HomeMy WebLinkAboutWeed Ordinance Review 1985NOTES BY:
FRANK A. REED
WEEDP RUBBISH & BRUSH ORDINANCE
8/27/85 I told Randy Stum
him to revise this ordinancecouncil wanted
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LAW OFFICES
STUMP BC STUMP
803 MAIN ST. P- 0• BOX 288 TELEPHONE:
GEORGETOWN, TEXAS 78827 (519) 863-5594
WILLIAM R. STUMP August 3, 1985
RANDALL Co. STUMP
Georgetown City Council
Attention: Frank Reed
City Hall
Georgetown, Texas 78626
RE: "Weed, rubbish and brush" ordinance review
Dear Councilpersons:
fficials, I have had an opportunity
Upon request of city o
to review Section 12-49 of oftyweeds, rubbish, Ce
he bbish,orotherrunnances,
which provides for the removal
sightly, objectionable or anmemorandumaattached hereto ureviewing
review , I have prepared
the law in this area, as well as my recommendations in connection
therewith.
ou will see that the primary emphasis
In my recommendations, y belief that
is upon revision of the existing ordinance. It n my stronger position
in exercising that option, that we could evermainarise incon
in whatever litigation, if any, that may
with this ordinance.
Otherwise, if you have any further questions iinthis
relarea,
to
please feel free to contact my father, Bill Stump,
whatever questions, if any,
that you may have; for as I have indi-
cated to you previously, I am taking off a couple of weeks for
vacation and will be out of town.
Sincerely,
Randy Stump
RCS/bt
Enc.
85-117
Up -date
Municipal
p, S.: Since this memorandum was written, we have received an up-
on this area of the law. ion,Effectiveu o $1.000.00,eptember ,in cases includ-
Court shall have jurisdiction, up lease note-
ing "vegetation"vi violations.
Fter dealing r fu that toprther icenclosed herewith.
the Session Law
Ch. 328 69th LEGISLATURE—REGULAR SESSION -
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1.., Section 38.07(a), Penal Code, is amended"to road
as follows$
(a) A person (arrested-ierT-ekar�ed-with7-er-eeRv:eled•ef-as
""Reel comm"s." offense if he escapes from custody when he is:
(1) under arrest for charged with or convicted of an
'offense• or
L1—in custody pursuant to a lawful order of a court,
!'SECTION ,3.,,,,This Act takes effect September 1, 1985.
.SE C'!I0N-3..-•; :The , importance of this legislation and the
crowdsd,,Condition of the calendars in both houses create an
emergency.- k.and, an - imperative public necessity that the
constitutional rule requiring bills to be read on three several
days in•.eacb.hquse be suspended, and this rule is hereby suspended.
-Passed'6 the' House on- May 8, 1985, by a non -record vote; passed by the Senate on May
*,, 1985: Yeas 31, Nays 0..
r Approved June 8, 1985.
', �'-1. - Y' ',� t -t : T
ffective Sept. I, 1985.
MUNICIPALITIES --VEGETATION AND LITTER
VIOLATIONS --PENALTIES
CHAPTER 329
H. B. No. 1070
AN ACT
relating to penalties for violation of municipal ordinances, rules,
and regulations governing vegetation and litter.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 1011, Revised Statutes, is amended44to
read as follows:
Art. 1011. POWERS. The City Council, or other governing
body shall have power to. pass, publish, amend or repeal all
13. V.T.C.A. Penal Code, 138.07(a).
Id. Vernon's Ann.Civ.St. art. 1011.
Additions in text indicated by underline; deletions by (st-r4kee4ts]
2550
V
69th LEGISLATURE—REGULAR SESSION Ch. 329
ordinances, rules and police regulations, not contrary•.to the
Constitution of this State, for the good government, peace and
order of the City and the trade and commerce thereofe--that may be
necessary or proper to carry into effect the powers vested by -this
title in the corporation, the city government or in.any department
or office thereof; to enforce the observance of, all such rules,
ordinances and police regulations, and to punish violations
thereof. No fine or penalty shall'exceed $1,000 for violations of,
all ,such rules, ordinances and police regulations that govern fire
safety,.zoning, or land) public health and sanitation, including
'dumping of refuse, (ether-than-vegetatlen-and-;titter-viekatiens)
nor exceed $200 foe all other violations. The provisions of this
Act apply to any•eity or town including a home rule or special law
city, however incorporated and notwithstanding any provision in its
charter to the contrary.
SECTION 2. Article 1195, Revised Statutes, is amendeditto
read as follows:.
Art. 1195. JURISDICTION. All .(A)- municipal courts,
including all municipal courts of. record, (eeurt) shall have
exclusive original jurisdiction within the territorial limits of
the city, town or village, in all criminal cases arising under the
ordinances of the city, town or village in which punishment is ,by
fine only and where the maximum of such fine does not exceed $1,000
in all cases arising under the ordinances of such city,,town or
village that govern fire safety, zoning, or land) public health and
sanitation, including dumping of refuse, lsli�se-than-ve4etal4�n-arsd
litter-vioiatlens) and where the maximum of such fine does not
exceed $200 in all other cases arising under the ordinances of such
city, town or village,. and shall also have concurrent jurisdiction
with any justice of the peace in any precinct in which the city,
town or village is situated in all criminal cases arising under the
criminal laws of this State, in which punishment is by fine only,
45. Vemon's Ann.Civ.SL arL 1195.
Additions in text indicated by underline; deletions by [s%PUu o:►ts]
Ch. 329 69th LEGISLATURE—REGULAR SESSION
and where. -the maximum of such fine may not exceed $200, and arising
within such territorial limits. .*A
SECTION 3. -Article 4.14, Code of Criminal Procedure, 1965,
is amended14to read as follows:
Art. 4.•14:• MUNICIPAL COURT. All (The) municipal courts.
including' all munici al courts of record (eeur!) in •each
incorporated= city, town or village of this state shall have
:rlminal%'.
xclusive original jurisdiction within the corporate limits In' all
cases lh'- which punishment ,is by fine only and where the
laaximum-bt..such fine dote not exceed $1,000 in all cases arising
unddr'the ordinances -of 'such city; -'town or village that govern fire
•afetY:.:zoaistgr 00 (andj •public health and sanitation, in_ el_ uding
duce nd of"refuse(etker-lkan-vetetatiex-ar:d-}l"er-v4e}4lfens) and
where, the -�ja&ximuat ;of such tine does - not exceed $200 in' all other
cases. arising under the ordinances of such city, town or village,
add `-,khalV� have concurrent' jurisdiction with any justice of the
peace in any precinct in which the city, town or village is
situated in'all criininal cases arising under the criminal laws of
this State, in` which, punishment is by fine only, and where the
maximum of such`•fine'may not exceed $200, and arising within such
borporati limits.
%'`• E" 'SECTION 4!7`
(a) The change in law made by this Act applies
oaiy'to'the'puhIshment for an offense committed on or after the
effeetivev"dater -of this Act. For purposes of this section, an
dffenss'is dommitted before the effective date of this Act if any
element 0f''th4f'cffense occurs before that date.
"(b) M. -"offense committed before'the effective date of this
11at'-ii" governed by the law in effect when the" offense was
c0mmittid;'; arid'"•the former law is continued in effect for this
purpose'.,.'."
"•SECTION -^S., This Act -takes effect September 1, 19sS.
'SECTION 6. The- importance of this legislation and the
crowded condition of the calendars in both houses create an
46. Vernon's Ann.C.C.P. art. 4.14.
47. Vernon's Ann.Civ.St. arts. 1011 note, 1195
note; Veriton's Ann.C.C.P. art. 4.14 note.
Additions in text indicated by Ynderline; deletions by (s.tfiaceej�"j
2552
69th LEGISLATURE—REGULAR SESSION, � Ch. 330,
emergency and an imperative public "..necessity that the
constitutional rule requiring bills to•be•read on three several
days in each house be suspended, and this rule'•is hereby suspended.,
Passed by the House on May 2, 1985, by a non -record vote; passed by the Senate on May
15,1985: Yeas 31, Nays 0.
Approved June 8, 1985.
Effective Sept. 1, 1985.
CRIMINAL PROCEDURE—LIMITATIONS—INDECENCY
WITH A CHILD
CHAPTER 330
H. B. No. 1199
AN ACT
relating to the period of limitation applicable to a prosecution
for indecency with a child.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION I. Article 12.01, Code of Criminal Procedure, 1965,
as amended by Section 1, Chapter 85, Acts of the 68th Legislature,,
Regular Session, 1983, and by Section 7, Chapter 977, Acts of the,
68th Legislature, Regular Session, 1983, is amended0 to read as
follows:
Art. 12.01. FELONIES. Except as provided in Article 12.03,
felony indictments may be presented within those limits, and not
afterward:
(1) no limitation: murder and manslaughter;
(2) ten years from the date of the commission of the
offense:
(A) theft of any estate, real, personal or mixed, by an
executor, administrator, guardian or trustee, with intent to
defraud any creditor, heir, legatee, ward, distributee, beneficiary
or settlor of a trust interested in such estate;
48. Vernon's Ann.C.C.P. art 12.01.
Additions in text indicated by underline; deletions by (st4keewt6)
2553
a
1 12 15 GE01t(;ET0%VN ('OI)f•;
of Article 4436, Revised Civil Statutes of Texas, which lien
shall be second only to tax liens and liens for street
improvements; and said amount shall bear ten (10) per cent
interest from the date said statement was filed. It is further
provided that for any such expenditures, and interest, as
aforesaid, suit may be instituted .and recovery and
foreclosure of said lien may be had in the name of the city;
and the statement of expenses so made, as aforesaid, or a
certified copy thereof, shall he prima facie proof of the
amount expended for such work or improvements. (Ord. of
5-10-75, § 7)
Sec. 12-51. Sweeping and cleaning sidewalks and
gutters abutting business houses; removal
of building debris.
