(A)
As an
alternative to other available enforcement and adjudication processes,
an administrative adjudication procedure is hereby adopted to provide
for administrative adjudication hearings under which an administrative
penalty may be imposed for the enforcement of an ordinance:
(1)
Described
by section 54.032 of the Texas Local Government Code (relating to
building safety, fire safety, dangerously damaged or deteriorated
buildings, conditions caused by the accumulation of refuse, vegetation
or other matter that creates breeding and living places for insects
and rodents, and building codes, conditions, uses, and appearance);
(2)
Adopted
under section 214.001(a)(1) of the Texas Local Government Code (relating
to a building that is dilapidated, substandard or unfit for human
habitation and a hazard to the public health, safety, and welfare);
(3)
Adopted
under subchapter E of chapter 683 of the Texas Transportation Code
(relating to junk vehicles);
(4)
Or
as otherwise provided by state law.
(B)
A proceeding
brought under the provisions of this article may, at the option of
the person charged with a violation, be converted into a criminal
proceeding to be processed as any other criminal violation in the
Municipal Court. A proceeding may not be converted into a criminal
proceeding under this section if the person charged with a violation:
(1)
Is
a corporation, partnership, or is otherwise not a natural person;
(2)
Is
a nonresident of this state; or
(3)
Has
been previously convicted in a criminal proceeding for violating the
same provision of this Code that is charged in the current administrative
proceeding. For the purpose of this subsection, a conviction includes
an adjudication of guilt or an order of deferred adjudication, whether
or not the imposition of the sentence is subsequently dismissed or
probated.
(Ordinance 6009, sec. 5, adopted 6/6/06; Ordinance 6097, sec. 1, adopted 2/20/07)
A violation of an ordinance enforced under this article is an
administrative violation. Nothing contained in this article shall
preclude the City from enforcing a violation of the above-described
or referenced ordinances through criminal penalties or other available
legal remedies, but the City shall not impose both a civil penalty
pursuant to this article and a criminal penalty for the same occurrence.
(Ordinance 6009, sec. 5, adopted 6/6/06)
(A)
Requirements.
A notice of violation issued under this article must:
(1)
Include
the nature, date, and location of the violation alleged;
(2)
Notify
the person charged with violating an ordinance of the amount of the
civil penalty to be imposed for the violation;
(3)
Provide
instructions and the due date for paying the civil penalty;
(4)
Provide
information that informs the person named in the notice of violation:
(a)
Of the person’s right to contest the imposition of the civil
penalty against the person in an administrative adjudication hearing;
(b)
Of the manner and time in which imposition of the civil penalty may
be contested;
(c)
That failure to pay the civil penalty or to contest liability in
a timely manner is an admission of liability and that failure to appear
at an administrative adjudication hearing (including any instanter
hearing, continuance or rescheduling of a hearing) after having requested
a hearing is an admission of liability;
(5)
Notify the person charged of the person’s option (subject to section 24.20(B)) to convert the proceeding from a civil, administrative charge into a criminal proceeding in Municipal Court;
(6)
Contain
a return of service signed by the inspector indicating how the administrative
citation was served on the person charged.
(B)
Charging
instrument.
The notice of violation issued under this
article serves as the summons and charging instrument for purposes
of this article.
(C)
Retention.
A copy of any notice of violation issued under this article
shall be kept as a record in the ordinary course of business of the
City by the Clerk of the Municipal Court.
(Ordinance 6009, sec. 5, adopted 6/6/06; Ordinance 6097, secs. 2, 3, adopted 2/20/07; Ordinance 7363 adopted 9/6/2022)
A notice of violation issued under this article shall be in
writing and may be served personally upon the person charged; by certified
mail, return receipt requested; or by First Class Mail. A notice of
violation that is mailed shall be mailed to the last known address
of the person charged. A notice of violation issued under this article
is presumed to have been received on the fifth day after the date
the notice of violation is mailed unless the notice is returned to
the City for reasons other than nonacceptance or refusal of acceptance.
