Texas Nuisance Abatement Form – Fill Out and Use This PDF

Introduction

Chapter 125 of the Texas Civil Practice & Remedies Code and Section 101.70 of the Texas Alcoholic Beverage Code are considered the “Texas Nuisance Abatement Statutes.” These statutes permit law enforcement agencies to close any piece of property involved in illegal activities, including violations of the Texas Penal Code, the Texas Alcoholic Beverage Code and the Texas Controlled Substances Act.

The Office of the Attorney General (OAG) helps Texas municipalities, local prosecutors and law enforcement agencies (including police departments, sheriff offices, task forces, the Texas Alcoholic Beverage Commission and even federal agencies such as Border Patrol) in targeting, processing and filing suit against property owners who allow public and common nuisances to exist on their property. The purpose of a nuisance abatement lawsuit is not to show or prove that the property owner is guilty of illegal acts, but rather to prove that the property owner allowed the illegal activity to occur on the property or failed to make reasonable attempts to stop it.

Many police departments have become skilled at this procedure and have great success on their own. When local law enforcement lacks the resources or experience in such cases, the OAG will send staff when requested to any area of the state to provide technical assistance in initiating the nuisance abatement process. Evidence will be compiled and sent to the OAG for review. Arrest reports, calls for police service and search warrants contained in local departmental records, as well as police officers’ and residents’ affidavits, are all used in this process. When the OAG determines that sufficient evidence exists, a lawsuit will be filed on behalf of the state. The OAG will provide legal representation for the duration of the lawsuit.

Once a property is determined to be a common nuisance, and after a successful suit, it is closed for a period of one year.1 During the pendency of the lawsuit, a temporary injunction can be requested requiring the posting of a bond by the owner to keep the property open pending final resolution of the lawsuit. If a public nuisance is found to exist due to gang activity, civil fines and jail terms for contempt of court may be imposed on those who violate the court orders.

In many instances, actual litigation is not required. When faced with the loss of income from closure, bonds adding up to thousands of dollars and the threat of forfeiture of those bonds, many owners enter into a voluntary abatement of the nuisance.

The nuisance laws can have a positive effect on locations that law enforcement agencies have spent many man-hours policing. In addition, law enforcement agencies may see large monetary savings by reducing the need to respond to these locations in the future. In several instances, businesses that have permitted illegal activity for years have been successfully closed, reducing the burden on law enforcement as well as on the immediate community.

By denying criminal offenders the use of real property as a base of operations, and by securing the property owner’s cooperation in the removal of criminal offenders, neighborhood revitalization can become a reality. Our goal at the OAG is not to abandon other conventional

1Prior to 2007, a property owner could post a penal bond to keep the property open. This provision has been removed requiring automatic closure of the property found to be a nuisance.

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methods of law enforcement at these nuisance sites, but to supplement these efforts by providing an additional tool to address illegal activity in Texas communities.

Summary

Which statutes are considered the “Texas Nuisance Abatement Statutes”?

Chapter 125 of the Texas Civil Practice & Remedies Code (CPRC)

Section 101.70 of the Texas Alcoholic Beverage Code (TABC)

Are there different kinds of nuisances addressed by the statutes?

Yes. Two kinds of nuisances are addressed:

Common (Subchapters A & C of Chapter 125 CPRC and Section 101.70 TABC)

Public (Subchapter D of Chapter 125 CPRC)

What kind of illegal activity can be addressed by the nuisance abatement statutes?

Prostitution

Obscenity

Gambling

Engaging in organized criminal activity

Delivery, possession, manufacture or use of a controlled substance

Discharge of a firearm in a public place

Reckless discharge of a firearm

Commercial manufacture, distribution or exhibition of obscene material

Aggravated assault or sexual assault

Robbery

Unlawful carrying of weapons

Murder

Continuous sexual abuse of a child

Massage therapy or services in violation of Occupations Code

Alcohol violations

Gang activity

Do apartments and motels qualify for nuisance abatement?

Yes. These are defined as multi unit residential properties under the code and are subject to nuisance abatement. These properties can also be subject to the imposition of a receiver to manage the property once a common nuisance is found to exist at the property.

What types of property can be closed?

Any place in the State of Texas that is causing a nuisance as defined by the nuisance abatement statutes can be closed:

Businesses of all kinds

Private residences

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Apartments

Motels

Convenience stores

Any other type of location

Who can be sued?

Owner(s) of real property

Owner(s) of the business

Lessee/renter of the property

Manager of the property

Management company

The real property itself (in rem suit)

Any combination of the above

How long will the property be closed if the lawsuit goes to trial and it is determined that the property is a nuisance?

Under Chapter 125 of the Texas Civil Practice & Remedies Code, the property must be closed for a period of one year.

Under Section 101.70 of the Texas Alcoholic Beverage Code, the property must be closed for a period of up to one year.

What can the owner do to prevent the property from being closed once a judgment is entered to close the property?

Under Chapter 125 of the Texas Civil Practice & Remedies Code, the property must be closed for one year unless it is a multi unit residential property and the court has ordered a receivership in lieu of closure.

Under Section 101.70 of the Texas Alcoholic Beverage Code, the defendant can post a penal surety or cash bond of at least $1,000 for a common nuisance.

What is the standard for proving that a common nuisance exists?

Under Chapter 125 CPRC, must show that people habitually go to the subject property to commit any of the listed crimes (except the alcohol and gang crimes).

Under Section 101.70 TABC, must show that it is a place where alcoholic beverages are sold, bartered, manufactured, stored, possessed, or consumed in violation of the Alcoholic Beverage Code or under circumstances contrary to the purposes of the code.

What happens if the defendant fails to post a bond and/or violates a temporary or permanent injunctive order and the illegal activities continue to take place on the property?

For a common nuisance under Section 101.70 TABC, the defendant is subject to the following:

Loss of bond through forfeiture

Property closure for up to one year

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