(a) All occupants of business houses, their agents and
employees, within the fire limits of the city, shall on each
day (Sundays and legal holidays excepted) between the
hours of 5:30 p.m. and 8:30 a.m. the following day, sweep off
the sidewalk, and clean out the gutter immediately in front
of the premises, so occupied as aforesaid, and shall keep the
same clean.
(b) Each such occupant of a house or place of business
within the fire limits of the city shall keep a receptacle
within said premises of sufficient size to hold said
sweepings from the sidewalk and gutter, and each day,
place such sweeping therein, in such manner that the
sweepings may be conveniently gathered therefrorn and
hauled off by the city.
(c) Where buildings are being constructed or repaired in
the city, the contractors, builders, or persons in charge
thereof, shall have a reasonable time to remove the
accumulated material, trash and rubbish, after the com-
pletion of said building or repairs or after the persons in
charge thereof have ceased work thereon; provided, howev-
er, one week shall be deemed to be a reasonable time within
770
HEALTH AND SANITATION
the expense of the city, such expense shall he assessed on
the real estate or lots upon which such expense was
incurred. (Ord. of 5-10-76, §Vii)
State law references—Ahatement by municipality, V.A.C.S. art.
1175(19), 44:36; abatement by health idlicer, art. 4477-1, § 3(b).
Sec. 12-49. Same—CuttinK weeds; removal of rub-
bish.
Should any owner of anv 1()t allow weeds, rubbish, brush
or any other unsightly, obje (-t)onable or insanitary matter to
grow or accumulate thereon fall or refuse to cut down or
remove such weeds, rubbish, brush or other unsightly,
objectionable( or insanitary matter, as the case may be,
within ten (10) days after notice to said owner to do so, in
writing, or by letter addressed to such owner at his post
office address, or within ten (10) days after notice by
publication as many as two (2) times within ten (10)
consecutive days in any newspaper in the city"IPmay do such
cutting down and/or removing such weeds, rubbish, brush
or any other unsightly, objectionable or insanitary matter,
or cause the same to be done and may pay therefor, and
charge the expenses incurred in doing such work or having
such work done or improvements made to the owner cif such
lot or real estate; and, if such work is done or improvements
made at the expense of the city, such expense shall be
assessed on the real estate or lot upon which such expense
was incurred. (1954 Collected Ords., Ch. XIII, § 7(b), (d);
Ord. of 5-10-76, § 6)
Sec. 12-50. Same—Collection of expense.
The city manager and those designated by him shall file a
statement of such expenses incurred under section 12-48 or
under section 12-49, as the case may be, giving the amount
of such expenses, including related administrative and legal
costs, and the date on which said work was done or
improvements made, with the county clerk; and the city
shall have a privileged lien on such lots or real estate upon
which said work was done or improvements made to secure
the expenditures so made, in accordance with the provisions
769
4
PART II
CODE OF ORDINANCES
Chapter 1
GENERAL PROVISIONS
Sec. 1-1. How Code designated and cited; formal
parts of ordinances continued In effect.
.The ordinances embraced in this and the following
chapters and sections shall constitute and be designated
"The Code of Ordinances, City of Georgetown," and may be
so cited. Such Code may also be cited as "Georgetown
Code."
This Code shall not be deemed to repeal any preamble,
recital or finding of fact contained in any ordinance
included herein, but all such matters shall be deemed
incorporated in the sections herein derived from such
respective ordinances.
Charter reference—Authority to codify, 12.12.
State law reference—Authority to publish a code of civil and criminal
ordinances, V.A.C.S., art. 1176a.
Sec. 1-2. Catchlines of sections.
The catchlines of the several sections of this Code printed
in boldface type are intended as mere catchwords to indicate
the contents of the section and shall not be deemed or taken
to be titles of such sections, nor as any part of the section,
nor, unless expressly so provided, shall they be so deemed
when any of such sections, including the catchlines, are
amended or reenacted.
Sec. 1-8. Severability of parts of Code.
It is hereby declared to be the intention of the city council
that the sections, paragraphs, sentences, clauses and
Phrases of this Code are severable, and if any phrase,
clause, sentence, paragraph or section in this Code shall be
declared unconstitutional by the valid judgment or decree of
91 '"
r
S 1-3 GEORGETOWN CODE
any court of competent jurisdiction, such unconstitutionality
shall not affect any of the remaining phrases, clauses,
sentences, paragraphs and sections of this Code, since the
same would have been enacted by the city council without
the incorporation in this Code of any such unconstitutional
phrase, clause, sentence, paragraph or section.
Sec. 1-4. Supplementation of Code.
(a) By contract or by city personnel, supplements to this
Code shall be prepared and printedhent tortauthorized or
Code shall
directed by the city council. A suppl
include all substantive permanent and general parts of
ordinances passed by the city council or adopted by
initiative and referendum during the period covered by the
supplement and all changes made thereby in the Code, and
shall also include all amendments
numbered
ing the
that
period. The pages of a supplement shall be so
that they will fit properly into the Code and will, where
necessary, replace pages which have become obsolete or
partially obsolete, and the new pages shall be so prepared
that, when they have been inserted, the Code will be current
through the date of the adoption of the latest ordinance
included in the supplement.
(b) In preparing a supplement to this Code, all portions of
the Code which have been repealed shall be excluded from
the Code by the omission thereof from reprinted pages.
(c) When preparing a supplement to this Code, the codifier
(meaning the person, agency or organization authorized to
prepare the supplement) may make formal, nonsubstantive
changes in ordinances and parts of ordinances included in
the supplement, insofar as it is necessary to do so to embody
them into a unified code. For example, the codifier may:
(1) Organize the ordinance material into appropriate
subdivisions;
(2) Provide appropriate catchlines, headings and titles for
sections and
subdivisions
ted in
lement, and make changes indsuchde n
the supplement, catch-
lines,
tchlines, headings and titles;
92
FS
GENERAL PROVISIONS
(3) Assign appropriate numbers to sections and other
subdivisions to be inserted in the Code and, where
necessary to accommodate new material, change
existing section or other subdivision numbers;
(4) Change the words "this ordinance" of words of the
same meaning to "this chapter," "this article," "this
division," etc., as the case may be, or to "sections
to " (inserting section numbers to indicate the
sections of the Code which embody the substantive
sections of the ordinance incorporated into the Code);
and
(5) Make other nonsubstantive changes necessary to
preserve the original meaning of ordinance sections
inserted into the Code; but, in no case, shall the
codifier make any change in the meaning or effect of
ordinance material included in the supplement or
already embodied in the Code.
Sec. 1-5. Rules of construction.
In the construction of this Code, and of all ordinances and
resolutions passed by the city council, the following rules
contained in this section shall be observed, unless such
construction would be inconsistent with the manifest intent
of the council:
City. The words "city," "the city" or "this city" shall
mean the City of Georgetown, in Williamson County, Texas.
City secretary, chief of police or other -city officers or
departments. The words "city secretary," "chief of police" or
words designating any other city officers or departments
shall be construed to mean the city secretary, chief of police
or such other municipal officers or departments, respective-
ly, of the City of Georgetown, Texas.
Code. The words "the Code" or "this Code" shall mean
"The Code of Ordinances, City of Georgetown, Texas."
Computation of time. Whenever a notice is required to be
given or an act to be done a certain length of time before
any proceeding or step in a proceeding shall be had, the day
93
11-6 GEORGETOWN CODE
on which such notice is given, or such act is done, shall be
counted in computing the time, but the day on which such
proceeding to step in a proceeding is to be had shall not be
counted; except as otherwise expressly provided in this
Code.
Council, governing body. The words "the council," "the
city council" or "the governing body" shall mean the city
council of Georgetown, Texas.
County. The word _ "county" shall mean Williamson
County, Texas.
Gender. A word importing the masculine gender only
shall extend and be applied to females and to firms,
partnerships and corporations as well as to males.
Highway. The term "highway" shall include any street,
alley, highway, avenue, public place or square, bridge,
viaduct, tunnel, underpass, overpass and causeway in the
city, dedicated or devoted to public use.
Month. The word "month" shall mean a calendar month,
except as otherwise specified in this Code.
Number. Any word importing the singular number shall
include the plural and any word importing the plural
number shall include the singular.
Oath. The word "oath" shall be construed to include an
affirmation in all cases in which by law an affirmation may
be substituted for an oath, and in such cases the words
"swear" and "sworn" shall be equivalent to the words
"affirm" and "affirmed."
Official time standard. Whenever certain hours are named
in this Code, they shall mean Standard Time or Daylight
Saving Time, as may be in current use in the city.
Owner. The word "owner," applied to a building or land,
shall include any part owner, joint owner, tenant in
common, tenant in partnership, joint tenant or tenant by
the entirety, of the whole or of a part of such building or
land, except as otherwise defined in this Code.
94
GENERAL PROVISIONS ; 1•ti
Person. The word "person" shall extend and be applied to
associations, corporations, firms, partnerships and bodies
Politic and corporate as well as to individuals.
Personal properly, The words "personal property" include
every species of property, except real property, at defined in
this section.
Preceding, following. The words " pteceding" and "follow-
ing" mean next before and next after, respectively.
