ORDER N0.29142
NUISANCE ABATEMENT PROGRAM
Came to be heard this the 25`" day of April 2005, with a motion made by Commissioner
Williams, seconded by Commissioner Nicholson. The Court unanimously approved by
vote of 4-0-0 the Nuisance Abatement Program and appoints Mr. Arreola as director and
authorize the director to designate Constables 1, 2, 3 and 4 as representatives based upon
their approval.
Z9~ ~z
~~ COMMISSIONERS' COURT AGENDA REQUEST
T
MADE BY: William H. Williams
MEETING DATE: Apri125, 2005
OFFICE: Commissioner, Pct. 2
TIME PREFERRED:
SUBJECT: (Please be specific). Consider, discuss and take appropriate action on
a Kerr County Nuisance Abatement Program.
EXECUTIVE SESSION REQUESTED:
NAME OF PERSON(S) ADDRESSING THE COURT: Commissioners Williams, Miguel
Arreola.
ESTIMATED LENGTH OF PRESENTATION: 10 Minutes
IF PERSONNEL MATTER-NAME OF EMPLOYEE:
Time for submitting this request for Court to assure that the matter is posted in
accordance with Title 5, Chapter 551 and 552, Government Code, is as follows:
Meeting scheduled for Mondays: 5:00 P.M. previous Tuesday
THIS REQUEST RECEIVED BY:
THIS REQUEST RECEIVED ON:
All Agenda Requests will be screened by the County Judge's Office to determine if adequate
information has been prepared for the Court's formal consideration and action at time of Court
meetings. Your cooperation is appreciated and contributes toward your request being addressed
at the earliest opportunity. See Agenda Request Rule adopted by Commissioners Court.
COMMISSIONERS' COURT AGENDA REQUEST
PLEASE FURNISH ONE ORIGINAL AND NINE COPIES OF THIS
REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT.
MADE BY: William H. Williams
MEETING DATE: April 11, 2005
OFFICE: Commissioner, Pct. 2
TIME PREFERRED: 1:30
SUBJECT: Public Hearing on Proposed Kerr County Nuisance Abatement Program.
EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON)
NAME OF PERSON ADDRESSING THE COURT: Commissioner, Pct. 2
ESTIMATED LENGTH OF PRESENTATION:
IF PERSONNEL MATTER -NAME OF EMPLOYEE:
Time for submitting this request for Court to assure that the matter is posted in
accordance with Title 5, Chapter 551 and 552, Government Code, is as follows:
Meeting scheduled for Mondays:
THIS REQUEST RECEIVED BY:
THIS REQUEST RECENED ON:
5:00 P.M. previous Tuesday.

All Agenda Requests will be screened by the County Judge's Office to determine if adequate
information has been prepared for the Court's formal consideration and action at time of Court
Meetings. Your cooperation will be appreciated and contribute towards you request being
addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners'
Court.
"' COMMISSIONERS' COURT AGENDA REQUEST
PLEASE FURNISH ONE ORIGINAL AND NINE COPIES OF THIS REQUEST
AND DOCUMENTS TO BE REVIEWED BY THE COURT.
MADE BY: William H. Williams
MEETING DATE: February 28, 2005
OFFICE: Commissioner, Pct. 2
TIME PREFERRED:
SUBJECT: (Please be specific). Consider, discuss and take appropriate action to - -
conduct a workshop and/or public hearing on proposed Ken County Nuisance Abatement
Program /
Ma
EXECUTIVE SESSION REQUESTED: 1 /
NAME OF PERSON(S) ADDRESSING THE COURT: Commissioner Williams, Miguel
'_' Arreola, Environmental Health Department.
ESTIMATED LENGTH OF PRESENTATION: 10 Minutes
IF PERSONNEL MATTER-NAME OF EMPLOYEE:
Time for submitting this request for Court to assure that the matter is posted in
accordance with Title 5, Chapter 551 and 552, Government Code, is as follows:
Meeting scheduled for Mondays: 5:00 P.M. previous Tuesday
THIS REQUEST RECEIVED BY:
THIS REQUEST RECEIVED ON: @
All Agenda Requests will be screened by the County Judge's OfFice to determine if adequate
information has been prepared for the Court's formal consideration and action at time of Court
meetings. Your cooperation is appreciated and contributes toward your request being addressed
at the earliest opportunity. See Agenda Request Rule adopted by Commissioners Court.
