living in a platted subdivision out in the unincorporated area — whether that subdivision has been approved by the commissioners court or not — is keeping, storing, or accumulating refuse on premises in a neighborhood unless the refuse is entirely contained in a closed receptacle, there are several good criminal and civil ways to deal with this situation. Moreover, violations of this law are almost always a violation of THSC Chapter 341 too. There are many ways to respond to such a situation, but one approach might be: 44


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(1) Using THSC Sec. 341.013(c), immediately issue a citation to force the violator into court for the imposition of criminal penalties; (2) At the same time, have the Local Health Department follow the process established by the State Legislature at THSC Sec. 341.012(b)-(d) to force the guy to clean the related public health nuisance or face possible civil contempt charges (with open-ended penalties to force compliance) for ignoring a court order to abate the problem; (3) Also give the guy a written 30-day warning notice that he will be cited for a violation of THSC Chapter 343 if, at the end of that period, the problem continues to exist; (4) The county may immediately seek an injunction to prevent, restrain, abate, or otherwise remedy a violation of this chapter as provided for in THSC Sec. 343.013(a). Since the remedy includes preventing a violation before it happens, presumably the county can seek an injunction to abate the mess during the 30day notice period controlling the criminal charge; (5) Talk with nearby affected parties, such as a neighbor or property owners’ organization. They can also immediately seek an injunction to prevent the continuance of the actual or potential violation as allowed for in THSC Sec. 343.013(b), with attorney fees to be paid by the violator if the injunction is issued (when property owner association and neighbors discover they can sue messy neighbors, they will be very happy); and/or, (6) In situations where the property owner or possessor continues to violate the law and fails to abate the mess, the county may seek an injunction to prohibit entry to the property, if the entry is for the purpose of violating the law, as specified in THSC Sec. 343.013(c)-(d). If you’ve ever been in a platted subdivision in rural Texas, you have doubtlessly witnessed public nuisances in the form of folks “keeping, storing, or accumulating refuse on premises in a neighborhood unless the refuse is entirely contained in a closed receptacle.” Often, when asked, local authorities will assure citizens that “Unfortunately, there is nothing we can do” about the situation. All of the violator’s neighbors, according to the officials, will just have to endure the situation, since these kinds of violations are just part of rural Texas. Somehow, accumulating refuse on a lot in a rural subdivision is the birthright of the violator, regardless of the impact that has on his neighbors. I even know of one county judge who repeatedly assured his neighbors that there was nothing that could be done about a public nuisance that was upsetting him and a lot of other

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neighbors too. This is simply untrue and based on lack of accurate information. As you can see from the basic six possible responses above — and these do not include application of state illegal dumping laws or other possible violations, so there are probably additional statutes that can be used — there are PLENTY of possible responses that the county can use to deal with this basic, recurring problem. So why do county officers and elected officials systematically ignore applying basic state criminal and civil law to deal with these public health nuisance and public nuisance violations? This is a major policy question in Texas: “Why do local governments often do so little to protect the health of the citizens?” We often hear from upset neighbors who are tired of living next door to a huge mess and who have repeatedly been assured by their elected government that “There is nothing we can do.” Although we primarily work with government officers, we have frequently suggested to citizens where to read in state law to find the tools that the State Legislature has provided to local governments to work with to end these health nuisances. We have listened to stories from frustrated citizens who have actually taken copies of these laws to elected officials and county officers responsible for enforcement, only to be turned aside by the county with flimsy excuses, including “Well, we just don’t enforce that.” We have frequently listened to county officers make derogatory comments about complainants who won’t simply shut-up and suffer living next to a violator in silence. We have more frequently listened to county officers complain about their own county and district attorneys who ignore environmental cases presented to them by hardworking officers — or otherwise communicate to officers their lack of interest in prosecuting these cases. We have even seen, in one case, an assistant county attorney intentionally misread a provision of THSC Chapter 341 to avoid “capitulating” to an insistent complainant whom his elected boss found distasteful — or perhaps the assistant county attorney was operating with integrity but was actually that bad an attorney (at any rate, the overwhelming response from other assistant county attorneys with whom I discussed this situation was to suggest that maybe the guy hadn’t actually attended law school). These examples come at the county level. We have also seen the same resistance to enforcing health nuisance, illegal dumping, and water pollution statutes from many 46


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municipal police departments. On the other hand, we have also seen extremely thoughtful use of both of these laws by counties and city police wanting to stop these violations. So, three questions come to mind: (1) “Why is there often so much systematic county-level resistance to following state criminal laws that will eliminate health and public nuisances?” (2) “Since this hurts Texas and Texans on so many levels, how can this resistance be ended?” (3) “Why are these laws enforced in some places and ignored in others?” The next time you hear someone empowered to act saying, “Well, there’s just nothing we can do,” stop and ask yourself why they are really saying that. Do they perceive some personal risk if they enforce Texas laws? Do they just not want to be bothered to learn to use new tools? Are they concerned that new actions will turn the spotlight on old failures to act? Push yourself to dig into that reluctance to act, and see of you can get to the bottom of why someone would simply avoid applying state criminal laws to end a public nuisance. Texans will eventually be able to rely on systematic evenhanded enforcement at some point down the road. That is, after all, what we’re all working toward, persuading local governments to follow state criminal laws, like the officials swore they would do. We generally ignore the basic integrity issue created when a man swears he will support state law and then doesn’t do so. When I was younger I used to suggest that a guy’s word wasn’t very good if he went around swearing to the Deity that he’d do something, and then didn’t. However accurate this may be, as I’ve aged I have concluded that this particular approach belongs to St. Peter at the Pearly Gates rather than to me. I’ve been way too arrogant on this point myself. Judging others is simply above my pay grade; I’ve got my hands full just evaluating my own behavior over against the Ten Commandments. Keeping one’s oaths is a human accountability issue that probably runs deeper than supporting a particular law or not. Now I just assume the official has a hole in his knowledge that can be filled, and good policy decisions will then result. And, the next time you see officers closely following state laws in these cases, as some officers are already doing, reach over and pat them on the back. They are definitely part of the solution and not part of the continuing problem.

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2.F. County Optional Abatement Process County governments can act to abate the nuisance themselves, if the responsible person fails to take care of the problem. This power is optional and does not have to ever be exercised; it is entirely at the discretion of the commissioners court. The process that must be followed by a county seeking to abate nuisances is defined in Subchapter C of this law. The primary step for a county to take before beginning a program of nuisance abatement is to adopt abatement procedures that are consistent with the general purpose and language of THSC Chapter 343. Speak with your county judge to determine if your county has adopted such procedures. Many counties have done so over the past few years, so there are great examples of good procedures readily available. The provisions allowing this county-paid abatement process are: SUBCHAPTER C. COUNTY AUTHORITY RELATING TO NUISANCE Sec. 343.021.  AUTHORITY TO ABATE NUISANCE. (a) 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, except as provided by Subsection (b); (2)  in the case of a nuisance under Section 343.011(c)(1), (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), by removal, remediation, storage, transportation, disposal, or other means of waste management authorized under Chapter 361. (b)  In the case of a nuisance under Section 343.011(c)(13), the county may use any means of abatement reasonably necessary to bring the system into compliance with Chapter 366 only after the defendant fails to abate the nuisance as ordered by the court under Section 343.012(e). Sec. 343.022.  ABATEMENT PROCEDURES. (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), (6), (9), or (10); 48


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(2)  the removal or demolition of the nuisance; and (3)  the abatement of a nuisance described by Section 343.011(c)(12). (b)  The abatement procedures must require that written notice be given to: (1)  the owner, lessee, occupant, agent, or person in charge of the premises; and (2)  the person responsible for causing a public nuisance on the premises when: (A)  that person is not the owner, lessee, occupant, agent, or person in charge of the premises; and (B)  the person responsible can be identified. (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), (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. (d)  The notice must be given: 49


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(1)  by service in person or by registered or certified mail, return receipt requested; or (2)  if personal service cannot be obtained or the address of the person to be notified is unknown, by posting a copy of the notice on the premises on which the nuisance exists and by publishing the notice in a newspaper with general circulation in the county two times within 10 consecutive days. (e)  Except as provided in Subsection (f), the abatement procedures must require a hearing before the county abates the nuisance if a hearing is requested.  The hearing may be conducted before the commissioners court or any board, commission, or official designated by the commissioners court.  The commissioners court may designate a board, commission, or official to conduct each hearing. (f)  A county may, before conducting a hearing, abate a nuisance under Section 343.011(c)(6) by prohibiting or controlling access to the premises on which the nuisance is located and installing a cover that cannot be opened by a child over the entire swimming pool, but only if the county conducts a hearing otherwise in accordance with Subsection (e) after the nuisance is abated. Sec. 343.023.  ASSESSMENT OF COSTS; LIEN. (a) A county may: (1)  assess: (A)  the cost of abating the nuisance, including management, remediation, storage, transportation, and disposal costs, and damages and other expenses incurred by the county; (B)  the cost of legal notification by publication; and (C)  an administrative fee of not more than $100 on the person receiving notice under Section 343.022;  or (2)  by resolution or order, assess: (A)  the cost of abating the nuisance; (B)  the cost of legal notification by publication; and (C)  an administrative fee of not more than $100 against the property on which the nuisance exists. (b)  The county may not make an assessment against property unless the owner or owner's agent receives notice of the nuisance in accordance with Section 343.022. (c)  To obtain a lien against the property to secure an assessment, the commissioners court of the county must file a notice that contains a statement of costs, a legal description of the property sufficient to identify the property, and 50


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the name of the property owner, if known, with the county clerk of the county in which the property is located. (d)  The county's lien to secure an assessment attaches when the notice of lien is filed and is inferior to a previously recorded bona fide mortgage lien attached to the real property to which the county's lien attaches, if the mortgage was filed for record in the office of the county clerk of the county in which the real property is located before the date on which the county files the notice of lien with the county clerk. (e)  The county is entitled to accrued interest beginning on the 31st day after the date of the assessment against the property at the rate of 10 percent a year. (f)  The statement of costs or a certified copy of the statement of costs is prima facie proof of the costs incurred to abate the nuisance. 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), (9), or (10). Sec. 343.024.  AUTHORITY TO ENTER PREMISES. (a) A county official, agent, or employee charged with the enforcement of health, environmental, safety, or fire laws may enter any premises in the unincorporated area of the county at a reasonable time to inspect, investigate, or abate a nuisance or to enforce this chapter. (b) Before entering the premises, the official, agent, or employee must exhibit proper identification to the occupant, manager, or other appropriate person. Sec. 343.025.  ENFORCEMENT. A court of competent jurisdiction in the county may issue any order necessary to enforce this chapter. City of Dallas v. Stewart Before declaring the property of another to be a "nuisance" and seizing the property or abating the situation without paying agreed compensation to the owner, local jurisdictions are well advised to read the State Supreme Court's ruling in City of Dallas v. Stewart (the revised opinion issued January 27, 2012) and to discuss its ramifications closely with city or county attorneys, as appropriate. You can get a copy of this ruling at the Texas Supreme Court web site. The general notion is that any appeal of a nuisance determination made by a local board or other body will be in the form of a de novo hearing on whether the place is actually a nuisance. Counties should consult with the

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county attorney to verify that the steps they include in their nuisance abatement process also follow the requirements pif this and all other findings. Section 3. Comparing These Two Laws Before discussing how these two laws compare and their strengths and weaknesses, let’s take a quick look at basic concepts in abatement. The concept map below addresses Part 2 of dealing with any public health nuisance: abatement. This chart and a concept chart showing the overall Part 1 enforcement options have been provided in larger versions at end of the Appendix. We’ll not be looking at the enforcement chart, but it might be a good reference for you of the criminal statutes that can be used in responding to these situations.

3. A. Abatement Concepts Abatement of health nuisances (THSC Chapter 341) and public nuisances (THSC Chapter 343) as well as abatement of other messes associated with various environmental violations — including illegal dumping, water pollution, illegal burning — may be accomplished in one of four ways (not usually seen in combination with each other). 1. Public Education under THSC Sec. 341.012(a) Sec. 341.012.  ABATEMENT OF NUISANCE. 52


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(a) A person shall abate a public health nuisance existing in or on a place the person possesses as soon as the person knows that the nuisance exists. By this provision, the State Legislature established state policy on the need for a person possessing property — through owning, leasing, renting, etc. — has a responsibility to keep that property clear of public health nuisances just as soon as the person realizes that the nuisance exists. This law imposes some responsibilities on those who possess property in Texas: they are expected to keep that property clear of public health nuisances. There is no requirement that the person wait until he or she has received formal notice of the existence of the nuisance — that provision only appears in THSC Chapter 343. Here it doesn’t really matter what the source of the person’s knowledge is, and knowledge obtained by the individual’s direct observation is certainly sufficient. If the person is an individual, presumably he will have already been informed of the presence of the public health nuisance by his wife. If the person is a company, an association, or a government, knowledge might come about by ab employee or officer of the organization becoming aware of the existence of the problem. Knowing what defines a public health nuisance can be easily accomplished by reading the twelve listed health nuisances if THSC Sec. 341.011 or, as a beginning point, by making the provisions of THSC Sec. 341.013(c) widely known: THSC Sec. 341.013(c) Waste products, offal, polluting material, spent chemicals, liquors, brines, garbage, rubbish, refuse, used tires, or other waste of any kind may not be stored, deposited, or disposed of in a manner that may cause the pollution of the surrounding land, the contamination of groundwater or surface water, or the breeding of insects or rodents. This first abatement approach amounts to informing all property possessors in the city and county that (1) it’s a crime to allow a public health nuisance to exist on a property a person possesses; and, (2) the policy of the State of Texas is that a person is expected to keep any property he or she possesses free from public health nuisances. There are three basic reasons a property possessor should respond by voluntarily keeping his or her property free of public health nuisances: (1) it make sense to reduce the potential sources of health problems before any negatives happen; (2) keeping one’s property clean is one of the general responsibilities of property possession, according to state policy; and, (3) failure to one’s property clean of keep public health nuisances can result in a criminal penalty and a trip to see a judge.