Property. The word "property" includes real and personal
property, and "mixed" if the sense used so indicates.
Real property. The words "real property" include land,
tenements and hereditaments.
Roadway. The word "roadway" shall mean that portion of
a street improved, designed or ordinarily used for vehicular
traffic and that portion of a street used for drainage.
Sidewalk. The word "sidewalk" shall mean an
portion
the street between the curb or the lateral line of her adway
and the adjacent property line, all or a part of which Is
intended for the use of pedestrians.
Sidewalkarea. The sidewalk area is the space between the
lateral line of the roadway and the boundary separating the
public right-of-way and the -adjacent private property.
Signature or subscription. The word "signature or
"subscription" shall include a mark when a person cannot
write.
State. The words "the state" or "this state" shall mean the
State of Texas.
Street. The term "street" shall include any highway,
alley, street, avenue, public place or square, bridge, viaduct,
culvert, underpass, overpass, tunnel, causeway or other
public way in the city, dedicated or devoted to public use.
Time. Words used in the past or present tense, include the
future as well as the past and present.
V.A.C.S., V.A.T.S., V.A.P.C., V.A.C.C.P. Such abbrevia-
tions shall mean and include Vernon's Annotated Civil
95
11-5 GEORGETOWN CODE
.t
Statutes, Vernon's Annotated Texas Statutes,
Vernon's
Annotated Penal Code, Vernon's Annotated Code of
Criminal Procedure and other portions of such codification
of the Texas statutes as indicated. The abbreviation
"R.C.S." shall refer to the Revised Civil Statutes of Texas of
1925, as amended.
Written or in writing. The words "written" or "in writing"
shall be construed to include any representation, other
or
oral, of words, letters or figures, whether by printing
otherwise.
Year. The word "year" shall mean a calendar year, except
as otherwise provided in this Code.
Sec. 1-6. General penalty; continuing violations.
Whenever in this Code or in any ordinance of the city an
act is prohibited or is made or declared to be unlawful or an
offense or a misdemeanor, or wherever in such Code or
ordinance the doing of any act is required or the failure to
do any act is declared to be unlawful, where no sp Such
ific
penalty is provided therefor, thelation of any ordinance shall be
provision of this Code or any such
punished by a fine of not exceeding two hundred dollars
($200,00); provided, however, that where the offense is one
for which a penalty is fixed by state law, the penalty for
such offense shall be the same as fixed by state law.
Each day any violation of this Code or other ordinance of
the city shall continue shall constitute a separate offense
unless otherwise provided. 5
Charter reference—Jurisdiction of municipal court, 1 S
Cross references—Penalty for violation of airport zoning regulations,
4-81; as to criminal procedure, see Ch. 9.
state law references—Maximum fine, V.A.C.S. art. loll; authority
io o
prescribe penalties, art. 1176a; municipal court criminal j
V.A.C.S. Ort. 1195, V.A.C.C.P. arts. 4.01, 4.14.
Sec. 1-7. Liability of corporate officers for penalty.
Whenever a corporation or association violates any
provision of this Code or other ordinance of the city, the
96
14
GENERAL PROVISIONS # 1.9
president, vice-president, secretary,' treasurer, manager or
any agent or employee of such corporation or association
shall be severally liable for the penalty prescribed for such
violation.
Sec. 1-8. Use in evidence of copies of Code provi-
sions.
In any prosecution for a violation of any provision of this
Code, a copy of such provision, certified by the city
secretary, may be admitted in evidence without further proof
and shall be prima facie evidence of the existence and
regular enactment of such provision, without the necessity
of introducing in evidence the entire Code.
Sec. 1-9. Burden of providing exception; excuse, etc.,
in prosecution for violation of Code.
In any prosecution for a violation of any provision of this
Code, upon proof of the provision of the Code, it shall not be
necessary to negative any exception, excuse, proviso or
exemption contained in the Code and the burden of proof of
any such exception, excuse, proviso or exemption shall be
upon the defendant.
t�
TO: Georgetown City Council
FROM: Randall C. Sturm
DATE: July 26, 1985
RE: 85-3, "Weed, rubbish and brush" removal by City upon landowner refusal
MEMORANDUM
NATURE OF THE CASE: At issue is section 12-49 of the City of Georgetown Code of
ordinances which provides for the removal of "weeds, rubbish, or other
unsightly,
robjectionable
landownerrfailsunsanitary
cutmdownror. removethe
such weeds and the
landowner's
and rubbishexpense where
upon notice.
of
etown
FACTS: The ordinance entitled "n question,
Weeds; removal f 12-49 of erubbish," eprovidesCthe
of Ordinances,
following:
Should any owner of any lot allow weeds, rubbish, brush or any other
unsightly, objectionable or unsanitary matter to grow or accumulate
thereon fail or refuse to cut down or remove such weeds, rubbish,
brush or other unsightly, objectionable or unsanitary matter, as the
case may be, within ten (10) days after notice to said owner to do so,
in writing, or by letter addressed to such owner at his post office
address, or within ten (10) days after notice by publication as many
as two (2) times within ten (10) consecutive days in any newspaper in
the city*, may do such cutting down and/or removing such weeds,
rubbish, brush or any other unsightly, objectionable or unsanitary
matter, or cause the same to be done and may pay therefor, and charge
the expenses incurred in doing such work or having such work done or
improvements made to the owner of such lot or real estate; and, if
such work is done or improvements made at the expense of the city,
such expense shall be assessed on the real estate or lot upon which
such expense was incurred. (1954 Collected Ords., Ch. XIII,
(d); Ord. of 5-10-76 § 6).
This ordinance was enacted pursuant to Tex. Rev. Civ. Stat. Ann. art.
4436, which by its terms, is intended:
"to require the owner of any lot or lots within such city, town, or
village to keep the same free from weeds, rubbish, brush, and any
other objectionable, unsightly, or unsanitary matter of whatever
nature, and if such owner fails or refuses to do so, within ten (10)
days of ter notice in writing, or by letter addressed to such owner at
his post office address, or by publication as many as two (2) times
within ten (10) consecutive days, if personal service may not be had
as aforesaid, or the owner's address be not known, such city, town, or
village may dosuch work or may cause the same to be done and may pay
therefor and charge the expenses incurred in doing or having such work
done or improvements made, to the owner of such property as herein
provided;
rdinancepunish
assed,owner
aforesaid;occupant
" 6 Article 443(Texthe • Rev .Civ.
ions
of any o P
Stat. Ann., 1965).
LEGAL ISSUES: (1) Is the ordinance valid?
(2) How is it enforced?
(3) May the City be held liable for failure to enforce it?
DISCUSSION:
(1) IS THE ORDINANCE VALID?
A question of validity is raised from the face of the ordinance
itself, because a part of the statutorily mandated language relating to
notice has been omitted. By its terms, the ordinance appears to require
that the property owner be served with notice either personally, by mail,
or by constructive notice via newspaper. The statute, on the other hand,
contains the following wording after the part pertaining to constructive
notice in the newspaper:
"if personal service may not be had as aforesaid, or the owner's
address be not known..." (An asterick * was placed in the ordinance where
this should have appeared). The words "said city" should be also added
after the words "be not known" above.
Thus, the ordinance appears to allow publication of notice as an
alternative to the other forms of notice provided therein. The next
question to be decided concerns the effect of this omission on the validity
of the ordinance.
In determining the validity of the ordinance, the primary
consideration is the proper standard to be applied in construing the
ordinance: liberal or conservative? The law in this regard is not really
clear. Ordinarily, City action as to health and safety matters are
liberally construed. Howeverwhere a penal ordinance is involved
criminal or quasi -criminal sanctions) strict construction is imposed. (iThe
ordinance in question would probably be considered a quasi -penal statute,
"where the ordinance imposes restrictions on the use of private property..."
62 C.J.S. "Municipal Corporations," §442, P. 852.
" Under the strict construction standard the language of the ordinance
...will not be extended to include limitations not clearly prescribed in
the ordinance...and all doubts (will be) resolved against the property
owner." 62 C.J.S. "Municipal Corporations," §442, P. 852. The omission of
the statutory language would not be "implied" or extended to limit the
ordinance if it was not expressly contained therein. In other words, if
the ordinance is to be strictly construed, at least part of it will
probably be held invalid and the landowner will escape liability
altogether.
A second question of validity is also raised from the face of the
statute upon which the ordinance is based, as well as the ordinance itself.
That question deals with the right, under both the federal constitution as
well as the constitution of the State of Texas, of parties whose liberty or
property rights are affected by governmental action to notice and an
opportunity to be heard at a meaningful time and in a meaningful manner.
Matthews v. Eldridge, 96 SCI: 893, 901-902 (1976). It is necessary that
property or erty interests within the meaning of this "due process
clause be involved before the notice and hearing rights are created.
However, it has been held that whether "property" has little or great
value, it is still constitutionally protected property. Price v. City of
Junction unpublished opinion (5th Circuit, 1983) In that case, It was fieTU
tea —an ordinance dealing with the destruction of junk cars clearly was
property interest within the contemplation of the "due process clause." It
would therefore follow, that what one person considers "weeds and rubbish"
could be a botanical garden to a botanist. That case further indicated
that where such property is taken, there is a right to notice and hearing
before governmental action is to be taken under the statute.
there also exists some major constitutional Therefore,
g
Article 4436, as well as the ordinance passed pursuant theretohe validity of
CONCLUSION AND RECOMMENDATION:
These problems can be avoided if the ordinance is revised to include
the omitted phrase as set out in art. 4436. In any event, the burden of
showing the invalidity of the ordinance is on the property owners; City of
Weslaco v. Melton 308 S.W.2d 18 (Tex. 1957). Since the fines and expenses
17
are usually nominal, in cases of this type, the ordinance may never be
challenged.
