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HomeMy WebLinkAboutOrd 10-3528ORDINANCE NO. 10 -3528 AN ORDINANCE AMENDING CHAPTER 2, ARTICLE X, SEARCH WARRANTS RE: CODE ENFORCEMENT, OF THE CITY OF PLAINVIEW, HALE COUNTY, TEXAS; DEFINING TERMS; ESTABLISHING REGULATIONS FOR THE ISSUANCE OF CITATIONS STEMMING FROM ALLEGED CRIMINAL VIOLATIONS; PROVIDING FOR PROCEDURES IN THE EXECUTION OF ADMINISTRATIVE SEARCH WARRANTS; REPEALER; SEVERABILITY CLAUSE; CUMULATIVENESS CLAUSE; CONFLICT CLAUSE; AND EFFECTIVE DATE. WHEREAS, the City Council of the City of Plainview, Texas seeks to promote the public health, safety, morals and general welfare of the municipality and the safe, orderly, and healthful development of the municipality; and WHEREAS, the City Council finds that state law does not provide rules and regulations relating to issuance of citations in criminal cases stemming from local ordinances by non -peace officers; and WHEREAS, the City Council has determined that the local administration of justice requires that such rules and regulations exist; and WHEREAS, pursuant to Texas Local Government Code, Section 51.001, the City has general authority to adopt ordinances or police regulations that is for the good government, peace or order of the City and is necessary or proper for carrying out a power granted by law to the City; and WHEREAS, the City Council finds that it is necessary and proper for the good government, peace or order of the City of Plainview, Texas to adopt an ordinance regulating the issuance of citations in criminal cases stemming from local ordinances by non -peace officers; and WHEREAS, the City Council further finds the amended administrative search warrant procedures are in the best interest of the public to insure constitutional rights are protected. SECTION I. NOW, THEREFORE, The City of Plainview hereby ordains that: Chapter 2, Article X, Search Warrants Re: Code Enforcement, is hereby amended as Chapter 2, Article X, Code Enforcement: Citation Issuance and Search Warrants, and shall read as follows: Ordinance No. 10 -3528 Code Enforcement Citation Ordinance Page 1 of 9 371 372 Division 1: Issuance of Citations in Criminal Enforcement Subchapter A: Enactment Provisions and Definitions Sec.2 -181. Cite. This Article shall be known and cited as the "Code Enforcement: Citation Issuance and Search Warrants Ordinance." (Ord. No. 82 -2494, 1, 7- 27 -82). Sec. 2 -182. Purpose and Application. This Article provides procedural and substantive rules relating to the issuance of citations by non -peace officers to defendants accused of violating criminal ordinances of the City of Plainview, Texas. This Article applies to the issuance of citations alleging criminal violations within Municipal Court's jurisdiction. In addition, this Article authorizes and directs designated officers to obtain search warrants from a Magistrate before making any inspection incidental to the enforcement of the City of Plainview's ordinances. Subject to this Article's requirements, the Magistrate is further authorized to issue such warrants. The mandates and processes established by this Article were specifically designed to achieve the effective and efficient administration of the City's enforcement programs through the improved operation of the City's Municipal Court. Sec. 2-1823. Definitions. For the purposes of this Article, the following words and terms shall have the meaning ascribed thereto: Citation shall mean an ordinance violation notice and notice to appear before the City of Plainview, Texas Municipal Court, as provided for in this Article. City shall mean the City of Plainview, an incorporated municipality located in Hale County, Texas. Magistrate shall FReici mean these individuals specified in Article 2.09 of the mayor of the #y-e-f- Plainview any Judge of a Municipal Court for the City of Plainview, Texas. e --e- Inspector shall m on any official inspector for any department of the City of Plainview. Officer shall mean an official Inspector for the Animal Control Department, Building Codes Department, Code Enforcement Department, Fire Prevention Department, Health Department, and any officer of the Police Department who is charged with the enforcement of city ordinances. Person shall mean any