Backup Statement for Agenda Item
In September 2002, Commissioner Baldwin brought to the attention of the Court
the need to have in place an enforceable Nuisance Abatement Policy and Court Order.
Commissioners' Court took no action. -
In October 2002, I sent a written request to the County Attorney to review both an
Attorney General's Opinion and a proposed Nuisance abatement Policy for Kerr County,
as permitted under Chapter 343 of the Texas Health and Safety Code; similar in content
to one adopted by Cooke County, Texas.
In March 2003, I reminded the County Attorney my desire to receive his
continents so the matter could be placed before Commissioners' Court for discussion-and
action.
-~
Hearing nothing from the County Attorney during the years 2003 and 2004, I
again placed the issue before new County Attorney Rex Emerson. Finally, not only a
response, but a re-write of the Cooke County Nuisance Abatement Program that satisfies
the law, and fits for Kerr County.
Our Environmental Health Department now has the equivalent of fiill-time
staffing that can carry out enforcement of a comprehensive Nuisance Abatement
Program.
It is long-past time to establish a program of this nature, and the agenda item
-- would authorize workshops and/or Public Hearings on this proposed program before final
consideration and approval.
WHW
~~ MEMORANDUM
TO: Rex Emerson
County Attorney
Kerr County, Texas
FROM: Jerry Phillips
Assistant Kerr County Attorney -
DATE: February 10, 2005 .
RE: County Nuisance Abatement =. -
This is in response to your question concerning any legal problems I foresee in the
County adopting Cooke County's Public Nuisance Abatement Order.
Overall I feel like Cooke's program is legally solid. However, I did come across a
few issues that might create some legal problems. Rather than highlight each area of
concern, I thought it would be easier and faster to rewrite the program in a way that kept
the bulk of their work, but prevented the anticipated problems.
..-.
Attached is the result of that rewrite. I used most of their format, and a large part
of their terminology. I attempted to keep additions to a minimum knowing that our job is
one of legality rather than one of policy. Still, the intent of Subchapter C of the Texas
Health and Safety Code is to ensure that counties that adopt nuisance programs have
programs that are in compliance with the law and aze fairly and evenly enforced and I
believe this drafted program does so. _
An example of one of the changes that might preclude a possible claim of the
program not being enforced evenly was in the Director's unlimited power to designate
assistants. (Cooke County, page 4, paragraph IV, subparagraphs A and B). With too
many designated assistants, you get too many different interpretations of the law and too -
many inconsistent discretionary calls. If every deputy sheriff were to be designated by the
director, you can imagine how unevenly the program would be applied -and how
burdensome this order would be on the citizens of Ken County.
Most of the definitions are straight from the Health and Safety Code.
Attached hereto is the drafted program (without a drafted order adopting), the
Cooke County Order and Program, and Health and Safety Code Sections 343,021,,. -
343.022, 343.023, 343.024, 343.025, and 343.002.
I would point out, as I reported to you earlier, that this abatement program will
not apply to any facility licensed and inspected by the State. Any otherwise legally
operating junkyard will not be affected by this.
If this does not satisfy your request, or if you have any other work or research that
you would like for me to do on this matter, I will be happy to do whatever I need to do.
Respecfully Submitted,
.ttorney
~- KERR COUNTY, TEXAS NUISANCE ABATEMENT PROGRAM
I. INTRODUCTION /PURPOSE
This program and these procedures are established under authority of
Chapter 343 of the Texas Health .and Safety Code, and are instituted to
eliminate public nuisances from the unincorporated areas of Kerr County,
Texas. To ensure that this Order be fairly and consistently applied, 'the
following policies and procedures shall govern the operation of thi's Policies
and Procedure. ~ _ ~'•
II. APPLICATION AND ENFORCEMENT
These Policies and Procedures shall apply to all the unincorporated areas of
Kerr County, and may be enforced criminally in the appropriate justice
court, or in civil proceedings initiated by the Kerr County Attorney or the
Kerr County Commissioners Court, and may be enforced both criminally
and civilly Any court of competent jurisdiction in this county may issue any
order necessary to enforce this order.