If the ordinance is revised, to meet the notice and f air hearing
standards mandated by our federal and state constitutions, it would also be
a good opportunity to provide in the newly revised ordinance the right of
the property owner to a hearing before the imposition of the city action
against the property. In the Price case, the 5th Circuit Court of Appeals
) day notice provision, with the property owners right to
upheld a ten (10
request for a hearing to be held before the city council or an official of
the c n y ld further strengthen dstre co
itsc
ordinancas e valid tyi s i on i n our
e cou
Alternatively, the ordinance could further be worded to include not
only a civil, but a criminal remedy as well for the violating property
owner. In that respect, the criminal violations would appear through the
municipal court with the due process standards recommended above. This
should altow eCodemofi0 dinances,n sectionconduct
1 6,arelatingoffense uto criminar the l
of by George
violations.
(2) HOW IS THE ORDINANCE ENFORCED?
The enforcement procedure under the statute is clear to a point.
First, the landowner must receive notice of city request that the "weeds or
rubbish" be cut or removed. Written notice that has been hand -delivered,
to the property owner is given first preference in art.
4436 If that
cannot be accomplished, then notice by mail is preferred. It should be
noted that the statute refers to mailing addressed to the owner's post
office address. Under a strict construction, notice elsewhere could
potentially be invalid. Thus, it appears that the hand -delivered personal
service,
if at all possible, is most likely to be upheld. If notice must
be requested"
provide should
reco d mailed
the"certified
attemptsmail,
"service"receipt
the
requeste
landowner.
If neither personal service nor mailing is possible, then publication
of notice is the last resort. It should be noted that the omitted part of
art. 4436 not found in our ordinance provides that publication of notice is
possible, "...if personalservice may not be had as aforesaid, or the
owners address a no n 11 o 11 wn,... he statute does not indicate that upon
the 1 an owner I s reT usa I to accept the certified letter, that the City may
publish notice in the newspaper and therefore satisfy the notice
requirement. It would appear that merely sending the letter may satisfy
the requirement, in so far as it is clear that the landowner lives or
receives mail at that address, and he choose to ignore the City's request.
However, for purposes of enforcement, personal service is always preferred.
Further, if there is a question as to serving a tenant or landlord, serve
both.
Publication of notice in a City newspaper, is available only as a last
resort, where the landowner cannot be personally served, and the owner's
address is not known. Because the validity of the Georgetown "weed and
rubbish ordinance, as indicated above, is questionable, it should be
employed only where the City may potentially be held liable if the
situation is not rectified until the ordinance is revised.
Upon the landowner's receipt of notice, the statute and ordinance
provides that the City is then authorized to cut down and remove the "weeds
and rubbish" from the property. Article 4436 provides the power to punish
violators of this provision. As previously indicated, section 1-6 of the
Georgetown Code of Ordinances provides, in part "whenever in this Code or
in any ordinance of the City an act is prohibited or is made or declared to
be an unlawf u or an offense or a misdemeanor, or whenever in such Code or
ordinance the doing of any act is required or the failure to do any act is
declared to be unlawful,...". Although an argument can be made that the
enforce
ed an
City hand canower tbecclea lyyexpre expressed it shouldrevised ordinance. But the
1$
fact remains, that under a properly drafted ordinance, that the city may
not only charge all expenses incurred in bringing the land in compliance
with the ordinance, but also it may fine the landowner according to the
"punishment" provision of the statute.
The rest of the ordinance deals with the City's right to perfect a
lien on the landowners property, which, out of interest, is superior to a
prior bank loan on the property. Such lien would be inferior only as to
tax and street improvement liens.
CONCLUSION AND RECOMMENDATION:
As to notice, the City should attempt personal service of written
notice, if at all possible. The notice should also be delivered to both
tenants and landowners. If personal service is not possible, then a
certified letter, return receipt requested, can be sent to the landowner's
Post office address. One can also send a separate letter with the certified
letter to determine if the landowner is receiving mail at all. If the
certified letter is returned, but the regular letter isn't (and contains a
return address) then the City is provided some evidence of receipt. In
addition, always put ADDRESS CORRECTION REQUESTED on all envelopes so that
the post office will forward the notice to any new address that may be in
their files.
As a last resort, publication is possible, but not advisable until the
ordinance is amended to include the omitted language. Further, since the
language of the ordinance does not clearly set out the criminal aspects of
the act or omissions provided therein, the criminal part of the ordinance
should not be enforced until properly revised.
(3) IS THERE CITY LIABILITY FOR FAILURE TO ENFORCE IT?
Where a city -maintained right-of-way was involved, a city has been
held liable where it was put on notice as to the visible obstruction of a
right-of-way at a city intersection caused by vegetation, trees and brush.
In that case, Jezek v. Cit of Midland 605 S.W.2d 544 (Tex. 1980), the
Texas Supreme our e i an a le for damages resulting from an
automobile collision occurring at an intersection where the right-of-ways
were overgrown with mesquite trees and brush. The car entering the
intersection had to pull out half its length into the intersection in order
to determine whether it was safe to proceed. Although the City had been
informed of the hazardous situation, it had done nothing to rectify it.
The court recognized the "close proximity rule", which provides "that the
city has a duty to maintain the streets; and the duty is not limited to the
traveled portion of the street alone, but extends to the prevention of
defects outside the traveled or improved portion of the street if the
proximity thereto renders it probable that such defect will result in
injury using the improved portion of the street." Jezek v. City of Midland,
Supra., P. 547; —
It should be noted, however, that the Jezek case dealt with vegetation
growing in the unimproved portion of the roadway. The court specifically
held that "this duty does not extend to obstructions located on ad oinin
rivate ro e�. Thus, the rule of Jezek applied where the rig -o -way
s n t e city s control. Maintenance of roads is considered a proprietary
function, and it is therefore not limited by the notice requirements of the
Texas Tort Claims act.
The exception to liability for failure to maintain the adjoining
private property has been eroded. Lorig v. City of Mission 629 S.W.2d 699
(Tex. 1982). In Lorig, the City was sue y a r ver who ailed to stop at
a stop sign, which was allegedly obstructed by trees and branches. The
court held that "maintenance" of a traffic control sign, is a governmental
function and therefore subject to Texas Tort Claims Act, Article 6252-19
Section 14(12), which provides the following:
Any claim arising from the absence, condition, (emphasis added) or
malfunction of any traffic or road sign, signal, or warning device
unless such absence, condition, or malfunction shall not be corrected
0
by the governmental unit responsible within a reasonable time after
notice, or any claim arising from the removal or destruction of such
signs, signals or devices by third parties except on failure of the
unit of government to correct the same within such reasonable time,
after actual notice. Nothing herein shall give rise to liability
arising from the failure of any unit of government to initially place
any of the above signs, signals, or devices when such failure is the
result of discretionary actions of said governmental unit. The signs,
signals and warning devices enumerated above are those used in
connection with hazards normally connected with the use of the
roadway, and this section shall not apply to the duty to warn of
special defects such as excavations or roadway obstructions.
The Texas Supreme Court in Lori held that obstruction from view of a
stop sign by trees or branches is a condition" of that sign within the
It
meaning of the Section cited above in the Texas Tort Claims Act.
follows that a city has received prior notice of such an obstruction within
a reasonable time, it may conceivably be liable under the Texas Tort Claims
Act provided the City has proper notice of the claimants injury," Lorig_ v.
City of Mission, 629 S.W.2d at 707.
The erosion of the adjoining private property exception can also be
seen in a more recent decision, Kenneall V. Thurn 653 S.W.2d 69 (Tex. Civ.
App San Antonio, 1983, writ re n.r.e. n Kenneall , the injured party
sued the City of San Antonio on the basis that the City was negligent in
ermittin a stop sign to be obstructed by crepe myrtle bushes, that were
located on private property but within the City's easement. (i.e.
unimproved portion of the City's street easement). Although the case was
reversed for new trial on procedural grounds, the Court of Appeals held
that there was sufficient evidence to raise a question of fact as to
whether the "condition" had existed for such a length of time that the
City, in the exercise of reasonable diligence, should have discovered it.
One neighbor has testified that the bushes had been there as long as she
could remember. There was also evidence in that case that "various police
officers of the City, while on routine patrol, drive through the
intersection several times a month." fen�neall v. Thurn, 653 S.W.2d at 72The rula of Kenneall is two fold: f rsa ty can be and was
held liable fo�truction of the stop sign; second, that if thecity
such
can
be held "on notice" of obstruction by police officers driving by,
officers should be asked to report any obstructions on their regular
routes.
CONCLUSION:
In summary, if the obstruction is within a city maintained
right-of-way, the City is potentially liable for negligent failure to
maintain it free from visual obstructions. Further, since this is
considered a propriety function, the City does not have the protection of
the Texas Tort Claims Act. If the obstruction extends to City signs,
however, the City still may be potentially liable if the injured party
complies with the notice requirements of the Texas Tort Claims Act. Thus,
it appears the City can potentially be held liable in either event.
-20
WILLIAM R. STUMP
RANDALL O. STUMP
LAW OFFICES
STUMP & STUMP
803 MAIN ST. p. O. BOX 286
GEORGETOWN, TEXAS 78927
August 3, 1985
Georgetown City Council
Attention: Frank Reed
City Hall
Georgetown, Texas 78626
RE: "Weed, rubbish and brush".ordinance review
Dear Councilpersons:
Upon request of cit
to review Sectioy officials, I have had an opportunity
n 12-49 of the City of Georgetown Code of Ordinances
which provides 'for the removal of "weeds, rubbish, or other un-
sightly, objectionable or unsanitary matters."