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A simple brochure, public service advertising, utility bill insert, city/county social media announcement, or other communication of this message is a good starting point to having a cleaner city or county. Most property possessors, if they know that a public health nuisance on their property is actually a criminal violation, will probably voluntarily abate the problem without local government ever having become aware of the existence of the public health nuisance. Since this approach will also generate a spike in violations reported by the public, local governments using this public education approach should (1) carefully educate its employees and officials on these provisions (since they will be receiving questions from citizens), (2) assure that the local government itself is not violating THSC Chapter 341 or Chapter 343 (especially at commissioners’ precinct barns and waste transfer stations); (3) encourage its officials and employees to assure their own properties are free of public health nuisances; and, (4) decide what it is going to do about virtuous property possessors turning in their sinful neighbors. This form of abatement should require very little resources from local government beyond the general communication to its citizens. This could be called “pre-offense voluntarily abatement.” 2. Paid by Possessor Another category of abatement is that paid fro by the property possessor, but done a little later in the enforcement process. Here the city or county has become involved with the property possessor’s failure to follow Sec. 341.012 (a): the person simply is not keeping his or her property free of public health nuisances voluntarily. The local government has expended some label of enforcement effort, but has done so with an eye to making sure the possessor funds the abatement. There are four categories of this: A. Voluntary Cleanup Here the possessor has become known to local government to be allowing a public health nuisance to exist on the possessor’s property. Perhaps a citation has been issued; or an officer has given a 30-day warning under THSC Chapter 343 that a citation will be forthcoming if the nuisance is still present after 30 days; or an officer has issued a warning ticket and an “I’ll be back!” warning to the property possessor; or the possessor’s wife has intervened in the process and informed that possessor, “No, Sweetie, we’re not going to hire an attorney to fight the county for your supposed right to keep the open cesspool out back. We’re going to use some of that lawyer 54


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money instead to clean up your mess and get the lateral lines lengthened. I’m tired of the kids coming in with wet shoes and mosquito bites! And knockoff that little talk about how a man can do whatever he wants to on his own property. Everybody knows that doesn’t extend to allowing crimes, and anyway I’m getting tired of hearing your little speech.” In this approach, the possessor stops resisting, decides he doesn’t want to spend money fighting the city or county, and folks the hand he’s holding. The mess is abated and the local government is informed that it can close the case. B. Negotiated Case Settlement Now we’re at a little later point in the process. The possessor — and probably his attorney — are in a settlement dialog with the county or district attorney prior to the court hearing on the criminal case, and the possessor agrees as part of the settlement to abate the nuisance and provide proof to the prosecutor that the waste generating the public health nuisance has been properly disposed (and not simply illegally dumped somewhere). Here the possessor’s wife failed to talk sense into the possessor before the defense attorney was paid a retainer. C. Forced by Health Authority Here the property possessor has become the subject of a formal application of THSC Sec. 341.012(b)-(d) by the Local Health Department or county employee trained by a health authority appointed by the commissioners court. Remember that the enforcement process (that is, the issuance of a citation by a peace officer, Local Health Department investigator, or trained county worker) is separate from the abatement process. If you need to, please re-read the material at Section 1.I. Mandatory (But Ignored) Process to Abate Nuisance (THSC Sec. 341.012). If the Local Health Department followed the process stipulated any the State Legislature, it would provide the violator with a notice of the time he or she has to abate the problem, send a copy of that notice to the prosecutor, verify after the allowed time has pass that the problem has been abated, and, if it as not, notify the prosecutor of the situation. Following the provisions of this section, the prosecutor would bring the the violator into court for a hearing on the abatement order itself (not on the underlying violation). The judge could test any assertions that the violator might be making as to his financial inability to do the abatement, and, if satisfied that the violator has the financial and other capacity to act, order him to abate the nuisance by a specific date. If the violator ignores the court order, the prosecutor can request the violator be held in civil contempt until

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such a time he arranges for the nuisance to be abated. However, as discusses in section 1.I., Local Health Departments statewide have pretty well ignored this process. They begin the process by issuing the abatement order to the violator, but fail to send notice to the prosecutor that there is an active case unfolding. When the violator fails to abate the nuisance, rather than send notice to the prosecutor so that he or she can bring the violator before a judge, the Local Health Department abandons the attempt to have the nuisance abated. Instead, the investigator puts on his “punishment” hat and issues a citation for the person to appear in JP or Municipal Court. As discussed above, when the case is scheduled and the violator finally appears — to answer the citation he has received for a violation of some provision of THSC Chapter 341 — he finds himself before a judge who does not have the statutory authority in THSC Chapter 341 to order an abatement. All the judge can do is fine the person as punishment for the violation ($10 to $200 for a first offense), and tell the violator that if he is cited again he will be back before the judge for another fine — or will have the case submitted to the process of the county attorney to schedule a court hearing for a second criminal violation of the same law within one year of the first conviction. Because this law includes a possible 30 days in jail upon a second conviction, the case was removed from the JP or Municipal Court and sent up to the next level of court, where it will languish. All this time the public health nuisance is still right where it has always been, unabated. Unless a Local Health Department is willing to start following the process that the State Legislature has mandated at THSC Sec. 341.012(b)-(d), any attempt it makes to force the person to abate the nuisance — unless it is immediately successful — will probably result in the nuisance being in the environment longer than it would have been. And this is before the prosecutor is given the chance to follow his or her duties specified in THSC Sec. 341.012, which may or may not happen. Local Health Departments that think through how they are handling these cases, discover that the last paragraph accurately describes their process, and then refuses to change their process to comply with THSC Sec. 341.012 are puzzling to me. D. Court Ordered In this situation, the person posing the property wire the health nuisance exists has refused to abate the violation voluntarily and has been charged with one of several criminal violations. The prosecutor has been 56


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unsuccessful in effecting a pre-trial settlement, and the Local Health Department has failed to follow the provisions of THSC Sec. 341.012. Now the person has been found guilty by the court of the particular environmental violation for which he was charged. Strangely, not every violation authorizes the court to order the health nuisance abated. THSC Chapter 341 is silent on the abatement order, which most judges I have spoken with interpreting as not giving them power to order abatement for its violation. The judge in a hearing related to a THSC Sec. 341.012 “failure to abate” issue would have the power, but not a local judge hearing a basic criminal charge made for a THSC Chapter 341 violation. On the other hand, THSC Chapter 343 specifically directs a judge to order an abatement upon conviction of a violation. That provision is found at THSC Sec. 343.012(e). The most commonly used law to deal with illegal dumping — THSC Chapter 365 — contains no provision for the court to order abatement, although the possibility of an injunction “to prevent or restrain a violation of this subchapter” exists at THSC Sec. 365.015(a). Nor does TWC Chapter 7, Subchapter E contain specific powers to the court to order abatement. However, since the penalties for both of these statutes are so much greater than those for a violation of THSC Chapters 341 and 343, it’s much more likely that a pre-trial settlement conference would have resulted in an agreement to abate. Likewise, if the city or county is attempting to use its civil suit powers under TWC Sec. 7.351 to force a resolution to the problem through a suit, the primary focus of the process will probably be the abatement of the mess. 3. Paid by Third Party But the violator, regardless of the charges or law being used, may legitimately not have the resources to clean the property. Often the underlying cause of the violation in fact is the poverty itself, and the accumulated junk that the violator has accumulated over the years in trying to make a living. For example, the violator may have allowed local individuals and companies to use property he possesses as a convenient solid waste dump site, and he has been making a living from the fees he has been charging. Now the violation has been discovered and stopped, through application of state criminal law, but the mess remains. The prosecutor has been able to determine that the violator actually has no resources to use to clean the property; has also determined that doing nothing is politically a bad idea (as is the continuation of any public health nuisance); but is reluctant to use city or county money to pay for the cleanup. The question becomes, “Are

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there other sources of funds to pay fro such cleanup?” The answer is, “Maybe so,” if one of the follow is in place A. Cleanup Grants Regional planning commission — called “Councils of Government” or “Development Councils” receive grant funds every two years to be used to help support local recycling, reduction of waste gluing into the landfill, and illegal dumping enforcement. The decisions on the use of these funds is made regionally, usually through a formal grant application process. Occasionally a COG will decide to approve a local request for funds to clean illegal dumps. Be aware of several consideration that may not make this a wood source of funds, but it never hurts to have a discussion with the Regional Solid Waste Planner at the regional planning commission serving your county. Some of the things to be considered are (1) the total regional funds available for projects has steadily decreased over the years; (2) if your city or county is not aggressively enforcing the anti-dumping laws — and attempting to force the violator to pay for the abatement — there’s not much support for using regional funds; (3) the process is extremely competitive, and there are often many more requests for funds than there is money available. But that being said, getting to know the regional planner generally has value in itself and could eventually result in a successful grant. Your community might also want to become active on the advisory council that the COG maintains for solid waste project review and ranking. B. Supplemental Environmental Projects Texas Water Code Sec. 7.067 Supplemental Environmental Projects describes a program under which administrative penalties that would otherwise be paid to the TCEQ for administrative violations can be retained locally and used for various environmental projects. Contact the TCEQ through their website to determine if they would approve a standing ”CountyWide Cleanup Fund” that could be used to receive funds from local violators under this program. Not only may your city or county be approved to implement an S.E.P. Through this program — thus using funds that would have been paid to the state on a local environmental project — bit also you might be successful in attracting some portion of the civil penalties that would normally be paid by others. Get to know the S.E.P. Folks at the TCEQ, beginning with the information at http://www.tceq.texas.gov/legal/sep/ .

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C. Prior Settlements S.E.P.s funds are generated from the state-level administrative enforcement process. However, a similar program could be established at the local level, under local control. There’s absolutely no reason that local prosecutors, as they work out settlements with violators through the local application of criminal and civil law, couldn’t build-up a local ”County-Wide Cleanup Fund” in the prosecutor’s office. Over time, this fund will grow with increased enforcement. It could be used to abate health nuisances in situations where (1) the violator is actually unable to pay for the abatement of the underlying violation; and, (2) the violation is such a health or political problem that doing nothing is simply not an option. 4. Paid by County Under THSC Chapter 343 Subchapter C This final approach is that of using taxpayer funds to remediate a public nuisance identified as THSC Chapter 343 violation. The violator has not voluntarily cleaned his property, the criminal or civil enforcement process has not been able to force the violator to abate the mess, and, there is no other source of funding available to the county to use to deal with the problem. In some situations the county may have to spend taxpayer funds to clean the mess. All Texas counties are eligible to adopt the Subchapter C procedures to abate THSC Chapter 365 public nuisances, but most still have not done so. Before commissioners adopt these procedures, they should ask a question to the sheriff and Local Health Department (if they have one), “Are we diligently attempted to use all other abatement enforcement techniques available to us?” Deciding to use taxpayer money to abate a specific health nuisance on a specific property always creates political pressures. Before incurring these pressures, commissioners need to assure themselves that all other approaches have been tried. A. County Adopts Procedures (Optional) THSC Chapter 343, Subchapter C, provides a set of procedures that a county can adopt to follow in using taxpayer funds to abate public nuisances as described in THSC Chapter 343. These are the public nuisances that occur anywhere in the unincorporated areas of the county (not-including land listed as “agricultural” on county tax rolls). Without adopting these procedures, county authorities will probably not successfully enter the property for the purpose of abatement. Sometimes an official will confuse the need for the county to adopt these Subchapter C county abatement procedures with having to adopt Subchapters A and B before they can be enforced criminally. This is an error. 59


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The entire law has already been adopted by the State Legislature and Subchapters A and B may be enforced criminally without being further “adopted” by local counties. They are in force throughout rural Texas now, just as are all other criminal laws. But the State Legislature has done counties across the state a huge favor by requiring the abatement procedures in Subchapter C to first be adopted by a county prior to being used. Adopting abatement procedures is totally optional with each commissioners court. Counties are not required by the state to adopt these or any other taxpayer-funded abatement procedures, nor once they have been adopted, must the county use them to abate every public nuisance that comes along. By providing this set of requirements, the State Legislature is simply telling the county, “You don’t have to use taxpayer funds to abate every public nuisance in the county. But in the event that you DO want to use taxpayer funds to abate a particular public nuisance, your procedures must include the steps we have provide in Subchapter C.” Also note the requirements for needing court orders before abating substandard structures as determined in the City of Dallas v. Stewart case determined by the State Supreme Court in 2012/2013. Most observers think this includes all nuisances. Subchapter C also allows the county to place a lien on the property to recover abatement costs at THSC Sec. 343.023  Assessment Of Costs; Lien. Counties should also remember that the clean my easily cost more than the property is worth. Liens are often easier to place than actually be eventually collected. B. County Selectively Applies Just because a particular county has adopted a set of procedures that follow the requirements set out in THSC Chapter 343, Subchapter C, that county doesn’t have to use them in each public nuisance case where there are no other choices but to use taxpayer funds for abatement. Each time they are used, the procedures — and City of Dallas v. Stewart — require a court hearing hearing before the commissioners court. Once a decision has been reached by the commissioners court to use county funds to abate a particular nuisance, it can be carried out under THSC Sec. 343.024: Sec. 343.024.  AUTHORITY TO ENTER PREMISES. (a) A county official, agent, or employee charged with the enforcement of health, environmental, safety, or fire laws may 60


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enter any premises in the unincorporated area of the county at a reasonable time to inspect, investigate, or abate a nuisance or to enforce this chapter. (b) Before entering the premises, the official, agent, or employee must exhibit proper identification to the occupant, manager, or other appropriate person.