III. DEFINITIONS
(A) "Abate" means to eliminate by removal, repair, rehabilitation, or
demolition.
(B) "Building" means a structure built for the support, shelter, or enclosure
of a person, animal, chattel, machine, equipment, or other moveable
property.
(C) "Citation" means the legal instrument that charges an individual with a
criminal offense specified under Chapter 343 of the Texas Health and Safety
Code.
(D) "Director" means the Kerr County Code Enforcement Officer or any
other regularly salaried, full-time Kerr County employee so designated by
the Kerr County Commissioners Court.
-- _ _._ - -
(E) "Garbage" means decayable waste from a public or private
establishment or restaurant. The term includes vegetable, animal, and fish
1
-- offal and animal and fish carcasses, but does not include sewage, body
waste, or an industrial by-product.
(F) "Neighborhood" means: .
(1) a platted subdivision; or
(2) property contiguous to and within 300 feet of a platted
subdivision.
(G) "Notice" means written notification that meets all of the requirements
of paragraph VI, of these Policies and Procedures. :
(I~ "Nuisance" means":
(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 or property-damaging pests;
(4) allowing weeds to grow on premises in a neighborhood if the
weeds are located within 300 feet of another residence or commercial
establishment;
(5) maintaining a building in a manner that is structurally unsafe or
constitutes a hazard to safety, health, or public welfare because of
inadequate maintenance, unsanitary conditions, dilapidation,
obsolescence, disaster, damage, or abandonment or because it
constitutes a fire hazard;
-^ (6) maintaining on abandoned or unoccupied property in a
neighborhood a swimming pool that is not protected with:
2
--- (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;
(7) maintaining a flea market in a manner that constitutes a fire
hazard;
(8) 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;
(9) discarding refuse on the smaller of:
(1) the area that spans 20 feet on each side of a utility line; or
(2) the actual span of the utility easement.
(10) This section does not apply to:
(a) a site or facility that is:
-- (b) permitted and regulated by a state agency; or
(c) licensed or permitted under Chapter 361; or
(d) agricultural land.
(I) "Person" means:
(1) a human individual
(2) any business, corporation, association or entity that is capable of
owning, leasing, or controlling real or personal property in its business
or otherwise collective name.
(J) "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.
(K) "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.
-^ (L) "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,
3
-- thoroughfare, or bridge is open to the public for vehicular or pedestrian .
traffic.
(1V>) "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.
(N) "Refuse" means garbage, rubbish, paper, and other decayable and
nondecayable waste, .including vegetable matter and animal and fish -
carcasses. ~ _
(O) "Representative" means a full time, regular salaried, employee of Derr
County Texas, designated in writing to assist the Director in administration
of the nuisance program.
(P) "Rubbish" means nondecayable waste from a public or private
establishment or residence.
(Q) "Weeds" means all rank and uncultivated vegetable growth or matter
.' that: -
(1) has grown to more than 3 6 inches in height; or
(2) regardless of height, may create an unsanitary condition or become
a harborage for rodent, vermin or other disease carrying or property --
damaging pests. - -
IV. GENERAL ADMINISTRATION
(A) This nuisance abatement program shall be administered by a Director.
The Director shall be appointed by the commissioner's court, and must be a
full-time, regularly salaried, county employee. Neither the order creating
this program, nor these Policies and Procedures, create a new salaried
position in Kerr County government.
(B) The Director may appoint, by written designation, one or more
Representatives to assist him in the administration of the program. The
written appointment must specify the duties of the Representative and the
duration of the appointment, but such appointment may not be for a period
of time in_excess of one (1) year without the approval of the commissioner's
- -
court. No more than three (3) Representatives may serve at any given time
without the approval of the commissioner's court. The Representative(s) _ .