Based review , I have prepared a memorandum attached heretoureviewin
the law in this area, as well as my recommendations in connection
therewith.
In my recommendations, you will see that the primary emphasis
is upon revision of the existing ordinance.
it ielief that
in exercising that option, that we could maintainsamstronger Position
in whatever litigation, if any, that may ever arise in connection
With this ordinance.
Otherwise, if you have any further questions in this area,
please feel free to contact my father, Bill Stump, in relation to
whatever questions, if any, that you may have; for as I have indi-
cated to you previously, I am taking off a couple of weeks for
vacation and will be out of town.
TPLP1111A1vRi
p5le) 803-5504
Sincerely,
Randy Stump
RCS/bt
Enc.
85-117
P- S.: Since this memorandum was written, we have received an up -date
on this area of the law. Effective September 1, 1985, Municipal
Court shall have jurisdiction, up to $1.000.00, in cases includ-
ing "vegetation" violations. For further reference, note
the Session Law Chapter dealing with that topic enclosPedlease
Ch. 328 69th LEGISLATURE --REGULAR SESS10N -
BE IT ENACTED By THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 38.07(a), Penal Code, is amended3to read
as follows$
(a) A person (arrest ed-ferT-el+aryed-with--er-eeRvieted-s,-aa
hen he is:
*,tense) commits".'an offense it he escapes from custody
w
1 under arrest for charged with _or convicted of an
of tense; or court.
2 in custod ursuant to a lawful order of a
act September 1, 1985.
SECTION 3. This Act takes Oft
of this legislation and the
SECXION"3• :The importance
erowded�,eoadition of the calendars in both houses create an
"
that ths�'
emergency.,*.' ..end ,an-_ imperative public necessity
g bills to be reed on three several -
constitutional rule requirin
days in�,eacb:h9
use be suspended, and this rule is hereby suspended.
•-passed"liy the House on•May $, 1985, by anon -record vote; passed by the Senate on May
:; Yeas 31, Nays 0.
26 1985
Approved June 8, 1985.
. , ti,". ,," . j•
ffective Septi 1 198.
MUNICIPALITIES—VEGETATION
g LLITTER
VIOLATION
CHAPTER 329
H. B. No. 1070 sanitatio,'
AN ACT
relating -to penalties for violation of municipal ordinances, rules,
and regulations governing vegetation and litter.
LEGISLATURE OF THE SPATE OF TEXAS:
' BE IT ENACTED BY THE is amended44to
SECTION 1. Article 1011, Revised Statutes,
read as follows t
Art. 1011. •POyfERS. The City Council, or other governing
amend or repeal all
body shall have power to. Paas, publish,
43. V.T.C.A. Penal Code, 138•01(a)•
44. Vernon's Ann -Civ -St- art. 1011. n rlin nS; , deletions by [sitikeA�►4s[
Additions in text indicated by u de—
2550
21
69th LEGISLATURE -.—REGULAR SESSION Ch. 329
ordinances, rules and olice
P regulations, not contrary•..to the
Constitution of this State, for the good government, peace and
order of the City and the trade and commerce thereofr.•that may be
necessary or proper to carry into effect the powers -vested by` this
title in the corporation, the city government or in:any department
or office thereof; to'enforce-the observance Of- all•,Guch rules,
ordinances and police regulations and to
� Punish violations
thereof. No tine or
Penalty shall'axceed x1,000 for violations of
all such rules, ordinances and police requltions that govern fire -
land)
safety,•soninq. or [arid
1 public health and sanitation,
•dumein4 of includin
refuse {ether-thaw-ve�etatlex-and-�lttee-vis�at_iens).
nor exceed $200 far all other violations.
The provisions of this
Act a 1 to an ,citF or town,includin a home rule or s ecia
City, however intorporktad and notwithstanding an rovision in its
charter to the contrar
RECTION 2. Article 1195, Revised Statutes, is amended�sto
read as followa:;,
Art. 1195.': `tURISDICTION.
A--11 JAI- . ,municipal courts
includin all munici al courts of record (esxrt) shall have
exclusive original
Jurisdiction within the territorial limits of
the city, town or village, in all criminal cases arising under the
%ordinances of the city, .town or village in which g punishment is .
fine only and where the maximum of by such fine does not exceed =1,000
In all cases arising under the ordinances of such city,,to or
Village that govern fire safety, zoning, --sr (and) public health and
sanitation includin dum
in of refuse (ether-th&K-reletatjen-and
i}ltter""14tfene) and where the maximum of such "fin* does not
exceed.S200 in all other cases arising under the ordinances of such
city, .town or village,. and shall also have concurrent
Jurisdiction
with any justice of the peace in any precinct in which the city,
town or village is situated in all criminal cases arising under the
criminal laws of this State, in which punishment is by tine only,
IS. Vernon's Anntiv.St. art, 1195.
Additions in text indicated by n
• u d-. e�lim; deletions by [stciyceoutaI
2551
oR f
Ch. 329 69th LEG ISLATURE-i-REGULAIt SESSION
and where•,the maximum of such fine may not exceeck $200, and arising
within such territorial limits.
SECTION 3. Article 4.14, Code of Crimiihal Procedure, 1965,
Is amendedO`to read as follows:
Art. 4.14: MUNICIPAL COURT. All (The) .municipal courts,
including all municipal courts of record (esurt) in each
incorporated• city, town or village of this State shall have
exclusive original jurisdiction within the corporate limits in all
criminal cases in which punishment -is by fineonlyand where the
maximum- of .such fine does riot exceed $1,000 in all cases arising
undir'xhe ordinances *of such city,"town or village -that govern fire__
safety; 4;.soning.' Or (and) public health and sanitation, including
dumpin4,of"•r6fuse [ether-than-vegatatlert- and- hitter-vtelatione) and
where th4Jft&ximum•,0f such fine does not exceed $200 in all other
cases. arising under the ordinances of such city, town or village,
arid`,bhaIIJ have concurrent jurisdiction with any justice of the
peace in any precinct in which the city, town or village is
situated in'all criminal cases arising under the criminal laws of
thii State, in which, punishment is by fine only, and where the
maximum of such"•fine.may not exceed $200, and arising within such
torporati limits. ' '
%:`'- ; SECTION 4.47' (a) The change in law made by this Act applies
only to'the punishment for an offense committed on or after the
effective,'date• of this Act. For purposes of this section, an
dffense'le dommitted before the effective date of this Act if any
element oV'the •offense occurs before that date.
f (b) Ari="offense committed before the effective date of this
Aet'-ii gdveified 'by the law in effect when the offense was
comiiittiA,`izW-the former law is continued in effect for this
purpose:
-.SECTION'S., This Act takes effect September 1, 1985.
SECTION 6. The- importance of this legislation and the
crowded condition of the calendars in both houses create an
46. Vernon's Ann.C.C.P. art. 4.14.
47. Vernon's Ann.Civ.St. pits. 1011 note, 1195
note; Vernon's Ann.C.C.P. art. 4.14 note.
Additions in text indicated by underline; deletions by (stsvkeoats)
2552
691.11 LE('xISLATURE—Itr:(;ULAlt SESSION 1111. 33tJ
emergency and an imperative public necessity that the
constitutional rule 'requiring bills to be -read on three several
days in each house be suspended, and this rule -is hereby suspended.
Passed by the House on May 2, 1985, by a non -record vote; passed by the Senate on May
15,1985: Yeas 31, Nays 0.
Approved June 8, 1985.
Effective Sept. 1, 1985.
CRIMINAL PROCEDURE—LIMITATIONS—INDECENCY
WITH A CHILD
CHAPTER 330
H. B. No. 1149
AN ACT
relating to the period of limitation applicable to a prosecution
for indecency with A child.
B8 IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Article 12.01, Cods of Criminal Procedure, 1965,
as amended by Section 1, Chapter 85, Acts of the 68th Legislature,,
Regular Session, 1983, and by Section 7, Chapter 977, Acts of the
68th Legislature, Regular Session, 1983, is amended" to read as
follows:
Art. 12.01. FELONIES. Except as provided in Article 12.03,
felony indictments may be presented within these limits, and not
afterward:
(1) no limitation: murder and manslaughter;
(2) ten year* from the date of the commission of the
offense:
(A) theft of any estate, real, personal or mixed,* by an
executor, administrator, guardian or trustee, with intent to
defraud any creditor, heir, legatee, ward, distributee, beneficiary
or settlor of a trust interested in such estate;
Irl. Vernon's Ann.C.C.P. art. 12.01.
Additions in text indicated by YM9Srlins; deletions by [sterkeeuuta)
2553
HEALTH ANI► tiANITA'I'I()N > 112 t.o
the expense of the city, such expense shall he assessed tin
the real estate or lots upon which such expense was
incurred. (()rd. of .5-10-716, § Vii)
State law references—Ahaternerit by municipality, V.A.C.S. art.
1175(10, 4436; nbaternent by health is►ficer, art. 4477--i, § 3(h).
Sec. 12-49. Same—Cutting weeds; removal of rub-
bish.
