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AN ACT
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relating to the existence of a common nuisance on premises for which |
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certain alcoholic beverage permits or licenses are held or sought. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 3, Alcoholic Beverage Code, is amended by |
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adding Subtitle C to read as follows: |
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SUBTITLE C. PROVISIONS APPLICABLE TO PERMITS AND LICENSES |
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CHAPTER 81. COMMON NUISANCE |
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Sec. 81.001. DEFINITION. In this chapter, "common |
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nuisance" means a common nuisance as defined by Section 125.001, |
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Civil Practice and Remedies Code, or by Section 101.70(a) of this |
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code. |
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Sec. 81.002. APPLICABILITY OF CHAPTER. This chapter |
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applies only to a permit or license that authorizes the retail sale |
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or service of alcoholic beverages for on-premises consumption of |
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alcoholic beverages, other than a permit or license held with a food |
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and beverage certificate. |
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Sec. 81.003. SUBMISSION OF INFORMATION BY CERTAIN |
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OFFICIALS. For the purposes of Section 81.004 or 81.005, the |
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district or county attorney of the county or the city attorney of |
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the city in which the premises are located may provide information |
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to the commission, administrator, or county judge, as appropriate, |
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indicating that the holder of, or applicant for, a permit or license |
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covering the premises has used or can reasonably be expected to use |
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or allow others to use the premises in a manner that constitutes a |
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common nuisance. |
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Sec. 81.004. APPLICATION FOR ORIGINAL OR RENEWAL PERMIT OR |
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LICENSE. The commission, administrator, or county judge, as |
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applicable, may refuse to issue an original or renewal permit or |
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license, after notice and an opportunity for a hearing, if the |
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commission, administrator, or county judge finds that, at any time |
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during the 12 months preceding the permit or license application, a |
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common nuisance existed on the premises for which the permit or |
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license is sought, regardless of whether the acts constituting the |
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common nuisance were engaged in by the applicant or whether the |
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applicant controlled the premises at the time the common nuisance |
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existed. The commission, administrator, or county judge, as |
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applicable, may issue an original or renewal permit or license if, |
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at the hearing, it is found that the applicant did not control the |
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premises at the time the common nuisance existed and the applicant |
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has taken reasonable measures to abate the common nuisance. |
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Sec. 81.005. CANCELLATION OR SUSPENSION OF PERMIT OR |
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LICENSE. (a) The commission or administrator may suspend for not |
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more than 60 days or cancel a permit or license if the commission or |
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administrator finds, after notice and hearing, that the permit or |
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license holder used or allowed others to use the permitted or |
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licensed premises in a manner that constitutes a common nuisance. |
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(b) If the commission or administrator receives information |
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from an official under Section 81.003, the commission or |
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administrator shall consider the information and, if the commission |
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or administrator finds the information sufficient to indicate that |
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cancellation or suspension under Subsection (a) may be appropriate, |
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provide notice and hold a hearing under that subsection to |
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determine whether to suspend or cancel the permit or license. |
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(c) Notwithstanding Section 11.64, the commission or |
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administrator may not give a permit or license holder the |
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opportunity to pay a civil penalty rather than have the permit or |
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license suspended. |
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Sec. 81.006. ORDER IMPOSING ADDITIONAL CONDITIONS ON PERMIT |
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OR LICENSE HOLDER. (a) The commission, administrator, or county |
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judge, as applicable, may, after notice and hearing under Section |
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81.004 or 81.005, issue an order imposing any condition on a permit |
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or license holder that is reasonably necessary to abate a common |
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nuisance on the premises. |
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(b) The commission or administrator may suspend for not more |
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than 60 days or cancel the permit or license of a permit or license |
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holder who violates an order issued under this section. The |
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commission or administrator may offer the permit or license holder |
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the opportunity to pay a civil penalty rather than have the permit |
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or license suspended. |
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Sec. 81.007. TEMPORARY ORDER DURING PENDENCY OF PROCEEDING. |
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(a) Before holding a hearing and making a determination under |
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Section 81.004 or 81.005, the commission, administrator, or county |
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judge, as applicable, may, if there is evidence showing a |
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reasonable likelihood that a common nuisance exists on the premises |
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for which the permit or license is held or sought, issue an order |
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imposing any condition on the permit or license holder or the |
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applicant for the permit or license that is reasonably necessary to |
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abate a common nuisance on the premises. An order issued under this |
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section is effective until: |
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(1) the expiration of the time for appealing the |
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determination under Section 81.004 or 81.005; or |
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(2) if the determination is appealed, until all |
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appeals are finally decided. |
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(b) A hearings officer or county judge may issue an order |
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under this section on the hearings officer's or county judge's own |
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motion or the motion of a person listed in Section 81.003 or, for an |
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original or renewal permit or license application, any individual |
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entitled to protest the issuance of the original or renewal permit |
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or license. |
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(b-1) If an individual other than a person described in |
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Subsection (b) who is entitled to protest the issuance of the |
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original or renewal permit or license files a motion for a temporary |
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order under this section, the commission, administrator, or county |
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judge, as applicable, may not issue a temporary order without |
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conducting a hearing. |
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(c) The hearings officer or county judge may impose any |
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sanction on a person who violates an order issued under Subsection |
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(a) that is necessary to secure compliance with the order. |
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(d) A hearing under this section must be held not later than |
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the 10th day after the date notice is served on all interested |
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parties. Failure to hold a hearing in the time prescribed by this |
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subsection does not invalidate an order issued under this section. |
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(e) A person who requests an order under this section may |
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not be required to post security for costs in connection with the |
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application or any hearing conducted as a result of the |
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application. |
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SECTION 2. The change in law made by Chapter 81, Alcoholic |
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Beverage Code, as added by this Act, with respect to original or |
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renewal license applications, applies only to an application filed |
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on or after the effective date of this Act. An application filed |
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before the effective date of this Act is governed by the law in |
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effect immediately before the effective date of this Act, and that |
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law is continued in effect for that purpose. |
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SECTION 3. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2007. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 2605 was passed by the House on April |
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25, 2007, by the following vote: Yeas 143, Nays 0, 2 present, not |
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voting; and that the House concurred in Senate amendments to H.B. |
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No. 2605 on May 25, 2007, by the following vote: Yeas 136, Nays 0, |
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2 present, not voting; and that the House adopted H.C.R. No. 283 |
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authorizing certain corrections in H.B. No. 2605 on May 28, 2007, by |
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a non-record vote. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 2605 was passed by the Senate, with |
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amendments, on May 23, 2007, by the following vote: Yeas 27, Nays |
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4; and that the Senate adopted H.C.R. No. 283 authorizing certain |
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corrections in H.B. No. 2605 on May 28, 2007, by a viva-voce vote. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: __________________ |
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Date |
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__________________ |
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Governor |