4
--- ~ shall also be regular salaried, full time, county employees. Neither the
Director nor a designated Representative shall receive any additional
compensation above their regular salary for the performance of their duties
pursuant to these Policies and Procedure.
(C) The Director or an appointed Representative shall have the authority
to enter premises in the unincorporated are of the County at any reasonable
time to inspect, investigate, or abate a nuisance or to enforce this program.
However, before they enter such premises, they must give reasonable written
notice, and exhibit proper identification to the property's owner, lessee,
occupant, agent, or person in charge of the premises. Such notice must also
be given to the person responsible for causing a public nuisance when the
person who is responsible for the public nuisance is not the owner, lessee,
occupant, agent, or person in charge of the premises, unless the person who
is responsible for causing the public nuisance cannot be identified.
{D) The Director or appointed Representatives shall make frequent
inspections of unincorporated areas within Kerr County, Texas.
-^ V. NUISANCE COMPLAINT INVESTIGATION
(A) Violations detected by the Director or appointed Representatives, and
complaints from citizens or any law enforcement or other government
agency shall be logged and investigated. The Director or Representative
will determine whether a nuisance exists.
(B) Complaints need not be in writing, but the Director will keep an
accurate written log of every complaint, detailing the date and nature of the
complaint, the location of the property complained about, who made the
complaint (if known), and the date and findings of the investigation.
(C) Possible violations shall be investigated within a reasonable time of
detection or complaint. It is presumed that any investigation of a possible
violation made after 30 days from the time of the complaint or detection was
not made within a reasonable time. Failure to investigate within a
reasonable time results in an exclusion of the findings of such report from a
hearing on the matter, unless the commissioner's court finds that there was
good cause for the failure to investigate within a reasonable time.

~-- (D) If an investigation is conducted as set forth in this Policies and
Procedure, and it is determined by the Director or Representative that a
nuisance does not exist at the place complained about or detected, the matter
will be logged as "closed," and no further action is required.
(E) If an investigation is conducted as set forth in these policies and
procedures, and it is determined that a nuisance does exist, the Director or
Representative shall photograph the area and the nuisance, and prepare a
written report documenting in detail the nuisance.
(F) If the Director or Representative determines that a nuisance does
exist, the Director shall serve a Notice to Abate the Public Nuisance on the
property's owner, lessee, occupant, agent, or person in charge of the
premises. Such notice must also be given to the person responsible for
causing a public nuisance when the person who is responsible for the public
nuisance is not the owner, lessee, occupant, agent, or person in charge of the
premises, unless the person who is responsible for causing the public
nuisance cannot be identified.
--~ (G) The Notice to Abate Public Nuisance shall comply with, and be
served as provided in Paragraph VI below.
(H) If the Director or Representative determines that the nuisance
constitutes an immediate threat to the health or welfare of the community, he
may consult with the Ken County Attorney about seeking injunctive relief
before or in addition to taking any of the other actions authorized by these
policies and procedures.
VI. NOTIFICATION
(A) Each Notice to Abate Public Nuisance must contain the following
information:
(1) the specific condition that constitutes a nuisance;
(2} that the person receiving notice shall abate the nuisance before the
31st day after the date on which the notice is served;
(3) that failure to abate the nuisance may result in:
6
~--- (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; and
(4) that the person receiving notice is entitled to submit, before the
31st day after the date on which the notice is served, a written request
for a hearing before the commissioner's court.
(5) that the person receiving the notice is entitled to appear at the
scheduled hearing and is entitled to present evidence, examine
witnesses, and argue on his behalf.
(B) 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 iri
a newspaper with general circulation in the county two times within
ten consecutive days.
VIL HEARING
(A) If a person that receives a Notice to Abate Public Nuisance requests,
in writing, a hearing, a hearing will be scheduled by the Commissioner's,.. .
Court. Notice will be given and the hearing will be posted and held in
accordance with the Texas Open Meetings Act.