(Ordinance 6009, sec. 5, adopted 6/6/06)
Other than hearings for parking violations, a hearing date scheduled
under this article shall be at least fifteen (15) calendar days following
the date of personal service of the notice of violation, or the mailing
of the notice of violation.
(Ordinance 6009, sec. 5, adopted 6/6/06)
The presiding judge of the Municipal Court shall appoint a hearing
officer who shall conduct all hearings under this article. A hearing
officer shall have the following powers, duties and functions:
(1)
To hear
argument and determine liability in administrative adjudication hearings
under this article;
(2)
To rule
on motions;
(3)
To administer
oaths;
(4)
To issue
orders compelling the attendance of witnesses and the production of
documents, which order may be enforced by a Municipal Court;
(5)
To question
witnesses and examine evidence offered;
(6)
To assess
administrative penalties, fees and costs of court in accordance with
this article;
(7)
Any
other power necessary to carry out the express powers of this section
or as may otherwise be assigned to the hearing officer by this Code
or other law.
(Ordinance 6009, sec. 5, adopted 6/6/06; Ordinance 6097, sec. 4, adopted 2/20/07; Ordinance 6534, sec. 9, adopted 4/3/12)
(A)
Hearing
officer.
Every hearing for the adjudication of an administrative
notice of violation under this article shall be held before a hearing
officer.
(B)
Standard
of proof.
In an administrative adjudication under this
article, the alleged violation must be proven by a preponderance of
the evidence.
(C)
Proof
of facts.
In an administrative adjudication under this
article, a violation may not be proven merely by the allegations contained
in the notice of violation alone.
(D)
Rules
of evidence inapplicable; admissibility.
The formal rules
of evidence and procedure do not apply to a hearing under this article,
and relevant evidence will be admitted if the hearing officer finds
that evidence is of that quality which reasonable persons are accustomed
to rely on in the conduct of serious affairs, regardless of the existence
of any common law or statutory rule to the contrary.
(E)
Right
to call and examine witnesses.
Each party shall have
the right to call and examine witnesses; to introduce exhibits; to
cross-examine opposing witnesses on any matter relevant to the issues;
and to rebut the opposing party’s evidence.
(F)
Examination
of witness by hearing officer.
The hearing officer may
examine any witness and may consider any evidence offered by a witness
or person charged with a violation, giving due weight to all testimony
and evidence admitted.
(G)
Electronic
recording of hearing.
The proceedings of the hearing
shall be recorded electronically. The person charged with a violation
may, at his expense, have a certified court reporter present in the
hearing room during the proceedings provided that the electronic recording
shall constitute the official record of the proceedings. A recording
of an administrative hearing under this article shall be preserved
for not less than one hundred eighty (180) days after the conclusion
of the administrative hearing, until a final disposition of the proceeding,
or as otherwise required by law.
(H)
Decision
of hearing officer.
At the conclusion of the hearing,
the hearing officer shall issue an order stating whether the person
charged with a violation is liable for the violation and the amount
of any penalty, cost, or fee assessed against the person.
(I)
Assessment
and payment of penalties and fees.
A person who is found liable after an administrative adjudication hearing or who requests an administrative adjudication hearing and thereafter fails to appear at the time and place of the hearing is liable for administrative hearing costs in the amount designated in the Master Fee and Rate Schedule, Article VII, Section 10.85, of Chapter 10, in addition to the amount of the civil penalty assessed for the violation. A person who is found liable for a civil penalty after an administrative adjudication hearing shall pay the civil penalty and costs within thirty-one (31) days of the hearing. The payment of the civil penalty and costs assessed pursuant to this article shall operate as a final disposition of the violation charged, except when payment is made to reset a scheduled hearing or to file an appeal.
(J)
Continuances
and rescheduling.
A scheduled hearing may not be continued
or reset at the request of the person charged with a violation more
than once unless the person charged deposits with the clerk an amount
equal to the applicable civil penalty for the alleged violation. The
clerk shall issue a receipt for any amount so deposited. After presentation
of the receipt, all amounts so deposited shall be refunded to the
person charged if the hearing officer, or the Municipal Court on appeal,
finds that the person is not liable for the violation.
