Opposition Brief — Freeman v. City of Dallas

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JUL 31 2001

No. 00-1755

CLERK

In The ee

Supreme Court of the United States

CHARLES FREEMAN and ROSALYN BROWN,

Petitioners,

CITY OF DALLAS,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF FOR RESPONDENT

THE CITY OF DALLAS IN OPPOSITION

City Attorney of the City of Dallas

Peter B. Haske

Assistant City Attorney

Counsel of Record

Orrice oF THE Dattas City ATTORNEY

City Hall, 1500 Marilla, 7/b/north

Dallas TX 75201

(214) 670-3519

(214) 670-0622 (Telecopier)

Attorney for City of Dallas, Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Does the Fourth Amendment prohibition against

“unreasonable . . . Seizures” of property require a sepa-

rate judicial seizure warrant prior to a building demoli-

tion that is accomplished pursuant to a quasi-judicial

municipal board order issued after notice, the oppor-

tunity to be heard, and the right to judicial appeal,

regardless of the reasonableness of the administrative

order?

2. Did the owners of two vacant multi-unit residen-

tial apartment buildings demolished by the City of Dallas

as “urban nuisances” receive adequate procedural due

process under the Fourteenth Amendment in connection

with the demolitions of their buildings under the facts of

this case?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . ..ccccccccccscesccessces i

TABLE OF CONTENTS «2.5. sccsesscecsssncesseens ii

TABLE OF AUTHRORITIES « .. se cccccacesccssccsscss Vv

OPINIONS BELOW. ooi i cvic sei sweedivecedsdstesee 1

JURISDICTION . ... i cakssotsnpstepesseuenshbeevess. 2

CONSTITUTIONAL PROVISIONS, TREATIES, STAT-

UTES, AND REGULATIONS. .......cccccccccsces 2

STATEMENT OF THEE CAG. scccasccesvvenccscsess 3

A. Course Of Proceedings and Disposition...... 3 -

B. Statement of Pate: so. sscsscssevedesvecserss 5

1. Petitioners’ Acquisition of the Properties.. 5

2. The UE csckccosesdencsentanss liveness 6

3. 2611 Meyers Street Property and First

URSB Hearing Thereon ................ 8

4. 2621 Meyers Street Property and First

URSB Hearing Thereon ................ 10

5. The URSB Rehearings........cccccessee 12

6. The URSB Final Orders and Notices of

Right tO AMOMAE ssccassssesssccvssesess 14

ARGUMENT . .. +4 5sasa¥eua gs bebe eneenewasies exes 14

A. Introducthat..96iica9s peaenesg saceeasadenicess 14

B. There was No Disregard of this Court’s Prece-

dems... .«<céesacnen eee ee awe eee 16

ili

TABLE OF CONTENTS - Continued

Page

1. The Opinion Below Did Not Conflict With

This Court’s Fourth Amendment Prece-

DCE Siecle cee ude éue ee ee die nwands 16

2. The Opinion Below Did Not Conflict With

This Court’s Procedural Due Process Prece-

(EB RPL rc a Pa Re eee 17

C. The Opinion Below Created No Conflict

Among the Circuit Courts................... 21

D. The Court of Appeals Correctly Decided This

DS SENG re dbus bons das saceeeesousaesiherves 23

1. The “Seizures” of Petitioners’ Aban-

doned Buildings Pursuant to Adminis-

trative Demolition Orders Were

Reasonable Under the Facts of this Case,

and Thus Permissible under the Fourth

0 EAI PRE Ror a eee 23

2. Petitioners Received Adequate Pro-

cedural Due Process Under the Facts of

EE Soba al cc bicn a's dana ¥ bed 6 eke ws _ 26

NN ee es a adeebkewau 30

RESPONDENT’S APPENDIX

Memorandum and Order, Freeman v. City of Dallas,

Case No. 3-96-CV-1108-DES (N.D. Tex. October

9, 1997) (unpublished).................. Resp. App. 1

United States Court of Appeals for the Fifth Cir-

Ae eg err errr rrr rere Resp. App. 4

Texas Constitution, Article 1, Section 13...Resp. App. 5

TABLE OF CONTENTS - Continued

Page

Texas Constitution, Article 11, Section 5...Resp. App.

Texas Civil Practice & Remedies Code Section

GBT E nh ncknesdetwiecnscenisssinessacns Resp. App

Texas Civil Practice & Remedies Code Section

GER ona scdccacessacsccntécetananceses Resp. App

Texas Local Government Code, Section 54.031

cede nesaendebsenbadeeescunseadsunaeweenl Resp. App

Texas Local Government Code, Section 54.039

Cech O Onde e nese eeaeassdbvacesnnaceticwaga Resp. App

Texas Local Government Code, Section 214.001

(ap edbebneceWhdsesKaweeensanncsetaaguans Resp. App.

Texas Local Government Code, Section 214.0022

Sbndb Sead ee Roda eeenenneesceesneeenes eau.d Resp. App.

Texas Rule of Civil Procedure 680........ Resp. App.

Dallas, Texas, Charter, Table of Contents ... Resp. App.

Dallas, Texas, Charter, ch. I.............. Resp. App.

Dallas, Texas, Charter, ch. II............. Resp. App.

Dallas, Texas, Charter ch. XV............ Resp. App.

Dallas, Teme, COGS, GA. 27.0506 cecscccss. Resp. App.

Lee)

TABLE OF AUTHORITIES

CasEs

Allen v. McCurry, 449 U.S. 90 (1980)... ...........005. 26

Camara v. Municipal Court of San Francisco, 387 U.S.

SES COG) aa ieniscnscaacavadscos ts saaaanaeaniedoks 16

Cedar Crest No. 10, Inc. v. City of Dallas, 754 S.W.2d

351 (Tex. App. -— Eastland 1988, no writ), cert.

denied, 490 U.S. 1081 (1989)................ 18, 20, 21

City of Sherman v. Henry, 928 S.W.2d 464 (Tex.

1996), cert. denied, 519 U.S. 1156 (1997)............ 19

Conner v. City of Santa Ana, 897 F.2d 1487 (9th

Cir.), cert. denied, 498 U.S. 816 (1990)....... ah) Bey oe

Criswell v. City of Dallas, Texas, 2001 WL 609480,

Civ. Case No. 3:00-CV-0687-G (N.D. Tex. May

29, 2G01) (AR UTIBNOG) «« «oo ccc ce a nkec ne candace aes 29

Crossman v. City of Galveston, 247 S.W. 810 (Tex.

SOI ann ak un X wn kA AO eRe KOR LEO RAS Re EL 20

Donovan v. Dewey, 452 U.S. 594 (1981)............... 23

Dugan v0. Ohio, 277 US. G2 CURB) oe a va tiwevccnsses can 25

Florida v. White, 526 U.S. S59 (1999) wos ccc ccc aes 24

G.M. Leasing Corp. v. United States, 429 U.S. 338

OOF FR sé ceksecacineendsedasieeereee 46,27, 22,

Honda Motors, Inc. v. Oberg, 512 U.S. 415 (1994)

o 0654 500k0060o0 ke ee eheke hese 17, 18, 20

Hroch v. City of Omaha, 4 F.3d 693 (8th Cir. 1993)...21, 23

James v. City of Dallas, __ F.3d __, 2001 WL

682089, Case No. 00-10556 (5th Cir. June 18,

MO) oi ibn 5k a win n6nsvnsd Pug bee wiaeseendeeeeeee 16

TABLE OF AUTHORITIES —- Continued

Page

Johnson v. United States, 333 U.S. 10 (1948) .......... 24

Mathews v. Eldridge, 424 U.S. 319 (1976).......2... 27

Mullane v. Central Hanover Bank & Trust Co., 339

UG. FOG (ISTEP c ccccccssccdsccsscessensenccevtenen 27

Nash v. City of Lubbock, 888 S.W.2d 557 (Tex.App. -

Panes TH5G, 1B Wis «00 40b8s060esevdebuntasans 19

New York v. Burger, 482 U.S. 691 (1987).............. 24

Nussbaum v. City of Dallas, 948 S.W.2d 305

(Tex.App. - Dallas 1996, no writ)................. 19

Oliver v. United States, 466 U.S. 170 (1984)............ 25

Samuels v. Meriwether, 94 F.3d 1163 (8th Cir. 1996) .... 23

See v. City of Seattle, 387 U.S. 541 (1967) ............ 16

Shadwick v. City of Tampa, 407 U.S. 345 (1972) ....... 25

Soldal v. Cook County, Ill., 506 U.S. 56 (1992) ........ 16

Tumey v. Ohio, 273 U.S. 510 (1927) ..........-22e0ee, 25

United States v. Rabinowitz, 339 U.S. 56 (1950) ....... 17

University of Tennessee v. Elliott, 478 U.S. 788 (1986) .... 26

Ward v. Village of Monroeville, Ohio, 409 U.S. 57

(1972) co cvvcrcccccccsosancotsvscescausatsaveduaeus 25

CONSTITUTION, STATUTES, AND REGULATIONS

U.S. Constitution

AMMO, | oo cccccccccccccasccesdtssssscuscesss passim

Vii

TABLE OF AUTHORITIES —- Continued

Page

M2 UG. © 19GB. occ cccncsnvsncccccaccacccsceccess 3, 26

Federal Rule of Appellate Procedure 8.............. 28

U.S. Supreme Court Rule 23 ...........-... eee ee eee 28

U.S. Court of Appeals Fifth Circuit Local Rule 41.3 ...2, 5

Texas Constitution

ee a EE Es os ch unecebskadesbicbasounet 2, 19

ir oe, Se is ees a dawed bacesesbee eee 2, 20

Texas Civil Practice & Remedies Code

DNR ss vdncsderetanndvdcadcdnecnsesssiscasensas 2, 28

2 |: pe Aer rrerr rr rr rrr rrrrrr rr err Terr 2, 28

Texas Government Code § 2001.174............... 8, 19

Texas Local Government Code

' Subchapter C Title 2 Subtitle D, Chapter 54

GEER AR ACI i Rene 25

Oh ERR RAPE Rope aint i ay Nise kre 2, 28

ACM | «5 vp banivavuctaceemaxtend ease eee 2, 18

IO 7 sc tidaneetakes seria 19

OE fois sc cawasiw os ces aaae ee 19, 28

Os SL ee eae 2

Rea OP ASL Mater ect nA 28

NE STOO Pert MEE tren Re re 19

es vivgacnas execs 18, 19, 28

Vili

TABLE OF AUTHORITIES - Continued

Page

Texas Rule of Civil Procedure 680................. 2, 28

Dallas, Texas, Charter

ch. I

DiRis kdukh MAb bbs 4 CERAM ORAAS RARER AW AR SORT OES 20

BB PE rrr re Orr Tre ery Trier rete 21

PR sack Kiaacdcabiandedd 6 daseekeke basse eeeks 21

5 PRR repr orcrearty Nebr nampa u pa rae 21

OED 604d da ee ek seeaenawkeeekns Guha eeuacihbane 21

Oe eee eee 21

ch. II

Dis nnnde acs cases bee VA Eas Ren eA ckeeaseneras 21

ch. XV

Bac kcshtacdsdbeakeaksanhnavs eke mca ereeeeeee 6, 21

Dallas, Texas, Code, ch. 27

FS ee Pere TOC USO OT ere re eae 6

na dkkad adikenae txdind deca eua wanes ee Wahaadan res 6

PE. cknnannccekednssdsdensannanseneseenennne 6

SPD tivcthrksedacsswasiawesns cnc cklebeene ke 17

SS AG. b0ethndnans paleenmarcekioseeewees 29

Fo Re errr Te Ter rT reer erer fe? 29, 30

PRP i666 wécewe teed dacucetueussdeaaneeadeeeens 7

TABLE OF AUTHORITIES - Continued

Page

| Pe ere rer eT TTS TT EAT TELE TSC CTL CPT eee 7

Po. Aer rer errr err erry Tee rere rer T eee eer eT 7

| Pires eee ee eee eT eee eS ETT eee eee 7

D APE) ss asaccsies eee eee a

| RE ret peers rent rE ey 75 im oe

Bs PRG EOE TT eee CTT TT ere CE TET ERT Eee 29

RS cc can Pek das s bd AKU ESA NENR Redes eRe 29

FRR ost ae ere er Pre Tees Seer 29

DD so pk KAR WKS REED RSV EKN EN WAd ORs ees 29

DS Per eres ee ery or ere ret ee Preece 29

eS SIS Rs errr ater are pun rr ae beeen eco" 7

RESPONDENT’S BRIEF IN OPPOSITION

TO THE HONORABLE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

Respondent the City of Dallas, Texas, a Texas Home

Rule Municipal Corporation (the “City” or “Dallas”), asks

the Court to deny the Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit (the

“Petition”) in this case, and shows as follows.

OPINIONS BELOW

The Petition adequately sets forth the opinions below

(Pet. 1),1 except that it should have specified that the

reinstatement of the portion of the court of appeals’

“panel opinion concerning the Due Process claims” is in

footnote 4 of the en banc opinion (Pet. App. 8), and the

reinstated portion of the panel opinion is reproduced at

Pet. App. 65-69. In addition, on October 9, 1997, the

district court issued an unreported Memorandum and

Order denying Petitioners’ post-judgment motion to alter

or amend judgement. (Resp. App. 1-3).

1 Citations to pages in the Petition will be in the form “Pet.

[page number(s)]”; to the Appendix to the Petition in the form

“Pet. App. [page number(s)]”; to the Appendix to this Response

in the form “Resp. App. [page number(s)]”; and to the record on

appeal in the form “R. vol. [volume number], p. [page

number(s)].” Because there are potentially confusing page

number stamps in Record volume 2, page number citations to

that volume are preceded by a zero (e.g., “p. 014”) to distinguish

the Record on Appeal page numbers from other stamped

numbers on the pages.

JURISDICTION

The Petition adequately states the jurisdictional req-

uisites.

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, AND REGULATIONS

In addition to the provisions of the Fourth and Four-

teenth Amendments to the Constitution of the United

States reproduced by Petitioners (Pet. 1-2), the following

are reproduced at the pages indicated in the Respon-

dent’s Appendix: United States Court of Appeals for the

Fifth Circuit Local Rule 41.3 (Resp. App. 4); Texas Consti-

tution, Article 1, Section 13 (Resp. App. 5); Texas Consti-

tution, Article 11, Section 5 (Resp. App. 5-6); Texas Civil

Practice & Remedies Code, Section 65.001 (Resp. App. 7);

Texas Civil Practice & Remedies Code, Section 65.011

(Resp. App. 7-8); Texas Local Government Code, Section

54.031 (Resp. App. 8); Texas’ Local Government Code,

Section 54.039 (Resp. App. 8-10); Texas Local Government

Code, Section 214.001 (Resp. App. 10-17); Texas Local

Government Code, Section 214.0012 (Resp. App. 18-19);

Texas Rule of Civil Procedure 680 (Resp. App. 20-21);

Dallas, Texas, Charter, Table of Contents (Resp. App.

22-23); Dallas, Texas, Charter, ch. I (Resp. App. 23-24);

Dallas, Texas, Charter, ch. II (Resp. App. 24-34); Dallas,

Texas, Charter ch. XV (Resp. App. 35-40); and Dallas,

Texas, Code, ch. 27 (Resp. App. 41-100).

STATEMENT OF THE CASE

This case arises from the City’s demolition as “urban

nuisances” of two vacant multi-unit apartment houses

owned by the Petitioners. The City’s Urban Rehabilitation

Standards Board (the “Board” or the “URSB”) ordered the

demolitions through a quasi-judicial procedure autho-

rized by the City Charter and the City Code after hear-

ings notices, and after hearings and rehearings at which

the Petitioners participated, and after notifying them of

their absolute right to appeal the Board’s orders to state

district court. They did not appeal. Instead, after the

demolitions, they collaterally attacked the Board’s orders

in federal district court under the Fourth Amendment's

warrant clause and the Fourteenth Amendment's pro-

cedural due process provisions, seeking money damages

and an injunction against a lien for the City’s demolition

expenses.

A. Course of Proceedings and Disposition

James Freeman (“Freeman”) and Rosalyn Brown

(“Brown”) (together the “Petitioners” or the “Owners”)

filed their original complaint under 42 U.S.C. § 1983 for

money damages and permanent injunction against the

City in the United States District Court for the Northern

District of Texas in Dallas on April 23, 1996. (R. vol. 1, p.

1). Petitioners claimed that they were not provided due

process before the structures were demolished, and that

the City violated the Fourth Amendment's prohibition

against unreasonable seizures by demolishing the struc-

tures without first obtaining a judicial seizure order. (R.

vol. 1, p. 3). Petitioners further claimed that the City

should have given them another hearing before imposing

a lien against their property for the cost of demolition. (R.

vol. 1, p. 3-4). :

On July 24, 1997, the district court ruled on cross-

motions for summary judgment that: (1) The City’s sei-

zures (by demolition) of Petitioners’ buildings occurred

without judicial authorization, and therefore, the seizures

violated Petitioners’ Fourth Amendment rights as a mat-

ter of law; (2) In this case, due process does not require

that a full judicial determination precede demolition of

property found to be a nuisance by the URSB; (3) Ade-

quate procedural safeguards: notices, hearings and

opportunities for compliance were provided to Peti-

tioners; (4) The City did not violate Petitioners’ due pro-

cess rights by filing a lien against Petitioners’ property to

recover demolition expenses; and (5) The URSB alone sets

and carries out the policy of the City of Dallas with

regard to establishing minimum standards applicable to

residential and non-residential structures. (Pet. App.

88-89). These rulings were later substantially incorpo-

rated into the district court judgment. (Pet. App. 84-85).