3. B. Comparison of the Laws There are many important differences between these two laws. Personally, I think these result in THSC Chapter 341 being generally more effective than THSC Chapter 343 in many situations. Of course, officers working in the unincorporated areas of the county may use both of these laws, and by becoming well-versed on the provisions of each of them can decide which is best to apply to a particular situation. For example, faced with a public nuisance on land designated as “agricultural” by the local tax office, officers can often apply THSC Chapter 341 to deal with the issue. THSC Chapter 343 has restrictions preventing its use on “agricultural” property, but THSC Chapter 341 does not. Since THSC Sec. 341.013(c) can be used in such a wide range of situations, officers may decide to just use that provision. Likewise, if an officer encounters a problem in rural Texas that needs immediate attention, he can avoid the 30-day notice period in THSC Chapter 343 by simply applying THSC Chapter 341. On the other hand, officers working inside cities are limited to using only THSC Chapter 341; THSC Chapter 343 simply does not apply inside city limits. However, through strong code enforcement programs, being “limited” to using THSC Chapter 341 inside the city generally presents no real problem to local police. When the code enforcement approach doesn’t work, the police can simply step up — with the guidance of code enforcement staff — and apply THSC Chapter 341. Of course, in cities where officers are uneducated on this law, where the Chief of Police has unilaterally decided that his officers won’t enforce certain state criminal laws, or where city management can’t or won’t direct the police to use this law in cooperation with code enforcement, nothing happens. Because of the failings of local government, the citizens are simply denied the health protections intended by the State Legislature. Since it is more versatile, quicker to apply, and covers a wider area, teaching city and county peace officers to use THSC Chapter 341 — and especially the very general

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provision THSC Sec. 341.013(c) — may be a good way to ease local police and deputies into doing more environmental enforcement. Focusing on this one law can greatly reduce the amount of extra training that an officer requires before beginning to use other environmental statutes. This is particularly true if you link training in using THSC Chapter 341 with learning to use THSC Chapter 365 for illegal dumping cases. While the 30-day notice period required in applying THSC Chapter 343 may make that law unattractive, only that statute specifies that the JP is required to order the mess abated upon conviction [see THSC Sec. 343.012 (e)]. No similar provision exists in THSC Chapter 341; when JPs “order” messes to be abated under THSC Chapter 341, they usually quickly realize that have no statutory power to do so and stop the process. Hence it may be a good idea to use both laws in some situations. Another thing in THSC Chapter 341’s favor is that health nuisances are subject to that mandatory process in THSC Sec. 341.012 under which the local health authority must work with the violator — and local prosecutor — to abate the underlying health nuisance. Failure to abate the nuisance may, under the provisions of this section, result in an unrepentant violator appearing in a district or county court to be ordered to abate the health nuisance. Although this process established by the State Legislature is generally not followed by Local Health Authorities, it is nevertheless the most effective way to get a violator in front of a judge on the abatement aspect of the case. Presumably, he would also have an appearance scheduled in JP court to deal with the punishment aspect of maintaining the health nuisance in violation of the law. Finally, if the county has decided that in some circumstances it wants to be able to use county funds to abate a particular public nuisance, it must follow the specific requirements of Chapter C of THSC Chapter 343. Many counties have adopted procedures that meet the requirements of this section. Commissioners courts decide if it is appropriate to apply this “county-funded” process in a particular situation, and get to experience the political ramifications of both using and failing to use the approach they have adopted. Local law enforcement simply failing to know and apply these laws is the major problem likely to be encountered. The result of not using these laws may be greater for counties than cities, who, after all, usually have some form of code enforcement to use. But counties have no municipal codes to use in dealing with health nuisance issues. If the sheriff’s department is intentionally refusing to enforce the public nuisance and public health laws, this is a decision that carries potentially major health risks to the county and needs to be made at a higher level than the sheriff. Counties which have created formal Local Health Authorities need to review the

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commissioners court’s founding court order to assure that the health department is actually following these directives. Pay close attention to assuring that the Local Health Department is following the provisions of THSC Sec. 341.012. Where Local Health Authorities exist but are not following the very specific directions of the State Legislature in addressing the abatement of public health nuisances, the county may well be incurring civil liability for failure to follow state law when faced with specific health problems. For example, when deaths occur from the West Nile Virus — and at the same time the county is not following mandated state law to abate health nuisances — there may be a liability issue. Where local health authorities are ignoring state law, this situation needs to be discussed with the county attorney whose job it is to assure the county does not operate in such a way as to incur liability. Both cities and counties should note the provisions of the new THSC Sec. 341.019 Mosquito Control on Uninhabited Residential Property. Following the provisions of this law is actually a lot better than explaining later why you decided not to do so. Again, like all decision not to enforce a state law, the decision to ignore these provisions should be taken at the highest policy level in the city or county. The difference between failing to follow THSC Sec. 341.012 to abate a nuisance and failing to use its powers under THSC Sec. 341.019 to control mosquitos is that the State Legislature mandated that the first section be followed. The second provides an approach to mosquito control that is available, but not mandated. Ignoring either of these tools, however, may have significant political costs. Generally, if, for whatever reason, your city or county is not using these health laws, at least have a conversation with local elected officials and your city or county attorney and make sure that you’re making a conscious policy decision.

Section 4.Practical Application: Controlling Scrap Tires Texans will generate around 25 million used tires this year — around one tire per person — and most of them will wind-up as scrap, having no additional use. The best definition of the difference between a scrap tire and a used tire is this from the TCEQ: “Good reusable tires are not considered scrap tires if they are stacked, sorted, classified, and arranged in an organized manner for sale.” Moreover, “Good used tires that are stored in stockpiles are scrap tires.” There was a recent tire dumping case in Hill County where the enforcement officer came upon several workers who were illegally dumping tires in a wooded area. What was interesting about this case was that the workers were carefully stacking the tires. 63


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They traced back to a retail tire shop in a neighboring county that had reached the limit of how many scrap tires they could have stored on site without registering as a storage facility, and had decided to stay below their limit by dumping the excess. They weren’t the first retail tire shop to think of this. I’ve always wondered why the workers were stacking the tires. Maybe the owner thought that he was allowed to dump used tires but not scrap tires, so he was having the workers stack them. But THSC Chapter 365 — the law most commonly used for illegal dumping — uses the phrase “discarded or worn-out manufactured materials and machinery including motor vehicles and parts of motor vehicles, tires, aircraft, farm implements …” in its definition of “litter.” As far as illegal dumping is concerned, the difference between new, used, and scrap tires is irrelevant. You can’t incorrectly discard tires of any kind. They’re all litter. However, not all of the environmental laws use the same definitions for things. THSC Sec. 341.013(c) for example uses the phrase “used tires” as an example of “waste products” — which shows a slight imperfection with this section. The drafters at the State Legislature should have used the term “scrap tires” as an example of “waste products” that have to be properly handled, had they wanted to be strictly consistent with definitions used by the TCEQ. So I suppose used tires that were “sorted, classified, and arranged in an organized manner for sale” wouldn’t be covered under THSC Sec. 341.013(c), no matter how many mosquitoes were buzzing around them. Used tires, by definition, are simply not “waste products,” so they are not subject to THSC Sec. 341.013(c). We have to keep reading. THSC Sec. 341.011(12) includes in the definition of “nuisance” “an object, place, or condition that is a possible and probable medium of disease transmission to or between humans.” So if the rats were crawling out of a neat stack of used tires or the mosquitoes were a-buzzing, the officer or Local Health Department inspector might decide that the stack of used tires met the definition of “nuisance” in this section. Or maybe the orderly stack of used tires — which were not waste — were exposed to the elements in such a way that they were catching rainwater. In that case, perhaps the provision of THSC Sec. 341.011(7) against standing water facilitating mosquito breeding applies. Health nuisances are often generated by piles of waste, but sometimes they are generated by other places too. Health nuisances are unlawful in either case. You can’t create mosquito habitat as a normal part of business, without incurring liability for the health nuisance. THSC Chapter 343 handles things a little differently. Some of the subsections 64


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include “tires” in their list of examples of “rubbish” and “refuse” that cannot be improperly stored on private property — as in THSC Sec. 343.011(c)(2) — so probably this would actually apply to scrap tires rather than used tires. However, the next section of that law — THSC Sec. 343.011(c)(3) is concerned about any private property (“premises”) that is maintained “in a manner that creates an unsanitary condition likely to attract or harbor mosquitoes, rodents, vermin, or diseasecarrying pests.” If the mosquitoes are breeding in a nice orderly stack of used tires somewhere out in the non-agricultural areas of unincorporated Texas, I’d think that this provision would be a good one to apply. Or go back to THSC Sec. 341.011(12), which prohibits “an object, place, or condition that is a possible and probable medium of disease transmission to or between humans.” These are examples of how different environmental laws can be considered until one that exactly fits the unhealthy situation is found and applied. So, what can you do with scrap tires? A limited number of will be used to make things (such as extruded flooring for horse trailers and stalls), be chipped and used under playground equipment, painted white and put around trees, burned in some oldfashioned cement production processes, or made into back-yard swings. And some will be used in various other TCEQ-approved projects. The TCEQ asserts that “Scrap tires can be a valuable commodity” and provides suggested uses on its website. I personally hope that the person who wrote that is no longer working in government anywhere, for the suggested uses seem to me to fall far short of using the 25,000,000 scrap tires we’ll generate this year — and the next — and the next. The suggested uses will absorb some scrap tires, however: use them as planters; padding for equipment delivery docks; sidewalls and backstops for a pistol range, paint ball game court or miniature golf course; and, erosion control or bank stabilization. “Scrap tires, when properly engineered, can be used for erosion control, terracing, retaining walls, steps, bridge supports, dams, and levees.” (http:// www.tceq.texas.gov/tires/recycling.html). Agreed, but not 25,000,000 per year. That same site asserts that “A scrap tire should be scrubbed with hot soapy water before coming in contact with your family.” Hard not to agree with that! I’ve also heard many moms complain about the crumb rubber that makes it from under the playground equipment to the middle of their living room, via their children’s shoes. I don’t think they were concerned that the crumbs hadn’t been scrubbed with hot soapy water before showing up on their rugs. I’ve had many, many discussions with local officials about scrap tires over the years, and never once have I ever heard one person say, “Scrap tires can be a valuable 65


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commodity.” The three most common issues that come up about scrap tires are (1) Where can people and governments get rid of them?; (2) Are grants available to remove them?; and, (3) What rules do people have to follow in dealing with them? The TCEQ website does a really marvelous job, in my opinion, of explaining the rules concerning the handling and disposal of scrap tires. The material there is all very clear. It clearly distinguishes between scrap and used tires: “Good reusable tires are not considered scrap tires if they are stacked, sorted, classified, and arranged in an organized manner for sale. Good used tires that are stored in stockpiles are scrap tires.” The state rules and laws governing the handling and disposal of scrap tires are easy to find on the TCEQ site. The best place to begin reading is at http:// www.tceq.texas.gov/tires. Following the links there will probably answer just about any question you might have about the duties of generators, transporters, and those who would operate scrap tire storage sites. Most of the problems that local governments have with scrap tires revolve around (1) generators creating a health nuisance by improperly storing scrap tires; (2) generators illegally dumping large volumes of scrap tires; (3) generators who have must register as storage facilities (subject to more stringent requirements than generators) because they have drifted beyond the “500 scrap tires on the ground and/or 2,000 scrap tires on a trailer” generator limits; and, (4) illegally dumping small (and occasionally large) numbers of scrap tires, the dumping being done by generators or individuals. Since so many of these issues begin with scrap tire generators, let’s read the basic provisions applicable to them on http://www.tceq.texas.gov/tires: Generators are tire dealers, junkyards, fleet operators, and others who generate scrap tires. Generators may not store more than 500 scrap tires on the ground. Generators who register with the TCEQ may store up to 2,000 tires in a trailer. A state sales tax identification number is required for registration. The state comptroller answers tax questions at 800-252-5555 or on the Comptroller website. Generators must: • Monitor tires stored outside, at least once every two weeks, to assure vector control. • Stack, sort, classify, and arrange good reusable tires in an organized manner for sale. • Document the removal of all scrap tires using manifests, work orders, invoices, or other records. • Allow only registered scrap tire transporters to remove their scrap tires. • Ensure that the transporter who collects the tires delivers them to an 66


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authorized facility. Still comply with all manifesting requirements if transporting their own scrap tires without registration.