individual, association, firm, corporation, governmental agency, political subdivision, or legal entity of any kind. Ordinance No. 10 -3528 Code Enforcement Citation Ordinance Page 2 of 9 Search Warrant shall mean a written order, issued by a Magistrate and directed to any Inspector, 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 inspect any specified premises to determine the presence of a violation of any City ordinance. (Ord. No. 82 2494 2,7 27 82). Scc. 2 183. Warrants authorized. making anspection incidental to thc enforcement of the provisions of any ordinance of-the subject to the requirements of this article. (Ord. No. 82 2/1 Sec. 2 -184. Relation to Related Laws. A citation issued pursuant to this Article does not relate to the issuance of a citation by a peace officer pursuant to the Texas Code of Criminal Procedure, Article 14.06(d) and the Texas Transportation Code, Section 543.003. Sec. 2 18/1. Warrants not required. Subchapter B: Administration required under thc following circumstances: When permi'jon to inspect has been granted by someone apparently having charge or control of these premises; for the purpose of -this subsection, permiVcion to inspect may be granted either verbally, in writing or by some e (4)— When there exists an imminent danger or peril to human life, limb or warrant or peKit; Ordinance No. 10 -3528 we- naa4.�.�a ie:;y- incrgace the likelihood of or Whvvhen -the inspection can be executed by a person who is an invitee on oremfsea- held open to the general public; for thc purposes of this subsection, e to be- an invitee when he 4 -been instructed to leave-the premises or :y semeoRe having charge or control of these premises.- 82- 2494, 4- 7 27S2i Sec. 2 -185. Authority to Issue Citations. Pursuant to this Article, and the scope of their assigned duties, a citation may be issued by any of the following individuals so designated by the City Council: Code Enforcement Citation Ordinance Page 3 of 9 373 374 (a) Environmental Health Officer; (b) Animal Control Officer; (c) Building Codes Officer; (d) Code Enforcement Officer; and (e) Fire Prevention Officer. Sec. 2 185. Probable cause. A. presentation of evidence of probable cause to believe that a violation or violations aro present in thc premises sought to be inspected. In determining probable cauce, the magistrate is not limited to evidence fo specific knowledge, but may consider any of the (a) The age and gc the premises; Ordinance No. 10 -3528 (c) Thc type of premises; (d) Thc purposes for which thc premises arc used; and (e) Thc presence of hazards or violations in and the general condition of premises n ar thc premises sough to be inspected. ((Ord No. 82 2/1 94 4 5, 7 27 82) Sec. 2 -186. Form and Content of Citation. A citation issued under this section must be in a form approved by the Municipal Court Clerk that includes the following information: (a) The name, address, date of birth, or driver's license number and physical description, and telephone number of the person cited; (b) The offense for which the person is charged; (c) The date and location of the offense; (d) An appearance date; (e) A statement requiring the person receiving the citation to appear at municipal court on or before the appearance date indicated on the citation; (f) A statement of the person's promise to respond to the citation, pursuant to Article 27.14 of the Code of Criminal Procedure, by the appearance date indicated on the citation, including a place for the person cited to provide the person's signature; and (g) The signature of the person issuing the citation. Scc. 2 186. Affidavit required. A sworn affidavit sett, th substantial facts toward establishing probable sat +se- shall be filed in every instance e 82 2494 7 27 82) Subchapter C: Related Offenses and Penalty Sec. 2 -187. Pleading Subsequent to Issuance of Citation. Code Enforcement Citation Ordinance Page 4 of 9 All pleas arising from the issuance of a citation under this Article shall be made pursuant to Article 27.14 of the Code of Criminal Procedure. Sec. 2 187. Warrant formalities. e• following requisites: {a) -That is run in the name of `The State of Texas"; 43i)---That it identify, as n ar as may bc, the premises to be inspected; e and e- e. -e e Sec. 2 -188. Ordinance Violation of Promise to Appear. A