As the district court later explained when it rejected

Petitioners’ post-judgment motion, “[t]he court did not

question the City’s ultimate right to demolish property

found to be a nuisance by the City Urban Rehabilitation

Standards Board. The court merely found that the Fourth

Amendment required the City to obtain a warrant before

effectuating such demolition.” (Resp. App. 3).

On July 27, 1997, following a one-day jury trial on

damages for the Fourth Amendment violations, the dis-

trict judge accepted the jury’s verdict on damages and, on

August 13, 1997, entered a final judgment against the City

in the amount of $20,000, plus post-judgment interest

accruing at the federal rate. (Pet. App. 84-85). The district

a aa ace

judge later denied Petitioners’ post-judgment motion to

alter or amend the judgment and for permanent injunc-

tion against maintaining a lien against Petitioners’ prop-

erty for the costs of demolition in a memorandum and

order entered on October 9, 1997. (Resp. App. 1-3).

In the meantime, the City filed its notice of appeal

from the judgment on August 22, 1997. Petitioners cross-

appealed from the judgment and from the order denying

their motion to alter and amend judgment on November

3, 1997. After briefs and oral argument, a divided panel of

the court of appeals affirmed the district court judgment,

holding that there had been a Fourth Amendment viola-

tion but no Due Process deprivation. (Pet. App. 56 et seq.).

Upon the City’s timely motion, the court of appeals

granted reconsideration en banc, thereby vacating the

panel opinion and staying the court’s mandate and judg-

ment under Local Fifth Circuit Rule 41.3. (Resp. App. 4).

A majority en banc court opinion reversed the district

court judgment against the City on the Fourth Amend-

ment issue, holding that under the circumstances the

demolitions constituted reasonable seizures (Pet. App.

25), and reinstated the portion of the panel opinion hold-

ing that the URSB had accorded the Petitioners adequate

Due Process under the circumstances. (Pet. App. 8 n.4,

65-69).

B. Statement of Facts

1. Petitioners’ Acquisition of the Properties

Between December 1992 and April 1993, Brown pur-

chased two vacant apartment buildings in Dallas, Texas -

at 2611 Meyers Street and 2621 Meyers Street. (R. vol. 6,

p. 23-25, 82-83). Brown paid one dollar for the 2611

Meyers structure and ten dollars for the building at 2621

Meyers. (R. vol. 8, p. 78). She did not record her deed to

2611 Meyers Street until August 3, 1994. (R. vol. 6, p.

23-25). She did not record her deed to 2621 Meyers Street

until July 1, 1993. (R. vol. 6, p. 82-83). The buildings had

been vacant for six months before Brown bought them.

(R. vol. 8, p. 81). The buildings remained vacant through-

out Petitioners’ approximately two-year ownership. (R.

vol. 8, p. 101). Freeman was Brown’s brother. (R. vol. 8, p.

78). Brown deeded a one-percent undivided interest in

both properties to Freeman on August 11, 1994 (R. vol. 6,

p. 79-80, 133-134), and asked Freeman to act as the gen-

eral contractor to be responsible for necessary repairs to

the two structures. (R. vol. 8, p. 79). Freeman was not a

registered engineer or architect, nor did he possess a

general contractor’s license or trade license from the State

of Texas. (R. vol. 8, p. 75-77). Freeman did not have a

construction company or even a crew working for him.

(R. vol. 8, p. 79).

2. The URSB

The URSB is the quasi-judicial City agency charged

with enforcing minimum housing standards, including

determination whether property condition reports filed

by city inspectors identify violations of municipal codes.

(Pet. App. 3; Dallas, Texas, Charter (“City Charter”), ch.

XV, § 2 at Resp. App. 36; City Code §§ 27-1 at Resp. App.

42-43, 27-2 at Resp. App. 43, 27-3(3) at Resp. App. 44, 27-6

at Resp. App. 54-55; 27-8 at Resp. App. 57-58). The thirty

members and eight alternate members of the Board are

appointed by the Dallas City Council. (City Code

§ 27-6(a) at Resp. App. 54). Members of the Board include

an architect, home builder, licensed real estate broker,

social worker, and structural engineer, each with at least

10 years’ experience, and other members “chosen on the

basis of their interest in the community.” (City Code

§ 27-6(a) at Resp. App. 54-55). After a hearing, the URSB

decides whether a given structure is an “urban nuisance”

and, if so, may order various remedial measures includ-

ing repairs, receivership, the closing and vacating of

buildings, and demolition; and impose civil penalties of

up to two thousand dollars a day against property

owners who fail to obey such order. (City Code § 27-8(a)

at Resp. App. 57-58). The URSB functions through hear-

ing panels of Board members under procedures in the

City Code and any additional rules that the Board may

adopt if they are not inconsistent with City Code provi-

sions. (City Code § 27-9 at Resp. App. 59). At a hearing,

“an Owner . . . may present witnesses in his own behalf

and is entitled to cross-examine any witnesses appearing

against him.” (City Code § 27-9(c) at Resp. App. 59). The

decision of the hearing panel is final except for any

administrative rehearings. (City Code §§ 27-9(d) at Resp.

App. 59, 27-14 at Resp. App. 72-73, 27-14.3 at Resp. App.

74-76). The City Code also gives a property owner an

absolute right to appeal the panel decision to state district

court. (Pet. App. 3; City Code § 27-9(e) at Resp. App. 59).

On appeal, the state district court “considers whether the

landowner’s substantial rights have been prejudiced

because the URSB decision violates constitutional or stat-

utory law; exceeds URSB’s authority; is based on unlaw-

ful procedure or any other error of law; is unsupported

by substantial evidence; or is arbitrary or capricious or an

abuse of discretion.” (Pet. App. 3-4). See Texas Gov’t Code

§ 2001.174(2).

3. 2611 Meyers Street Property and First URSB

Hearing Thereon

The City inspected 2611 Meyers on or about March 8,

1993. (R. vol. 2, p. 035). The structure had been fire

damaged prior to Brown’s purchase in 1993. (R. vol. 8, p.

81). The City’s code enforcement inspector later esti-

mated that it would cost over $84,000 to repair this build-

ing to comply with minimum city code standards,

compared with only $5,434 to demolish it. (R. vol. 6, p.

28). Among the code violations noted during the inspec-

tion were rotted framing and sheetrock; no moisture resi-

stent bath floor; absence of weather or water tight doors;

rotted walkway, stairs, and railing; unpainted exposed

wood; structurally unsound roof; improper sewage con-

nections; missing water closets; and a need for all new

electric service and new heating units. (R. vol. 2, p. 048,

vol. 6, p. 32). The code enforcement notice of violations,

detailing the violations and designating the structure a

“health & safety hazard” (R. vol. 6, p. 32) and the USRB

notice of a February 28, 1994 Board hearing (R. vol. 6, p.

36) respecting the property went to the then-owner of

record. (R. vol. 6, p. 34). Among other things, the notice

of URSB hearing (R. vol. 6, p. 36) advised the owner of

record that there would be a URSB hearing at a specified

date, time and place respecting the property at which

evidence would be presented regarding the condition of

the structure; that the owner would have an “opportunity

to present evidence and witnesses if so desired”; and that

any of 10 specified actions as to the property could be

ordered by the Board as a result of the hearing, including

orders for repair or demolition. The notice further

advised the owner that if demolition were ordered and

done by the City, the owner would have to pay the

demolition expenses or a lien for the expenses would be

placed on the property. (Id.).

Freeman appeared instead of the owner of record at

the URSB’s February 28, 1994 hearing, stating that he had

just acquired the property but had not yet “had it trans-

ferred into my name.” (R. vol. 6, p. 39-40). He agreed that

the property was portrayed on a slide displayed on a

screen at the hearing. (R. vol. 2, p. 044). A City staff

representative read the information about the property

from a docket worksheet in Freeman’s presence and

stated that the staff recommended demolition. (R. vol. 2,

p. 044). Instead of disputing any of the violations, Free-

man explained under oath that he planned to repair the

property but lacked funds. (R. vol. 2, p. 044; vol. 6, p. 40).

He further explained in response to questions from the

Board that as between his two properties, the other one

(2621 Meyers Street) was “more feasible” to repair and “it

is secure.” (Id.). He therefore planned to repair the other

building first. (R. vol. 6, p. 41). After display of pictures

of the property (id.), the Board chairperson voiced doubt

that repair at 2611 Meyers Street was “pragmatic” absent

“funds available and a real plan of action.” (Id.). Freeman

then described his “plan” to “take the [fire damaged] top

story off and make it flat and not continue with

the .. . stairs.” (R. vol. 6, p. 42). Not directly responding

to a follow-up question as to how much repairs would

cost, Freeman then testified that he hoped to get funds

from the City; that an attempt to get City assistance on

another project had taken three years; but that he did

have the equipment to make repairs. (R. vol. 6, p. 43). A

Board member stated that he had visited the property

and that he did not think the building could be salvaged.

(R. vol. 6, p. 41, 42). At the hearing on the 2621 Meyers

Street building later that day, Freeman affirmatively

admitted that the fire-damaged structure at 2611 Meyers

Street should be demolished, saying “I could see it on -

on the burn out.” (R. vol. 6, p. 99). Upon consideration of

all the evidence, the Board panel unanimously declared

the structure an “urban nuisance” and ordered, among

other things, demolition within 30 days. (R. vol. 2, p. 044;

vol. 6, p. 48). They issued a notice of demolition order

addressed to the owner of record (R. vol. 6, p. 48), but

mailed to and received by Freeman via certified mail (R.

vol. 6, p. 49), and in addition, gave a notice of demolition

to Freeman, who signed for it. (R. vol. 6, p. 46). After

stating the Board’s decision, the notice of demolition and

the notice of demolition order advised Freeman of his

right to seek administrative rehearing and review. (id.).

4. 2621 Meyers Street Property and First URSB

Hearing Thereon

The multi-unit residential apartment building at 2621

Meyers Street also was vacant and in disrepair when

inspected in March and May, 1993. (R. vol. 2, p. 04-012).

Notice of violations found at the inspections went to the

then-owner of record. (R. vol. 6, p. 90). The City inspector

estimated that it would cost $108,680 to repair the struc-

ture compared with approximately $5,434 to demolish it.

(R. vol. 2, p. 08; vol. 6, p. 85-88). He certified the structure

as “non-repairable” (R. vol. 2, p. 06) and a “health &

- safety hazard” (R. vol. 2, p. 04). Among the code

violations noted in this building upon inspection were

that the building had to be secured against unauthorized

entry; defective and rotted porch, stairs, posts, walls,

floors, needed moisture resistent bath floor; absence of

weather and water tight doors, windows, and weath-

erstripping; unprotected exterior surfaces; inadequate

electric circuits, exposed wiring, missing or defective

sinks, lavatories, toilets, showers, and baths, insufficient

heating equipment, lack of permit, and defective or

unconnected water heater. (R. vol. 2, p. 04).

Freeman appeared as the purported owner at the

February 28, 1994 URSB hearing on 2621 Meyers Street,

which followed immediately after the hearing on 2611

Meyers Street. (R. vol. 2, p. 014; vol. 6, p. 44, 98). As the

actual owner of record by the time of referral to the

URSB, Brown previously had received notice of the hear-

ing. (R. vol. 6, p. 94-95). Freeman identified the property

“as that portrayed on the screen” (R. vol. 2, p. 014), and

testified that this property was in “better shape” than the

2611 Meyers Street building, that he lacked the funds to

repair it, but had “enough material to start on what you

see out there” (apparently referring to code violations

depicted on the screen or in other pictures displayed at

the hearing). (R. vol. 6, p. 98). Although admitting that

thieves had taken substantial repair materials from the

building (thus corroborating that it was not secure), he

claimed to have enough to start on “one of the apart-

ments” (R. vol. 6, p. 98-99). A Board member advised

Freeman that the member had toured the property earlier

that day and did not think that repair would be “feasible”

(R. vol. 2, p. 014). Without disputing the existence of any

violations for which the property was cited, or as

depicted in pictures displayed at the hearing, Freeman

merely asked for additional time to make repairs,

“{plossibly on a continuous — so we could discuss it at a

later date.” (R. vol: 6, p. 100). However, the Board unani-

mously found the structure to be an urban nuisance and

ordered demolition within 30 days. (R. vol. 2, p. 014; vol.

6, p. 100-01, 106). Freeman again signed for the order,

which advised him of his right to seek rehearing, and he

and Brown received mailed copies as well. (R. vol. 6, p.

104, 106-09).

5. The Rehearings

Freeman filed a request for a rehearing on both prop-

erties. (R. vol. 6, p. 55, 111). On May 23, 1994, Freeman

appeared before the URSB and again testified at both

rehearings.

As to the 2621 Meyers Street order: After hearing a

report that no repairs had been made, the Board nev-

ertheless waived the rehearing fee and considered the

merits of Freeman’s request. (R. vol. 6, p. 114-15). When

asked if he had the financial means to begin work on the

apartments, Freeman answered affirmatively, but then

stated only that “I have some relatives that are in the

construction business who have agreed that if I can get it

through the City, that they would be willing to help me.”

(R. vol. 6, p. 115). Freeman then showed pictures to the

Board, which he claimed showed repairs he had made to

the building. (Id.). Freeman then disputed staff’s esti-

mates of repair costs as too high, and tried to convince

the Board that he could effect repairs for $2,000 per unit.

(R. vol. 6, p. 115-17). However, the Chairperson charac-

terized a list of donated materials that Freeman presented

as “more like a scavenger hunt” than materials needed to

rehabilitate an apartment building, noting that there were

not even enough donated toilets for the building. (R. vol.

6, p. 117). Freeman disputed the sufficiency of toilets, but

admitted that he still needed more windows. (R. vol. 6, p.

117-18). After extended dialogue with Freeman, and rec-

ognizing Freeman’s good intentions in hoping to repair

the building, the Board concluded that Petitioners lacked

the time and financial resources to make repairs, again

found the structure to be an urban nuisance, and again

ordered demolition within 30 days. (R. vol. 2, p. 025-026;

vol. 6, p. 117-21).

At the rehearing on 2611 Meyers Street, Freeman

again appeared as the sole owner’s representative, still

claiming to own the property himself. (R. vol. 2, p. 050,

088, 091-092). The Board again waived the rehearing fee,

whereupon Freeman advised the Board that he had star-

ted to do some work on the property and produced

photographs, which a Board member who had visited the

property that morning, and spoken with Freeman, had

requested Freeman to bring. (R. vol. 2, p. 088-089). Free-

man claimed that street work done by the City had

caused foundation problems in the structure, to which a

Board member responded that this would not have hap-

pened had the structure been stable, and that the building

was “not in very good shape.” (R. vol. 2, p. 089). Freeman

then showed the Board a partial list of repair materials he

claimed to have obtained through donations and discount

purchases, and argued for more time to pick up the

“awful lot of materials” that he had not yet obtained. (R.

vol. 2, p. 090). He explained that he had not yet picked up

the additional needed materials because he had been

concentrating on electrical repairs (id.); but it later

became obvious that any repairs were only on the 2621

Meyers Street structure and that all Freeman claimed to

have done at 2611 Meyers Street was to try to keep the

property clean (R. vol. 2, p. 091), and to start repairs on

one or two apartment units. (R. vol. 2, p. 093). Freeman

was advised of and again disputed the staff’s estimations

for repair costs. (R. vol. 2, p. 090-091). At the conclusion

of the evidence, the Board affirmed its prior finding of

urban nuisance and again ordered demolition of the

structure at 2611 Meyers Street in thirty days. (R. vol. 2,

p- 051, 093).

6. The URSB Final Orders and Notices of Right to

Appeal

Freeman signed for the URSB Orders of Demolition

for both properties on May 23, 1994. (R. vol. 6, p. 70, 124).

The May 23, 1994 orders which Freeman signed and of

which he received copies, informed him of his right to

appeal the URSB orders to state district court within

twenty days. (R. vol. 6, p. 70, 124). Petitioners did not

appeal the URSB demolition orders to state district court

as to either of their buildings. (Pet. 5), The two vacant

structures were demolished by City contractor, pursuant

to URSB order, on or about December 27, 1994. (R. vol. 6,

>. 7, 1.

ARGUMENT

A. Introduction

The Petitioners seek a radical change in Fourth

Amendment law. Their Fourth Amendment argument

asks for the unprecedented creation of an absolute

requirement for a judicial “seizure” warrant and aban-

donment of this Court’s long line of precedents that

assess the validity of seizures under a rule of reason.

Petitioners do not now, and never have, alleged that the

demolitions were factually unreasonable seizures (that

the code violations did not justify demolitions of their

buildings). Even though they also dispute the adequacy

of the due process they received, their substantive claim

is that the seizures (demolitions) were per se unreason-

able, even if due process had been sufficient, solely

because there were no judicial seizure warrants in addi-

tion to the Board orders.

Petitioners’ Fourteenth Amendment procedural due

process arguments are simply misplaced; predicated on

the mistaken belief that they had no right to judicial

review of the URSB’s administrative orders.”

The Petitioners have never, either at the administra-

tive proceedings nor in this later federal court litigation,

disputed that the code violations asserted by city inspec-

tors existed in their buildings; that they had received the

opportunity to repair those violations, that they lacked

the funds, materials, and workers to complete such

repairs; or that such violations rendered their buildings

“urban nuisances,” and so potentially eligible for demoli-

tion under the City’s minimum urban standards policies.

Rather than disputing the existence of the defects that

needed repair, their strategy at the URSB proceedings

was simply to stall. They never asked that any of the

inspectors testify. They never sought to call other wit-

nesses or to adduce other evidence. They never asked to

see the files from which staff read and to which Board

members referred during the URSB hearings. They failed

to appeal to district court. In short, they waived any

procedural complaints about the fair administrative hear-

ings that the Board conducted.