(B) Hearings before the Commissioner's Court shall be conducted in the
following manner:
(1 j The person requesting the hearing may present evidence and
-- testimony and may examine witnesses and argue on his behalf.

-~- (2) The person may have an attorney present, and. the attorney may `
act in any matter on behalf of the person as in any other Court ~.
proceeding, however the person who requests the hearing must be
present.
(3) The Director or Representative, or both, shall have the right to
attend the hearing and to testify and present evidence.
(4) The Kerr County Attorney may appear and present testimony or
evidence - '
(5) Any interested party may appear and present testimony and- _
other evidence, unless the Commissioner's Court determines that such
evidence would be cumulative of evidence already before it.
(6) All persons testifying at the hearing shall be under oath.
(7) The Court shall be allowed to question any person testifying.
--~ (8) The Court shall assess the testimony fairly and impartially_and
in accordance with law.
(9) The Court's charge shall be to determine whether apublic-_
nuisance exists and whether State law and these policies and __'~`
procedures have been properly followed. ~ _-
(10) If the Court determines that a public nuisance does exist the
County Judge and the County Clerk shall so certify by signature on a
written determination. Copies of the signed determination shall be
presented to the person requesting the hearing, the County Attorney,
and to the Director or Representative.
(11) If, after either 31 days from the date on which the Notice to -
Abate Public Nuisance is served if no hearing was requested, or seven
days after the Court determines a public nuisance exists, the Director
or Representative or County Attorney, may seek injunctive relief or
immediately proceed with the abatement of the nuisance in
accordance with these Policies and Procedures.
8
VIII. ASSESSMENT OF COSTS AND LIEN
(A) After determining a nuisance exists, if the nuisance still exists more
than 30 days after the determination, the county may abate the nuisance
through any legal action necessary, including abating the nuisance at county
expense, and the county may:
(1) assess the cost of abating the nuisance, the cost of legal .
notification by publication, and an administrative fee of not more than
$100 on the person receiving notice under Section 343.022 of the ~ _
Texas Health and Safety Code; or
(2) by resolution or order, assess the cost of abating the nuisance, the
cost of legal notification by publication, and 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 of the Texas Health and Safety Code.
(C) To obtain a lien against the property to secure an assessment, the
commissioner's court 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.
9
IX. CRIMINAL PENALTIES
(A) A person commits an offense if the nuisance remains unabated after
the 30th day after the date on which the person receives to abate the
nuisance.
(B) The Kerr County Attorney's Office shall prosecute all criminal
proceedings under this Policies and Procedure. ~ . ,
(C) If the person who receives notice requests a hearing before the ` - .
commissioner's court as provided in paragraph VI of these Policies and
Procedures, the 30 day notice shall be tolled and the 30 day period shall ,
begin on the day after the hearing.
(D) The commissioner's court determination shall be prima facie evidence
as to the existence of a public nuisance.
~-- (E) An offense under this order is a misdemeanor punishable by a fine of
not less than fifty dollars ($50) and not more than two-hundred dollars .
($200).
(1) If it is shown on the trial of the defendant that the defendant has,
within two years of the date of this offense, been previously convicted of an
offense under this order the punishment shall be a fine of not less than two-
hundred dollars ($200) or more than one-thousand dollars ($1000), or by
confinement in the Kerr County Jail for a period of six months, or by both
fine and confinement.
(F) Each day a violation occurs is a separate offense.
(G) If a defendant is convicted of an offense under this order, the Court
shall order abatement of the nuisance.
X. REPORTING
(A) The Director or Representative shall keep an ongoing record: of the
number of nuisances reported, the number of nuisances investigated,'the
10
number of citations issued, the number of abatement notices served, and the
number of repeat violators. -.r _ . ,~ . ' .
(B) The Director or Representative shall make a quarterly report to the
commissioner's court that shall include:
(1) a summary of the numerical data gathered pursuant to
subparagraph A above for the past quarter.
(2) a list of violations by precinct, that includes the address of the
nuisance, and. the name of the person cited or served, and whether the . .
nuisance has been abated.
11