No state fees are required for scrap tire management. Generators may charge customers for disposal, or may include the cost in the price of the tires purchased. Fees for removal are negotiated between generators and transporters. Since your city or county is not the TCEQ, you’ll not be able to directly enforce the state administrative rules governing scrap tires. That’s the business of the TCEQ. However, that is not to say that your city or county is not involved in the overall management of this waste. For example: 1. The way the tires are being held by the generator may violate a city code; 2. The way that the tires are being held by the generator may constitute a health nuisance or a public nuisance (more about this below); 3. The generator may be illegally dumping excess scrap tires (those in excess of the 500 on the ground and 2,000 in a trailer that the regulations allow). Keeping the excess on site would require very-expensive registration as a tire storage facility, so illegally dumping the excess someplace may seem to be a good idea to the violator, especially in those parts of Texas where local officials don’t enforce this criminal law. Depending on the quantity and location where the tires are dumped, multiple criminal laws may be violated. The most common of these are THSC Chapter 365 (setting a criminal penalty for the dumping based on the weight or volume) and Texas Water Code Sec. 7.145 and Sec. 7.147 (felony and major misdemeanor water pollution when dumping is done into or adjacent to water, including borrow ditches and dry creeks); 4. Individuals may be doing similar violations on their own property and be subject to the same criminal laws; 5. A generator may have gone out of business or otherwise abandoned a number of tires at his closed retail business. All of these have become scrap tires, since they are no longer for sale. The city or county attorney may be faced with needing to sue the generator under Texas Water Code Sec. 7.351 to enforce one or more rules and assure a clean up. Even though TCEQ has direct administrative rule enforcement power, cities and counties retain civil suit powers to force compliance with most environmental criminal laws, associated rules, permits, and orders; or, 6. A former scrap tire dumping site may be under a TCEQ clean-up order of some 67


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sort, but the person subject to the order may be (1) failing to comply with the order; (2) increasing the tires dumped without authority to do so; or, (3) creating a health nuisance by the way in which he is handling the situation. These are the normal issues that arise when dealing with scrap tires. We suggest that the best response for local governments in these situations is: First, read and re-read the material on scrap tire storage, handling, and disposal on the TCEQ websites mentioned above. There is absolutely no substitute for really knowing the state rules and laws controlling this waste. The rule promulgated by the TCEQ regulating scrap tires is found at 30 T.A.C. 328 Subchapter F Management of Used or Scrap Tires (http://s.coop/1u3q3). The basic law — from which the rule is derived — is THSC Sec. 361.112 Storage, Transportation, And Disposal Of Used Or Scrap Tires: THSC Chapter 361. Solid Waste Disposal Act Sec. 361.112.  Storage, Transportation, And Disposal Of Used Or Scrap Tires. (a) A person may not store more than 500 used or scrap tires for any period on any publicly or privately owned property unless the person registers the storage site with the commission. This subsection does not apply to the storage, protection, or production of agricultural commodities. (b)  The commission may register a site to store more than 500 used or scrap tires. (c)  A person may not dispose of used or scrap tires in a facility that is not permitted by the commission for that purpose. (d)  The commission may issue a permit for a facility for the disposal of used or scrap tires. (e)  The commission by rule shall adopt application forms and procedures for the registration and permitting processes authorized under this section. (f)  A person may not store more than 500 used or scrap tires or dispose of any quantity of used or scrap tires unless the tires are shredded, split, or quartered as provided by commission rule. The commission may grant an exception to this requirement if the commission finds that circumstances warrant the exception. The prohibition provided by this subsection regarding storage does not apply to a registered waste tire energy recovery facility or a waste tire energy recovery facility storage site. The prohibition provided by this subsection does not apply to a person who, for eventual recycling, reuse, or energy recovery, temporarily stores scrap tires in a designated recycling collection area at a landfill permitted by the commission or licensed by a county or by a political subdivision exercising the authority granted by

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Section 361.165. (g)  The commission shall require a person who transports used or scrap tires for storage or disposal to maintain records and use a manifest or other appropriate system to assure that those tires are transported to a storage site that is registered or to a disposal facility that is permitted under this section for that purpose. (h)  The commission may amend, extend, transfer, or renew a permit issued under this section as provided by this chapter and commission rule. (i)  The notice and hearing procedures provided by this subchapter apply to a permit issued, amended, extended, or renewed under this section. (j)  The commission may, for good cause, revoke or amend a permit it issues under this section for reasons concerning public health, air or water pollution, land use, or violation of this section as provided by Section 361.089. (k)  The commission may not register or issue a permit to a facility required by Section 361.479 to provide evidence of financial responsibility unless the facility has complied with that section. (l)  In this section, "scrap tire" means a tire that can no longer be used for its original intended purpose. (m) The commission may adopt rules to regulate the storage of scrap or shredded tires that are stored at a marine dock, rail yard, or trucking facility for more than 30 days. Second, if you are are located inside a city, be sure to read any of your city ordinances that address such things as refuse on a lot, illegal dumping, and retaining water that may become stagnant or places for possible mosquito breeding. These may be all you need to solve a problem. Third, know the health nuisance and public nuisances laws available to local peace officers to use in handling scrap tires or used tires being mishandled. These laws can also be used by Local Health Departments established under THSC Sec. 121 where the commissioners court has extended the power to issue citations to the health department when it was created. Several of these criminal violations may apply to a particular situation: For use inside cities and anywhere in unincorporated areas: Common THSC Chapter 341 violations involving scrap tires (and some used tires): THSC Sec. 341.011 (4) a place, condition, or building controlled or operated

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by a state or local government agency that is not maintained in a sanitary condition; THSC Sec. 341.011 (5) sewage, human excreta, wastewater, garbage, or other organic wastes deposited, stored, discharged, or exposed in such a way as to be a potential instrument or medium in disease transmission to a person or between persons; THSC Sec. 341.011 (7) a collection of water in which mosquitoes are breeding in the limits of a municipality or a collection of water that is a breeding area for Culex quinquefasciatus mosquitoes that can transmit diseases regardless of the collection's location other than a location or property where activities meeting the definition of Section 11.002(12)(A), Water Code, occur; THSC Sec. 341.011 (9) a place or condition harboring rats in a populous area; THSC Sec. 341.011 (12) an object, place, or condition that is a possible and probable medium of disease transmission to or between humans. THSC Sec. 341.013(a) Premises occupied or used as residences or for businesses or pleasure shall be kept in a sanitary condition. THSC Sec. 341.013(c) Waste products, offal, polluting material, spent chemicals, liquors, brines, garbage, rubbish, refuse, used tires, or other waste of any kind may not be stored, deposited, or disposed of in a manner that may cause the pollution of the surrounding land, the contamination of groundwater or surface water, or the breeding of insects or rodents. THSC Sec. 341.013(e) A person may not permit vacant or abandoned property owned or controlled by the person to be in a condition that will create a public health nuisance or other condition prejudicial to the public health. THSC Sec. 341.016 A person may not use or permit to be used in a business, manufacturing establishment, or other place of employment a process, material, or condition known to have a possible adverse effect on the health of the person's employees unless arrangements have been made to maintain the occupational environment in a manner that such injury will not occur. For use in unincorporated areas, not including locations excluded by THSC Sec. 343.012(d): Note: the definitions of “refuse” and “rubbish” in this law both include scrap tires. “Neighborhoods” are platted subdivisions and contiguous land within 300 feet. 70


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“Premises” is defined as “all privately owned property.” Note also that these THSC Chapter 343 violations all require a 30-day warning from the county before the violation is considered to have occurred. Common THSC Chapter 343 violations involving scrap tires: THSC Sec. 343.011(c) (1) keeping, storing, or accumulating refuse on premises in a neighborhood unless the refuse is entirely contained in a closed receptacle; THSC Sec. 343.011(c) (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; THSC Sec. 343.011(c) (3) maintaining premises in a manner that creates an unsanitary condition likely to attract or harbor mosquitoes, rodents, vermin, or disease-carrying pests; THSC Sec. 343.011(c) (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; THSC Sec. 343.011(c) (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; THSC Sec. 343.011(c) (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; THSC Sec. 343.011(c) (12) discarding refuse on property that is not authorized for that activity. So a person who is storing, transporting, or disposing of scrap tires in complete accordance with THSC Sec. 361.112 or 30 T.A.C. Sec. 328 may be doing so in such a manner as to be violating one or more provisions of THSC Chapters 341 and 343. Persons who have illegally dumped scrap tires or using them to pollute water usually 71


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are also are violating one or more of these public health or public nuisance laws and should be charged with these violations along with their other crimes. Thus, a person operating a retail tire store and storing scrap tires in such a way that they can trap rain water and become an actual or potential health nuisance violation as a breeding place for mosquitos and other insects is committing a public health nuisance under several of these statutes. Section 5. Conclusion The conclusion for this class is brief: 1. THSC Chapters 341 and 343 are both good laws to use to cleanup communities by addressing public health nuisances anywhere in Texas and public nuisances on most private property in unincorporated areas of Texas (excepting “agricultural” land). Between the two laws, all parts of Texas are covered. 2. However, neither of these two laws is widely used across the state. 3. Officers working in the county sometimes use THSC Chapter 343 alone, and fail to apply THSC Chapter 341. Or perhaps the other way around. Few counties use them both in unincorporated areas, and few cities use THSC Chapter 341 to support the activities of code enforcement officers. 4. However, one of the most useful provisions in either of these — and a law that applies to the widest areas of Texas, both inside and outside cities — is THSC Sec. 341.013(c): THSC Sec. 341.013(c) Waste products, offal, polluting material, spent chemicals, liquors, brines, garbage, rubbish, refuse, used tires, or other waste of any kind may not be stored, deposited, or disposed of in a manner that may cause the pollution of the surrounding land, the contamination of groundwater or surface water, or the breeding of insects or rodents. 5. These laws can be enforced inside cities by police (criminally) and by other designated city employees (civilly); and, in the unincorporated areas by peace officers and designated Local Health Department staff (both criminally through issuing citations). Rural civil enforcement is also possible, but seldom occurs. 6. Although these laws could be used to resolve many situations, the biggest problem is getting peace officers to use them. Even when the bosses agree to use them, the officer training issue remains. 7. Before a citation can be issued for a THSC Chapter 343 violation, the county 72


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must provide the potential violator with a statutory 30-day warning notice. If at the end of this warning period the problem hasn’t been corrected, a peace officer or Local Health Department employee can issue a citation for the violation. However, there is no such waiting period for THSC Chapter 341 violations. Officers and Local Health Department employes can issue citations immediately without waiting for these violations. 8. Local Health Department employees are given the power to issue citations in incorporated parts of the county by the commissioners when they established the Local Health Department, provided that commissioners wanted these employees to have that power. The specific statute allowing commissioners to do this is THSC Sec. 121.003(c). Since this power is optional with commissioners court, Local Health departments in Texas may have to read the original commissioners court order establishing the agency to verify that employees can issue citations in unincorporated areas. 9. Actually dealing with a public health nuisance or public nuisance through the issuing of citations is a simple, if under used, process; getting the problem abated, however, is a major problem. Local Health Departments are directed by the State Legislature to work with violators to abate health nuisances under THSC Sec. 341.012, but few (if any) health departments follow the steps in this provision. The result of failing to follow the State Legislature’s mandated process usually results in the public health nuisance lasting longer than it has to. Under THSC Sec. 341.012, the Local Health Department determines how long to give the violator to abate the nuisance. 10. Court ordered abatement for THSC Chapter 341 violations can only come through the process described in THSC Sec. 341.012. JPs and Municipal Judges are not authorized by this law to order abatement under THSC Chapter 341 when adjudicating the criminal violation. In spite of this, many JPs order abatement anyway. 11. Court ordered abatement is mandatory upon conviction of THSC Chapter 343 violations, although it doesn’t always happen. 12. Officers often use a warning tickets or oral “I’ll be back” warnings to folks violating THSC Chapter 341. In doing so officers are attempting to encourage voluntary abatement. 13. Often peace officers don’t want to use these laws. If you are faced with this, 73


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treat it as a local policy issue to be resolved. Police officers work on things as their Chief directs them, who in turn serves at the pleasure of the city manager and elected officials. It very seldom makes sense for a city to ignore using THSC Chapter 341 because police officers and police management just don’t want to enforce it. Usually such a position changes as soon as the Chief realizes that THSC Chapter 341 is a criminal law that local elected officials want enforced. As soon as that policy point is made clear, the conversation then turns to how local enforcement of this criminal law can work together with code enforcement to achieve a cleaner, healthier community. 14. In rural areas, if the sheriff won’t enforce these two laws, his refusal presents a policy problem to be solved by open discussions between the sheriff, county judge, commissioners, and county attorney. If citizens living in unincorporated areas are going to have to tolerate living in and around public health nuisances because their elected leaders refuse to enforce state criminal laws, that needs to become part of the public discussion. That will give the citizens the opportunity to decide if they want to be represented by leaders who pay closer attention to state criminal laws designed to protect public health. 15. If they would like to do so, Subchapter C of THSC Chapter 343 empowers the commissioners court to adopt a set of procedures that will allow the county to abate public nuisances using taxpayer money, provided the procedures follow the requirements of Subchapter C. After adopting these procedures, using them in any situation can only be authorized by the commissioners court. This law allows for entry to the property by county employees for the purpose of the abatement and allows a lien to be set to possibly recover abatement costs. These remarks conclude the class. Thanks for doing this reading! Please return to the Class Home Page and take the test there until you score a 72% or better (18 correct answers out of 25 questions). Then complete the certification process in Step 4. Upon completion of these steps, we’ll send your Certificate of Completion by email. All the best, and please contact me if I can answer any questions about this subject now or in the in the future.