B. There was No Disregard of this Court’s Precedents

1. Opinion Below Did Not Conflict With This

Court’s Fourth Amendment Precedents

Contrary to Petitioners’ argument (Pet. 21-27), the

Fifth Circuit scrupulously followed this Court’s holdings

that the validity of seizures under the Fourth Amend-

ment is to be judged by the rule of reason. See Soldal v.

Cook County, IIl., 506 U.S. 56, 62 (1992); G.M. Leasing Corp.

v. United States, 429 U.S. 338, 351 (1977). In addition, the

en banc majority carefully considered this Court’s deci-

sions respecting the level of probable cause needed for

non-criminal administrative code enforcement inspec-

tions, and applied the rationale of those decisions to the

“seizures” here. (Pet. App. 15-18). See Camara v. Municipal

Court of San Francisco, 387 U.S. 523 (1967); See v. City of

Seattle, 387 U.S. 541 (1967). A subsequent Fifth Circuit

opinion accurately states the Freeman court’s en banc

Fourth Amendment holding: “The [Freeman en banc]

court held that the seizure of buildings designated ‘nui-

sances’ pursuant to established and non-arbitrary police

power procedures was not rendered per se unreasonable

by the city’s failure to obtain a warrant to enforce a

demolition order.” James v. City of Dallas, ___ F.3d ___ 2001

WL 682089, *14 n.8, Case No. 00-10556 (5th Cir. June 18,

2001). This rationale squarely follows this Court’s

repeated holdings that “ ‘reasonableness is still the ulti-

mate standard’ under the Fourth Amendment.” Soldal,

506 U.S. at 71, quoting Camara, 387 U.S. at 539.

Since no decision of this Court imposes a per se

warrant requirement for seizures — particularly seizures

not involving criminal investigations, the court of appeals

could not have improperly disregarded any such deci-

sion. The decisions of this Court upon which the Peti-

tioners rely are inapposite; because they deal with

warrant requirements for searches rather than seizures.

Searches are fundamentally different than seizures in that

an arbitrary or unlimited search involves potentially

broad governmental rummaging through persons’

“houses, papers, and effects.” U.S. Const., amend. 4 (Pet.

1). It was the evil inherent in an arbitrary and unlimited

search, the fishing expedition, more than the arbitrary

seizure, that was the primary impetus for the Fourth

Amendment, because searches often can be so much more

intrusive than seizures and because pre-Independence

Americans suffered more from over-broad searches than

from warrantless seizures. See United States v. Rabinowitz,

339 U.S. 56, 69-70 (1950) (Frankfurter, J., dissenting) (his-

torical discussion). This Court has explicitly recognized

this important distinction between searches, for which

warrants are presumptively required absent a recognized

exception, and seizures, for which warrants are but one

way that a governmental agency can satisfy the require-

ment for reasonableness. See G.M. Leasing Corp. v. United

States, supra, 429 U.S. at 351.

2. The Opinion Below Did Not Conflict With This

Court’s Procedural Due Process Precedents

Petitioners also attempt to use this Court’s decision

in Honda Motors, Inc. v. Oberg, 512 U.S. 415 (1994), to

impose burdens on the City beyond those required by the

procedural due process standards of the Fourteenth

Amendment, and accuse the Fifth Circuit of disregarding

Honda Motors. (Pet. 27, 30). In Honda Motors, this Court

addressed the total absence of any “protection against

arbitrary and inaccurate adjudication” in the State of

Oregon’s procedures for determining punitive damages

in civil trials. 512 U.S. at 430. The Court was struggling

with the unique and vexing problem posed by calculation

of punitive damages by a jury whose decision was insu-

lated from effective judicial review. Id. Because Peti-

tioners mistakenly believe that Texas law does not give

them a right to appellate review of the URSB orders (Pet.

27-28), they treat Honda-Motors as presenting a situation

analogous to their own.

Honda Motors is not at all similar to the instant case

because, as the en banc opinion below correctly held, the

Petitioners had the absolute right to appeal to the Texas

courts. (Pet. App. 3). The Petitioners had, but failed to

exercise, an absolute right to plenary state court review of

the URSB orders. City Code § 27-9(e) (Resp. App. 59);

Cedar Crest No. 10, Inc. v. City of Dallas, 754 S.W.2d 351,

353 (Tex.App. — Eastland 1988, no writ), cert. denied, 490

U.S. 1081 (1989). State court judicial review of an URSB

demolition order is not a “discretionary writ of certiorari

proceeding” as alleged by Petitioners. (Pet. 5). The state

appellate court has no discretion to refuse to review the

administrative order, and the aggrieved parties have an

appeal as of right from a Board demolition order. Dallas

City Code § 27-9(e) (Resp. App. 59); see also Texas Loc.

Government Code §§ 54.039 (Resp. App. 8-10) and

214.0012 (Resp. App. 18-19) (statutory rights to appeal in

similar municipal demolition proceedings authorized by

iii

general state laws). Even absent any statutory appeal

provision in the City Code, or even if the City Code

purported to deny any right to judicial appeal from URSB

orders, persons aggrieved by municipal demolition

orders in Texas have an absolute right to judicial review

under the “due course of law” clause in Article I, Section

13 of the Texas Constitution (Resp. App. 5). Nash v. City of

Lubbock, 888 S.W.2d 557, 562 (Tex.App. - Amarillo 1994,

no writ). Petitioners seize on term “certiorari” (Pet. 5)

because in other contexts it is associated with discretion-

ary judicial review, and use the term inappropriately

here. The sole role of the “certiorari” mechanism in

appeals from URSB orders is that certiorari is the writ

that the state district court uses to order the URSB to

produce the administrative record and the reasons for the

administrative decision. See, e.g., Tex. Loc. Gov’t Code

§§ 54.039(b)-(e) (Resp. App. 9), 214.0012(b)-(e) (Resp.

App. 18-19); Nussbaum v. City of Dallas, 948 S.W.2d 305,

308 (Tex.App. - Dallas 1996, no writ).

Moreover, Texas state court review would not have

been “limited” (Pet. 5) had Petitioners appealed. Their

appeal would have provided full consideration of any

litigable constitutional issues that they might have raised.

Under the “substantial evidence” standard of review

applicable here, Texas state courts fully determine federal

constitutional claims as well as the sufficiency of the

evidence in appeals from administrative orders. See Tex.

Gov’t Code § 2001.174 (“substantial evidence” review of

state agency decisions includes substantive and pro-

cedural constitutional issues); City of Sherman v. Henry,

928 S.W.2d 464 (Tex. 1996), cert. denied, 519 U.S. 1156

(1997) (considering substantive due process claims in

“substantial evidence” appeal from city personnel

action); Cedar Crest No. 10, Inc. v. City of Dallas, supra

(considering substantive and procedural due process

claims on “substantial evidence” appeal from Dallas

demolition order). The Petitioners cite no cases identify-

ing any constitutional right to de novo trial on appeal from

- an adverse administrative decision and there are none.

Petitioners admit that Honda Motors does not hold

that administrative procedures cannot provide adequate

due process (Pet. 29). Honda Motors only views as suspect

changes from traditional common law procedures that

deprive a party of adequate protections against depriva-

tion of property or liberty. 512 U.S. at 430. Petitioners can

only argue that that happened here by maintaining their

mistaken belief that they had no right to judicial review.

In addition, Petitioners mistakenly rely on Crossman

v. City of Galveston, 247 S.W. 810 (Tex. 1923), and other

Texas state court cases for the proposition that Texas

common law barred city demolitions of nuisances except

through court actions to abate nuisance. (Pet. 18, 19, 28).

They read Crossman incorrectly, so that their attempt to

use Crossman to render Honda Motors applicable to this

case must fail. Crossman rejected on due process grounds

the demolition of a building as a nuisance via municipal

order “in the absence of any general laws either of the

city or of the state.” 247 S.W. at 813. Here, by contrast,

Texas’ state constitution and the general city laws con-

tained in Dallas’ charter and city code all expressly

authorize the Board actions here challenged. The City

created the URSB and the program it administers pur-

suant to the City’s powers as a Texas “home rule” city to

take virtually any measures respecting local problems

that do not conflict with state laws. See Texas Const. art.

11, § 5 at Resp. App. 5; City Charter ch. I, § 1 at Resp.

jtmneteci es ee

App. 23, ch. II, § 1(16), (18), (24), (28), and (31) at Resp.

App. 24-28, ch. II, § 2 at Resp. App. 34, Ch. XV, § 2 at

Resp. App. 36; City Code ch. 27 passim at Resp. App. 41 et

seq. The only other relevant procedural due process objec-

tion that the Crossman court had to the administratively-

ordered demolition there was that the Galveston City

Council’s determination of nuisance was final. 247 S.W. at

813. Here by contrast, as demonstrated above, Petitioners

had the right to appeal to state district court. City Code

§ 27-9(e) (Resp. App. 59). Thus the most recent Texas state

appellate opinion on point, not cited by Petitioners,

upheld the City of Dallas’ URSB program against a due

process challenge that asserted that the right to appeal

Board demolition orders under City Code § 27-9(e) was

too limited. This opinion correctly distinguished the

Texas Supreme Court cases upon which Petitioners now

rely (Pet. 28 n.13 and accompanying text) upon the

grounds that those cases involved situations without the

right to judicial review. See Cedar Crest No. 10, Inc. v. City

of Dallas, supra, 754 S$.W.2d at 353.

C. The Opinion Below Created No Conflict Among the

Circuit Courts

Petitioners point to no opinions of other circuits con-

flicting with the opinion below on procedural due pro-

cess issues. However, on the Fourth Amendment

question, they assert that the opinion below conflicts with

opinions in two other circuits: Conner v. City of Santa Ana,

897 F.2d 1487 (9th Cir.), cert. denied, 498 U.S. 816 (1990)

(Pet. 15-16) and Hroch v. City of Omaha, 4 F.3d 693 (8th Cir.

1993). (Pet. 17). Contrary to Petitioners’ contentions, there

is no divergence among the circuits as to whether a

warrant is necessary to execute an administrative order to

demolish a building, where the order is issued after

notice, hearing, and the opportunity for judicial appeal:

The Fifth Circuit and the Eight Circuit opinions hold that

no warrant is required, while the Ninth Circuit has not

yet squarely addressed the question.

The Fifth Circuit’s decision is the en banc opinion

below. The Ninth Circuit decision, Conner, did require a

judicial warrant for breaking down a fence to enter an

occupied residential property within an “enclosed, fenced

yard” to seize junk automobiles. 897 F.2d at 1491. Nev-

ertheless, the Ninth Circuit recognized that prior pro-

cedural protections, including “numerous hearings and

appeals,” id. at 1490, “established . . . the validity of the

seizure.” Id. at 1491. It was the entry into the private

fenced residential property (the search for the cars) that

the Ninth Circuit held to trigger the need for a warrant.

Id. at 1491-92. Only the assertedly unlawful entry into

fenced, occupied, residential property rendered the sub-

sequent warrantless seizures unlawful according to the

Ninth Circuit. Id. at 1492. If read as Petitioners would

have it, to require a warrant to execute an administrative

order to seize personal property that was not located in

fenced private land, Conner would be contrary to G.M.

Leasing, supra, 429 U.S. at 351 (permitting warrantless

seizures of vehicles from property where the seizures

“did not involve any invasion of privacy”). In Conner, the

administrative order purported to authorize entry by

breaking down a fence and entering into the yard of an

occupied residence, whereas here, the buildings were

vacant and thefe is no indication that they were fenced.

Conner does not hold that the absentee owners of a vacant

and dilapidated building have any right to a judicial

ee ee ae ts see

warrant before execution of an administrative demolition

warrant. The Eighth Circuit’s Hroch decision recognized

most of these factors, when it distinguished Hroch from

Conner on the facts. 4 F.3d at 696-97.

Indeed, Hroch, although relied on by Petitioners,

actually supports the City and is entirely consistent with

the Fifth Circuit’s en banc opinion below. Hroch upheld

an administratively-ordered seizure against a Fourth

Amendment challenge on the grounds that the property

owner's right to seek judicial review of the seizure order

“provide[d] a constitutionally adequate substitute for a

warrant.” 4 F.3d at 696-97, quoting Donovan v. Dewey, 452

U.S. 594, 603 (1981). Petitioners here also had the right to

judicial review. They simply chose not to appeal. As a

subsequent Eight Circuit opinion explicitly recognizes,

Hroch stands for the same proposition as does the en banc

Fifth Circuit opinion here: administrative seizure orders,

issued after procedural safeguards that are sufficient to

satisfy the Fourteenth Amendment, also will normally be

found reasonable, and hence sufficient, under the Fourth

Amendment. See Samuels v. Meriwether, 94 F.3d 1163, 1167

(8th Cir. 1996).

D. The Court of Appeals Correctly Decided This Case

1. The “Seizures” of Petitioners’ Abandoned

Buildings Pursuant to Administrative Demoli-

tion Orders Were Reasonable Under the Facts of

this Case, and Thus Permissible under the

Fourth Amendment

Execution of the URSB orders in this case without a

judicial warrant was reasonable for Fourth Amendment

purposes because this course of action struck the appro-

priate balance between competing private and govern-

ment interests. See Johnson v. United States, 333 U.S. 10,

14-15 (1948). Upon such considerations, in Florida v.

White, 526 U.S. 559 (1999), this Court approved a warrant-

less seizure of a contraband automobile that was in plain

view in a public place. See also, G.M. Leasing Corp. v.

United States, supra, 429 U.S. at 351 (no warrant needed

for seizures of vehicles from property where the seizures

“did not involve any invasion of privacy”). Here, no plain

view or other warrant exception was required, because

the URSB demolition orders expressly authorized demoli-

tion, the Petitioners had already received more pro-

cedural rights than they would have obtained from the

City’s ex parte presentation to a magistrate, the Petitioners

failed to exercise the right to appeal, and the City had a

strong interest in enforcing its minimum housing stan-

dards in an efficient manner, and in protecting the public

from hazardous buildings. By contrast, the Petitioners’

intended commercial use of the buildings provided them

only with a diminished expectation of privacy compared

to that of an in-residence homeowner. See New York v.

Burger, 482 U.S. 691, 700 (1987) (“An expectation of pri-

vacy in commercial premises, however, is different from,

and indeed less than, a similar expectation in an individ-

ual’s home.”). Nothing could be more reasonable than

implementation of a legislatively authorized administra-

tive order, issued after adequate notice and hearing, as to

which the aggrieved parties had, but failed to exercise,

their absolute right to appeal.

The Petitioners could not possibly reasonably have

believed, having participated in hearings, been served

with the URSB orders, and been advised of their rights to

—— er

appeal, that their buildings would remain standing or

that their properties would remain free of liens. Since any

expectations to that effect were unreasonable, the imple-

mentation of the URSB orders was valid under the Fourth

Amendment. Oliver v. United States, 466 U.S. 170, 177

(1984).

Moreover, the URSB as a quasi-judicial body was the

functional equivalent of a neutral and detached magis-

trate for Fourth Amendment purposes - so that the URSB

orders satisfied any requirement for a warrant here. A

magistrate for the purposes of issuing arrest warrants

under the Fourth Amendment need not be a judge. Shad-

wick v. City of Tampa, 407 U.S. 345 (1972) (reserving the

question of whether a magistrate needs to work under

judicial supervision); see Ward v. Village of Monroeville,

Ohio, 409 U.S. 57 (1972) (mayor’s direct interest in

finances, not executive status, could disqualify him as

judge); Dugan v. Ohio, 277 U.S. 61 (1928) (mayor with

limited financial duties qualified to be a judge because no

direct interest in collection of fines); Tumey v. Ohio,

273 U.S. 510, 534 (1927) (union of executive and judicial

power does not necessarily violate due process). The

URSB has no duties that would interfere with its impar-

tiality. City Code, ch. 27 (Resp. App. 41 et seq.). Texas

has explicitly vested municipal boards similar to the

URSB with quasi-judicial powers. Subchapter C of Tex.

Loc. Gov’t Code Title 2, Subtitle D, Chapter 54

(§§ 54.032-54.043, entitled” Quasi-Judicial Enforcement of

Health and Safety Ordinances”) (Excerpts at Resp. App.

8-9). The Fifth Circuit recognizes the URSB as exercising

“quasi-judicial” powers. (Pet. App. 24). The Petitioners

enjoyed more due process rights before the URSB than

they ever could have obtained through an ex parte pre-

sentment to a judge of a warrant application. Moreover,

the Fourth Amendment clearly was not originally

intended to reflect hostility to fair administrative pro-

cedures - it was directed against arbitrary action. Just as

the drafters of what is now codified as 42 U.S.C. § 1983

could not have predicted the modern reliance on admin-

istrative remedies (“We also see no reason to suppose that

Congress, in enacting the Reconstruction civil rights stat-

utes, wished to foreclose the adaptation of traditional

principles of preclusion to such subsequent developments

as the burgeoning use of administrative adjudication in

the 20th century.” University of Tennessee v. Elliott, 478 U.S.

788, 797 (1986), accord Allen v. McCurry, 449 U.S. 90,

98-101 (1980)); those who drafted and ratified the Fourth

Amendment more than a century before administrative

adjudications became common practice, could not have

intended to place limits on procedurally fair administra-

tive adjudications.

2. Petitioners Received Adequate Procedural Due

Process Under the Facts of This Case

The reinstated majority panel opinion respecting due

process (Pet. App. 65-69), properly rejected Petitioners’

claims that they did not receive an adequate opportunity

to be heard (Pet. App. 66-68) and correctly ruled that they

were not deprived of due process when they did not

receive an additional hearing on the amount of demoli-

tion expenses because their opportunity to do the demoli-

tion work themselves sufficiently protected them against

exorbitant demolition costs, and “[a] hearing on costs

before the demolition could have done no more.” (Pet.

