Ken Paxton

Nuisance Abatement: Civil Suits a Powerful Tool for Law Enforcement

Wednesday, December 1, 2004
Picture this: a motel and convenience store sit on either side of I-35. The motel is well known as a place where drugs are sold. Sexual assaults, murders, and robberies have been reported at that location. At the convenience store across the street, gangs recruit new members, and the store sells alcohol to minors. Criminal activity is rampant at both properties.

As law enforcement professionals, you know exactly what this kind of situation is like. You are forced to spend a disproportionate amount of time patrolling these two properties, making countless arrests. Yet the crime continues despite the conviction and incarceration of many individuals. The surrounding neighborhood is suffering. What can be done to clean up properties like these? The answer lies in a little known legal tool called “nuisance abatement.”

A nuisance abatement suit is a civil action filed against a property and/or a person who maintains it, when the property serves as a safe haven for crime. Statutes governing nuisance abatement are found in Chapter 125 of the Texas Civil Practice and Remedies Code as well as in Section 101.70 of the Texas Alcoholic Beverage Code.

Under Chapter 125, a "common nuisance" exists when someone maintains a place to which persons habitually go to engage in any of a number of criminal activities, including various offenses involving drugs, gambling, prostitution, and firearms. If the property is “multi-unit residential” (which includes motels, hotels, apartment complexes, and condominiums, but not duplexes), murder, aggravated assault, sexual assault and robbery may also be the basis of a common nuisance suit.

Section 101.70 of the Texas Alcoholic Beverages Code authorizes a common nuisance suit against any place where activities in violation of, or contrary to the purpose of, the code take place. A store that allows its patrons to consume alcohol on the premises and sells alcohol to minors may be sued under the Alcoholic Beverages Code.

As well as abating common nuisances, Chapter 125 allows for suits to abate “public nuisances” such as gang drug-related activities. Gang activities encompass a wide range of undesirable conduct, including organized criminal activity, terroristic threats, various gang recruitment activities, criminal trespass, disorderly conduct, criminal mischief and offenses involving graffiti or weapons.

In all common nuisance suits, both the property itself and the person maintaining the property may be sued. In a public nuisance suit, the members of the gang and any person who maintains the property as a nuisance may be sued, but the property may not be sued.

To be successful in a nuisance suit, the plaintiff must prove certain facts. Chapter 125 sets out guidelines regarding evidence that a common nuisance exists. Certified copies of arrest reports can prove that the person maintaining the property had knowledge of the criminal activities. Evidence that criminal activities occur frequently on the property can be used to show that the defendant knowingly permitted the activity. And the general reputation of the property is admissible to show the existence of the nuisance.

Under both Chapter 125 and Section 101.70, a temporary injunction may be ordered by the court, pending the final disposition of the suit. The successful plaintiff in a Chapter 125 common nuisance suit will be granted a permanent injunction, ordering the defendant to abate the nuisance and enjoining him from maintaining or participating in the nuisance. In addition, the judgment will order that the place be closed for one year unless a $10,000 bond is posted, with certain conditions. If no bond is posted, after the one-year period the property may be reopened.

If the defendant posts the bond, and no conditions are violated during the one-year period, the $10,000 will be returned and the property can continue to operate. However, if the defendant posts the bond and then violates one of its conditions, a bond forfeiture proceeding may be brought. If it is successful, the $10,000 will be forfeited to the state, and the property will be closed for a year.

The successful plaintiff in a Section 101.70 common nuisance suit will also be granted an injunction ordering that the place be closed for up to one year, and until a bond of at least $1,000 is posted.

In a successful Chapter 125 public nuisance suit, the court may enjoin individuals from engaging in gang activities and impose requirements to prevent such acts. If any order of the court is violated, the violator is subject to civil contempt, which includes a fine, or jail time, or both.

A civil section in my Criminal Law Enforcement Division handles nuisance abatement cases. We have statewide jurisdiction, which allows us to bring nuisance suits in any county in the state of Texas. If you are aware of a nuisance property in your jurisdiction like those I have described above, your local prosecutor’s office can contact us for assistance with a nuisance abatement action. We stand ready to use every aspect of Texas law to help make your community safer.

Contacts in the Office of the Attorney General are Jill Nance, (512) 463-0394, or Kent Richardson, (512) 936-1348 or Adrienne McFarland, Chief of our Criminal Law Enforcement Division, (512) 463-3038.