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6. Appendix THSC CHAPTER 341. MINIMUM STANDARDS OF SANITATION AND HEALTH PROTECTION MEASURES SUBCHAPTER A. GENERAL PROVISIONS Sec. 341.001.  DEFINITIONS. In this chapter: (1)  "Board" means the Texas Board of Health. (2)  "Department" means the Texas Department of Health. (3)  "Drinking water" means water distributed by an individual or public or private agency for human consumption, for use in preparing food or beverages, or for use in cleaning a utensil or article used in preparing food or beverages for, or consuming food or beverages by, human beings. The term includes water supplied for human consumption or used by an institution catering to the public. (4)  "Human excreta" means the urinary and bowel discharges of a human. (5)  "Person" means an individual, corporation, organization, government, business trust, partnership, association, or any other legal entity. (6)  "Privy" means a facility for the disposal of human excreta. (7)  "Sanitary" means a condition of good order and cleanliness that precludes the probability of disease transmission. (8)  "Septic tank" means a covered water-tight tank designed for sewage treatment. (9)  "Toilet" means the hopper device for the deposit and discharge of human excreta into a water carriage system. (10)  "Tourist court" means a camping place or group of two or more mobile or permanent housing units operated as rental property for the use of transient trade or trailer units housing humans. (11)  "Water supply" means a source or reservoir of water distributed and used for human consumption. (12)  "Water supply system operator" means a person who: (A)  is trained in the purification or distribution of a public water supply; (B)  has a practical working knowledge of the chemistry and bacteriology essential to the practical mechanics of water purification; and (C)  is capable of conducting and maintaining the purification processes in an efficient manner. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 341.002.  RULES FOR SANITATION AND HEALTH PROTECTION. The board 75


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may: (1)  adopt rules consistent with the purposes of this chapter; and (2)  establish standards and procedures for the management and control of sanitation and for health protection measures. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. SUBCHAPTER B. NUISANCES AND GENERAL SANITATION Sec. 341.011.  NUISANCE. Each of the following is a public health nuisance: (1)  a condition or place that is a breeding place for flies and that is in a populous area; (2)  spoiled or diseased meats intended for human consumption; (3)  a restaurant, food market, bakery, other place of business, or vehicle in which food is prepared, packed, stored, transported, sold, or served to the public and that is not constantly maintained in a sanitary condition; (4)  a place, condition, or building controlled or operated by a state or local government agency that is not maintained in a sanitary condition; (5)  sewage, human excreta, wastewater, garbage, or other organic wastes deposited, stored, discharged, or exposed in such a way as to be a potential instrument or medium in disease transmission to a person or between persons; (6)  a vehicle or container that is used to transport garbage, human excreta, or other organic material and that is defective and allows leakage or spilling of contents; (7)  a collection of water in which mosquitoes are breeding in the limits of a municipality or a collection of water that is a breeding area for Culex quinquefasciatus mosquitoes that can transmit diseases regardless of the collection's location other than a location or property where activities meeting the definition of Section 11.002(12)(A), Water Code, occur; (8)  a condition that may be proven to injuriously affect the public health and that may directly or indirectly result from the operations of a bone boiling or fat rendering plant, tallow or soap works, or other similar establishment; (9)  a place or condition harboring rats in a populous area; (10)  the presence of ectoparasites, including bedbugs, lice, and mites, suspected to be disease carriers in a place in which sleeping accommodations are offered to the public; (11)  the maintenance of an open surface privy or an overflowing septic tank so that the contents may be accessible to flies; and (12)  an object, place, or condition that is a possible and probable medium of disease transmission to or between humans. 76


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Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 2003, 78th Leg., ch. 130, Sec. 1, eff. May 27, 2003. Sec. 341.012.  ABATEMENT OF NUISANCE. (a) A person shall abate a public health nuisance existing in or on a place the person possesses as soon as the person knows that the nuisance exists. (b)  A local health authority who receives information and proof that a public health nuisance exists in the local health authority's jurisdiction shall issue a written notice ordering the abatement of the nuisance to any person responsible for the nuisance. The local health authority shall at the same time send a copy of the notice to the local municipal, county, or district attorney. (c)  The notice must specify the nature of the public health nuisance and designate a reasonable time within which the nuisance must be abated. (d)  If the public health nuisance is not abated within the time specified by the notice, the local health authority shall notify the prosecuting attorney who received the copy of the original notice. The prosecuting attorney: (1)  shall immediately institute proceedings to abate the public health nuisance; or (2)  request the attorney general to institute the proceedings or provide assistance in the prosecution of the proceedings, including participation as an assistant prosecutor when appointed by the prosecuting attorney. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 648, Sec. 1, eff. Sept. 1, 1993. Sec. 341.013.  GARBAGE, REFUSE, AND OTHER WASTE. (a) Premises occupied or used as residences or for business or pleasure shall be kept in a sanitary condition. (b)  Kitchen waste, laundry waste, or sewage may not be allowed to accumulate in, discharge into, or flow into a public place, gutter, street, or highway. (c)  Waste products, offal, polluting material, spent chemicals, liquors, brines, garbage, rubbish, refuse, used tires, or other waste of any kind may not be stored, deposited, or disposed of in a manner that may cause the pollution of the surrounding land, the contamination of groundwater or surface water, or the breeding of insects or rodents. (d)  A person using or permitting the use of land as a public dump shall provide for the covering or incineration of all animal or vegetable matter deposited on the land and for the disposition of other waste materials and rubbish to eliminate the possibility that those materials and rubbish might be a breeding place for insects 77


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or rodents. (e)  A person may not permit vacant or abandoned property owned or controlled by the person to be in a condition that will create a public health nuisance or other condition prejudicial to the public health. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 341.014.  DISPOSAL OF HUMAN EXCRETA. (a) Human excreta in a populous area shall be disposed of through properly managed sewers, treatment tanks, chemical toilets, or privies constructed and maintained in conformity with the department's specifications, or by other methods approved by the department. The disposal system shall be sufficient to prevent the pollution of surface soil, the contamination of a drinking water supply, the infection of flies or cockroaches, or the creation of any other public health nuisance. (b)  Effluent from septic tanks constructed after September 4, 1945, shall be disposed of through: (1)  a subsurface drainage field designed in accordance with good public health engineering practices; or (2)  any other method that does not create a public health nuisance. (c)  A privy may not be constructed within 75 feet of a drinking water well or of a human habitation, other than a habitation to which the privy is appurtenant, without approval by the local health authority or the board. A privy may not be constructed or maintained over an abandoned well or over a stream. (d)  The superstructure and floor surrounding the seat riser and hopper device of a privy constructed and maintained in conformity with the department's specifications shall be kept in a sanitary condition at all times and must have adequate lighting and ventilation. (e)  Material and human excreta removed from a privy vault or from any other place shall be handled in a manner that does not create a public health nuisance. The material and human excreta may not be deposited within 300 feet of a highway unless buried or treated in accordance with the instructions of the local health authority or the board. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 341.015.  SANITATION OF ICE PLANTS. (a) A person may not go on the platform covering the tanks in which ice is frozen in an ice factory unless the person is an officer, employee, or other person whose duties require that action. 78


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(b) An employee whose services are required on tanks shall be provided with clean shoes or boots that may not be used for any other purpose. (c)  Ice contaminated with sand, dirt, cinders, lint, or other foreign substance may not be sold or offered for sale for human consumption. (d)  Water used in the manufacturing of ice must be from an approved source and be of a safe quality. (e)  An ice plant operator shall provide sanitary handwashing and toilet facilities for the employees of the plant. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 341.016.  SANITATION OF BUSINESSES; OCCUPATIONAL HEALTH AND SAFETY. (a) A person may not use or permit to be used in a business, manufacturing establishment, or other place of employment a process, material, or condition known to have a possible adverse effect on the health of the person's employees unless arrangements have been made to maintain the occupational environment in a manner that such injury will not occur. (b)  An industrial establishment shall be continually maintained in a sanitary condition. (c)  The department shall make available to the state's citizens: (1)  current information concerning minimum allowable concentrations of toxic gases; and (2)  environmental standards that relate to the health and safety of the employees of industrial establishments in this state. (d)  The department shall survey industrial establishments to study industrial health and sanitation issues, including water supplies and distribution, waste disposal, and adverse conditions caused by processes that may cause ill health of industrial workers. (e)  The department shall give each surveyed establishment a summary of the studies and findings under Subsection (d) and make necessary recommendations for the adequate protection of the health, safety, and wellbeing of the workers. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 341.017.  SANITATION FACILITIES FOR RAILROAD MAINTENANCE-OF-WAY EMPLOYEES. (a) The board shall adopt reasonable rules to require railroads to provide adequate sanitation facilities for railroad maintenance-of-way employees. 79


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(b)  The department may sue in a court of competent jurisdiction to compel compliance with a rule adopted under this section. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 341.018.  RODENT CONTROL. (a) A person who possesses an enclosed structure used or operated for public trade and who knows that the structure is infested with rodents shall: (1)  attempt to exterminate the rodents by poisoning, trapping, fumigating, or other appropriate means; and (2)  provide every practical means of eliminating rats in the structure. (b)  A public building that is constructed after September 4, 1945, must incorporate rat-proofing features. (c)  The board shall promote rodent control programs in rat-infested areas and in localities in which typhus fever has appeared. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 341.019.  MOSQUITO CONTROL ON UNINHABITED RESIDENTIAL PROPERTY. (a)  Notwithstanding any other law, a municipality, county, or other local health authority may abate, without notice, a public health nuisance under Section 341.011(7) that: (1)  is located on residential property that is reasonably presumed to be abandoned or that is uninhabited due to foreclosure; and (2)  is an immediate danger to the health, life, or safety of any person. (b)  A public official, agent, or employee charged with the enforcement of health, environmental, or safety laws may enter the premises described by Subsection (a) at a reasonable time to inspect, investigate, or abate the nuisance. (c)  In this section, abatement is limited to the treatment with a mosquito larvicide of stagnant water in which mosquitoes are breeding. (d)  The public official, agent, or employee shall post on the front door of the residence a notice stating: (1)  the identity of the treating authority; (2)  the purpose and date of the treatment; (3)  a description of the areas of the property treated with larvicide; (4)  the type of larvicide used; and (5)  any known risks of the larvicide to humans or animals. SUBCHAPTER E. AUTHORITY OF HOME-RULE MUNICIPALITIES Sec. 341.081.  AUTHORITY OF HOME-RULE MUNICIPALITIES NOT AFFECTED. 80


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This chapter prescribes the minimum requirements of sanitation and health protection in this state and does not affect a home-rule municipality's authority to enact: (1)  more stringent ordinances in matters relating to this chapter; or (2)  an ordinance under: (A)  Article XI, Section V, of the Texas Constitution; (B)  Article 1175, Revised Statutes; or (C)  Section 51.072, Local Government Code. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 341.082.  APPOINTMENT OF ENVIRONMENTAL HEALTH OFFICER IN CERTAIN HOME-RULE MUNICIPALITIES. (a) In a home-rule municipality, an environmental health officer may be appointed to enforce this chapter. (b) The environmental health officer must be a registered professional engineer. The officer must file a copy of the officer's oath and appointment with the board. (c)  The environmental health officer shall assist the board in enforcing this chapter and is subject to: (1)  the authority of the board; and (2)  removal from office in the same manner as a municipal health authority. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 597, Sec. 76, eff. Sept. 1, 1991; Acts 1997, 75th Leg., ch. 742, Sec. 1, eff. June 17, 1997. SUBCHAPTER F. PENALTIES Sec. 341.091.  CRIMINAL PENALTY. (a) A person commits an offense if the person violates this chapter or a rule adopted under this chapter. A person commits an offense if the person violates a permitting or inspection requirement imposed under Section 341.064(n) or a closure order issued under Section 341.064(o). An offense under this section is a misdemeanor punishable by a fine of not less than $10 or more than $200. (b)  If it is shown on the trial of the defendant that the defendant has been convicted of an offense under this chapter within a year before the date on which the offense being tried occurred, the defendant shall be punished by a fine of not less than $10 or more than $1,000, confinement in jail for not more than 30 days, or both. (c)  Each day of a continuing violation is a separate offense. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 2003, 78th 81