App. 69).

The record supports the court of appeals’ panel and

en banc conclusions that Petitioners had ample notice and

opportunity to be heard. See Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306, 313-15 (1950) (notice);

Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (opportunity

to be heard). Petitioners complain that they may not have

received notice of all violations for which the property

was cited (Pet. 9), but notice of violations went to the

then-owners of record. (R. vol. 2, p. 04-05, 035).2 Besides,

Freeman was very familiar with the state of the proper-

ties from working on and cleaning them. (See R. vol. 8, p.

58-59, 60-62, 81-82, 86-88). His testimony at four hearings

and at the district court trial clearly demonstrates his

awareness of the repairs that inspectors were requiring.

Petitioners also complain about “ex parte” communica-

tions between staff and Board members, and members’

visits to the properties. (Pet. 8-9). However, they allege no

specific prejudice from those alleged events, and cite no

2 On February 28, 1994, Freeman falsely told the URSB that

he was the lawful owner of both properties, but that he

transferred one to Brown’s name. (R. vol. 6, p. 99-100). Again, on

May 23, 1994, Freeman told the URSB that he was the actual

owner of the two properties. (R. vol. 6, p. 64-65). In fact, he only

acquired a .1% interest in the properties from Brown in August,

1994. (R. vol. 6, p. 79-80, 133-34). Any failure to serve Freeman

with notices of inspection violations that were sent to the

owners of record shortly after the inspections obviously

was caused by the Board’s reliance on Freeman’s

misrepresentations. Had Freeman not been intimately familiar

with the structures, or had he desired additional copies of the

notices or other documents consulted at the hearings, he simply

could have asked to see them. He did not.

authority for the proposition that due process prohibits

them. The court of appeals carefully considered these

complaints and correctly determined that under the spec-

ific facts here presented these occurrences did not

deprive Petitioners of procedural due process. (Pet. App.

66-68).

Petitioners also continue mistakenly to insist that

they had no right to appeal from the URSB orders. (Pet.

5). However, as demonstrated above, Petitioners had the

absolute right to judicial appeal.

Petitioners also erroneously assert that Texas law

prevented them from obtaining a stay pending appeal

(Pet. 6), relying on Texas Local Government Code

§§ 54.039(e) (Resp. App. 9) and 214.0012(e) (Resp. App.

19) for that proposition. However, those laws do not

apply because the City has not implemented the relevant

portions of chapters 54 or 214 of the Local Government

Code. See Tex. Loc. Gov’t Code §§ 54.031 (Resp. App. 8),

214.001(a) (Resp. App. 10). Even if §§ 54.039(e) and

214.0012(e) applied here, those provisions merely state

that the appeal “does not stay proceedings on the deci-

sion appealed from.” (Resp. App. 9). This is similar to the

procedure in many appeals. There may be no automatic

stay, but nothing prevents an appellant from moving for a

stay pending appeal under general equitable principles.

See, e.g., S. Ct. R. 23; Fed. R. App. P. 8. In Texas, those

equitable principles are codified in statutes and rules of

civil procedure. See Tex. Civ. Prac. & Rem. Code §§ 65.001

(Resp. App. 7) (application of equity principles), 65.011

(Resp. App. 7-8) (grounds for injunction); Tex. R. Civ. P.

680 (Resp. App. 20-21) (temporary restraining order).

Contrary to Petitioners’ insinuations, the term “urban

nuisance” as defined by City Code § 27-3(23) (Resp. App.

aa.

17), is neither vague nor subjective, and does not permit

demolition upon merely aesthetic considerations as Peti-

tioners imply. (Pet. 11). The en banc majority opinion

below correctly recognized that the definition was clear,

concrete, specific, and objective. Freeman v. City of Dallas,

n. 2 (Pet. App. 5); accord Criswell v. City of Dallas, Texas,

2001 WL 609480, *5, Civ. Case No. 3:00-CV-0687-G (N.D.

Tex. May 29, 2001) (unpublished).? Under the City Code

definition, before a structure can be classified as an

“urban nuisance” (and thus considered for an order of

repair or demolition under City Code § 27-13 (Resp. App.

67)), the structure must either be “dangerous” within the

meaning of City Code § 27-3(23)(A) (Resp. App. 47) or fail

to meet the standards of City Code § 27-3(23)(B) (Resp.

App. 47) by reason of violating at least two of the 31

“Minimum Standards” for structural soundness, utilities,

and health enumerated in City Code § 27-11 (Resp. App.

3 The Criswell court stated:

Section 27-11, referenced in the definition of an urban

nuisance, is comprised of no less than 31 separately

delineated property, structural, utility, and health

standards. Dallas, Tex. Rev. City Code, Art. III,

27-11(a)-(d). These 31 standards are extremely

detailed, going se far as to specify a minimum

temperature for the hot water supplied by the water

heater and the size of the masonry support dowels for

the foundation. Dallas, Tex. Rev. City Code, Art. III,

27-11(c)(4), 27-11(b)(2). .. . Pursuant to its own review

of the detailed nuisance standards contained in

Chapter 27 and in accordance with the Fifth Circuit’s

findings on the same issue, this court concludes that

the definition of an “urban nuisance” is not

unconstitutionally vague.

Criswell v. City of Dallas, Texas, 2001 WL 609480, *5.

60-65). None of those standards relate merely to cosmetic

appearances or would permit demolition if a structure

were merely subjectively “offensive or annoying” as

alleged by Petitioners. (Pet. 11). All of these “Minimum

Standards” address substantial concerns of public health,

safety, fitness for residence, or structural integrity. Only if

violations of these “Minimum Standards” are the cause

for the structure being objectively “substantially offen-

sive and annoying to persons of ordinary sensibilities,

tastes, and habits living in the community.” City Code

§ 27-3(23)(B) (Resp. App. 47), will the “offensive or

annoying” condition make the structure an “urban nui-

sance.” Despite the Petitioners’ contrary argument (Pet.

11), the Board has no power to demolish a building

merely because board members find it “annoying” or

“offensive.” :

CONCLUSION

The Petitioners’ grounds for review being without

merit, and there being no additional grounds warranting

review, the Petition for a writ of certiorari in this fact-

~ intensive case should-be denied.

Respectfully submitted,

Peter B. HaAsKEL

Assistant City Attorney

Counsel of Record

Orrice OF THE Da.tias City ATTORNEY |

1500 Marilla, 7/b/north

Dallas TX 75201

(214) 670-3519

(214) 670-0622 (FAX)

Attorney for City of Dallas,

Respondent

ete

Resp. App. 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHARLES FREEMAN and

ROSALYN BROWN,

Plaintiffs,

Case No.

3-96-CV-1108-DES

CITY OF DALLAS,

)

Defendant.

MEMORANDUM AND ORDER

(Filed Oct. 9, 1997)

This matter is before the court on plaintiff’s Motion

to Alter or Amend Judgment (Doc. 60).

Fed. R. Civ. P. 59(e) allows for motions to alter or

amend judgment if filed within ten days after entry of the

judgment. The purpose of Fed. R. Civ. P. 59(e) is “to

correct manifest errors of law or fact or to present newly

discovered evidence.” Waltman v. International Paper Co.,

875 F.2d 468, 473 (5th Cir. 1989) (quoting Keene Corp. v.

International Fidelity Insurance Co., 561 F. Supp. 656, 665

(N.D. Ill. 1982), aff’d., 735 F.2d 1367 (7th Cir. 1984)).

Because Fed. P.. Civ. P. 59(e) does not list specific grounds

to alter or amend judgments, a district court has consid-

erable discretion in deciding whether to grant the motion.

11 CHarLes ALAN Wricut & ARTHUR R. MILLER, FEDERAL

Practice AND Procepure: Civil 2d § 2810.1 (citing Edward

H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th

Cir. 1993)). Factors a district court may consider include:

(1) whether the judgment is based upon a manifest error

Resp. App. 2

of law or fact; (2) the existence of newly discovered or

previously unavailable evidence; (3) whether recon-

sideration is necessary to prevent manifest injustice; or

(4) an intervening change in controlling law. Id. Recon-

sideration of a judgment, however, is an extraordinary

remedy which should be used sparingly. Id. Fed. R. Civ. P.

59(e) motions should not be used to relitigate old matters,

raise new arguments, or present evidence that could have

been raised prior to entry of the judgment. Id.

Plaintiffs move the court to alter or amend its August

13, 1997 judgment in which the court disallowed prejudg-

ment interest and declinéd to enjoin the City of Dallas

(“City”) from maintaining a lien on plaintiffs’ property to

recover the costs of demolition. Plaintiffs contend that

plaintiffs’ counsel misstated the law governing the award

of prejudgment interest in their motion for judgment.

Plaintiffs point out that state law governs the award of

prejudgment interest in 42 U.S.C. § 1983 actions, and

argue that Texas law provides that judgments in property

damage cases must include prejudgment interest. Plain-

tiffs also contend that the court erred by allowing the lien

to stand because it requires the plaintiffs “to pay for the

unconstitutional demolition” or hold the land with a

cloud on the title.

‘As an initial matter, the court notes that plaintiffs are

advancing arguments that could have been raised before

entry of judgment. Motions to alter or amend a judgment,

however, “cannot be used to raise arguments which

could, and should, have been made before the judgment

issued.” Simon v. United States, 891 F.2d 1154, 1159 (5th

Cir. 1990) (quoting Federal Deposit Ins. Corp. v. Meyer, 781

F.2d 1260, 1268 (7th Cir. 1986)). Accordingly, plaintiffs’

eee

Resp. App. 3

arguments are not proper grounds to alter or amend a

judgment pursuant to Fed. R. Civ. P. 59(e).

On their merits, plaintiffs’ arguments are also

unhelpful. As to plaintiffs’ first argument, the court dis-

agrees that Texas law requires an award of prejudgment

interest under the circumstances of the present case.

Plaintiffs’ second argument appears to be incorrectly

premised on the idea that the court determined the demo-

lition itself to have been unconstitutional. The court did

not question the City’s ultimate right to demolish prop-

erty found to be a nuisance by the City Urban Rehabilita-

tion Standards Board. The court merely found that the

Fourth Amendment required the City to obtain a warrant

before effectuating such demolition.

IT IS THEREFORE BY THE COURT ORDERED that

plaintiff’s Motion to Alter or Amend Judgment (Doc. 60)

is denied.

Dated this 7 day of October, 1997, at Topeka, Kansas.

/s/ Dale E. Saffels

DALE E. SAFFELS

United States

District Judge

Resp. App. 4

Unritrep States Court OF APPEALS FOR THE

FirrH Circurt. Locat Rute 41.3

5TH CIR. R. 41 ISSUANCE OF MANDATE;

STAY OF MANDATE

* * *

41.3 Effect of Granting Rehearing En Banc. Unless

otherwise expressly provided, the granting of a rehearing

en banc vacates the panel opinion and judgment of the

court and stays the mandate.

Resp. App. 5

CONSTITUTION OF THE STATE OF TEXAS,

ArtTIcLE 1, SECTION 13,

TEXAS CONSTITUTION

ARTICLE 1. BILL OF RIGHTS

SECTION 13. Excessive bail or fines; cruel and unusual

punishment; remedy by due course of law. Excessive

bail shall not be required, nor excessive fines imposed,

nor cruel or unusual punishment inflicted. All courts

shall be open, and every person for an injury done him,

in his lands, goods, person or reputation, shall have -

remedy by due course of law. Excessive bail shall not be

required, nor excessive fines imposed, nor cruel or

unusual punishment inflicted. All courts shall be open,

and every person for an injury done him, in his lands,

goods, person or reputation, shall have remedy by due

course of law.

CONSTITUTION OF THE STATE OF TEXAS,

ArTIcLE 11, SecTION 5

TEXAS CONSTITUTION

Article 11 - MUNICIPAL CORPORATIONS

Section 5 - Cities of more than 5,000 population; adop-

tion or amendment of charters; taxes; debt restrictions

Cities having more than five thousand (5000) inhabitants

may, by a majority vote of the qualified voters of said city,

at an election held for that purpose, adopt or amend their

charters. If the number of inhabitants of cities that have

adopted or amended their charters under this section is

reduced to five thousand (5000) or fewer, the cities still

Resp. App. 6

may amend their charters by a majority vote of the quali-

fied voters of said city at an election held for that pur-

pose. The adoption or amendment of charters is subject to

such limitations as may be prescribed by the Legislature,

and no charter or any ordinance passed under said char-

ter shall contain any provision inconsistent with the Con-

stitution of the State, or of the general laws enacted by

the Legislature of this State. Said cities may levy, assess

and collect such taxes as may be authorized by law or by

their charters; but no tax for any purpose shall ever be

lawful for any one year, which shall exceed two and one-

half per cent of the taxable property of such city, and no

debt shall ever be created by any city, unless at the same

time provision be made to assess and collect annually a

sufficient sum to pay the interest thereon and creating a

sinking fund of at least two per cent thereon. Further-

more, no city charter shall be altered, amended or

repealed oftener than every two years.

Resp. App. 7

Texas Crvit Pracrice & Remepies Cope,

SecTion 65.001.

TEXAS CIVIL PRACTICE & REMEDIES CODE

CHAPTER 65. INJUNCTION

SUBCHAPTER A. GENERAL PROVISIONS

§ 65.001. Application of Equity Principles.

The principles governing courts of equity govern

injunction proceedings if not in conflict with this chapter

or other law.

Texas Crvit Practice & Remepies Cope,

Section 65.011

TEXAS CIVIL PRACTICE & REMEDIES CODE

CHAPTER 65. INJUNCTION

SUBCHAPTER B. AVAILABILITY OF REMEDY

§ 65.011. Grounds Generally

A writ of injunction may be granted if:

(1) the applicant is entitled to the relief demanded

and all or part of the relief requires the restraint of some

act prejudicial to the applicant;

(2) a party performs or is about to perform or is

procuring or allowing the performance of an act relating

to the subject of pending litigation, in violation of the

rights of the applicant, and the act would tend to render

the judgment in that litigation ineffectual;

(3) the applicant is entitled to a writ of injunction

under the principles of equity and the statutes of this

state relating to injunctions;

Resp. App. 8

(4) a cloud would be placed on the title of real

property being sold under an execution against a party

having no interest in the real property subject to execu-

tion at the time of sale, irrespective of any remedy at law;

(5) irreparable injury to real or personal property is

threatened, irrespective of any remedy at law.

Texas Locat GOVERNMENT CODE,

Sections 54.031 anv 54.039

TEXAS LOCAL GOVERNMENT CODE

CHAPTER 54. ENFORCEMENT OF MUNICIPAL ORDI-

NANCES

SUBCHAPTER C. QUASI - JUDICIAL ENFORCEMENT

OF HEALTH AND SAFETY ORDINANCES

§ 54.031. Subchapter Applicable to Certain Munici-

palities

This subchapter applies to a municipality that by

ordinance implements the subchapter.

§ 54.039. Judicial Review

(a) Any owner, lienholder, or mortgagee of record

jointly or severally aggrieved by any decision of a com-

mission panel may present a petition to a district court,

duly verified, setting forth that the decision is illegal, in

whole or in part, and specifying the grounds of the ille-

gality. The petition must be presented to the court within

Resp. App. 9

30 calendar days after the date a copy of the final deci-

sion of the commission panel is mailed by first class mail,

certified return receipt requested, to all persons to whom

notice is required to be sent under Section 54.035. The

commission panel shall mail that copy promptly after the

decision becomes final. In addition, an abbreviated copy

of the order shall be published one time in a newspaper

of general circulation in the municipality within 10 calen-

dar days after the date of the mailing of the copy as

provided by this subsection, including the street address

or legal description of the property; the date of the hear-

ing, a brief statement indicating the results of the order,

and instructions stating where a complete copy of the

order may be obtained, and a copy shall be filed in the

office of the municipal secretary or clerk.

(b) On presentation of the petition, the court may

allow a writ of certiorari directed to the commission

panel to review the decision of the commission panel and

shall prescribe in the writ the time, which may not be less

than 10 days, within which a return on the writ must be

made and served on the relator or the relator’s attorney.

return the original papers acted on by it. It is sufficient

for the commission panel to return certified or sworn

copies of the papers or of parts of the papers as may be

called for by the writ.

(d) The return must concisely set forth other facts as

may be pertinent and material to show the grounds for

the decision appealed from and shall be verified.

(e) The allowance of the writ does not stay proceed-

ings on the decision appealed from.

Resp. App. 10

(f) The district court’s review shall be limite2 to a

hearing under the substantial evidence rule. The court

may reverse or affirm, in whole or in part, or may modify

the decision brought up for review.

(g) Costs may not be allowed against the commis-

sion panel.

(h) If the decision of the commission panel is

affirmed or not substantially reversed but only modified,

the district court shall allow to the municipality all attor-

ney’s fees and other costs and expenses incurred by it

and shall enter a judgment for those items, which may be

entered against the property owners as well as all persons

found to be in occupation of the property subject to the

proceedings before the commission panel.

Texas Local Government Code, Sections 214.001 and

214.0012

TITLE 7. REGULATION OF LAND USE, STRUCTURES,

BUSINESSES, AND RELATED ACTIVITIES

CHAPTER 214. MUNICIPAL REGULATION OF

STRUCTURES

§ 214.001. Authority Regarding Substandard Building

(a) A municipality may, by ordinance, require the

vacation, relocation of occupants, securing, repair,

removal, or demolition of a building that is:

(1) dilapidated, substandard, or unfit for human

habitation and a hazard to the public health, safety, and

welfare;

Resp. App. 11

(2) regardless of its structural condition, unoc-

cupied by its owners, lessees, or other invitees and is

unsecured from unauthorized entry to the extent that it

could be entered or used by vagrants or other uninvited

persons as a place of harborage or could be entered or

used by children; or

(3) boarded up, fenced, or otherwise secured in any

manner if:

(A) the building constitutes a danger to the public

even though secured from entry; or

(B) the means used to secure the building are inade-

quate to prevent unauthorized entry or use of the build-

ing in the manner described by Subdivision (2).