person issued a citation, as authorized by this Article, commits an offense if the person fails to appear or enter a plea pursuant to Section 2 -187 on or before the appearance date indicated on the citation. Ordinance No. 10 -3528 arrants. An inspector to whom a s arch warrant is delivered shall execute and forthwith return it to the magistrate. It must be executed within three (3) days from the time of its issuance and shall bc executed within a shorter period if warrant by thc magistrate. The inspector shall, upon going to the place ordered -to --be inspected, give notice of his e e e who has charge of or is an occupant of thc place described in the warrant. If such persons cannot be found, upon execution of the s arch warrant, a copy of said warrant shall bc affixed to the front door of the building or e e In every instance, entry shall be effected using the e e o+reurctanccs. (Or- d--No. 82 2/19 8, 7 27 8-2-} Sec. 2 -189. Interference or Obstruction of Issuance. ,72782) A person commits an offense if the person interferes with or obstructs the issuance of a citation under this Article. Sec. 2 189. -D-a.ys allowed -fer- warrant -to run. T "Tn! e �+Ilevved for 4he e*ec;stior► o-f-a- sea warrant shall --be daye, -e sivc of the day ef$ its issuance and of the day of its execution. The magistrate issuing -a s arch warrant under e e shall endorse on std s arch warrant the- date -ef -the issuance of tde same. (.Qr -No. 82 2'191, -7 27 Code Enforcement Citation Ordinance Page 5 of 9 375 376 Sec. 2 -190. Providing False or Fictitious Name. A person commits an offense if the person gives a false or fictitious name, address, or other information to an individual authorized to issue a citation under this Article. Sec. 2 190 Power of inspector executing warrant. 4ie of citizens in this city, who shall be bound to aid in the execution of the same. Sec. 2 -191. Illegal cancellation of citations. No person shall unlawfully cancel or solicit the cancellation of any citation in any manner other than as provided by law. e eeee The execution of a s arch warrant issued pursuant to this article shall not include any authority to make arrests or to seize tangible goods of -a-- violation- {Ord No. 82 4 Sec. 2-192. Penalty. Each violation under this division is a misdemeanor offense punishable upon conviction by a fine not to exceed five hundred dollars ($500.00) per offense. Each day shall constitute a separate offense. Sec. 2 192. How return is made. Upon returning the s rch warrant, the inspector shall state on the back of same, (Ord No. 82 2494 12, 7 27 82) Division 2: Administrative Search Warrants Sec. 2 -193. Search Warrants authorized. Whenever entry is denied or prohibited, Inspectors are hereby authorized to seek and obtain search warrants from a Magistrate to permit inspections incidental to enforcement of any provision of this Code. Magistrates are hereby authorized to issue such warrants pursuant to the requirements of this Article. Se-. 2 193. R c co rd s #e-be -kept The- magistrate shall keep a record of all proceedings had before hi- m- -+r1--tie Ordinance No. 10 -3528 Code Enforcement Citation Ordinance Page 6 of 9 cases of c arch warrants as a part of the official records of his court. (Ord No. 82 2494, 13, 7 27 82) Sec. 2 -194. Probable Cause. No search warrant shall be issued pursuant to this Article except on the presentation of evidence in verified affidavit form of probable cause to believe that a violation or violations are present on the premises sought to be inspected. In determining probable cause, the Magistrate may consider, in addition to specific knowledge, the following: (a) Age and condition of the premises; (b) Previous violations or hazards found on the premises; (c) Type of premises; (d) Purposes for which the premises are used; and (e) Condition of the surrounding premises. (Ord. No. 82 -2494, 5 5, 7- 27 -82) Scc.2191 s- Nothing in this chapter shall be construed to conflict with any state or federal law and shall be in addition to any rights granted hereby. (Ord No. 82 2491, *14, 7 27 82) Sec. 2 -195. Sufficiency of Warrant. A search warrant issued pursuant to this Article shall be sufficient if it contains the following: (1) That it run in the name of "The State of Texas (2) That it identify the premises