Should Any owner of ativ lot allow weeds, rubbish, brush
or Any other unsightly, Objectionable or insanitary matter to
grow or accumulate thereon I'ail or refuse to cut down or
remove such weeds, rubbv h, brush or other unsightly,
objectionable or insanitary matter, as the case may be,
within ten (10) days after notice to said owner to do so, in
writing, or by letter addressed to such owner at his post
office address, or within ten (lO) days after notice by
publication as many as two (2) times within ten (10)
consecutive days in any newspaper in the city'!Finay do such
cutting down and/or removing such weeds, rubbish, brush
or any ,other unsightly, objectionable or insanitary matter,
or cause the same to be done incl may pay therefor, and
charge .the expenses incurred in doing such work or having
such work done or improvements made to the owner of such
lot or real estate; and, if such work is done or improvements
made At the expense of the city, such expense shall be
assessed on the real estate or lot upon which such expense
was incurred. (1954 Collected Ords., Ch. XIII, § 7(b), (d);
Ord. of .5-10-76, § 6)
Sec. 12-50. Same—Collection of expense.
The city manager and those designated by him shall file a
statement of such expenses incurred under section 12-48 or
under section 12-49, as the case may be, giving the amount
of such expenses, including related administrative and legal
costs, and the date on which said work - was done or
improvements made, with' the county clerk; and the city
shall have a privileged lien on such lots or real estate upon
which said work was done or improvements made to secure
the expenditures so made, in accordance with the provisions
769
0 1� So
ot• Article 44:36),
Shall he Revised Civil .StatutNs o!'
second ()rely tp 'rCxay
imhrnvements• tax liens ,which lien
interest • and sand amounts and
liens street
from the dates hall hear ten for
l'o"ided that for aid statement a, i10) per Cent
a!'(rresaid, suit any such PxpenditureS,filed. It is further
ur,
closure of Raidmay be instituter) d interest, as
and the , lien may he had in •find recovery and
9taternent of expense,
Penses yo r the name of the cit
COPY thereon, shall made Y.
arnount . as rit�,resaid
r)-10-76,
1 U-^ cxpcmded /'or S r,e prima t$cie c'r a
i6, 5 7) ueh work or improve proof of the
menu. (Ord, of
.Sec,aj 2-fi 1,
SweepinK and Clea
gutters abuttinK husinEnK sidewalks and
Of building debrirt• As houses; re
(a) A11 nccmous)
UPants of busineyy
employees, within the houses
day (Sundaysfire limit.S of the , their agents and
hours and legal holida city, shall
Of 5:30 p•m, and Ys exceptedon each
the sidewalk 8:30 a.m. the follow.
each the
Of the , and clean out
same clean ices, so occupied as athe �,i ft9y tmm diately g day, sweep fro off
id, and shall keep front
(b) Each such P the
within the occupant of a house or
fire limits
Within said of the city Place of business
sweepings Premises of Sha11 keep a receptacle
pings front the sidewalktlf'cient Ptacle
Place size to hold
sweepingshmayebeng therein, - c1Sgutter, and each day,
hauled off b conveniently uch manner that the
Y the city. gathered therefrom and
icj Where buildings
the city, the are being constructed
thereof contractors, builders, or or re
shall have Paired in
accumulated a reasonable time arsons in charge
pletion la said
trash and to remove
char aid building or re rubbish, after the co he
charge thereof have ceased pairs or after the m"
erg one week shall he deemed
thereon. Persons in
med to be a reasonable tide within me wwithin
770
PART II
CODE OF ORDINANCES
Chapter 1
GENERAL PROVISIONS
Sec. 1-1.
How Code designated and cited; formal
parts of ordinances continued in effect-
.The
tfec .,The ordinances embraced
►constit in this
and be designated
chapters and sections s of Georgetown," and may be
s
-The Code of Ordinance, City
so cited. Such Code may also be cited as "Georgetown
Code.vvsal any preamble,
This Code shall Hot be deemed act contained P n any ordinance
recital or finding o
included herein, but all such matters shall be deems
incorporated in the sections herein derived from such
respective ordinances. rity to codify. i 2.12.
Charter reference— to publish a code of civil and criminal
State law reterence i 78 ority
ordinances. V.A•C.S..
Sec. 1-2. Catcblines of sections. rented
The catchlines of the
several as m tchwords to indicate en
in boldface type are int
the contents of the section and shall not be any dert of he section,
to be titles of such sections, nor sshall they be so deemed
nor, unless expressly so provided, ding the catchlines, are
when any of such sections, inclu
amended or reenacted.
Sec. 1-3. Severability of parts of Code.
declared to be the intention of the city council
It is hereby sentences, clauses and
that the sections, paragraphs*les phrase,
phrases of this Code rap h orvsec tion in this Code shall be
clause, sentence, Parag P ud ment or decree of
declared unconstitutional by the valid j B
91
all
11-3 GEORGETOWN CODE
any court of competent jurisdiction, such unconstitutionality
shall not affect any of the • remaining phrases, clauses,
sentences, paragraphs and sections of this Code, since the
same would have been enacted by the city council without
the incorporation in this Code of any such unconstitutional
phrase, clause, sentence, paragraph or section.
Sec. 1-4. Supplementation of Code.
(a) By contract or by city personnel, supplements to this
Code shall be prepared and printed whenever authorized or
directed by the city council. A supplement to the Code shall
include all substantive permanent and general parts of
ordinances passed by the city council or adopted by
initiative and referendum during the period covered by the
supplement and all changes made thereby in the Code, and
shall also include all amendments to the Charter during the
_period. The pages of a supplement shall be so numbered
=that they will fit properly into the Code and will, where
necessary, replace pages which have become obsolete or
partially obsolete, and the new pages shall be so prepared
that, when they have been inserted, the Code will be current
through the date of the adoption of the latest ordinance
included in the supplement.
(b) In preparing a supplement to this Code, all portions of
the Code which have been repealed shall be excluded from
the Code by the omission thereof from reprinted pages.
(c) When preparing a supplement to this Code, the codifier
(meaning the person, agency or organization authorized to
prepare the supplement) may make formal, nonsubstantive
changes in ordinances and parts of ordinances included in
the supplement, insofar as it is necessary to do so to embody
them into a unified code. For example, the codifier may:
(1) Organize the ordinance material into appropriate
subdivisions;
(2) Provide appropriate catchlines, headings and titles for
sections and other subdivisions of the Code printed in
the supplement, and make changes in such catch -
lines, headings and titles;
92
ly
GENERAL PROVISIONS 11-6
(3) Assign appropriate numbers to sections and other
subdivisions to be inserted in the Code and, where
necessary to accommodate new material, change
existing section or other subdivision numbers;
(4) Change the words "this ordinance" of words of the
same meaning to "this chapter, this article, tis
division," etc., as the case may be, or to "sections
to _.—" (inserting section numbers to indicate the
sections of the Code which embody the substantive
sections of the ordinance incorporated into the Code);
and
(5) Make other nonsubstantive changes necessary to
preserve the original meaning of ordinance sections
inserted into the Code; but, in no case, shall the
codifier make any change in the meaning or effect of
ordinance material included in the supplement or
already embodied in the Code.
Sec. 1-5. Rules of construction.
In the construction of this Code, and of all ordinances and
resolutions passed by the city council, the following rules
contained in this section shall be observed, unless such
construction would be inconsistent with the manifest intent
of the council:
City. The words "city," "the city" or "this city" shall
mean the City of Georgetown, in Williamson County, Texas.
City secretary, chief of police or other -city officers or
departments. The words "city secretary," "chief of police" or
words designating any other city officers or departments
shall be construed to mean the city secretary, chief of police
or such other municipal officers or departments, respective-
ly, of the City of Georgetown, Texas.
Code. The words "the Code" or "this Code" shall mean
"The Code of Ordinances, City of Georgetown, Texas."
Computation of time. Whenever a notice is required to be
given or an act to be done a certain length of time before
any proceeding or step in a proceeding shall be had, the day
93
11
1•b GEORGETOWN CODE
on which such notice is given, or such act is done, shall be
counted in computing the timebut the day on which such
proceeding to step in a proceeding is to be had shall not be
counted; except as otherwise expressly provided in this
Code. -
Council gouernin 8 body. y ,►► „ ..
The words "the council the
city council" or "the governing body" shall mean the city
council of Georgetown, Texas.
County. The word. "county shall mean Williamson
County, Texas.
Gender. A word importing the masculine gender only
shall extend and be applied to females and to firms,
partnerships and corporations as well as to males. -
Highway. The term "highway" shall include any street,
alley, highway, avenue, public place or square, bridge,
viaduct, tunnel, underpass, overpass and causeway in the
city, dedicated or devoted to public use.
Month. The word "month" shall mean a calendar month,
except as otherwise specified in this Code.
Number. Any word importing the singular number shall
include the plural and any word importing the plural
number shall include the singular.
Oath. The word "oath"' shall be construed to include an
affirmation in all cases in which by law an affirmation may
be substituted for an oath, and in such cases the words
"swear" and "sworn" shall be equivalent to the words
"affirm" and "affirmed."
Official time standard. Whenever certain hours are named
in this Code, they shall mean Standard Time or Daylight
Saving Time, as may be in current use in the city.
Owner. The word "owner," applied to a building or land,
shall include any part owner, joint owner, tenant in
common, tenant in partnership, joint tenant or tenant by
the entirety, of the whole or of a part of such building or
land, except as otherwise defined in this Code.
94
GENERAL PROVISIONS ;1•6
Person. The word "person" shall extend and be applied to
associations, corporations, firma, partnerships and bodies
politic and corporate as well as to individuals.
Personal property. The words "personal property" include
every species of property, except real property, ad defined in
this section.