(b) The ordinance must:

(1) establish minimum standards for the contin-

ued use and occupancy of all buildings regardless of the

date of their construction;

(2) provide for giving proper notice to the owner

of a building; and

(3) provide for a public hearing to determine

whether a building complies with the standards set out in

the ordinance.

holder, or mortgagee under this section must include a

statement that the owner, lienholder, or mortgagee will be

' required to submit at the hearing proof of the scope of

any work that may be required to comply with the ordi-

nance and the time it will take to reasonably perform the

work.

Resp. App. 12

(d) After the public hearing, if a building is found

in violation of standards set out in the ordinance, the

municipality may order that the building be vacated,

secured, repaired, removed, or demolished by the owner

within a reasonable time as provided by this section. The

municipality also may order that the occupants be relo-

cated within a reasonable time. If the owner does not take

the ordered action within the allotted time, the munici-

pality shall make a diligent effort to discover each mort-

gagee and lienholder having an interest in the building or

in the property on which the building is located. The

municipality shall send to each identified mortgagee and

lienholder a notice containing:

(1) an identification, which is not required to be a

legal description, of the building and the property on

which it is located;

(2) a description of the violation of municipal

standards that is present at the building; and

(3) a statement that the municipality will vacate,

secure, remove, or demolish the building or relocate the

occupants of the building if the ordered action is not

taken within a reasonable time.

(e) As an alternative to the procedure prescribed by

Subsection (d), the municipality may make a diligent

effort to discover each mortgagee and lienholder before

conducting the public hearing and may give them a

notice of and an opportunity to comment at the hearing.

In addition, the municipality may file notice of the hear-

ing in the Official Public Records of Real Property in the

county in which the property is located. The notice must

contain the name and address of the owner of the affected

Resp. App. 13

property if that information can be determined, a legal

description of the affected property, and a description of

the hearing. The filing of the notice is binding on subse-

quent grantees, lienholders, or other transferees of an

interest in the property who acquire such interest after

the filing of the notice, and constitutes notice of the

hearing on any subsequent recipient of any interest in the

property who acquires such interest after the filing of the

notice. If the municipality operates under this subsection,

the order issued by the municipality may specify a rea-

sonable time as provided by this section for the building

to be vacated, secured, repaired, removed, or demolished

by the owner or for the occupants to be relocated by the

owner and an additional reasonable time as provided by

this section for the ordered action to be taken by any of

the mortgagees or lienholders in the event the owner fails

to comply with the order within the time provided for

action by the owner. Under this subsection, the munici-

pality is not required to furnish any notice to a mortgagee

or lienholder other than a copy of the order in the event

the owner fails to timely take the ordered action.

(f) Within 10 days after the date that the order is

issued, the municipality shall:

(1) file a copy of the order in the office of the

municipal secretary or clerk; and

(2) publish in a newspaper of general circulation

in the municipality in which the building is located a

notice containing:

(A) the street address or legal description of the

property;

ili ia iii aa i

Resp. App. 14

(B) the date of the hearing;

the order; and

(D) instructions stating where a complete copy

of the order may be obtained.

(g) After the hearing, the municipality shall

promptly mail by certified mail, return receipt requested,

a copy of the order to the owner of the building and to

any lienholder or mortgagee of the building. The munici-

pality shall use its best efforts to determine the identity

and address of any owner, lienholder, or mortgagee of the

building. If a notice is mailed according to this subsection

and the United States Postal Service returns the notice as

“refused” or “unclaimed,” the validity of the notice is not

affected, and the notice shall be deemed as delivered.

(h) In conducting a hearing authorized under this

section, the municipality shall require the owner, lien-

holder, or mortgagee of the building to within 30 days:

(1) secure the building from unauthorized entry;

(2) repair, remove, or demolish the building,

unless the owner or lienholder establishes at the hearing

that the work cannot reasonably be performed within 30

days.

(i) If the municipality allows the owner, lienholder,

or mortgagee more than 30 days to repair, remove, or

demolish the building, the municipality shall establish

specific time schedules for the commencement and per- .

formance of the work and shall require the owner, lien-

holder, or mortgagee to secure the property in a

Resp. App. 15

reasonable manner from unauthorized entry while the

work is being performed, as determined by the hearing

official.

(j) A municipality may not allow the owner, lien-

holder, or mortgagee more than 90 days to repair,

remove, or demolish the building or fully perform all

work required to comply with the order unless the owner,

lienholder, or mortgagee:

(1) submits a detailed plan and time schedule for

the work at the hearing; and

(2) establishes at the hearing that the work cannot

reasonably be completed within 90 days because of the

scope and complexity of the work.

(k) If the municipality allows the owner, lienholder,

or mortgagee more than 90 days to complete any part of

the work required to repair, remove, or demolish the

building, the municipality shall require the owner, lien-

holder, or mortgagee to regularly submit progress reports

to the municipality to demonstrate compliance with the

time schedules established for commencement and per-

formance of the work. The order may require that the

owner, lienholder, or mortgagee appear before the hear-

ing official or the hearing official’s designee to demon-

strate compliance with the time schedules. If the owner,

lienholder, or mortgagee owns property, including struc-

tures or improvements on property, within the municipal

boundaries that exceeds $100,000 in total value, the

municipality may require the owner, lienholder, or mort-

gagee to post a cash or surety bond in an amount ade-

quate to cover the cost of repairing, removing, or

demolishing a building under this subsection. In lieu of a

Resp. App. 16

bond, the municipality may require the owner, lienholder,

or mortgagee to provide a letter of credit from a financial

institution or a guaranty from a third party approved by

the municipality. The bond must be posted, or the letter

of credit or third party guaranty provided, not later than

the 30th day after the date the municipality issues the

order.

(1) In a public hearing to determine whether a

building complies with the standards set out in an ordi-

nance adopted under this section, the owner, lienholder,

or mortgagee has the burden of proof to demonstrate the

scope of any work that may be required to comply with

the ordinance and the time it will take to reasonably

perform the work.

(m) If the building is not vacated, secured, repaired,

removed, or demolished, or the occupants are not relo-

cated within the allotted time, the municipality may

vacate, secure, remove, or demolish the building or relo-

cate the occupants at its own expense. This subsection

does not limit the ability of a municipality to collect on a

bond or other financial guaranty that may be required by

Subsection (k).

(n) If a municipality incurs expenses under Subsec-

tion (m), the municipality may assess the expenses on,

and the municipality has a lien against, unless it is a

homestead as protected by the Texas Constitution, the

property on which the building was located. The lien is

extinguished if the property owner or another person

having an interest in the legal title to the property reim-

burses the municipality for the expenses. The lien arises

and attaches to the property at the time the notice of the

Resp. App. 17

lien is recorded and indexed in the office of the county

clerk in the county in which the property is located. The

notice must contain the name and address of the owner if

that information can be determined with a reasonable

effort, a legal description of the real property on which

the building was located, the amount of expenses

incurred by the municipality, and the balance due.

(0) If the notice is given and the opportunity to ©

relocate the tenants of the building or to repair, remove,

or demolish the building is afforded to each mortgagee

and lienholder as authorized by Subsection (d), (e), or (g),

the lien is a privileged lien subordinate only to tax liens.

(p) A hearing under this section may be held by a

civil municipal court.

(q) A municipality satisfies the requirements of this

section to make a diligent effort, to use its best efforts, or

to make a reasonable effort to determine the identity and

address of an owner, a lienholder, or a mortgagee if the

municipality searches the following records:

(1) county real property records of the county in

which the building is located;

(2) appraisal district records of the appraisal dis-

trict in which the building is located;

(3) records of the secretary of state;

(4) assumed name records of the county in which

the building is located;

(5) tax records of the municipality; and

(6) utility records of the municipality.

Resp. App. 18

TEXAS LOCAL GOVERNMENT CODE

TITLE 7. REGULATION OF LAND USE, STRUCTURES,

BUSINESSES, AND RELATED ACTIVITIES

CHAPTER 214. MUNICIPAL REGULATION OF

STRUCTURES ;

§ 214.0012. Judicial Review

(a) Any owner, lienholder, or mortgagee of record

of property jointly or severally aggrieved by an order of a

municipality issued under Section 214.001 may file in

district court a verified petition setting forth that the

decision is illegal, in whole or in part, and specifying the

grounds of the illegality. The petition must be filed by an

owner, lienholder, or mortgagee within 30 calendar days

after the respective dates a copy of the final decision of

the municipality is mailed to them by first class mail,

certified return receipt requested, or such decision shall

become final as to each of them upon the expiration of

each such 30 calendar day period.

(b) On the filing of the petition, the court may issue

a writ of certiorari directed to the municipality to review

the order of the municipality and shall prescribe in the

writ the time within which a return on the writ must be

made, which must be longer than 10 days, and served on

the relator or the relator’s attorney.

the original papers acted on by it, but it is sufficient for

the municipality to return certified or sworn copies of the

papers or of parts of the papers as may be called for by

the writ.

(d) The return must concisely set forth other facts as

may be pertinent and material to show the grounds of the

decision appealed from and shall be verified.

Re NEN ME Ne ae

Resp. App. 19

(e) The issuance of the writ does not stay proceed-

ings on the decision appealed from.

(f) Appeal in the district court shall be limited to a

hearing under the substantial evidence rule. The court

may reverse or affirm, in whole or in part, or may modify

the decision brought up for review.

(g) Costs may not be allowed against the munici-

pality.

(h) If the decision of the municipality is affirmed or

not substantially reversed but only modified, the district

court shall allow to the municipality all attorney’s fees

and other costs and expenses incurred by it and shall

enter a judgment for those items, which may be entered

against the property owners, lienholders, or mortgagees

as well as all persons subject to the proceedings before

the municipality.

Resp. App. 20

Texas Rutes or Crvit Procepure 680

PART II. RULES OF PRACTICE IN DISTRICT AND

COUNTY COURTS

SECTION 5. INJUNCTIONS

RULE 680. TEMPORARY RESTRAINING ORDER

No temporary restraining order shall be granted without

notice to the adverse party unless it clearly appears from

specific facts shown by affidavit or by the verified com-

plaint that immediate and irreparable injury, loss, or

damage will result to the applicant before notice can be

served and a hearing had thereon. Every temporary

restraining order granted without notice shall be

endorsed with the date and hour of issuance; shall be

filed forthwith in the clerk’s office and entered of record;

shall define the injury and state Why it is irreparable and

why the order was granted without notice; and shall

expire by its terms within such time after signing, not to

exceed fourteen days, as the court fixes, unless within the

time so fixed the order, for good cause shown, is

extended for a like period or unless the party against

whom the order is directed consents that it may be

extended for a longer period. The reasons for the exten-

sion shall be entered of record. No more than one exten-

sion may be granted unless subsequent extensions are

unopposed. In case a temporary restraining order is

granted without notice, the application for a temporary

injunction shall be set down for hearing at the earliest

possible date and takes precedence of all matters except

older matters of the same character; and when the appli-

cation comes on for hearing the party who obtained the

temporary restraining order shall proceed with the appli-

cation for a temporary injunction and, if he does not do

Resp. App. 21

so, the court shall dissolve the temporary restraining

order. On two days’ notice to the party who obtained the

temporary restraining order without notice or on such

shorter notice to that party as the court may prescribe,

the adverse party may appear and move its dissolution or

modification and in that event the court shall proceed to

hear and determine such motion as expeditiously as the

ends of justice require.

Every restraining order shall include an order setting a

certain date for hearing on the temporary or permanent

injunction sought.

Ch.

THE CITY OF DALLAS, TEXAS

RF FE S33588 x~Fxissesban-

Resp. App. 22

CHARTER

city of

DALLAS, TEXAS

[LOGO]

CHARTER

Incorporation and Territory, §§ 1 - 3

Powers of the City, §§ 1 - 2

City Council, §§ 1 - 20

City Secretary, §§ 1 - 3

Elections and Referendums, §§ 1 - 11

Recall of Councilmen, §§ 1 - 2

The City Manager, §§ 1 - 2

Legal Department, §§ 1 - 3

Municipal Courts, §§ 1 - 9

City Auditor, §§ 1 - 3

Reserved

Administrative Departments, §§ 1 - 4

The Budget and Financial Procedure

Relating Thereto, §§ 1 - 14

Police Department, §§ 1 - 8

Fire Department, §§ 1 - 9

Franchises, §§ 1 - 11

Planning and Zoning, §§ 1 - 7

Civil Service and Personnel, §§ 1 - 17

Park and Recreation Department, §§ 1 -

Ordinances and Resolutions, §§ 1 - 16

Assessment and Collection of Texas,

§§ 1 - 29

Public Improvement and Assessments,

§§ 1 - 12

Borrowing Money, §§ 1 - 12

Resp. App. 23

Ch. XXII. Public Contracts, §§ 1 - 12

Ch. XXIII. Claims For Damages Or Injury, §§ 1 - 6

Ch. XXIV. Miscellaneous Provisions, §§ 1 - 21 [A]

CHAPTER I. INCORPORATION AND TERRITORY

SEC. 1. CORPORATION NAME.

All inhabitants of the City of Dallas, Dallas County,

Texas, as the boundaries and limits of said city are herein

established or may hereafter be established, shall be a

body politic, incorporated under, and to be known by, the

name and style of the “City of Dallas,” with such powers,

rights and duties as herein provided.

SEC. 2. BOUNDARIES.

The bounds and limits of the City of Dallas shall be

those as established and described in ordinances duly

passed by the city council of the City of Dallas in accor-

dance with state law. The city secretary shall at all times

keep a correct and complete description with recent

annexation or disannexations. (Amend. of 6-12-73, Prop.

No. 1; Amend. of 4-2-83, Prop. No. 3)

SEC. 3. ADDITIONAL TERRITORY.

The city may from time to time alter its boundaries

by annexing any territory adjoining its present or future

boundaries in any size or shape desired in any manner

provided by state law. In addition thereto, the city may

annex additional territory lying adjacent to the city with

or without the consent of the territory and the inhabitants

of the territory annexed where the same is not inconsis-

tent with the state law. Such annexations shall be accom-

plished by ordinance providing for the alteration and

extension of the boundary limits, which ordinance shall

Resp. App. 24

describe the territory to be annexed and shall be pub-

lished one time in the official newspaper. Amendments

reducing the area may be incorporated into the proposed

ordinance without the necessity of publishing said

amendments and without the necessity of republication

of said ordinance as amended. The proposed ordinance

shall not thereafter be finally acted upon until at least 30

days have elapsed after the publication thereof; and upon

the final passage of any such ordinance, the boundaries

of the city shall thereafter be as fixed in such ordinance.

The additional territory annexed shall be a part of the city

and the property situated therein shall bear its pro rata

part of the taxes levied by the city as provided by state

law. The inhabitants thereof shall be entitled to all the

rights and privileges of all the citizens and shall be bound

by the acts, ordinances and resolutions of the city.

CHAPTER II. POWERS OF CITY

SEC. 1. POWERS OF THE CITY.