to be inspected; (3) That it command an Inspector to inspect forthwith the premises described; (4) That it be dated and signed by the Magistrate. See- 2 195. Violation. Violation of any provisions- of this article shall be deemed misdemeanor dollars ($9-:98) Any --on- nterf&m, -with- the execution of-a- lawful s rch warrant issued pursuant to this- a4ticic shall--49-e-gui-l-ty-uf-a--m-i-sdemean-er and upon conviction thereof shall be fined 4n sum not tom -xo° d --4 e ,000.00). Each day such violation is committe,d-e-r--pe-rr+tted -te ee t u -s- hall- constitute a separate offense, d-er. (O No. 82 2494,4-4 7 27 82) e e- Sec. 2 -196. Execution of warrants. (1) An Inspector to whom a search warrant is delivered shall execute it without delay and forthwith return it to the Magistrate. A search warrant shall be executed within three (3) days from its issuance or a shorter period of time if directed by the Magistrate. The time allowed shall be three (3) whole days Ordinance No. 10 -3528 Code Enforcement Citation Ordinance Page 7 of 9 377 378 exclusive of the issuance and execution dates. The Magistrate issuing the warrant shall endorse thereon the date and time of issuance. (2) The Inspector shall, before entering upon any premises to execute a search warrant, give notice of his purpose to the person in charge of or occupying the premises ordered inspected. If no such person can be found, a copy of the search warrant shall be affixed to the front door, gate or other location on the premises to be inspected. (3) Execution of a search warrant hereunder shall not include the authority to arrest or to seize tangible goods for purposes of criminal prosecution. However, an Inspector may seize tangible property when there is an imminent and immediate danger to the health, safety or welfare of the public. (4) Upon returning the search warrant, the Inspector shall write on the back of same or paper attached thereto the manner, date, and time it was executed and shall deliver the same to the Magistrate. (5) The Magistrate shall keep or cause to be kept records of all proceedings before him /her in cases of issuance of a search warrant as part of the official records of his Court. (6) Every application for a search warrant shall be first delivered to the City Attorney or his /her designated assistant for review and approval. Secs. 2 196 to 2 200. Reserved. Sec. 2-197. Conflicts. Nothing in this Article shall be construed to conflict with any state or federal law and shall be in addition to any rights granted thereby. (Ord. No. 82- 2494, 14, 7- 27 -82) Secs. 2 -198 to 2 -200. Reserved SECTION II. All ordinances or parts of ordinances inconsistent with any provisions of this Ordinance are hereby repealed to the extent of such conflict, and the provisions of this Ordinance shall be and remain controlling as to the matters regulated, herein. SECTION III. Severability is intended throughout and within this Article. If any provision, including any section, paragraph, sentence, clause, phrase or word or the application thereof to any person or circumstance is held invalid, unconstitutional, or unenforceable by a court of law or administrative agency with jurisdiction over the matter, such action shall not be construed to affect any other valid portion of this Ordinance. Ordinance No. 10 -3528 Code Enforcement Citation Ordinance Page 8 of 9 SECTION IV. Provisions of this Ordinance are cumulative and nothing herein shall prevent, alter, or diminish the applicability or enforcement of other ordinances restricting, regulating, or governing the subject matter herein. SECTION V. All ordinances or portions of any ordinance of the City of Plainview, Texas in conflict herewith, are hereby amended to conform with the provisions hereof. SECTION VI. This ordinance shall be in full force and effect upon its passage and publication as required by law. PASSED AND APPROVED on first reading this 24 day of August, 2010. PASSED AND APPROVED on second reading this 14 day of September, 2010. ATTEST: Belinda Hinojosa, City Se APPROVED AS TO CONTENT: Delwin Derrick, Chief Building Official APPROVED AS TO FORM: Leslie Spear Pear e, City Attorney 1!A. :_,I_.IL 4 1 ..A41.1 Ordinance No. 10 -3528 Code Enforcement Citation Ordinance N C. ANDERSON, MAYOR Page 9 of 9 379