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Leg., ch. 618, Sec. 2, eff. June 20, 2003. Sec. 341.092.  CIVIL ENFORCEMENT. (a) A person may not cause, suffer, allow, or permit a violation of this chapter or a rule adopted under this chapter. (b)  A person who violates this chapter or a rule adopted under this chapter shall be assessed a civil penalty. A person who violates a permitting or inspection requirement imposed under Section 341.064(n) or a closure order issued under Section 341.064(o) shall be assessed a civil penalty. A civil penalty under this section may not be less than $10 or more than $200 for each violation and for each day of a continuing violation. (c)  If it is shown on the trial of the defendant that the defendant has previously violated this section, the defendant shall be assessed a civil penalty of not less than $10 or more than $1,000 for each violation and for each day of a continuing violation. (d)  If it appears that a person has violated, is violating, or is threatening to violate this chapter, a rule adopted under this chapter, a permitting or inspection requirement imposed under Section 341.064(n), or a closure order issued under Section 341.064(o), the department, a county, a municipality, or the attorney general on request by the district attorney, criminal district attorney, county attorney, or, with the approval of the governing body of the municipality, the attorney for the municipality may institute a civil suit in a district court for: (1)  injunctive relief to restrain the person from continuing the violation or threat of violation; (2)  the assessment and recovery of a civil penalty; or (3)  both injunctive relief and a civil penalty. (e)  The department is a necessary and indispensable party in a suit brought by a county or municipality under this section. (f)   On the department's request, or as otherwise provided by this chapter, the attorney general shall institute and conduct a suit in the name of the state for injunctive relief, to recover a civil penalty, or for both injunctive relief and civil penalty. (g)  The suit may be brought in Travis County, in the county in which the defendant resides, or in the county in which the violation or threat of violation occurs. (h)  In a suit under this section to enjoin a violation or threat of violation of this chapter, a rule adopted under this chapter, a permitting or inspection requirement imposed under Section 341.064(n), or a closure order issued under Section 341.064(o), the court shall grant the state, county, or municipality, 82


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without bond or other undertaking, any injunction that the facts may warrant, including temporary restraining orders, temporary injunctions after notice and hearing, and permanent injunctions. (i) Civil penalties recovered in a suit brought under this section by a county or municipality through its own attorney shall be equally divided between: (1)  the state; and (2)  the county or municipality that first brought the suit. (j)  The state is entitled to civil penalties recovered in a suit instituted by the attorney general. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1993, 73rd Leg., ch. 648, Sec. 2, eff. Sept. 1, 1993; Acts 2003, 78th Leg., ch. 618, Sec. 3, eff. June 20, 2003.

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THSC CHAPTER 343. ABATEMENT OF PUBLIC NUISANCES SUBCHAPTER A. GENERAL PROVISIONS Sec. 343.002.  DEFINITIONS. In this chapter: (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), (9), or (10), by prohibition or control of access; and (C)  in the case of a nuisance under Section 343.011(c)(12), by removal, remediation, storage, transportation, disposal, or other means of waste management authorized by Chapter 361. (2)  "Building" means a structure built for the support, shelter, or enclosure of a person, animal, chattel, machine, equipment, or other moveable property. (3)  "Garbage" means decayable waste from a public or private establishment or restaurant. The term includes vegetable, animal, and fish offal and animal and fish carcasses, but does not include sewage, body waste, or an industrial byproduct. (4)  "Neighborhood" means: (A)  a platted subdivision; or (B)  property contiguous to and within 300 feet of a platted subdivision. (5)  "Platted subdivision" means a subdivision that has its approved or unapproved plat recorded with the county clerk of the county in which the subdivision is located. (6)  "Premises" means all privately owned property, including vacant land or a building designed or used for residential, commercial, business, industrial, or religious purposes. The term includes a yard, ground, walk, driveway, fence, porch, steps, or other structure appurtenant to the property. (7)  "Public street" means the entire width between property lines of a road, street, way, thoroughfare, or bridge if any part of the road, street, way, thoroughfare, or bridge is open to the public for vehicular or pedestrian traffic. (8)  "Receptacle" means a container that is composed of durable material and designed to prevent the discharge of its contents and to make its contents inaccessible to animals, vermin, or other pests. (9)  "Refuse" means garbage, rubbish, paper, and other decayable and nondecayable waste, including vegetable matter and animal and fish carcasses. (10)  "Rubbish" means nondecayable waste from a public or private establishment or 84


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residence. (11) "Weeds" means all rank and uncultivated vegetable growth or matter that: (A)  has grown to more than 36 inches in height; or (B)  may create an unsanitary condition or become a harborage for rodents, vermin, or other disease-carrying pests, regardless of the height of the weeds. (12)  "Flea market" means an outdoor or indoor market, conducted on nonresidential premises, for selling secondhand articles or antiques, unless conducted by a religious, educational, fraternal, or charitable organization. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 499, Sec. 2, eff. Sept. 1, 1991. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1366, Sec. 1, eff. June 15, 2007. Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 12.004, eff. September 1, 2009. Sec. 343.003.  EFFECT OF CHAPTER ON OTHER STATE LAW. This chapter does not affect a right, remedy, or penalty under other state law. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. SUBCHAPTER B. PUBLIC NUISANCE PROHIBITED Sec. 343.011.  PUBLIC NUISANCE. (a) This section applies only to the unincorporated area of a county. (b)  A person may not cause, permit, or allow a public nuisance under this section. (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 85


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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; (12)  discarding refuse on property that is not authorized for that activity; or (13)  surface discharge from an on-site sewage disposal system as defined by Section 366.002. (d)  This section does not apply to: (1)  a site or facility that is: (A)  permitted and regulated by a state agency for the activity described by Subsection (c);  or (B)  licensed or permitted under Chapter 361 for the activity described by Subsection (c);  or (2)  agricultural land. 86


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(e)  In Subsection (d), "agricultural land" means land that qualifies for tax appraisal under Subchapter C or D, Chapter 23, Tax Code. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 499, Sec. 3, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 771, Sec. 2, eff. Aug. 28, 1995; Acts 1999, 76th Leg., ch. 752, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 523, Sec. 1, eff. Sept. 1, 2001. Amended by: Acts 2005, 79th Leg., Ch. 355, Sec. 1, eff. September 1, 2005. Acts 2005, 79th Leg., Ch. 1094, Sec. 12, eff. September 1, 2005. Acts 2007, 80th Leg., R.S., Ch. 388, Sec. 1, eff. June 15, 2007. Acts 2007, 80th Leg., R.S., Ch. 1366, Sec. 2, eff. June 15, 2007. Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 12.005, eff. September 1, 2009. Sec. 343.0111.  SPECIAL EXCEPTION OR VARIANCE TO PUBLIC NUISANCE CLASSIFICATION. (a) The commissioners court of a county by order may: (1)  describe the circumstances in which a special exception to the application of Section 343.011 is available to a person and may grant the special exception in a specific case if the commissioners court finds that the specific case fits within the special exception, that the grant of the exception promotes justice, that the grant of the exception is not contrary to the public interest, and that the grant of the exception is consistent with the general purpose of Section 343.011; and (2)  authorize in a specific case not covered by a special exception a variance from the terms of Section 343.011 if the commissioners court makes the same findings in connection with the specific case that it makes in connection with a special exception under Subdivision (1) and finds that due to special conditions a literal enforcement of Section 343.011 would result in an unnecessary hardship. (b)  The commissioners court shall keep a record of its proceedings under this section and must include in the record a showing of the reasons for each decision made under this section. Added by Acts 1995, 74th Leg., ch. 771, Sec. 3, eff. Aug. 28, 1995. Amended by Acts 1999, 76th Leg., ch. 752, Sec. 2, eff. Sept. 1, 1999. Sec. 343.012.  CRIMINAL PENALTY. (a) A person commits an offense if: (1)  the person violates Section 343.011(b); and 87


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(2)  the nuisance remains unabated after the 30th day after the date on which the person receives notice from a county official, agent, or employee to abate the nuisance. (b)  An offense under this section is a misdemeanor punishable by a fine of not less than $50 or more than $200. (c)  If it is shown on the trial of the defendant that the defendant has been previously convicted of an offense under this section, the defendant is punishable by a fine of not less than $200 or more than $1,000, confinement in jail for not more than six months, or both. (d)  Each day a violation occurs is a separate offense. (e)  The court shall order abatement of the nuisance if the defendant is convicted of an offense under this section. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 499, Sec. 4, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 771, Sec. 4, eff. Aug. 28, 1995; Acts 1999, 76th Leg., ch. 752, Sec. 3, eff. Sept. 1, 1999. Sec. 343.013.  INJUNCTION. (a) A county or district court may by injunction prevent, restrain, abate, or otherwise remedy a violation of this chapter in the unincorporated area of the county. (b)  A county or a person affected or to be affected by a violation under this chapter, including a property owner, resident of a neighborhood, or organization of property owners or residents of a neighborhood, may bring suit under Subsection (a). If the court grants the injunction, the court may award the plaintiff reasonable attorney's fees and court costs. (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), (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. (d)  In granting relief under Subsection (c), the court: (1)  may not, in a suit brought under Section 343.011(c)(10), prohibit or control access by the owner or operator of a utility line or utility easement to that 88


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utility line or utility easement; and (2)  may not prohibit the owner of the premises from accessing the property but may prohibit a continued or future violation. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by: Acts 2005, 79th Leg., Ch. 1050, Sec. 1, eff. September 1, 2005. Acts 2007, 80th Leg., R.S., Ch. 388, Sec. 2, eff. June 15, 2007. Acts 2007, 80th Leg., R.S., Ch. 1366, Sec. 3, eff. June 15, 2007. SUBCHAPTER C. COUNTY AUTHORITY RELATING TO NUISANCE Sec. 343.021.  AUTHORITY TO ABATE NUISANCE. (a) 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, except as provided by Subsection (b); (2)  in the case of a nuisance under Section 343.011(c)(1), (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), by removal, remediation, storage, transportation, disposal, or other means of waste management authorized under Chapter 361. (b)  In the case of a nuisance under Section 343.011(c)(13), the county may use any means of abatement reasonably necessary to bring the system into compliance with Chapter 366 only after the defendant fails to abate the nuisance as ordered by the court under Section 343.012(e). Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by: Acts 2005, 79th Leg., Ch. 1050, Sec. 2, eff. September 1, 2005. Acts 2007, 80th Leg., R.S., Ch. 388, Sec. 3, eff. June 15, 2007. Acts 2007, 80th Leg., R.S., Ch. 1366, Sec. 4, eff. June 15, 2007. Reenacted and amended by Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 12.006, eff. September 1, 2009. Sec. 343.022.  ABATEMENT PROCEDURES. 89


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(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), (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). (b)  The abatement procedures must require that written notice be given to: (1)  the owner, lessee, occupant, agent, or person in charge of the premises; and (2)  the person responsible for causing a public nuisance on the premises when: (A)  that person is not the owner, lessee, occupant, agent, or person in charge of the premises; and (B)  the person responsible can be identified. (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), (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 90


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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. (d)  The notice must be given: (1)  by service in person or by registered or certified mail, return receipt requested; or (2)  if personal service cannot be obtained or the address of the person to be notified is unknown, by posting a copy of the notice on the premises on which the nuisance exists and by publishing the notice in a newspaper with general circulation in the county two times within 10 consecutive days. (e)  Except as provided in Subsection (f), the abatement procedures must require a hearing before the county abates the nuisance if a hearing is requested.  The hearing may be conducted before the commissioners court or any board, commission, or official designated by the commissioners court.  The commissioners court may designate a board, commission, or official to conduct each hearing. (f)  A county may, before conducting a hearing, abate a nuisance under Section 343.011(c)(6) by prohibiting or controlling access to the premises on which the nuisance is located and installing a cover that cannot be opened by a child over the entire swimming pool, but only if the county conducts a hearing otherwise in accordance with Subsection (e) after the nuisance is abated. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 14, Sec. 123, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 771, Sec. 5, eff. Aug. 28, 1995. Amended by: Acts 2005, 79th Leg., Ch. 1050, Sec. 3, eff. September 1, 2005. Acts 2007, 80th Leg., R.S., Ch. 388, Sec. 4, eff. June 15, 2007. Acts 2007, 80th Leg., R.S., Ch. 1366, Sec. 5, eff. June 15, 2007. Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 12.007, eff. September 1, 2009. Sec. 343.023.  ASSESSMENT OF COSTS; LIEN. (a) A county may: (1)  assess: (A)  the cost of abating the nuisance, including management, remediation, storage, transportation, and disposal costs, and damages and other expenses incurred by the county; 91