The City of Dallas, as such body politic and corpo-

rate, shall have perpetual succession and shal] have the

following powers:

(1) to use a corporate seal;

(2) to sue and be sued;

(3) to implead and be impleaded in all courts;

(4) to institute and prosecute suits without giv-

ing security therefor, and to appeal from judgments of the

courts without giving supersedeas or cost bonds, other

bonds or security whatever;

Resp. App. 25

(5S) to contract and be contracted with;

(6) to acquire property within or without its

boundaries or within the boundaries of other munici-

palities for any public purpose, in fee simple or lesser

interest or estate, by purchase, gift, devise, lease or con-

demnation, and may sell, rent, lease, hold, manage and

control any property now owned by it or which it hereaf-

ter may acquire; construct, own, lease, operate and regu-

late public utilities;

(7) to assess, levy and collect taxes for general

and special purposes on all lawful subjects of taxation;

(8) to borrow money on the faith and credit of

the city by the issue or sale of bonds, warrants or notes of

the city;

(9) to appropriate the money of the city for all

lawful purposes;

(10) to create, provide for, construct, regulate

and maintain public works and public improvements of

any nature;

(11) to levy and collect assessments for local

improvements;

(12) to levy an occupation tax on any person,

occupation, calling or business where permitted under

the laws of this state;

(13) to license and regulate vehicles operated

for hire and fix and regulate the rates to be charged

therefor;

Resp. App. 26

(14) to license and regulate persons, corpora-

tions, and associations engaged in any business, eccupa-

tion, profession or trade;

(15) to license and regulate all places of public

amusement;

(16) to define nuisances and prohibit the main-

tenance of any nuisance within the corporate limits of the

city to within 5,000 feet of the corporate lines, outside of

the city limits, and abate such nuisances by summary

proceedings and provide for the punishment of the

authors thereof;

(17) to regulate the use of automobiles, motor-

cycles and other motor-driven vehicles, and the speed

thereof and prescribe the proper lighting of the same

when used at night;

(18) to provide for the inspection of buildings

and all works of construction and prescribe and enforce

proper regulations in regard thereto;

(19) to regulate and locate or prohibit the erec-

tion of all poles in the city and cause the same to be

removed or changed at any time;

(20) to provide for the inspection of weights

and measures and fix standards of weights and measures;

(21) to provide for the regulation of bakeries

and prescribe the weight and quality of bread manufac-

tured or sold in the city;

(22) to provide for the inspection and regula-

tion of dairies located inside the city limits or at any other

place from which milk or other products are sold within

Resp. App. 27

the city, and for the inspection of all cows and facilities

from which milk is sold in the city, and prescribe fees to

be charged in connection with such inspection, and estab-

lish and maintain a standard of quality of all dairy prod-

ucts sold in the city;

(23) to regulate, restrain or prohibit the running

at large of all animals in the city, and to license same;

(24) to adopt any ordinance or regulation hav-

ing for its purpose the prevention of fires or the removal

of fire hazards;

(25) to regulate burial grounds, cemeteries and

crematories and condemn and close same in the thickly

settled portions of the city when public interest and pub-

lic health may demand, and regulate the burial of the

dead;

(26) to provide for a system of vital statistics;

(27) to define, prohibit, abate, suppress and

prevent all things detrimental to the health, morals, com-

fort, safety, convenience and welfare of the inhabitants of

the city;

(28) to regulate the construction and height of,

and materials used in, all buildings and structures, and

the maintenance and occupancy thereof;

(29) to regulate and control the use, for what-

ever purpose, of the streets and all other public places;

(30) to create, establish, abolish and organize

offices and fix the salaries, working conditions, and com-

pensation of all officers and employees, except those set

out in the Charter;

Resp. App. 28

(31) to make and enforce all police, health, sani-

tary and other regulations, and pass such ordinances as

may be expedient for maintaining and promoting the

peace, good government and welfare of the city, for the

performance of the functions thereof, for the order and

security of its inhabitants and to protect the peace, lives,

health and property of such inhabitants, and to provide

suitable penalties for the violation of any ordinance

enacted by the city;

(32) to open, extend, straighten, widen or alter

any street, alley, avenue, boulevard, sidewalk, parkway

or public way, and to close or vacate and abandon the

same;

(33) to expend public funds for purposes of

advertising and public information;

(34) to have the exclusive right to erect, own,

maintain and operate a waterworks and sanitary sewer

system, or any part thereof, for the use of said city and its

inhabitants, and to regulate the same, but shall not have

the power or right to sell said waterworks system; to

prescribe rates for water and sanitary sewer services fur-

nished to the inhabitants, and to make such rules and

regulations as the council may deem expedient, including

the power to extend water and sanitary sewer lines and

assesses a portion or all of cost therefor and affix a lien

against the property and the owner thereof; to do any-

thing whatsoever necessary to operate and maintain said

waterworks, and to compel the owners of all property

and the agents of such owners to pay all charges for

water and sanitary sewer services furnished upon such

Resp. App. 29

property; excess property in the waterworks system may

be sold as other property;

(35) to make provision for care and sustenance

of policemen, firemen and fire alarm operators who have

been disabled while in the service of the city, or who,

after long and continued service, shall become by reason

of old age and informities incapacitated to discharge their

duties, or because of longevity of service alone, and to

make provision for the aid and relief of the widows,

minor children and dependents of deceased policemen,

firemen, and fire alarm operators and may provide for

the creation of a fund or funds for such purposes, from

the general revenue of the city or from such other sources

as may be prescribed by the council under such rules and

regulations as the council may adopt, and said city may

exercise all of the powers as may be conferred upon the

city council by acts of the legislature of the State of Texas;

(36) to make provision for the care and suste-

nance of all of the officers and employees of the city who

have been disabled while in the service of the city, or who

after long and continued service, shall become by reason

of old age and infirmities incapacitated to discharge their

duties, or because of longevity of service alone, to pro-

vide for the aid and relief of the widows, minor children

and dependents of deceased officers and employees; to

provide for the creation of a fund or funds for such

purposes, from the general revenue of the city or from

such other sources as may be prescribed by the council

under such rules and regulations as the council may

adopt;

—

Resp. App. 30

(37) by ordinance or resolution, to provide for

and construct a general storm sewer and drainage system

in the city which may be divided into public and private

sewers and drains and be built, maintained and con-

ducted in such manner, as the city council may provide.

For the purpose of establishing a general storm sewer

and drainage system, the city council shall have full

power to change any river, creek, bayou or other drain, or

any part thereof, so as to divert the drainage thereof in

accordance with a general drainage plan or any special

plan providing therefor;

(38) to adopt rules and regulations for the civil

service system;

(39) to fix and regulate the rates of gas, water,

electricity and other utilities, and to regulate and fix the

fares, tolls and charges of local telephones and

exchanges; of public carriers and motor vehicles, where

they are transporting passengers, freight or baggage, and

generally to fix and regulate the rates, tolls or charges

and the kind of service of all public utilities of every

kind, unless otherwise required by state law; (Amend. of

4-3-76, Prop. No. 10)

(40) to regulate the speed of engines, locomo- |

tives, electric railways, or other power-driven equipment |

operating upon tracks, rails, or defined routes, either at

ground level, overhead or underground within the limits

of the city, and to regulate the operation of the same so as

to prohibit the blocking of intersections, streets, alleys,

avenues or impeding the free flow of vehicular traffic or

pedestrians;

Resp. App. 31

(41) to contract with public service carriers,

common carriers, or private carriers or with transporta-

tion authorities for the furnishing of transportation facili-

ties within the city limits of Dallas and connecting the

adjoining areas; including the joint use of publicly owned

and privately owned or joint publicly owned facilities to

provide an interregional transportation network, both

within and without the city limits of Dallas;

(42) to require any and all railroad companies

operating any track upon or across any public street of

the city, to reduce any such track below the level of the

streets intersected or occupied by any such track, or to

elevate any such track above the level of the streets

intersected or occupied by any such track, and to require

the company or companies owning or operating any such

track to provide necessary and proper crossing for the

public travel at intersecting streets; all such work to be

done in the manner required by the city;

(43) to require any holder of a franchise from

the city to allow the use of its tracks, poles, underground

conduits and wires by any other holder to which the city

shall grant a franchise upon payment of a reasonable

rental therefor to be fixed by the city council;

(44) to exercise any of its powers or perform

any of its functions and may participate in the financing

thereof, jointly or in cooperation, by contract or other-

wise, with the State of Texas, any count of this state or

any of the civil agencies thereof which have any of the

municipal powers, or the United States or any agency

thereof;

Resp. App. 32

(45) to acquire, construct, or own, within or

without the city, either wholly or in cooperation with any

other city, county or political subdivision of the state, an

airport or airports, either by purchase, donation, bequest,

eminent domain or otherwise; to provide for the opera-

tion, maintenance, control and financing thereof, the

same as though wholly owned by the city within its city

limits;

(46) to acquire, by purchase, gift or devise, or

by the exercise of the right of eminent domain by and

through condemnation proceedings, and own, in fee sim-

ple or otherwise, either public or private property located

inside or outside of the corporate limits of the city or

within any county in the state, for the extension,

improvement and enlargement of its waterworks system,

including riparian rights, water supply reservoirs, stand-

pipes, watersheds, dams, the laying, building, mainte-

nance and construction of water mains, rights-of-way in

connection therewith, and the laying, erection, establish-

ment or maintenance of any necessary appurtenances or

facilities which will furnish to the inhabitants of the city

an abundant supply of wholesome water; for sewerage

plants and systems; rights-of-way for water and sewer

lines; parks, playgrounds, fire stations, police stations,

airports and landing fields, burial grounds and ceme-

teries, incinerators or other garbage disposal plants, elec-

tric light and power plants and rights-of-way for lines in

connection therewith, gas plants and rights-of-way for

gas lines in connection therewith; streets, boulevards and

alleys or other public ways; city jails, prison farms, city

halls and other municipal buildings, municipal garages,

and parking facilities, or any rights-of-way needed in

—_

Resp. App. 33

connection with any property used for any purpose here-

inabove named; for the straightening or improving of the

channel of any stream, branch or drain and for any other

municipal purpose. The procedure to be followed in any

condemnation proceedings hereunder and authorized

herein shall be in accordance with the provisions of the

state law with reference to eminent domain. The provi-

sions of Title 52 of the Revised Civil Statutes of Texas

(1925), as amended, or as may hereafter be amended,

shall apply to such proceedings, or such proceedings may

be under any other state law now in existence or that

hereafter may be passed governing and relating to the

condemnation of land for public purposes by the city;

(47) to exercise all the powers conferred upon

water improvement districts or water control and preser-

vation districts under the state law as the same now

exists or may hereafter be amended, providing for the

exercise of the rights of eminent domain by and through

condemnation proceedings. It shall also have all the

powers authorized by Article 7880-126, Revised Civil

Statutes of the State of Texas, as the same presently exists

or may hereafter be amended, and all other powers con-

ferred upon cities and towns in the State of Texas acting

individually or jointly, in the furnishing of an adequate

supply of wholesome water. It shall have authority to sell

any surplus water not needed by the City of Dallas;

(48) to erect and establish work houses, houses

of correction, or rehabilitation facilities within or without

the city limits; to make all necessary rules and regulations

therefor; to employ personnel necessary to manage and

control the same; to assign persons confined to the city

jail to any such facility so established;

Resp. App. 34

(49) to provide a code of ethics by ordinance

which shall be binding on all officers, employees, and

elective and appointive officials as provided herein, set-

tling out the acts, conduct and financial interest which

shall be considered to be in conflict with the position they

hold and providing the procedure for enforcing the same.

This may be either in addition to, or incorporated into

personnel rules and regulations as pertain to various

employees.

SEC. 2. GENERAL POWERS ADOPTED.

The enumeration of particular powers in the Charter

shall not be held or deemed to be exclusive, but in

addition to the powers enumerated herein, implied

thereby or appropriate to the exercise thereof, the city

shall have and may exercise all other powers which

under the Constitution and laws of the State of Texas, it

would be competent for the Charter specifically to eru-

merate. The city shall have and exercise all the powers

conferred upon cities by what is known as the Home Rule

Amendment to the Constitution of the State of Texas and

the Enabling Act relative thereto, passed by the Thirty-

Third Legislature of the State of Texas, found in the

published laws of said legislature, Regular Session, pages

307 to 317, and effective July 7, 1913, and all other laws

passed by the legislature of the State of Texas, relating

thereto, or which may hereafter be passed by said legisla-

ture in relation to such matters.

Resp. App. 35

CHAPTER XV. PLANNING AND ZONING

(Renamed and Renumbered by Amend.

of 6-12-73, Prop. No. 43)

SEC. 1. COMPREHENSIVE PLANNING.

(1) CONTENT. The council may adopt, and may

from time to time modify, a comprehensive plan setting

forth in graphic and textual form, policies to govern the

future physical development of the city. Such plan may

cover the entire city and all of its functions and services

or may consist of a combination of plans governing speci-

fic functions and services or specific geographic areas

. which together cover the entire city and all of its func-

tions and services.

(2) ADOPTION. Upon receipt from the city man-

ager of a proposed comprehensive plan or proposed

modification of the existing plan, the council shall hold a

public hearing on the proposed comprehensive plan or

modification thereof and shall thereafter adopt it by reso-

lution with or without amendment, or reject the same.

(3) EFFECT. The comprehensive plan shall serve

as a guide to all future council action concerning land use

and development regulations, urban conservation and

rehabilitation programs and expenditures for capital

improvements. (Renumbered by Amend. of 6-12-73, Prop.

No. 43)

Resp. App. 36

SEC. 2. URBAN CONSERVATION AND REHA-

BILITATION AND REDEVELOPMENT.

The council may by ordinance provide for urban

redevelopment, rehabilitation and conservation programs

for:

(1) the alleviation or prevention of slums, obsoles-

cence, blight or other conditions of urban deterioration;

and

(2) the achievement of the most appropriate use of

land. (Renumbered by Amend. of 6-12-73, Prop. No. 43)

SEC. 3. ZONING COMMISSION.

The city council shall appoint 15 qualified voters of

the City of Dallas who shall constitute the zoning com-

mission of the City of Dallas, and shall be the city plan

commission as the same is referred to by state statute for

the approval of plats and subdivisions. The members

shall possess the same qualifications and be subject to the

same disqualifications as provided by the Charter for

members of the city council, or general laws of the State

of Texas. The city council shall name one of the members

to be the chairman and one to be the vice chairman.

(Renumbered by Amend. of 6-12-73, Prop. No. 43)

SEC. 4. DUTIES OF ZONING COMMISSION.

The zoning commission shall:

(1) Adopt, subject to approval of the city council,

such rules and regulations as they deem best to govern

Resp. App. 37

their actions, proceedings and deliberations, including

the time and place of meeting.

(2) Upon application made, advertise and hold pub-

lic hearings on zoning or changes in zoning, and make

recommendations thereon to the city council.

(3) Act as an advisory body to the city council in

relation to any changes in the boundaries of the various

original districts and any changes in the zoning ordi-

nances and regulations to be enforced therein. Such rec-

ommendation shall be made after advertisement of and a

public hearing held thereon. Notice of such public hear-

ing shall be published at least one time in a newspaper of

general circulation in the city at least 10 days prior to the

date of said hearing, or as otherwise provided by state

law or this charter.

(4) Administer provisions of state law regarding the

platting and recording of subdivisions and additions, and

in connection therewith, to require the owners and devel-

opers of land who desire to subdivide, plat or replat land

for urban development, to provide for building setback

lines, to dedicate streets, alleys, parks, easements or other

public places of adequate width an size; to coordinate

street layouts and street planning with the city and with

other municipalities, and to coordinate the same with the

county, state and federally designated highways, as they

may deem best in the interest of the general public. In

connection with the planning and the platting of prop-

erty, the zoning commission shall have the power to

consider the character of development or land use con-

templated by the proposed platting and the zoning of the

Resp. App. 38

property, and require off-street parking, streets and alleys

of adequate width to be provided for that purpose.

(5) Make recommendations to the city manager and

the city council on matters affecting the physical develop-

ment of the city.

(6) Advise and make recommendations on the com-

prehensive plan and the implementation thereof as may

be requested by the city manager and the city council.

(7) Exercise all other responsibilities as may be pro-

vided by law. (Renumbered by Amend. of 6-12-73, Prop.

No. 43; Amend. of 8-12-89, Prop. No. 9)

SEC. 5. DEDICATION OF STREETS, ALLEYS AND

PUBLIC PROPERTIES.

The action of the zoning commission in requiring the

dedication of streets, alleys and public places shall not

amount to an acceptance of said dedication, nor estop the

city council to deny the same. Acceptance of all dedica-

tions shall be by action of the city council, or when the

city council shall have made actual appropriation of the

same by entry, use or improvement. (Renumbered by

Amend. of 6-12-73, Prop. No. 43)

SEC. 6. CITY URBAN DEVELOPMENT COMMIS-

SION.

In addition to the zoning commission, the city coun-

cil may have by ordinance provide for an urban develop-

ment commission. The ordinance creating the same shall

state how the body shall be constituted, the qualifications

ea ey a ee ae f-

Resp. App. 39 ~

of the members and the duties of the same. (Renumbered

by Amend. of 6-12-73, Prop. No. 43)

SEC. 7. ALTERNATE MEMBERS OF THE BOARD OF

ADJUSTMENT.

In addition to the membership provided by state law

to serve on the board of adjustment, the city council may,

if it so desires, appoint six additional members who shall

be designated as alternate members. the alternate mem-

bers shall serve on the board at the designation of the

board chair in any case where any regular member of the

board of adjustment is either absent or unable to serve in

any particular case for any reason so that all cases to be

heard by the board of adjustment will always be heard by

the minimum number of members required by state law.

These alternate members, when appointed, shall serve for

the same period as the regular members, and any vacan-

cies shall be filled in the same manner. (Amend. of

6-12-73, Prop. No. 28; Amend. of 5-3-97, Prop. No. 11)

SEC. 8. THOROUGHFARE PLAN.

The city council shall by ordinance adopt a thorough-

fare plan. A thoroughfare plan now in existence or here-

after adopted by the city council shall not be changed

except by an ordinance duly adopted after a public hear-

ing as herein provided.

Prior to any change in a thoroughfare plan, the city

council shall hold a public hearing. Written notice of all

public hearings before the city council on proposed

changes in the thoroughfare plan shall be sent to owners

Resp. App. 40

of real property lying within 200 feet of the area of the

proposed change, such notice to be given, not less than 10

days before the date set for hearing, to all such owners

who have rendered their said property for city taxes as

the ownership appears on the last approved city tax roll.

Such notice may be served by depositing the same, prop-

erly addressed and postage paid, in the United States

mail. (amend. of 1-17-81, Prop. No. 3)

Sec.

Resp. App. 41

CHAPTER 27

MINIMUM URBAN

REHABILITATION STANDARDS

ARTICLE I.

GENERAL PROVISIONS.

27-1. _—_ Legislative findings of fact.

27-2. Purpose of chapter.

27-3. Definitions.

27-3.1. Code enforcement official.

ARTICLE II.

ADMINISTRATION.

27-4. _—_ Violations; penalty.

27-5. Inspection.

27-5.1. Donation of noncomplying property to a

nonprofit corporation.

27-5.2. Retaliation against tenants prohibited.

27-6. Urban rehabilitation standards board.

27-7. Hearing panels.

27-8. Powers and duties of a hearing panel; advi-

sory responsibilities of the board.

27-9. Procedure.

27-10. Failure to comply with board order.

ARTICLE III.

MINIMUM STANDARDS.

27-11. Minimum standards; responsibilities of

owner.

27-12. Responsibilities of occupant.

Sec.

Resp. App. 42

ARTICLE IV.

REPAIR, DEMOLITION,

RECEIVERSHIP, VACATION, RELOCATION,

CLOSURE, AND CIVIL PENALTIES.

27-13.

27-14.

27-14.1.

17-14.2.

27-14.3.

27-15.

27-16.

27-17.

27-18.

27-19.

27-20.

27-20.1.

27-21.

27-22.

27-23.

Urban nuisance; repair, demolition,

receivership, and civil penalties; notice.