(Ordinance 6009, sec. 5, adopted 6/6/06; Ordinance 6097, secs. 5–7, adopted 2/20/07; Ordinance 7363 adopted 9/6/2022)
(A)
A person
who receives a notice of violation under this article may contest
the imposition of the civil penalty by requesting in writing an administrative
adjudication of the civil penalty within the time provided in the
notice. Upon receipt of the request, the City shall notify the person
of the date and time of the hearing on the administrative adjudication.
A request for a hearing is considered timely if the request is deposited
in the United States mail, properly addressed and stamped, on or before
the last date for filing as specified in the notice.
(B)
Failure to pay a civil penalty or to contest liability in a timely manner is an admission of liability in the full amount of the civil penalty assessed in the notice of violation and constitutes a waiver of the right to appeal under section 24.29.
(C)
Failure to appear at an administrative adjudication hearing after having requested a hearing (including a continued hearing or a rescheduled hearing) is an admission of liability for the full amount of the civil penalty assessed in the notice of violation and the costs of the hearing, and constitutes a waiver of the right to appeal under section 24.29.
(Ordinance 6009, sec. 5, adopted 6/6/06)
(A)
Contents.
If, after a hearing, the hearing officer finds a person liable
for a violation under this article, the order shall contain a statement:
(1)
Finding
the person charged liable for the violation;
(2)
Of
the amount of civil penalties (which shall not exceed 75% of the fine
established by the Municipal Court on its schedule of standard fines
for a criminal conviction of the violation), fees, and court costs;
(3)
Of
the right to appeal to the Municipal Court before the thirty-first
(31st) day after the date the hearing officer’s order is filed;
and
(4)
That
the order issued by the hearing officer may be enforced by the filing
of a civil suit for collection of the administrative penalties, fees,
and costs of court; and (for other than parking violations) by obtaining
an injunction that prohibits conduct that violates the ordinance or
requires conduct necessary for compliance with the ordinance.
(B)
Notification.
Within seven (7) days after filing an order of liability issued
under this article, the hearing officer shall notify the person against
whom an administrative penalty has been assessed of the issuance of
the order. An order of liability issued under this article shall be
in writing and may be served personally upon the person charged, or
by first class United States mail. An order that is mailed shall be
mailed to the last known address of the person charged, and is presumed
to have been received on the fifth day after the date the order was
mailed.
(C)
Filing.
An order issued by the hearing officer under this article shall
be filed with the Clerk of the Municipal Court and shall be kept in
a separate index and file. The order may be recorded using microfilm,
microfiche, or data processing techniques.
(D)
Order
is final if not timely appealed.
If a person found liable
for a violation does not timely appeal the hearing officer’s
order, the hearing officer’s order shall become a final judgment
enforceable as provided by law.
(E)
Payment
of administrative penalty; costs and fees.
A person who is found liable after an administrative adjudication hearing or who requests an administrative adjudication hearing and thereafter fails to appear at the time and place of the hearing is liable for administrative hearing costs in the amount designated in the Master Fee and Rate Schedule, Article VII, Section 10.85, of Chapter 10, in addition to the amount of the civil penalty assessed for the violation. A person who does not file a timely appeal of a determination of the hearing officer shall pay all civil penalties, costs, and fees assessed by the hearing officer before the thirty-first (31st) day after the date the hearing officer’s determination is filed with the Clerk of the Municipal Court.
(Ordinance 6009, sec. 5, adopted 6/6/06; Ordinance 6097, sec. 8, adopted 2/20/07; Ordinance 7363 adopted 9/6/2022)
(A)
Appeal
to Municipal Court.
A person who is found liable after an administrative adjudication hearing may appeal to the Municipal Court by filing a notice of appeal with the Clerk of the Municipal Court. The notice of appeal must be filed not later than the thirty-first (31st) day after the date on which the hearing officer entered the finding of liability and shall be accompanied by the payment of an appellate filing fee in the amount designated in the Master Fee and Rate Schedule, Article VII, Section 10.85, of Chapter 10.
(B)
Effect
of filing; bond.
