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
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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.
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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:
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(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.
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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.
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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
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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
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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)
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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
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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.
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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
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