Rehearing of repair and demolition orders

and civil penalty assessments.

Treatment for insects and rodents.

Rehearing review requirements.

Rehearing review.

Reduction of occupancy load; vacation of

structure; relocation of occupants; placing

of placard on structure.

Closure of a structure.

ARTICLE V.

RESIDENTIAL HOTELS

Occupancy record cards.

Fee; renewal.

Maximum number of occupants; posting

card; altering card.

Designation of guest rooms; posting

notices.

On-site hotel manager; notice to occupants.

Inspections; maintenance of records.

Required facilities.

Cooking food prohibited.

ARTICLE VI.

MASTER METERED UTILITIES.

27-24.

27-25.

Definitions.

Records of ownership and management

maintained by utility companies.

Sec.

SEC. 27-1.

There exists in the city of Dallas, Texas, structures

27-26.

27-27.

27-28.

Resp. App. 43

Notice to tenants.

Notice of utility interruption.

Nonpayment of utility bills - Essential util-

ity service.

ARTICLE VII.

LICENSING OF APARTMENT COMPLEXES.

27-29.

27-30.

27-31.

27-32.

27-33.

27-34.

27-35.

27-36.

27-37.

27-38.

27-39.

27-40.

27-41.

27-42.

27-43.

Definitions.

Authority of director.

License required; defenses.

License application.

License fees.

Issuance, denial, and display of license.

Revocation of license.

Appeals.

Amendments to license.

Expiration and renewal of license.

Nontransferability.

Licensee’s records.

Failure to pay ad valorem taxes.

Notification of change of information.

Inspections; reinspection fees.

ARTICLE I.

GENERAL PROVISIONS.

LEGISLATIVE FINDINGS OF FACT.

used for human habitation and nonresidential purposes

that are substandard in structure and maintenance. Fur-

thermore, inadequate provision for light and air, insuffi-

cient protection against fire, lack of proper heating,

insanitary conditions, and overcrowding constitute a

Resp. App. 44

menace to the health, safety, morals, welfare, and reason-

able comfort of the citizens of the city of Dallas. The

existence of such conditions will create slum and blighted

areas requiring large scale clearance, if not remedied.

Furthermore, in the absence of corrective measures, such

areas will experience a deterioration of social values, a

curtailment of investment and tax revenue, and an

impairment of economic values. The establishment and

maintenance of minimum structural and environmental

standards are essential to the prevention of blight and

decay and the safeguarding of public health, safety,

morals, and welfare. (Ord. Nos. 15198; 19234)

SEC. 27-2. PURPOSE OF CHAPTER.

(a) The purpose of this chapter is to protect the

health, safety, morals, and welfare of the citizens of the

city of Dallas by establishing minimum standards appli-

cable to residential and nonresidential structures. Mini-

mum standards are established with respect to utilities,

facilities, and other physical components essential to

make structures safe, sanitary, and fit for human use and

habitation. Demolition of structures is provided for as a

last resort when compliance with standards cannot rea-

sonably be achieved.

(b) This chapter is found to be remedial and essen-

tial to the public interest, and it is intended that this

chapter be liberally construed to effect its purpose. All

structures within the city on the effective date of this

chapter, or constructed thereafter, must comply with the

provisions of this chapter. (Ord. Nos. 15198; 19234)

Resp. App. 45

SEC. 27-3. DEFINITIONS.

In this chapter:

(1) BASEMENT means the portion of a struc-

ture that is partly underground and has more than one-

half its height, measured from clear floor to ceiling, above

the average finished grade of the ground adjoining a

structure.

(2) BATHROOM means an enclosed space con-

taining one or more bathtubs, showers, or both, and

which may also include toilets, lavatories, or fixtures

serving similar purposes. |

(3) BOARD means the urban rehabilitation

standards board.

(4) CELLAR means the lowermost portion of a

structure partly or totally underground having one-half

or more of its height, measured from clear floor to ceiling,

below the average finished grade of the adjoining

ground.

(5) DEPARTMENT means the department des-

ignated by the city manager to enforce and administer

this chapter.

(6) DIRECTOR means the director of the

department designated by the city manager to enforce

and administer this chapter and includes representatives, .

agents, or department employees designated by the direc-

tor.

(7) DWELLING means a structure or building

occupied as a residence.

Resp. App. 46

(8) FLOOR SPACE means the total area of all

habitable space.

(9) GRADE means the natural surface of the

ground, or surface ground after completion of any change

in contour.

(10) HABITABLE SPACE means the space occu-

pied by one or more persons while living, sleeping, eat-

ing, and cooking; excluding kitchenettes, bathrooms,

toilet rooms, laundries, pantries, dressing rooms, closets,

storage spaces, foyers, hallways, utility rooms, heater

rooms, boiler rooms, and basement or cellar recreation

rooms.

(11) KITCHEN means a space, 60 square feet or

more in floor area with a minimum width of five feet,

used for cooking or preparation of food.

(12) KITCHENETTE means a space, less than 60

square feet in floor area, used for cooking or preparation

of food.

(13) OPERATING CONDITION means free of

leaks, safe, sanitary, and in good working order.

(14) OWNER means a person claiming, or in

whom is vested, the ownership, dominion, or title of real

property, including, but not limited to:

(A) the holder of fee simple title;

(B) the holder of a life estate;

; (C) the holder of a leasehold estate for an

initial term of five years or more;

(D) the buyer in a contract for deed; and

Resp. App. 47

(E) a mortgagee, receiver, executor, or

trustee in control of real property;

but not including the holder of a leasehold estate or

tenancy for an initial term of less than five years.

(15) PERSON means any individual, corpora-

tion, organization, partnership, association, or any other

legal entity.

(16) PLUMBING FIXTURES means gas pipes,

water pipes, toilets, lavatories, sinks, laundry tubs, dish-

washers, garbage disposal units, clothes-washing

machines, catch basins, wash basins, bathtubs, shower

baths, sewer pipes, sewage system, septic tanks, drains,

vents, traps, and other fuel-burning or water-using fix-

tures and appliances, together with all connections to

pipes.

(17) PREMISES or PROPERTY means a lot, plot,

parcel of land, including any structures on the land.

(18) PROPERTY MANAGER means a person

who for compensation has managing control of real prop-

erty.

(19) PUBLIC SEWER means a sewer operated

by a public authority or public utility and available for

public use.

(20) RESIDENTIAL HOTEL means a structure

that receives more than 50 percent of its rental income

from occupancies of 30 consecutive days or more and

contains:

Resp. App. 48

(A) more than five guest rooms with living

and sleeping accommodations, but no kitchen or kitch-

enette;

(B) more than five guest rooms with living,

sleeping, and kitchen or kitchenette facilities that are

offered for rental on a daily basis; or

and sleeping accommodations, each of which is individu-

ally secured and rented separately to one or more indi-

viduals who have access to bathroom, kitchen, or dining

facilities outside the guest room on a common basis with

other occupants of the structure.

(21) SANITARY means any condition of good

order and cleanliness that precludes the probability of

disease transmission.

(22) STRUCTURE means that which is built or

constructed, an edifice or building of any kind, or any

piece of work artificially built up or composed of parts

joined together in some definite manner.

(23) URBAN NUISANCE means a premises or

structure that:

(A) is reasonably dangerous to the physical

health or safety of an occupant or other person; or

(B) because of violations of Section 27-11,

its state of disrepair is such that it could reasonably cause

injury, damage, harm, or inconvenience to a considerable

portion of the community in the use and enjoyment of

property, materially interfering with the proper use or

comfort and enjoyment of surrounding property, taking

into consideration the nature and use of the properties in

Resp. App. 49

the area and the character of the community in which

they are situated, which condition would be substantially

offensive and annoying to persons of ordinary sensi-

bilities, tastes, and habits living in the community. (Ord.

Nos. 15198; 15919; 16473; 17226; 19234; 19896; 22154)

SEC. 27-3.1. CODE ENFORCEMENT OFFICIAL.

The director, or a designated representative, shall

serve as the code enforcement official of the city. The

code enforcement official shall have the power to obtain

search warrants allowing the inspection of any specified

premises to determine the presence of a health hazard or

unsafe building condition, including but not limited to

any structural, property, or utility hazard, or a violation

of any health or building regulation, statute, or ordi-

nance. (Ord. 20433)

ARTICLE II.

ADMINISTRATION.

SEC. 27-4. VIOLATIONS; PENALTY.

(a) A person who violates a provision of this chap-

ter, or who fails to perform an act required of him by this

chapter, commits an offense. A person commits a separate

offense each day or portion of a day during which a

violation is committed, permitted, or continued.

(b) Criminal penalties.

(1) An offense under this chapter is punishable

by a fine not to exceed $2,000; except, that an offense

under Section 27-5.2 and 27-25 of this chapter is punish-

able by a fine not to exceed $500.

Resp. App. 50

(2) An offense under this chapter is punishable

by a fine of not less than:

(A) $200 for a first conviction of a violation

of Section 27-11(a)(1), (3), or (4) or 27-11(b)(1), (2), (3), (4),

(6), (7), (8), (9), or (10);

(B) $500 for a first conviction of a violation

of section 27-11(a)(2), (5), or (6), 27-11(b)(5), 27-11(c), or

27-11(d); and

tion of Section 27-31.

(3) The minimum fines established in Subsec-

tion (b)(2) will be doubled for the second conviction of

the same offense within any 24-month period and trebled

for the third and subsequent convictions of the same

offense within any 24-month period. At no time may the

minimum fine exceed the maximum fine established in

subsection (b)(1).

mental state is not required for the commission of an

offense under this chapter.

(d) In addition to imposing the criminal penalty

prescribed in Subsection (b), the city may, in accordance

with Chapter 54, Subchapter B of the Texas Local Govern-

ment Code, bring a civil action against a person violating

a provision of this chapter. The civil action may include,

but is not limited to, a suit to recover a civil penalty not

to exceed $1,000 for each day or portion of a day during

which the violation is committed, continued, or permit-

ted.

Resp. App. 51

(e) The penalties provided for in Subsections (b)

and (d) are in addition to any other enforcement remedies

that the city may have under city ordinances and state

law.

(f) The director has the authority to enforce provi-

sions of Chapter 7A and Article II, Chapter 18 of this

code. (Ord. Nos. 19234; 19896; 20017; 20599; 22695)

SEC. 27-5. INSPECTION.

For the purpose of ascertaining whether violations of

this chapter exist, the director is authorized at a reason-

able time to inspect:

(1) the exterior of a structure and premises

which contain no structure; and

(2) the interior of a structure, if the permission

of the owner, occupant, or person in control is given.

(Ord. Nos. 15198; 19234)

SEC. 27-5.1. DONATION OF NONCOMPLYING

PROPERTY TO A NONPROFIT COR-

PORATION.

(a) a judge of the municipal court may dismiss one

or more citations of a property owner who is charged

with violating this chapter, if the property owner donates

the property, for which the citations have been issued, to

a nonprofit corporation selected by the city.

(b) The urban rehabilitation standards board may

waive a civil penalty or part of a civil penalty assessed

against a property owner pursuant to Section 27-13 of this

Resp. App. 52

chapter if the property owner donates the property, for

which the civil penalty has been assessed, to a nonprofit

corporation selected by the city.

profit corporation for the acceptance of property donated

pursuant to Subsection (a) or (b) of this section. The

terms of the contract must provide that the nonprofit

corporation will:

(1) within 90 days from the date of acceptance

of the donated property, bring the property into compli-

ance with this chapter, including, but not limited to,

providing all necessary cleanup, maintenance, repairs,

and alterations; and

(2) within 120 days from the date of acceptance

of the donated property, sell the property directly to an

occupant owner or rent the property directly to an occu-

pant tenant. (Ord. Nos. 19234; 19896; 21973)

SEC. 27-5.2. RETALIATION AGAINST TENANTS

PROHIBITED.

(a) A landlord commits an offense if he raises a

tenant’s rent, diminishes services to a tenant, or attempts

eviction of a tenant within six months after:

(1) the tenant files a valid complaint with the

director complaining of a violation of this chapter on

property occupied by the tenant; a complaint is consid-

ered valid if it results in an action described in Paragraph

(2), (3}, or (4) of this subsection;

alld

Resp. App. 53

(2) the director issues to the landlord or his

agent a written notice or citation listing any violation of

this chapter that exists on property occupied by the ten-

ant;

(3) the director issues to the landlord or his

agent written notice of a hearing before the urban reha-

bilitation standards board concerning any violation of

this chapter that exists on property occupied by the ten-

ant;

(4) the tenant, after filing a complaint with the

director and the landlord or his agent, files a written

complaint with the city attorney complaining of a viola-

tion of this chapter on property occupied by the tenant,

unless the complaint is later withdrawn by the tenant or

dismissed on the merits; or

(5) repairs are completed on property occupied

by the tenant in compliance with either a written notice

or citation issued by the director or a written order issued

by the urban rehabilitation standards board.

(b) It is a defense to prosecution under Subsection

(a) that:

(1) rent was increased pursuant to an escalation

clause in a written lease which provided for changes in

costs of utilities, taxes and insurance;

(2) rent was increased, services were reduced,

or notices to vacate were issued as part of a pattern of

rent increases, service reductions, or evictions for an

entire multidwelling project;

(3) the tenant was delinquent in rent when the

landlord gave notice to vacate or filed an eviction action;

Resp. App. 54

(4) the tenant was responsible for or caused a

violation of this chapter that existed on property occu-

pied by the tenant;

(5) the tenant’s written lease fixing the rent,

services, or term of occupancy had expired, unless, at the

time an action described in Subsection (a)(1), (2), (3), or

(4) occurred, a violation of this chapter that was reason-

ably dangerous to the physical health or safety of the

tenant or another person existed on property occupied by

the tenant;

(6) the tenant holds over after giving notice of

termination or intent to vacate; .

(7) the tenant holds over after the landlord

gives notice of termination at the end of the rental term

and, at the time the notice of termination was given, the

landlord or his agent had not received actual notice that a

valid complaint had been filed with the city complaining

of violations of this chapter on property occupied by the

tenant;

(8) before filing a complaint with the city com-

plaining of a violation of this chapter on property occu-

pied by the tenant, other than a violation that is

reasonably dangerous to the physical health or safety of

the tenant or another person, the tenant fails to comply

with a written lease provision requiring the tenant to:

(A) notify the landlord or his agent, in

writing, of the violation; and

(B) allow the landlord 15 days to correct

the violation; or

oo nah (woke

Bian oe ete,

Resp. App. 55

(9) the landlord proves that the rent increase,

service reduction, or attempted eviction was- for good

cause and not for purposes of retaliation against the

tenant. i

upon the filing of a written complaint by the tenant with

the city attorney. (Ord. 20017)

SEC. 27-6. URBAN REHABILITATION STANDARDS

BOARD.

(a) There is created the urban rehabilitation stan-

dards board, which is composed of 30 members and eight

alternate members. The 30 members must be appointed

by the city council, with each city council member mak-

ing two appointments, and the eight alternate members

must be appointed by the city council as a whole. The

mayor shall appoint the chair. The board shall consist of:

(1) aregistered architect who has had at least 10

years experience in the construction of buildings and

housing;

(2) a mortgage loan banker who has been

engaged in mortgage loan banking for at least 10 years;

(3) a home builder who has at least 10 years

experience in the construction of homes;

(4) a licensed real estate broker who has at least

10 years experience in the appraisal of real estate;

(5) a person who is engaged in social or welfare

work and having at least 10 years experience in public or

private case work;

Resp. App. 56

(6) a structural engineer who has at least 10

years experience in the construction of commercial build-

ings; and

(7) twenty-four members and eight alternate

members chosen on the basis of their interest in commu-

nity affairs.

(b) Members and alternate members must be resi-

dents ‘of the city. Their appointment will be made in

August of each odd-numbered year for a two-year term

beginning on September 1. All members and alternate

members shall serve until their successors are appointed

and qualified. ;

ments and qualifications as regular board members,

except that an alternate member has voting privileges

only when sitting in for an absent member.

(d) The director of environmental and health ser-

vices, the fire marshal, the building official, and the direc-

tor of housing shall serve in an advisory capacity as ex

officio members of the board with no voting privileges.

(Ord. Nos. 15198; 19234; 19673; 21153; 21200; 21515;

21854; 22026)

SEC. 27-7. HEARING PANELS.

(a) The chair of the board shall divide the board

into four hearing panels for the purpose of performing

the duties of the board. Three panels will be composed of

seven members, two alternate members, and the chair,

and one panel will be composed of eight members, two

Resp. App. 57

alternate members, and the chair. Five members consti-

tute a quorum. Decisions of a hearing panel are made by

a majority vote of those present.

(b) The chair is responsible for obtaining a quorum

for each meeting of a panel. In the absence of a regular

member, the chair may assign a member from another

panel or an alternate member to serve. Each board mem-

ber, including the chair, has full voting privileges on any

panel and is free to attend any panel meeting.

ments, a member or alternate member who is absent from

an assigned panel meeting but attends the meeting of one

of the other panels immediately preceding or imme-

diately following the missed panel meeting, will not,

upon approval of the chair, be credited with an absence.

A member or alternate member, however, must attend

one meeting of another panel for each meeting of the

assigned panel from which the member or alternate mem-

ber is absent in order to avoid being credited with an

absence. For the purpose of fulfilling attendance require-

ments, the chair is only required to attend the regular

meetings of two of the hearing panels.

(d) Each hearing panel shall select a vice-chair to

preside over its proceedings in the absence of the chair.

(e) The director shall assign cases other than rehear-

ings to the hearing panels on a rotation basis. A rehearing

must be assigned to the same hearing panel that origi-

nally heard the case.

(f) Each hearing panel has the same authority as the

full board.