Preceding, following. The words "preceding" and "follow-
ing" mean next before and next after, respectively.
Property. The word "property" includes real and personal
property, and "mixed" if the sense used so indicates.
Real property. The words "real property" include land,
tenements and hereditaments.
Roadway. The word "roadway" shall mean that portion of
astreet improved, designed or ordinarily used for vehicular _
traffic and that portion of a street used for drainage.
. Sidewalk. The word "sidewalk" shall mean any portion of
the street between the curb or the lateral line of the roadway
and the adjacent property line, all or a part of which is
intended for the use of pedestrians.
Sidewalk area. The sidewalk area is the space between the
lateral line of the roadway and the boundary separating the
public right-of-way and the •adjacent private property.
Signature or subscription. The word "signature" or
"subscription" shall include a mark when a person cannot
write.
State. The words "the state" or "this state" shall mean the
State of Texas.
Street. The term "street" shall include any highway,
alley, street, avenue, public place orsquare, bridge, viaduct,
culvert, underpass, overpass, tunnel, causeway or other
public way in the city, dedicated or devoted to public use.
Time. Words used in the past or present tense, include the
future as well as the past and present.
V.A.C.S., V.A.T.S., V.A.P.C., V.A.C.C.P. Such abbrevia-
tions shall mean and include Vernon's Annotated Civil
95
33
S 1'S GEORGETOWN CODE
Statutes, Vernon's Annotated Texas Statutes, Vernon's
Annotated Penal Code,. Vernon's Annotated Code of
Criminal Procedure and other portions of such codification
of the Texas statutes as indicated. The abbreviation
"R.C.S." shall refer to the Revised Civil Statutes of Texas of
1925, as amended.
Written or in writing. The words "written" or "in writing"
shall be construed to include any representation, other than
oral, of words, letters or figures, whether by printing or
otherwise.
Year. The word "year" shall mean a calendar year, except
as otherwise provided in this Code.
Sec. 1-6. General penalty; continuing violations.
Whenever in this Code or in any ordinance of the city an
--7 act is prohibited or is made or declared to be unlawful or an
offense or a misdemeanor, or wherever in such Code or
ordinance the doing of any act is required or the failure to
do any act is declared to be unlawful, where no specific
penalty is provided therefor, the violation of any such
provision of this Code or any such . ordinance shall be
punished by a fine of not exceeding two. hundred dollars
($200.00); provided, however, that where the offense is one
for which a penalty is fixed by state law, the penalty for
such offense shall be the same as fixed by state law.
Each day any violation of this Code or other ordinance of
the city shall continue shall constitute a separate offense
unless otherwise provided.
Cbarter reference—Jurisdiction of municipal court, 15.07.
Cross references—Penalty for violation of airport toning regulations, 1
4-81; u to criminal procedure, see Ch. 9.
State law references—Maximum fine, V.A.C.S. arta 1011; authority to
prescribe penalties, art. 1176a; municipal court criminal jurisdiction,
V.A.C.S. art. 1195, V.A.C.C.P. arta. 4.01, 4.14.
Sec. 1-7. Liability of corporate officers for penalty.
Whenever a corporation or association violates any
provision of this Code or other ordinance of the city, the
96
GENERAL PROVISIONS # 1.9
..04
president, vice-president, secretary, treasurer, manager or
any agent or employee of such corporation or association
shall be severally liable for the penalty prescribed for such
violation.
Sec. 1-8. Use in evidence of copies of Code provi-
sions.
In any prosecution for a violation of any provision of this
Code, a copy of such provision, certified by the city
secretary, may be admitted in evidence without further proof
and shall be prima facie evidence of the existence and
regular enactment of such provision, without the necessity
of introducing in evidence the entire Code.
Sec. 1-9. Burden of scut on torlviol tion tuse, etc.,
in pros of Code.
In any prosecution for a violation of any provision of this
Code, upon proof of the provision of the Code, it shall not be
necessary to negative any exception, excuse, proviso or
exemption contained in the Code and the burden of proof of
any such exception, excuse, proviso or exemption shall be
upon the defendant.
[The next page is 1471
97
-3s
TO: Georgetownicity Council
FROM: Randall C. Stump
DATE: July 26, 1985
RE: 85-3,' "Weed, rubbish and brush" removal by City upon landowner,refusal
MEMORANDUM
NATURE OF THE CASE: At issue is section 12-49 of the City of Georgetown Code of
Ordinances which provides for the removal of "weeds, rubbish, or other
unsightly, objectionable or unsanitary matter..." by the City at the landowner's
expense where the landowner fails to cut down or remove such weeds and rubbish
upon notice.
FACTS: The ordinance in question, section 12-49 of the City of Georgetown Code
of Ordinances, entitled "...Cutting Weeds; removal of rubbish," provides the
following:
Should any owner of any lot allow weeds, rubbish, brush or any other
unsightly, objectionable or unsanitary matter to grow or accumulate
thereon fail or refuse to cut down or remove such weeds, rubbish,
brush or other unsightly, objectionable or unsanitary matter, as the
case may be, within ten (10) days after notice to said owner to do so,
in writing, or by letter addressed to such owner at his post office
address, or within ten (10) days after notice by publication as many
as two (2) times within ten (10) consecutive days in any newspaper in
the city*, may do such cutting down and/or removing such weeds,
rubbish, brush or any other unsightly, objectionable or unsanitary
matter, or cause the same to be done and may pay therefor, and charge
the expenses incurred in doing such work or having such work done or
improvements made to the owner of such lot or real estate; and, if
such work is done or improvements made at the expense of the city,
such expense shall be assessed on the real estate or lot upon which
such expense was incurred. (1954 Collected Ords., Ch. XIII, § 7(b),
(d); Ord. of 5-10-76 § 6).
This ordinance was enacted pursuant to Tex. Rev. Civ. Stat. Ann. -art.
4436, which by its terms, is intended:
"to require the owner of any lot or lots within such city, town, or
village to keep the same free from weeds, rubbish, brush, and any
other objectionable, unsightly, or unsanitary matter of whatever
nature, and if such owner fails or refuses to do so, within ten (10)
days after notice in writing, or by letter addressed to such owner at
his post office address, or by publication as many as two (2) times
within ten (10) consecutive days, if personal service may not be had
as aforesaid, or the owner's address be not known, such city, town, or
village may do such work or may cause the same to be done and may pay
therefor and charge the expenses incurred in doing or having such work
done or improvements made, to the owner of such property as herein
provided;!'and tajp i'h lany owner or occupant violating the provisions
of any ordinarnce assed, as aforesaid;"- Article 4436 (Tex. Rev. Civ.
Stat. Ann., 1965),, ,
LEGAL ISSUES: Al) Is the ordinance valid?
(2) How is it enforced?
(3) May the City be held liable for failure to enforce it?
2
DISCUSSION:
(1) IS.THE ORDINANCE VALID?
A question of validity is raised from the face of the ordinance
itself, because a part of the statutorily mandated language relating to
notice has been omitted. By its terms, the ordinance appears to require
that the property owner be served with notice either personally, by
or by constructive notice via newspaper. The statute, on the other hand,
contains the following wording after the part pertaining to constructive
notice in the newspaper:
"if personal service may not be had as aforesaid, or the owner's
address be not known..." (An asterick * was placed in the ordinance where
this should have appeared). The words "said city" should be also added
after the words "be not known" above. -
Thus, the ordinance appears to allow publication of notice as an
alternative to the other forms of notice provided therein. The next
question to be decided concerns the effect of this omission on the validity
of the ordinance.
In determining the validity of the ordinance, the primary
consideration is the proper standard to be applied in construing the
ordinance: liberal. or conservative? The law in this regard is not really
clear. Ordinarily; City action as to health and safety matters are
liberally construed. However, where a penal ordinance is involved, (i.e.
criminal or quasi -criminal sanctions) strict construction is imposed. The
ordinance in question would probably be considered a quasi -penal statute,
"where the ordinance imposes restrictions on the use of private property...
62 C.J.S. "Municipal Corporations," §442, P. 852.
Under the strict construction standard, the language of the ordinance
"...will not be extended to include limitations not clearly prescribed in
the ordinance...and all doubts (will be) resolved against the property
owner." 62 C.J.S. "Municipal Corporations," §442, P. 852. The omission of
the statutory language would not be "implied" or extended to limit the
ordinance if it was not expressly contained therein. In other words, if
the ordinance is to be strictly construed, at least part of it will
probably be held invalid and the landowner will escape liability
altogether.
A second question of validity is also raised from the face of the
statute upon which the ordinance is based, as well as the ordinance itself.
That question deals with the right, under both the federal constitution as
well as the constitution of the State of Texas, of parties whose liberty or
property rights are affected by governmental action to notice and an
opportunity to be heard at a meaningful time and in a meaningful manner.
Matthews v. Eldridge, 96 SCt 893, 901-902 (1976). It is necessary that
property or i erty interests within the meaning of this "due process
clause" be involved before the notice and hearing rights are created.
However, it has been held that whether "property" has little or great
value, it is still constitutional ly- protected property. Price v. Chit of
Junction unpublished opinion (5th Circuit, 1983) In that case, it was held
that an ordinance dealing with the destruction of junk cars clearly was
property interest within the contemplation of the "due process clause." It
would theref or f' 1h w that what one person considers "weeds and rubbish"
cou,14-be-bel l ren to a botanist. That case further indicated
that where such pr party is taken, there is a right to notice and hearing
before governmental action is to be taken under the statute. Therefore,
there.also exists some major constitutional questions as to the validity of
Article 4436, as well as the ordinance passed pursuant thereto.