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(B)  the cost of legal notification by publication; and (C)  an administrative fee of not more than $100 on the person receiving notice under Section 343.022;  or (2)  by resolution or order, assess: (A)  the cost of abating the nuisance; (B)  the cost of legal notification by publication; and (C)  an administrative fee of not more than $100 against the property on which the nuisance exists. (b)  The county may not make an assessment against property unless the owner or owner's agent receives notice of the nuisance in accordance with Section 343.022. (c)  To obtain a lien against the property to secure an assessment, the commissioners court of the county must file a notice that contains a statement of costs, a legal description of the property sufficient to identify the property, and the name of the property owner, if known, with the county clerk of the county in which the property is located. (d)  The county's lien to secure an assessment attaches when the notice of lien is filed and is inferior to a previously recorded bona fide mortgage lien attached to the real property to which the county's lien attaches, if the mortgage was filed for record in the office of the county clerk of the county in which the real property is located before the date on which the county files the notice of lien with the county clerk. (e)  The county is entitled to accrued interest beginning on the 31st day after the date of the assessment against the property at the rate of 10 percent a year. (f)  The statement of costs or a certified copy of the statement of costs is prima facie proof of the costs incurred to abate the nuisance. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 499, Sec. 5, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 771, Sec. 6, eff. Aug. 28, 1995. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1366, Sec. 6, eff. June 15, 2007. 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), (9), or (10). Added by Acts 2005, 79th Leg., Ch. 1050, Sec. 4, eff. September 1, 2005. Amended by: 92


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Acts 2007, 80th Leg., R.S., Ch. 388, Sec. 5, eff. June 15, 2007. Sec. 343.024.  AUTHORITY TO ENTER PREMISES. (a) A county official, agent, or employee charged with the enforcement of health, environmental, safety, or fire laws may enter any premises in the unincorporated area of the county at a reasonable time to inspect, investigate, or abate a nuisance or to enforce this chapter. (b) Before entering the premises, the official, agent, or employee must exhibit proper identification to the occupant, manager, or other appropriate person. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 499, Sec. 6, eff. Sept. 1, 1991. Sec. 343.025.  ENFORCEMENT. A court of competent jurisdiction in the county may issue any order necessary to enforce this chapter. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989.

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THSC CHAPTER 121. LOCAL PUBLIC HEALTH REORGANIZATION ACT SUBCHAPTER A. GENERAL PROVISIONS Sec. 121.001.  SHORT TITLE. This chapter may be cited as the Local Public Health Reorganization Act. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 121.002.  DEFINITIONS. In this chapter: (1) "Essential public health services" means services to: (A) monitor the health status of individuals in the community to identify community health problems; (B) diagnose and investigate community health problems and community health hazards; (C) inform, educate, and empower the community with respect to health issues; (D) mobilize community partnerships in identifying and solving community health problems; (E) develop policies and plans that support individual and community efforts to improve health; (F) enforce laws and rules that protect the public health and ensure safety in accordance with those laws and rules; (G) link individuals who have a need for community and personal health services to appropriate community and private providers; (H) ensure a competent workforce for the provision of essential public health services; (I)  research new insights and innovative solutions to community health problems; and (J) evaluate the effectiveness, accessibility, and quality of personal and population-based health services in a community. (2) "Physician" means a person licensed to practice medicine by the Texas State Board of Medical Examiners. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 1378, Sec. 1, eff. June 19, 1999. Sec. 121.003.  POWERS OF MUNICIPALITIES AND COUNTIES. (a) The governing body of a municipality or the commissioners court of a county may enforce any law that is reasonably necessary to protect the public health. (b) The governing bodies of municipalities and the commissioners courts of counties 94


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may cooperate with one another in making necessary improvements and providing services to promote the public health in accordance with The Interlocal Cooperation Act (Article 4413(32c), Vernon's Texas Civil Statutes). (c) The commissioners court of a county may grant authority under this subsection to a county employee who is trained by a health authority appointed by the county under Section 121.021, by a local health department established under Section 121.031, or by a public health district established under Section 121.041 and who is not a peace officer. The court may grant to the employee the power to issue a citation in an unincorporated area of the county to enforce any law or order of the commissioners court that is reasonably necessary to protect the public health. A citation issued under this subsection must state the name of the person cited, the violation charged, and the time and place the person is required to appear in court. If a person who receives a citation under this subsection fails to appear on the return date of the citation, the court may issue a warrant for the person's arrest for the violation described in the citation. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 562, Sec. 1, eff. Aug. 26, 1991. Sec. 121.0035.  REGULATION OF MOBILE FOOD UNITS AND ROADSIDE FOOD VENDORS IN CERTAIN POPULOUS AREAS. (a) In this section, "mobile food unit" and "roadside food vendor" have the meanings assigned under Section 437.001. (b) A municipality with a population of 1.5 million or more and a county with a population of 3.4 million or more shall enforce state law and rules adopted under state law concerning mobile food units and roadside food vendors in the same manner that the county or municipality enforces other health and safety regulations relating to food service. Added by Acts 2005, 79th Leg., Ch. 1288, Sec. 1, eff. September 1, 2005. Sec. 121.004.  LOCAL HEALTH UNITS. A local health unit is a division of municipal or county government that provides public health services but does not provide each service required of a local health department under Section 121.032(a) or of a public health district under Section 121.043(a). Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 121.005.  STATE AND LOCAL AFFILIATION; CONTRACTS. (a) A local health unit, local health department, or public health district may become 95


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affiliated with the department to facilitate the exchange of information and the coordination of public health services. (b) To be affiliated with the department, a local health unit, local health department, or public health district must annually provide to the department information relating to: (1)  services provided; (2)  staffing patterns; and (3)  funding sources and budget. (c) The department may contract with a local health unit, local health department, or public health district for the provision of public health services. (d) The board may adopt rules necessary to implement this section. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 121.006.  PUBLIC HEALTH SERVICES FEES; STATE SUPPORT. (a) The governing body of a municipality, the commissioners court of a county, or the administrative board of a public health district may adopt ordinances or rules to charge fees for public health services. (b) A municipality, county, or public health district may not deny public health services to an individual because of inability to pay for the services. A municipality, county, or public health district shall provide for the reduction or waiver of a fee for an individual who cannot pay for services in whole or in part. (c) The Uniform Grant and Contract Management Act of 1981 (Article 4413(32g), Vernon's Texas Civil Statutes) and standards adopted under that Act control, if applicable, if the local health unit, local health department, or public health district receives state support for the provision of public health services. (c-1) A fee for a public health service charged in the jurisdiction of a public health district may be uniform throughout the district regardless of which governmental entity member of the district charges the fee.  The fee may be set at an amount up to the highest amount charged by any governmental entity member of the district. (d) In this section, "public health services" means: (1)  personal health promotion and maintenance services; (2)  infectious disease control and prevention services; (3)  environmental and consumer health programs; (4)  public health education and information services; (5)  laboratory services; and (6)  administrative services. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. 96


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Amended by: Acts 2007, 80th Leg., R.S., Ch. 810, Sec. 1, eff. September 1, 2007. Sec. 121.0065.  GRANTS FOR ESSENTIAL PUBLIC HEALTH SERVICES. (a) Subject to the availability of funds, the department shall administer a program under which appropriated money may be granted to counties, municipalities, public health districts, and other political subdivisions for use by the counties, municipalities, public health districts, and other political subdivisions to provide or pay for essential public health services. (b) The grants authorized by Subsection (a) shall be distributed equally between urban and rural areas of the state. (c) The board shall adopt rules governing: (1)  the allocation formula for grants awarded under this section; (2)  the manner in which a municipality, county, public health district, or other political subdivision applies for a grant; (3)  the procedures for awarding grants; and (4)  the minimum essential public health services to be provided under the grant and other standards applicable to the services to be provided under the grant. (d) A municipality, county, public health district, or other political subdivision that receives a grant under this section, in consultation with the department, shall develop a plan to evaluate the effectiveness, accessibility, and quality of the essential public health services that are provided under the grant. The plan must: (1)  identify the outcomes that are intended to result from the use of the grant money and establish a mechanism to measure those outcomes; and (2)  establish performance standards for the delivery of essential public health services and a mechanism to measure compliance with those standards. (e) The governing body of the municipality, the commissioners court of the county, or the members of a public health district may appoint a local health board to monitor the use of the money received under this section. (f) A public health board established under Section 121.034 or 121.046 may serve as the local health board authorized under Subsection (e). (g)  The governing body of the municipality or the commissioners court of a county may serve as the local health board authorized under Subsection (e). If the governing body of the municipality or the commissioners court of the county elects to serve as the local health board, the governing body or commissioners court may appoint an advisory committee to advise the governing body or commissioners court with respect to the use of the money granted under this 97


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section. (h)  Chapter 783, Government Code, and standards adopted under that chapter control if applicable to a grant made under this section. Added by Acts 1999, 76th Leg., ch. 1378, Sec. 2, eff. June 19, 1999. Sec. 121.0066.  ESSENTIAL PUBLIC HEALTH SERVICES PROVIDED BY DEPARTMENT. (a) Subject to the availability of funds, the department may provide essential public health services for a population for which a municipality, county, public health district, or other political subdivision is not receiving a grant to provide those services under Section 121.0065. (b) Subject to the availability of funds, the department shall develop a plan that complies with Section 121.0065(d) to evaluate the effectiveness, accessibility, and quality of essential public health services provided under this section. Added by Acts 1999, 76th Leg., ch. 1378, Sec. 2, eff. June 19, 1999. Sec. 121.007.  PUBLIC HEALTH REGIONS. (a) The board may designate geographic areas of the state as public health regions to provide public health services. (b) The board shall appoint a physician to serve as regional director for each public health region. The regional director is the chief administrative officer of the region. The board shall establish the qualifications and terms of employment of a regional director. (c) The board or its designee may require a regional director to perform the duties of a health authority. The regional director may perform those duties, as authorized by the board or commissioner, in a jurisdiction in the region in which the health authority fails to perform duties prescribed by the board under Section 121.024. The regional director shall perform the duties of a health authority in a jurisdiction in the region in which there is not a health authority. (d), (e) Repealed by Acts 1999, 76th Leg., ch. 1378, Sec. 8, eff. June 19, 1999. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 118, Sec. 1, eff. Sept. 1, 1991; Acts 1999, 76th Leg., ch. 1378, Sec. 3, 8, eff. June 19, 1999. Sec. 121.008.  ANNUAL CONFERENCE. (a) The board shall hold an annual conference for health authorities and for directors of local health departments and public health districts. The commissioner or the commissioner's designee shall preside over the conference. 98


Enforcing Public Health Nuisance Laws

(b)  A county or municipality may pay necessary expenses incurred by its health authority or director in attending the conference. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. SUBCHAPTER B. HEALTH AUTHORITIES Sec. 121.021.  HEALTH AUTHORITY. A health authority is a physician appointed under the provisions of this chapter to administer state and local laws relating to public health within the appointing body's jurisdiction. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 118, Sec. 2, eff. Sept. 1, 1991. Sec. 121.022.  QUALIFICATIONS. (a) A health authority must be: (1)  a competent physician with a reputable professional standing who is legally qualified to practice medicine in this state; and (2)  a resident of this state. (b)  To be qualified to serve as a health authority, the appointee must: (1)  take and subscribe to the official oath; and (2)  file a copy of the oath and appointment with the board. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 121.023.  TERM OF OFFICE. A health authority serves for a term of two years and may be appointed to successive terms. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 121.024.  DUTIES. (a) A health authority is a state officer when performing duties prescribed by state law. (b)  A health authority shall perform each duty that is: (1)  necessary to implement and enforce a law to protect the public health; or (2)  prescribed by the board. (c)  The duties of a health authority include: (1)  establishing, maintaining, and enforcing quarantine in the health authority's jurisdiction; (2)  aiding the board in relation to local quarantine, inspection, disease 99


Enforcing Public Health Nuisance Laws

prevention and suppression, birth and death statistics, and general sanitation in the health authority's jurisdiction; (3)  reporting the presence of contagious, infectious, and dangerous epidemic diseases in the health authority's jurisdiction to the board in the manner and at the times prescribed by the board; (4)  reporting to the board on any subject on which it is proper for the board to direct that a report be made; and (5)  aiding the board in the enforcement of the following in the health authority's jurisdiction: (A)  proper rules, requirements, and ordinances; (B)  sanitation laws; (C)  quarantine rules; and (D)  vital statistics collections. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 121.025.  REMOVAL FROM OFFICE. A health authority may be removed from office for cause under the personnel procedures applicable to the heads of departments of the local government that the health authority serves. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. SUBCHAPTER C. MUNICIPALITIES AND COUNTIES WITHOUT ORGANIZED LOCAL PUBLIC HEALTH DEPARTMENTS OR DISTRICTS Sec. 121.028.  APPOINTMENT OF HEALTH AUTHORITY. (a) The governing body of a municipality or the commissioners court of a county that has not established a local health department or a public health district may appoint a physician as health authority to administer state and local laws relating to public health in the municipality's or county's jurisdiction. (b) The governing body of a municipality or the commissioners court of a county described by Subsection (a) that is receiving a grant under Section 121.0065 shall appoint a physician as health authority. (c) An individual appointed to serve as health authority for a county or municipality may serve as the health authority for one or more other jurisdictions under an interlocal contract made in accordance with Chapter 791, Government Code. Added by Acts 1991, 72nd Leg., ch. 118, Sec. 3, eff. Sept. 1, 1991. Amended by Acts 1999, 76th Leg., ch. 1378, Sec. 4, eff. June 19, 1999.