Resp. App. 58

(g) A decision by a hearing panel constitutes a deci-

sion of the board. (Ord. Nos. 15198; 15919; 19234; 21200;

21854)

SEC. 27-8. POWERS AND DUTIES OF A HEARING

PANEL; ADVISORY RESPONSIBILITIES

OF THE BOARD.

(a) A hearing panel has the following powers and

duties:

(1) To require the reduction in occupancy load

of an overcrowded structure or vacation of a structure

that is reasonably dangerous to the health, safety, or

welfare of the occupants.

(2) To require, as an alternative to demolition of

a structure found to be an urban nuisance, the repair of

the structure by the owner or by the city.

(3) To require the demolition of a structure

found to be an urban nuisance.

(4) To require the removal of personality from a

structure ordered vacated or demolished. Removal may

be accomplished by use of city forces or a private transfer

company if the owner of the personalty is not known, or

the whereabouts of the owner cannot be ascertained, or

the owner fails to remove the personalty. A hearing panel

may cause any personalty removed to be stored in the

care and custody of a bonded warehouse facility. Costs of

removal and storage are the responsibility of the owner of

the personalty.

Resp. App. 59

(5) To require that a vacant structure or vacant

portion of a structure constituting a dangerous condition

or nuisance be securely closed and made safe.

(6) To require or cause the correction of a dan-

gerous condition on the land. Correction of a dangerous

condition may be accomplished by city forces or private

contractor. Costs of correction are the responsibility of the

owner.

(7) To grant a variance when, in the opinion of

a hearing panel, a literal interpretation of this chapter

would result in the imposition of an unnecessary or

unreasonable hardship.

(8) To assess a civil penalty, not to exceed

$2,000 a day, against a property owner for each day or

part of a day that he fails to repair or demolish a struc-

ture in compliance with a board order issued under Sec-

tion 27-13 of this chapter.

(9) To cause an action to be brought in district

court in accordance with Section 214.003 of the Texas

Local Government Code for the appointment of a receiver

for property found to be an urban nuisance.

(10) To require relocation of the occupants of a

structure found to be an urban nuisance.

(b) In addition to the powers and duties of the

hearing panels, the board shall periodically meet as a

whole for the purpose of planning and advising the city

council on matters concerning substandard housing and

enforcement of this chapter. (Ord. Nos. 15198; 16473;

19234; 19896; 20470)

Resp. App. 60

SEC. 27-9. PROCEDURE.

(a) The board may adopt rules not inconsistent with

this chapter or Chapter 8 of this code. Meetings of the

board or a hearing panel will be held at the call of the

chairman, or in his absence the vice-chairman, or an

acting chairman designated by the chairman, or as the

board may determine. The chairman, acting chairman, or

the vice-chairman may administer oaths and compel the

attendance of witnesses.

(b) The director or his designated representative

shall act as secretary to the board and the hearing panels.

lessor, occupant, or lienholder may present witnesses in

his own behalf and is entitled to cross-examine any wit-

ness appearing against him.

(d) After a public hearing the decision of a hearing

panel is final as to administrative remedies and a rehear-

ing may not be granted except as provided by Sections

27-14 and 27-14.3.

(e) Once the decision of a hearing panel has become

final under this section, Section 27-14, or 27-14.3, the

person affected by an order may appeal the decision to

the state district court. Appeal to the district court must

be filed within 20 days from the date of receipt of notice

of a final board order. Appeal in the district court shall be

limited to a hearing under the substantial evidence rule.

(Ord. Nos. 15198; 15919; 19234)

Resp. App. 61

SEC. 27-10. FAILURE TO COMPLY WITH BOARD

ORDER.

(a) A person commits an offense if he fails to correct

a violation of this chapter in compliance with a board

order that has become final under Section 27-9, 27-14, or

27-14.3.

(b) It is a defense to prosecution under Subsection

(a) that the board order has been appealed to the state

district court. (Ord. Nos. 15198; 16473; 18001; 19234)

ARTICLE III.

MINIMUM STANDARDS.

SEC. 27-11. MINIMUM STANDARDS; RESPON-

SIBILITIES OF OWNER.

(a) Property standards. An owner shall:

(1) eliminate a hole, excavation, sharp protru-

sion, and any other object or condition that exists on the

land and is reasonably capable of causing injury to a

person;

(2) securely cover or close a well, cesspool, or

cistern;

(3) provide solid waste receptacles or con-

tainers when required by Chapter 18 of this code;

(4) provide drainage to prevent standing water

and flooding on the land;

(5) remove dead trees and tree limbs that are

reasonably capable of causing injury to a person; and

Resp. App. 62

(67 keep the doors and windows of a vacant

structure or vacant portion of a structure securely closed

to prevent unauthorized entry.

(b) Structural standards. An owner shall:

(1) protect the exterior surfaces of a structure

which are subject to decay by application of paint or

other coating;

(2) fill hollow, masonry supporting piers, if

used, with concrete and anchor the piers to concrete

footings with a °/s inch steel dowel;

(3) provide and maintain railings for stairs,

steps, balconies, porches, and elsewhere as specified in

the Dallas Building Code;

(4) repair holes, cracks, and other defects rea-

sonably capable of causing injury to a person in stairs,

porches, steps, and balconies;

(5) maintain a structure intended for human

occupancy and a structure used as an accessory to a

structure intended for human occupancy in a weather-

tight and water-tight condition;

(6) maintain floors, walls, ceilings, and all sup-

porting structural members in a sound condition, capable

of bearing imposed loads safely;

(7) provide cross-ventilation of not less than

11/2 square feet for each 25 lineal feet of wall in each

basement, cellar, and crawl space;

(8) repair or replace chimney flue and vent

attachments that do not function properly;

Resp. App. 63

(9) repair holes, cracks, breaks, and loose sur-

face materials that are health or safety hazards in or on

floors, walls, and ceilings; and

(10) provide and maintain a moisture-resistant

finish or material for the flooring or subflooring of each

bathroom, shower room, and toilet room.

(1) provide and maintain in operating condition

connections to discharge sewage from a structure of land

into a public sewer system where available;

(2) provide and maintain in operating condition

a toilet connected to a water source and to a public sewer,

where available, in each structure intended for human

habitation;

(3) provide and maintain in operating condition

connections and pipes to supply potable water at ade-

quate pressure to a structure intended for human occu-

pancy;

(4) provide and maintain in operating condition

a device to supply hot water of a minimum temperature

of 120° F. within each structure intended for human habi-

tation;

(5) provide and connect a kitchen sink, bathtub

or shower, and lavatory to a cold and hot water source in

each structure intended for human habitation;

(6) connect plumbing fixtures and heating

equipment that the owner supplies in accordance with

the Dallas Plumbing Code and Dallas Mechanical Code;

Resp. App. 64

(7) provide and maintain heating equipment in

operating condition so that it is capable of maintaining a

minimum inside temperature of 68° F. from November 1

through April 15 in each room of a structure intended for

human occupancy;

(8) if screens are not provided as required in

Subsection (d)(2), provide and maintain in operating con-

dition, from May 1 through October 15, refrigerated air

equipment capable of maintaining a maximum inside

temperature that is 20 degrees lower than the outside

temperature of 85° F., whichever is warmer, in each room

of a structure intended for human occupancy;

(9) provide and maintain in operating condition

supply lines for electrical service to each structure

intended for human occupancy if electrical service is

available within 300 feet;

(10) connect each heating and cooking device

that burns solid fuel to a chimney or flue; and

(11). provide and maintain in operating condi-

tion electrical circuits and outlets sufficient to safely carry

a load imposed by normal use of appliances and fixtures.

(d) Health standards. An owner shall:

(1) eliminate rodents and vermin in or on the

land;

(2) provide a structure intended for human

habitation with a screen for keeping out insects at each

opening of the structure if the structure is not cooled with

refrigerated air;

Resp. App. 65

(3) maintain the interior of a vacant structure or

vacant portion of a structure free from rubbish and gar-

bage;

(4) keep the interior of a structure free from

insects, rodents, and vermin, except as specified in Sec-

tion 27-12(b).

(e) It is a defense to prosecution under Subsection

(a) of this section that the premises concerned is the site

of new construction and reasonable and continuous pro-

gress is being made to complete the construction.

(f) It is a defense to a prosecution under Subsection

(d)(4) of this section that the structure was treated to

eliminate insects, rodents, and vermin by a person

licensed under the Texas Structural Pest Control Act once

within the preceding six months.

(g) An owner shall provide a tenant with alternative

housing that meets the minimum standards required by

this section when:

(1) after being issued a notice or citation for

violation of Subsection (c)(7) of this section, the owner

fails to repair heating equipment within 72 hours after

receiving such notice or citation and the overnight low

temperature, as measured by the National Weather Ser-

vice at Dallas Love Field, is below 40° F. for three consec-

utive days after receiving such notice or citation; or

(2) after being issued a notice or citation for

violation of Subsection (c)(8) of this section, the owner

fails to repair refrigerated air equipment within 72 hours

after receiving such notice or citation and the daytime

high temperature, as measured by the National Weather

Resp. App. 66

Service at Dallas Love Field, is 95° F. or above for three

consecutive days after receiving such notice or citation.

(h) It is a defense to prosecution under Subsections

(c)(7) and (c)(8) of this section and to the alternative

housing requirements of Subsection (g) of this section

that:

(1) failure to maintain heating and refrigerated

air equipment in compliance with those subsections was

the direct result of an act of nature or other cause beyond

the reasonable control of the owner; or

(2) the owner is making diligent efforts to

repair the heating and refrigerated air equipment in com-

pliance with those subsections; if the owner demonstrates

to the director that diligent efforts to repair are being

made; the director will not issue a notice or citation for a

violation of Subsection (c)(7) or (c)(8) of this section.

(i) It is a defense to prosecution under Subsection

(c)(7) of this section and to the alternative housing

requirements of Subsection (g)(1) of this section that a

written contract is in effect requiring the tenant to pro-

vide and maintain heating equipment and the owner has

provided utility connections for heating equipment in

compliance with the Dallas Mechanical Code, as

amended, in each room of the structure intended for

human occupancy.

(j) It is a defense to prosecution under Subsection

(c)(8) of this section and to the alternative housing

requirement of Subsection (g)(2) of this section that the

structure is provided with exterior windows and doors

that are easily openable to provide air ventilation and

Resp. App. 67

covered with screens in compliance with Subsection

(d)(2) of this section. (Ord. Nos. 15198; 15372; 15919;

16473; 19234; 20578)

SEC. 27-12. RESPONSIBILITIES OF OCCUPANT.

(a) An occupant shall:

(1) maintain those portions of the interior of a

structure under his control free from rubbish, garbage,

and other conditions that would encourage infestation of

insects, rodents, or vermin;

(2) remove an animal or animals from a struc-

ture if the presence of the animal or animals is a health

hazard to an occupant;

(3) connect plumbing fixtures and heating

equipment that the occupant supplies in accordance with

the Dallas Plumbing Code and the Dallas Mechanical

Code.

(4) provide solid waste receptacles or con-

tainers when required by Chapter 18 of this code; and

(5) not alter a structure or its facilities so as to

create a nonconformity with Section 27-11 or this section.

(b) The tenant occupant of a single-family residen-

tial structure shall keep the interior of the structure free

from insects, rodents, and vermin if the owner can show

that the structure was treated to eliminate insects,

rodents, and vermin by a person licensed under the Texas

Structural Pest Control Act:

Resp. App. 68

(1) within two weeks before the date the tenant

took occupancy; or

(2) once within the preceding six months if

there has been more than one tenant during the preced-

ing six months. (Ord. Nos. 15198; 15372; 19234)

ARTICLE IV.

REPAIR, DEMOLITION, RECEIVERSHIP, VACATION,

RELOCATION, CLOSURE, AND CIVIL PENALTIES.

(Ord. 20470, title)

SEC. 27-13. URBAN NUISANCE; REPAIR, DEMOLI-

TION, RECEIVERSHIP, AND CIVIL PEN-

ALTIES; NOTICE.

(a) The director shall give notice of a hearing to

consider repair, demolition, or receivership of a structure,

or the assessment of a civil penalty against the owner, to

the owner or owners, lessor, and occupant of the struc-

ture, and any mortgagee or lienholder of record of the

real property concerned. A structure may be considered

for repair, demolition, receivership, or a civil penalty if

the structure is not maintained in compliance with one or

more of the minimum standards of Section 27-11, and the

structure is an urban nuisance. A structure for which

notice of a hearing to consider receivership has been

given may not be considered for any other action at that

hearing.

(b) A public hearing to consider repair, demolition,

or receivership of a structure, or the assessment of a civil

penalty against the owner, shall be before a hearing panel

of the board after notice has been given to the persons

—_.SLTLTeeeee eee

Resp. App. 69

designated in Subsection (a). If notice is by personal

service or by certified mail that was sent more than 15

days before the scheduled hearing and the record shows

that the notice was received by a person designated in

Subsection (a) less than five days before the hearing, the

person shall, upon request at the hearing, receive a reset-

ting of the hearing. Written notice of the rescheduled

hearing may be given to persons in attendance at that

time. If notice is by publication, the final publication

must be at least five days before the hearing. At the

hearing the director shall present evidence of the condi-

tion of a structure and an owner, lessor, occupant, mort-

gagee, and lienholder, as well as any interested person,

may present evidence on relevant issues.

each interested person present, may:

(1) find that the structure is not an urban nui-

sance and refer the matter to the director for further

appropriate action;

(2) grant a variance in order to avoid the impo-

sition of an unreasonable hardship;

(3) in the case of a single-family dwelling occu-

pied by the owner where the health, safety, and welfare

of other persons will not be affected, grant an exception

to any provision of this chapter to avoid the imposition of

an unreasonable hardship; or

(4) find that the structure is an urban nuisance

“and order;

Resp. App. 70

(A) demolition of the structure;

(B) repair or correction of the structure

within a specified period of time;

within a specified period of time and demolition of the

structure if the repair or correction is not timely effected;

(D) repair or correction of the structure by

the owner, mortgagee, or lienholder within a specified

period of time and repair or correction by the city if not

timely effected by the owner, mortgagee, or lienholder;

(E) repair, correction, or demolition of the

structure within a specified period of time and assess-

ment of a civil penalty against the owner for each day or

part of a day that the owner fails to repair, correct, or

demolish the structure; or

(F) an action to be brought in district court

in accordance with Section 214,003 of the Texas Local

Government Code for the appointment of a receiver of

the property.

(d) Demolition of a structure may be accomplished

by an owner, mortgagee, or lienholder as compliance

with this section or by the city. Repair of a structure may

be accomplished by an owner, mortgagee, or lienholder

as compliance with this section, or by the city but only to

the extent necessary to bring the structure into compli-

ance with minimum standards and only if the structure is

a residential structure with not more than 10 dwelling

units.

(e) The expense of repair or demolition of a struc-

ture, when performed under contract with the city or by

—————— rl ti‘ ‘CSS

Resp. App. 71

city forces, and any civil penalty assessed against the

owner, constitutes a nontransferable lien against the real

property on which the structure stands or stood, unless it

is a homestead as protected by the Texas Constitution,

and the lien runs with the land. The city’s lien attaches

when notice of the lien is recorded and indexed in the

office of the county clerk in the county in which the

property is located. The notice must contain the name

and address of the owner, if reasonably determinable, a

legal description of the real property, the amount of

expenses incurred by the city, and the balance due. The

city’s lien for demolition expenses is a privileged lien

subordinate only to tax liens and all previously recorded

bona fide mortgage liens attached to the property, if each

mortgagee and lienholder is given notice and an oppor-

tunity to repair or demolish the structure. The city’s lien

for repair expenses or civil penalties is inferior to any

previously recorded bona fide mortgage liens attached to

the property, if each mortgagee and lienholder is given

notice and an opportunity to repair or demolish the struc-

ture. The city’s lien for repair expenses or civil penalties

is inferior to any previously recorded bona fide mortgage

lien attached to the real property if the mortgage lien was

filed for record in the county clerk’s office of the county

in which the real property is located before the date the

civil penalty is assessed or the repair is begun by the city,

but is superior to all other previously recorded judgment

liens. A lien acquired by the city under this subsection for

repair expenses may not be foreclosed if the structure

upon which the repairs were made is the residential

homestead of a person 65 years of age or older and is

occupied by that person.

Resp. App. 72

(f) The city may use lawful means to collect, repair

and demolition costs and civil penalties from an owner.

Any civil penalty or other assessment imposed under this

section accrues interest at the rate of 10 percent a year

from the date of the assessment until paid in full. In any

judicial proceeding regarding enforcement of city rights

under this section, the prevailing party is entitled to

recover reasonable attorney’s fees from the nonprevailing

party.

(g) The director shall give notice of demolition,

repair by the city, or the assessment of a civil penalty, if

the director determines that the owner has not complied

with an order to repair issued under Subsection (c)(4)(C),

(D), or (E).

(h) The director shall give notice of an order issued

under Subsection (c)(4) and notice of demolition, repair

by the city, or the assessment of a civil penalty under

Subsection (g), at the time of issue, to each person desig-

nated in Subsection (a) and shall file each order under

Subsection (c)(4) in the deed records of Dallas County. If

an order to demolish or repair is timely effected, the

director shall, upon request and payment of the cost by

the owner, file a notice of compliance in the deed records

of Dallas County. :

(i) When an order issued under Subsection (c)(4)

has been filed in the deed records of Dallas County,

execution of the order is not affected by a sale or other

transfer of the premises. A person acquiring interest in

property after an order has been so filed is subject to the

requirements of the order. The provisions of this subsec-

tion shall be included as a part of each order.

Resp. App. 73

(j) Except for written notice of a rescheduled hear-

ing served to a person attending the original setti

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.