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Home My WebLink About82-2494 ordORDINANCE NO. 82-2494 AN ORDINANCE CREATING A CHAPTER IN THE CODE OF ORDINANCES FOR THE CITY OF PLAINVIEW, TITLED "CODE ENFORCEmeNT SEARCH WAP~P~tNTS," MAKING IT A MISDEMEANOR TO INTERFERE WITH THE EXECUTION OF A SEARCH cW~RRANT, PROVIDING DEFINITIONS, AUTHORIZING THE ISSUANCE AND EXE- TION OF SEARCH WARRANTS, ESTABLISHING WHEN SEARCH WAKRANTS ARE NOT REQUIRED, REQUIRING PROBABLE CAUSE, REQUIRING A SWORN AFFIDAVIT, REQUIRING CERTAIN FORMALITIES, PROVIDING THE MANNER IN WHICH SEARCH WARRANTS ARE TO BE EXECUTED AND NOTICE GIVEN, ESTABLISHING THE TIME DURING WHICH A SEARCH WARRANT MAY BE EXECUTED, AUTHORIZING THE EXE- CUTING INSPECTOR TO SEEK ASSISTANCE IN EXECUTING THE SEARCH WARRANT, PROHIBITING THE SEIZING OF TANGIBLE GOODS OR THE MAKING OF ARRESTS, PROVIDING THE MANNER IN WHICH A RETURN IS MADE, PROVIDING FOR THE pKEREPING OF RECORDS, PROVIDING FOR NO C. ONFLICTS WITH. OTHER LAWS, OVIDING FOR A PENALTY, PROVIDING FOR A SAVINGS CLAUSE, AND PRO- VIDING FOR PUBLICATION. WHEREAS, the City of Plainview is a home rule municipality having the powers of local self-government and can adopt any regu- lation not preempted by, nor prohibited to, the State of Texas, and WHEREAS, the State of Texas has provided for the issuance of search warrants to fire marshals and health officers and has not specifically prohibited home rule cities from adopting similar l~gislation p~oviding for the issuance of search warrants to other classes of code inspectors as well, and WHEP~AS, the City Council desires to authorize the various City departments to use search warrants incidental to the enforce- ment of various City codes and ordinances, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PLAINVIEW: SECTION 1. This ordinance shall be known and cited as the "CODE ENFORCEMENT SEARCH WARRANTS ORDINANCE." SECTION 2. DEFINITIONS. Magistrate: shall mean those individuals specified in Article 2.09 of the Texas Code of Criminal Procedure, except the Mayor of the City of Plainview, Texas. Inspector~: shall mean any official inspector for any depart- ment b'f' the City of Plainview, Texas, which ms charged with code enforcement. Search warrant: shall mean a written order, issued by the magistrate and directed to any inspector, as defined in this section, commanding him to any specified premises to determine the presence of a violation or violations of any ordinance or ordinances of the City of Plainview, Texas. SECTION 3~ WARRANTS AUTHORIZED. Except as provided herein, inspectors are hereby authorized and directed to seek and obtain search warrants from the magistrate, as provided in this ordinance, before making any inspection incidental to the enforcement of the provisions of any ordinance of the City of P!ainview. The magistrate is hereby authorized to issue such warrants subject to the require- ments of this ordinance. SECTION 4~ WARRANTS NOT REQUIRED. Search warrants shall not be required under the following circumstances: (a) ~-~hen permission to inspect has been granted by someone apparently having charge or control of those oremises; for the purpose of this sub-section, permission to insoect may be granted either verbally, in writing or by some other action indicating consent; or (b) when there exists an imminent danger .or peril to human life, limb or property and any delays resulting from the application for a search warrant would materially increase the likelihood of loss from such danger or peril, or (c) when the inspection can be executed by a person who is an invitee on premises held open to the general public; for the purposes of this sub-section a person ceases to be an invitee when he has been instructed to leave the premises or otherwise terminate his inspection by someone having charge or control of those premises. SECTION 5~. PROBABLE CAUSE. No search-warrant shall be issued pursuant to this chapter except on the presentation of evidence of probable cause to believe that a violation or violations are present in the premises sought to be inspected~ In determining probable cause, the magistrate is not limited to evidence of specific know- ledge, but may consider any of the following: -2- (a) the age and general condition of the premises; (b) previous violations or hazards found present in the premises; (c) the type of premises; (d) the purposes for which the premises are used; and (e) the presence of hazards or violations in and the general condition of premises near the premises sought to be inspected. SECTION 6. AFFIDAVIT