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Sec. 121.029.  DELEGATION OF AUTHORITY. (a) A health authority, unless otherwise restricted by law, may delegate a power or duty imposed on the health authority by the board, or by this or any other law, to a properly qualified physician to act while the health authority is absent or incapacitated. (b)  The physician designated by the health authority must: (1)  meet the qualifications set out in Section 121.022(a); (2)  be appointed as a designee in the same manner as the appointment of the health authority; (3)  take, subscribe, and file the official oath and appointment with the board as required by Section 121.022(b); and (4)  file a certified copy of the written delegation with the board. (c) The delegation is effective during the term of the health authority who made the delegation; however, the health authority may limit the time to a shorter duration in the written delegation of authority. (d) The health authority is responsible for the acts of the physician to whom the health authority has delegated the power or duty. (e) The entity that appoints the health authority and the designee health authority must adopt procedures for the service of the designee as health authority under this section. The procedures shall prevent duplication of authority between the health authority and the designee and provide notice to the department when authority is transferred. Added by Acts 1991, 72nd Leg., ch. 118, Sec. 3, eff. Sept. 1, 1991. SUBCHAPTER D. LOCAL HEALTH DEPARTMENTS Sec. 121.031.  ESTABLISHMENT. The governing body of a municipality or the commissioners court of a county may establish a local health department by majority vote. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 121.032.  POWERS AND DUTIES. A local health department may perform all public health functions that the municipality or county that establishes the local health department may perform. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1999, 76th Leg., ch. 1378, Sec. 5, eff. June 19, 1999. Sec. 121.033.  DEPARTMENT DIRECTOR. 101


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(a) The governing body of a municipality or the commissioners court of a county shall appoint the director of the municipality's or county's local health department. (b)  The director is the chief administrative officer of the local health department, and if the director is a physician, the director is the health authority in the local health department's jurisdiction. (c)  The governing body of a municipality or the commissioners court of a county may designate a person to perform its appointment duties under this section. (d)  A director of a local health department who is not a physician shall appoint a physician as the health authority in the local health department's jurisdiction, subject to the approval of the governing body or the commissioners court, as appropriate, and the board. (e)  The governing body or the commissioners court, as appropriate, shall set the compensation of the director and the health authority in its jurisdiction, except that the compensation, including a salary, may be allowed only for services actually rendered. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1989, 71st Leg., ch. 1100, Sec. 5.07(a), eff. Sept. 1, 1989. Sec. 121.0331.  DELEGATION OF AUTHORITY. (a) A health authority, unless otherwise restricted by law, may delegate a power or duty imposed on the health authority by the board, or by this or any other law, to a properly qualified physician who is employed by the municipality's or county's local health department to act while the health authority is absent or incapacitated. (b)  The physician designated by the health authority must: (1)  meet the qualifications set out in Section 121.022(a); (2)  be appointed as a designee in the same manner as the appointment of the health authority; (3)  take, subscribe, and file the official oath and appointment with the board as required by Section 121.022(b); and (4)  file a certified copy of the written delegation with the board. (c)  The delegation is effective during the term of the health authority who made the delegation; however, the health authority may limit the delegation to a shorter duration in the written delegation of authority. (d)  The health authority is responsible for the acts of the physician to whom the health authority has delegated the power or duty. (e)  The entity or entities that appoint the health authority and the designee health 102


Enforcing Public Health Nuisance Laws

authority must adopt procedures for the service of the designee as health authority under this section. The procedures shall prevent duplication of authority between the health authority and the designee and provide notice to the department when authority is transferred. Added by Acts 1991, 72nd Leg., ch. 118, Sec. 7, eff. Sept. 1, 1991. Sec. 121.034.  PUBLIC HEALTH BOARD. (a) The governing body of a municipality that establishes a local health department may provide for the creation of an administrative or advisory public health board and the appointment of representatives to that board. (b)  The commissioners court of a county that establishes a local health department may provide for the creation of an advisory public health board and the appointment of representatives to that board. (c)  The director of the local health department is an ex officio, nonvoting member of any public health board established for the local health department. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. SUBCHAPTER E. PUBLIC HEALTH DISTRICTS Sec. 121.041.  ESTABLISHMENT. By a majority vote of each governing body, a public health district may be established by: (1)  two or more counties; (2)  two or more municipalities; (3)  a county and one or more municipalities in the county; or (4)  two or more counties and one or more municipalities in those counties. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 121.042.  ADMISSION TO DISTRICT. (a) Any governmental entity, including a school district, may apply to become a member of a public health district. (b)  The governing body of each member shall review the application. (c)  The governmental entity may be admitted to membership on terms acceptable to the applicant and the members if a majority of the governing body of each member approves the application. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 121.043.  POWERS AND DUTIES. 103


Enforcing Public Health Nuisance Laws

(a) A public health district may perform any public health function that any of its members may perform unless otherwise restricted by law. (b)  For purposes of Section 121.005, a public health district shall be identified by its program of public health services and shall, at a minimum, provide the services listed for a local health department under Section 121.032(b). (c)  A public health district may sue and be sued. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 476, Sec. 3, eff. Aug. 26, 1991. Sec. 121.044.  COOPERATIVE AGREEMENT. (a) The members of a public health district shall prepare a written cooperative agreement that sets out fully the terms of operation of the district. (b) The terms in a cooperative agreement must include: (1)  organizational structure; (2)  financial administration; and (3)  procedures for: (A)  modification of the cooperative agreement; (B)  admission, withdrawal, and expulsion of members; (C)  dissolution of the district; and (D)  selection and removal of a director. (c)  A cooperative agreement must be: (1)  approved by the governing body of each member; and (2)  signed by the appropriate officers of each governing body. (d) A modification of a cooperative agreement must be in writing. A modification is effective on approval by the governing body of each member. (e) A copy of a cooperative agreement and of each modification shall be: (1) included in the minutes of the governing body of each member; and (2) filed with the clerk of each county and municipality in the district and with the department. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 121.045.  DISTRICT DIRECTOR. (a) The members of a public health district shall appoint the director of the district. (b) The director is the chief administrative officer of the public health district, and if the director is a physician, the director is the health authority in the district's jurisdiction. (c)  A member may designate a person to perform its appointment duties under this section. 104


Enforcing Public Health Nuisance Laws

(d) A director of a public health district who is not a physician shall appoint a physician as the health authority for the district, subject to the approval of the members and the board. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Amended by Acts 1989, 71st Leg., ch. 1100, Sec. 5.07(a), eff. Sept. 1, 1989. Sec. 121.0451.  DELEGATION OF AUTHORITY. (a) A health authority, unless otherwise restricted by law, may delegate a power or duty imposed on the health authority by the board, or by this or any other law, to a properly qualified physician who is employed by the public health district to act while the health authority is absent or incapacitated. (b) The physician designated by the health authority must: (1) meet the qualifications set out in Section 121.022(a); (2) be appointed as a designee in the same manner as the appointment of the health authority; (3) take, subscribe, and file the official oath and appointment with the board as required by Section 121.022(b); and (4) file a certified copy of the written delegation with the board. (c) The delegation is effective during the term of the health authority who made the delegation; however, the health authority may limit the delegation to a shorter duration in the written delegation of authority. (d) The health authority is responsible for the acts of the physician to whom the health authority has delegated the power or duty. (e) The entity or entities that appoint the health authority and the designee health authority must adopt procedures for the service of the designee as health authority under this section. The procedures shall prevent duplication of authority between the health authority and the designee and provide notice to the department when authority is transferred. Added by Acts 1991, 72nd Leg., ch. 118, Sec. 7, eff. Sept. 1, 1991. Sec. 121.046.  PUBLIC HEALTH BOARD. (a) The cooperative agreement of a public health district may provide for the creation of an advisory or administrative public health board. (b) An advisory public health board shall advise the members and director on matters of public health. (c) An administrative public health board may adopt substantive and procedural rules that are necessary and appropriate to promote and preserve the health and safety of the public. However, an administrative board may not adopt a rule that 105


Enforcing Public Health Nuisance Laws

is not specifically authorized by state law, conflicts with a law of this state, or conflicts with an ordinance of a municipality or county in the district. (d) A public health board may perform any function relating to the operation of the public health district that is required under the cooperative agreement. (e) The terms of a cooperative agreement that provides for a public health board must include: (1) the composition and number of the representatives that compose the public health board; (2) a method for appointing representatives to the public health board; (3)  the length of the representatives' terms, which must be staggered; (4) a requirement that a representative must have resided in the district for at least three years before the date of the representative's appointment; (5) a requirement that each representative serve without compensation; (6) the manner in which a vacancy is filled for an unexpired term; (7)  the procedure and substantive criteria for the removal of a representative; and (8) a description of the relationship between the director and the public health board. (f) The director is an ex officio, nonvoting member of a public health board established by the cooperative agreement. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. Sec. 121.047.  FINANCES. The members of a public health district shall pay the costs necessary to operate the district, including costs for: (1)  staff salaries; (2)  supplies; (3)  suitable offices; (4)  health and clinic centers; (5)  health services and facilities; and (6)  maintenance. Acts 1989, 71st Leg., ch. 678, Sec. 1, eff. Sept. 1, 1989. SUBCHAPTER F. PUBLIC HEALTH CONSORTIUM Sec. 121.101.  DEFINITION. In this chapter, "consortium" means the public health consortium established under this subchapter. Added by Acts 1999, 76th Leg., ch. 1378, Sec. 6, eff. June 19, 1999. 106


Enforcing Public Health Nuisance Laws

Sec. 121.102.  CONSORTIUM ESTABLISHED. Subject to availability of funds, the department shall establish a public health consortium composed of: (1)  The University of Texas Health Science Center at San Antonio; (2)  The University of Texas M. D. Anderson Cancer Center; (3)  The University of Texas Southwestern Medical Center at Dallas; (4)  The University of Texas Medical Branch at Galveston; (5)  The University of Texas Health Science Center at Houston; (6)  The University of Texas Health Science Center at Tyler; (7)  the Texas Tech University Health Sciences Center; (8)  The Texas A&M University Health Science Center; (9)  the University of North Texas Health Science Center at Fort Worth; and (10)  any other public institution of higher education that elects to participate in the consortium. Added by Acts 1999, 76th Leg., ch. 1378, Sec. 6, eff. June 19, 1999. Sec. 121.103.  GENERAL DUTIES. (a) Subject to the availability of funds, the department, in consultation with the consortium and local health units, local health departments, and public health districts, shall: (1)  develop curricula to provide training to public health workers; (2)  conduct research on improving health status outcomes and methods of monitoring those outcomes; (3)  develop performance standards for local health units, local health departments, and public health districts; (4)  develop competency certification standards for public health workers; and (5)  study the technology infrastructure available to local health units, local health departments, and public health districts and improve the use of this infrastructure to permit: (A) statewide communication relating to disease surveillance and reporting of public health information; and (B) immediate access to public health information and collaboration among public health professionals. (b)  The training curricula described by Subsection (a)(1) may include training for local health authorities. Added by Acts 1999, 76th Leg., ch. 1378, Sec. 6, eff. June 19, 1999.

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Municipal Codes (Civil)

THSC 341 by LEO THSC 341 by Health Dept THSC 343 by LEO / HD

Health & Public Nuisance

THSC 341.013-c by All

THSC 365 Illegal Dumping LEO TWC 7.147 Misd

Water Pollution LEO

TWC 7.145 Felony

TWC 7.177 Misd TWC 7.183 Felony

ENFORCEMENT

Illegal Burning LEO

TWC 7.182 Misd Hazardous Waste Medical Waste

Other TWC Chap 7 LEO

Used Motor Oil Lead-Acid Batteries Other TWC 7 Violations TWC Chap 29

NRC 91.002

NRC 91.143

Oil & Gas Waste LEO


Public Education of THSC 341.012(a) Voluntary Clean Up Negotiated Case Settlement

Forced by Health Auth

Paid by Possessor

THSC 341.012 Court Ordered Cleanup Grants

THSC 343.013

Paid by Third Party THSC 341 Used In Error

S.E.P.

ABATEMENT

Prior Settlements Paid By County

THSC 343 Sub C

County Adopts (Optional)

County Selectively Applies

Tidrc007 reading feb 13 final  
Tidrc007 reading feb 13 final  

Reading for TIDRC007 Health Nuisance class