CONCLUSION AND RECOMMENDATION:
These problems can be avoided if the ordinance is revised to include
the omitted phrase as set out in art. 4436. In any event, the burden of
showing the invalidity of the ordinance is on the property owners; City of
Weslaco v. Melton 308 S.W.2d 18 (Tex. 1957). Since the fines and expenses
are usually nominal, in cases of this type, the ordinance may never be
challenged.
If the ordinance is revised, to meet the notice and fair hearing
standards mandated by our federal and state constitutions, it would also be
a good opportunity to provide in the newly revised ordinance the right of
the property owner to a hearing before the imposition of the city action
against the property. In the Price case, the 5th Circuit Court of Appeals
upheld a ten (10) day notice provision, with the property owners right to
request for a hearing to be held before the city council or an official of
the city as designated by the council. A similar provision in our
ordinance could further strengthen its constitutional validity.
Alternatively, the ordinance could further be worded to include not
only a civil, but a criminal remedy as well for the violating property
owner. In that respect, the criminal violations would appear through the
municipal court with the due process standards recommended above. This
should also be accomplished by making the conduct an offense under the City
of Georgetown Code of Ordinances, section 1-6, relating to criminal
violations.
(2) HOW IS THE ORDINANCE ENFORCED?
The enforcement procedure under the statute is clear to a point.
First, the landowner must receive notice of city request that the "weeds or
rubbish" be cut or removed. Written notice that has been hand -delivered,
to the property owner is given first preference in art. 4436. If that
cannot be accomplished, then notice by mail is preferred. It should be
noted'that the statute refers to mailing addressed to the owner's post
office address. Under a strict construction, notice elsewhere could
potentially be invalid. Thus, it appears that the hand -delivered personal
service, if at all possible, is most likely to be upheld. If notice must
be mailed, however, it should be mailed "certified mail, return receipt
requested" to provide a record of the attempts at "service" on the
landowner.
If neither personal service nor mailing is possible, then publication
of notice is the last resort. It should be noted that the omitted part of
art. 4436 not found in our ordinance provides that publication of notice is
possible, "...if personal service may not be had as aforesaid, or the
owners address--Fe-not nowns...- The s a u e oes not indicate that upon
the landowner's re usa o accept the certified letter, that the City may
publish notice in the newspaper and therefore satisfy the notice
requirement. It would appear that merely sending the letter may satisfy
the requirement, in so far as it is clear that the landowner lives or
receives mail at that address, and he choose to ignore the City's request.
However, for purposes of enforcement, personal service is always preferred.
Further, if there is a question as to serving a tenant or landlord, serve
both.
Publication of notice in a City newspaper, is available only as a last
resort, where the landowner cannot be personally served, and the owner's
address is not known. Because the validity of the Georgetown "weed and
rubbish" ordinance, as indicated above, is questionable, it should be
employed only where the City may potentially be held liable if the
s,itua�iQn its not �e i fied, until the ordinance is revised.
�11I
4Jpen-"e,•4aQd' .�!s receipt of notice, the statute and ordinance
provides that thejC y his then authorized to cut down and remove the "weeds
and rubbish" from Ithe property. Article 4436 provides the power to punish
violators of this 'provision. As previously indicated, section 1-6 of the
Georgetown Code 'Of Ordinances provides, in part "whenever in this Code or
in any ordinance of the City an act is prohibited or is made or declared to
be an unlawful or an offense or a misdemeanor, or whenever in such Code or
ordinance the doing of any act is required or the failure to do any act is
declared to be unlawful,...". Although an argument can be made that the
City has the power to criminally enforce the "weed and rubbish" ordinance,
it should and can be clearly expressed in a revised ordinance. But the
34'
fact remains, that under, a properly drafted ordinance, that the city may
not only charge all expenses incurred y if fine bringing
nlandowner according to the
the land in compliance
with the ordinance, but al
"Punishment" provision of the statute.
The rest of the or deals with the City's rissupert to ior Perfect a
or to a
lien on the landowners property, which, out of interest,
prior bank loan on the property. Such lien would be inferior only as to
tax and street improvement liens.
CONCLUSION AND RECOMMENDATION:
As to notice, the City should attempt erso al service of delivered notice, if at all possible. The notice shouldd tothen h
tenants and landowners. receiptf personal requestedService is can be sentotopthei landowner's
certified letter, ret
post off ice address. One can also Msned i ssreceiving arate tmai 1 with
all. If fthe
letter to determine if the Lando
certified letter is returned, but the regular letter isn't (and containsln
some eidnce of receit
return address) then the City is provided REQUESTEDv on eal l a vel opes soy that
addition, always put ADDRESS CORRECTIONnew address that may be in
the post office will forward the notice to any
their files.
As a last resort, publication is possible, but not advisable until the
ordinance is amended to include the omitted language.asects of
Further, since the
language of the ordinance does not
clearly
set out
part criminal
the o di nance
the act or omissions provided therein,
should not be enforced until properly revised.
(3) IS THERE CITY LIABILITY FOR FAILURE TO ENFORCE IT?
Where acity-maintained right-of
as to the visible dobstruction of been
held liable where it was put on non cauedotice
right-of-way at a city intersfcMidlands605bS.W92da544 (Tex. 1980).veettiong trees and the
In that case, Jezek v. City ofrm an
Texas Supreme our a a !I atnan i tersection113-Tad liable foramawhere theuright-of-ways
automobile collision occurring
were overgrown with mesquite nd its length into the intersectionrush. The car entering
in order
intersection had to pull out ha
lf Although the City had been
to determine whether it was safe to proceed.
informed of the hazardous situation, it had done rich providesc"that he
The court recognized the close proximity rule",mited to
city has a duty to maintain the
talone, buts; and the
extendstontheipreventiontof
traveled portion of the street of
defects outside the traveledorobablevthaed tosuchndefect ewill eresult tin
proximity thereto renders i p City of Midland,
injury using the improved portion of the street." Jezek v.
Sura., P. 547;
It should be noted, however, that the Jezek case dealt with vegetation
growing in the unimproved portion of the roaaw ay. The court specifically
held that "this duty does not extend to obstructions iedwhere the rig tJoo adjoining
private property. Thus, the rule Maintenance Jezek app r rietary
is in the city's controeforenotlmi d by the considered a
requirements of the
function, and 1t $s .
Texas Tort Claims ac'
The exception 'to liability for failure of Mission the
SaWJ2dn699
private property has,been eroded. Lori v• C r ver who ailed to stop at
(Tex. 1982). In Lori , the City was sue y anches. The
a stop sign, which was allegedly
°a structetraffic dcontrolees sign, i sbaagovernmental
court held that maintenance o
function and therefore subject to Texas Tort Claims Act, Article 6252-19
Section 14(12)9 which provides the following:
Any claim arising from the absence, condition, (emphasis added) or -
malfunction of any traffic or road sign, s gna , or warning device
unless such absence, condition, or malfunction shall not be corrected
7,9
by the governmental unit responsible within a reasonable time after
notice, or any claim arising from the removal or destruction of such
signs, signals or devices by third parties except on failure of the
unit of government to correct the same within such reasonable time,
after actual notice. Nothing herein shall give rise to liability
arising from the failure of any unit of government to initially place
any of the above signs, signals, or devices when such failure is the
result of discretionary actions of said governmental unit. The signs,
signals and warning devices enumerated above are those used in
connection with hazards normally connected with the use of the:
roadway, and this section shall not apply to the duty to warn of
special defects such as excavations or roadway obstructions.
The Texas Supreme Court in Lor held held that obstruction from view of a
stop sign by trees or branches is a condition" of that sign within the
meaning of the Section cited above in the Texas Tort Claims Act. "It
follows that a city has received prior notice of such an obstruction within .
a reasonable time, it may conceivably be liable under the Texas Tort Claims
Act provided the City has proper notice of the claimants injury," L_orig v.
City of Mission, 629 S.W.2d at 707.
The erosion of the adjoining private property exception can also be
seen in a more recent decision, Kenneall v: Thurn 653 S.W.2d -69 (Tex. Civ.
App. -San Antonio, 1983, writ re n.r.e. enneall_, the injured party
sued the City of San Antonio on the basis th�n—
t the City was negligent in
permitting a stop sign to be obstructed by crepe myrtle bushes, that were
located on private property but within the City's easement.
unimproved portion of the City's street easement). Although the case was
reversed for new trial on procedural grounds, the Court of Appeals held.
that there was sufficient evidence to raise a
question
whether the "condition" had existed for such a lengthof time athatsthe
City, in the exercise of reasonable diligence, should have discovered it.
One neighbor has testified that the bushes had been there as long as she
could remember. There was also evidence in that case that "various police
officers of the City, while on routine patrol, drive through the
intersection several times a month." Kenneall v. Thurn, 653 S.W.2d at 72.
The rule of Kenneall is two fold f rs a e c ty can be and was
held liable f or o struction of the stop sign; second, that if the city can
be held "on notice" of obstruction by police officers driving by, that such
officers should be asked to report any obstructions on their reaular
routes.
CONCLUSION:
In summary, if the obstruction is within a city maintained
right-of-way, the City is potentially liable for negligent failure to
maintain it free from visual obstructions. Further, since this is
considered a propriety function, the City does not have the protection of
the Texas Tort Claims Act. If the obstruction extends to City signs,
however, the City still may be potentially liable if the injured party'
complies with the notice requirements of the Texas Tort Claims Act. Thus,
it appears the City can potentially be held liable in either event.