REQUIRED. A sworn affidavit setting forth substantial facts towards establishing probable cause shall be filed in every instance in which a search warrant is requested. SECTION 7. WARRANT FO~,LALITIES. A search warrant issued pur- suant to this ordinance shall be sufficient if it contains the following requisites: (a) that it run in the name of "The State of Texas"; (b) that it identify, as near as may he, tke premises to be inspected; (c) that it command an inspector to inspect forthwith the premises described; and (d) that it be dated and signed by the magistrate. SECTION 8. EXECUTION OF. WARRANTS.. An inspector to whom a search warrant is delivered shall execute it without delay and forth- wi~h return it to the magistrate. It must be executed within three (3) days from the time of its issuance and shall be executed within a shorter.period if so directed'in the warrant by the magistrate. The inspector shall, upon going to the place ordered to be inspected, give notice of his purpose to the person who has charge of or is an occupant of the place described in the warrant. If such persons cannot be found, upon execution of the search warrant, a copy of said warrant shall be affixed to the front door of the building or premises inspected. In every instance, entry shall he effected using the minimum force necessary according to the circumstances. -3- SECTION 9. DAYS ALLOWED FOR WAR?~NT TO RUN. The time allowed for the execution of a search warrant shall be three (3) whole days, exclusive of the day of its issuance and of the day of its execution. The magistrate issuing a search warrant under the provisions of this ordinance shall endorse on such search warrant the date and hour of the i~suance of the same. SECTION 10. POWERs. OF INSPECTOR EXECUTING WARRANT. In the exe- cution of a search warrant, the inspector may call to-his aid any number of citizens in this city, who shall be bound to aid in the execution of the same. SECTION 11. NO POkeR TO SEIZE TANGIBLE GOODS OR }.~KE ARRESTS. The execution of a search warrant issued pursuant to this ordinance shall not include any authority to make arrests or to seize tangible goods of a violation. SECTION 1.2. HOW RETURN IS MADE. Upon returning the search war- rant, the inspector shall state on the back of the same, or on some p~per attached to it, the manner in which it has been executed and shall ....likewise deliver to the magistrate a copy of the report re- sUltzng ~rom that znspection. SECTION 13. RECORDS TO BE KEPT. The magistrate shall keep a record of all proceedings had before him in the cases of search warrants as a part of the official records of his court. SECTION 14. CONFLICTS. Nothing in this ordinance shall be constrUed to conflict with any state or federal law and shall be in addition to any rights granted thereby. SECTION 15. That violation of any provisions of this ordinance shall be deemed a misdemeanor punishable by a fine not to exceed two hundred dollars ($200.00). Any person inter~fering with the execution of a lawful search warrant issued pursuant to this chapter shall be guilty of a mis- d~meanor and upon conviction thereof shall be fined in any sum not to exceed two hundred dollars ($200.00). Each day such violation is committed or permitted to continue shall constitute a separate offense, and shall be ounishable as such hereunder. SECTION 16. That should any section, paragraph, sentence, clause, ohrase or word of this ordinance be declared unconstitutional -4- or invalid for any reason, the remainder of this ordinance shall not be affected thereby. SECTION 17. That the City Secretary is hereby authorized to cause publication of the descriptive caotion of this ordinance as an alternative method provided by law. SECTION 18. REPEALER. All ordimances or parts thereof in conflict herewith are hereby repealed. SECTION 19. The necessity of issuing search warrants to en- force codes and ordinances of the City of Plainview creates an emergency and an imperative public necessity for the immediate preservation of the oublic's Deace, health, safety, and general welfare, requiring that any rule necessitating more than one reading thereof be, and the same is, hereby suspended; this ordi- nance shall be passed and take effect as an emergency measure and shall be in full force from and after its passage as provided by law, and it is so ordained. PASSED this the 2?th day of July , 1982, by unanimous vote of the City CounciT, City of Plainview, Texas. APPROVED this the 27th day of July , 1982. E. Vi Ridl~Huber, Mayor ATTEST: Walter $. Dodson, City Clerk -5-