An appeal stays the enforcement and
collection of the judgment unless the City, at a hearing before a
Municipal Court Judge for that purpose, demonstrates that a violation
that is the subject of the proceeding has not been corrected or, if
corrected, has reoccurred.
(C)
Transcription.
An appeal from a decision of a hearing officer shall require
the filing of a transcription of the electronic recording of the administrative
hearing with the Clerk of the Municipal Court.
(1)
Preparation.
The transcription shall be prepared from
the recording of the administrative hearing by a court reporter or
other person authorized by the presiding judge of the Municipal Court
to transcribe “Court of Record” proceedings. The court
reporter or other person who prepares the transcription of the electronic
recording of the administrative hearing is not required to have been
present at the administrative hearing.
(2)
Inability to transcribe.
If the person found liable
for a violation timely requested that the administrative hearing be
recorded and, through no fault of his own, the recording of the hearing
is either unavailable or cannot be transcribed, the Municipal Court
Judge shall vacate the hearing officer’s order and dismiss the
proceeding.
(3)
Cost of transcription.
The person found liable for the
violation shall be responsible for the cost of preparing the transcription
of the electronic recording. Before the recorded proceedings are transcribed,
the person found liable for the violation shall post a cash deposit
with the Clerk of the Municipal Court for the estimated cost of preparing
the transcription, as determined by the clerk. If the decision of
the hearing officer is fully reversed on appeal, the clerk shall refund
all amounts paid for the transcription.
(4)
Waiver of bond and transcription deposit.
If the presiding
judge of the Municipal Court determines that the person found liable
for a violation is indigent and financially unable to pay the costs
of preparation of the transcription or to post an appeal bond, the
presiding judge may order a waiver of those costs.
(D)
Clerk
to prepare record.
Upon receipt of a notice of appeal,
the Clerk of the Municipal Court shall cause a record of the case
to be prepared, consisting of:
(1)
The
transcription of the electronic recording of the administrative hearing,
including any exhibits, and
(2)
The
clerk’s record.
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The clerk’s record shall include the notice of violation,
any pleadings filed in connection with the administrative hearing,
any request that the administrative hearing be electronically recorded,
the docket sheet relating to the administrative hearing, the order
of liability from which the appeal was taken, the notification letter
from the hearing officer advising the person of the issuance of the
order, the appeal bond, and the notice of appeal.
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(E)
Standard
of review.
The Municipal Court Judge shall review the
record from the administrative hearing and may grant relief from the
administrative order if the record reflects that the hearing officer’s
decision was not supported by substantial evidence, the hearing officer
abused his discretion, or the hearing officer committed a material
error of law. In addition, the Municipal Court Judge may, in the interest
of justice, remand a case with instructions to the hearing officer
even if affirmance is otherwise appropriate.
(F)
Time
for ruling.
The Municipal Court Judge shall rule on an
appeal within thirty calendar days of receiving the record of the
case of the administrative hearing. The decision on appeal shall be
rendered in writing, with a copy provided to the appellant in the
same manner as required for the service of a notice of violation under
this article. The decision of the Municipal Court Judge shall be filed
with the Clerk of the Municipal Court. The ruling of a Municipal Court
Judge in an appeal under this article is a final judgment.
(G)
Payment
of penalties; deduction from bond.
If the Municipal Court
Judge affirms the decision of the hearing officer, any penalties,
fees, or costs assessed by the hearing officer shall be deducted from
the appeal bond. Any balance shall be returned to the person who posted
the bond, at the address indicated on the bond. If no appeal bond
was posted, all penalties, fees, or costs assessed by the hearing
officer shall be paid within thirty days of the date of the Municipal
Court Judge’s ruling.
(Ordinance 6009, sec. 5, adopted 6/6/06; Ordinance 6097, secs. 9–11, adopted 2/20/07; Ordinance 7363 adopted 9/6/2022)
The City Attorney may enforce an order issued under this article
against a person charged with a violation by filing a civil suit for
the collection of a penalty assessed against the person and by obtaining
an injunction that prohibits specific conduct that violates the ordinance
or that requires specific conduct necessary for compliance with the
ordinance.
(Ordinance 6009, sec. 5, adopted 6/6/06)
