HomeMy WebLinkAboutOrdinance - 7859-1979 - Creating Chapter Code Of Ordinaces 2A - 05/24/1979.,,-, /~ .....
Tl"''tl•n1 7859
AN ORDINANCE CREATING A CHAPTER IN THE CODE OF ORDINANCES FOR THE CITY OF
LUBBOCK, NUMBERED 2A AND TITLED "CODE ENFORCEMENT SEARCH WARRANTS", REPEALING
THOSE PROVISIONS IN THE CODE MAKING THE REFUSAL TO PERMIT A WARRANTLESS SEARCH
A MISDEMEANOR, MAKING IT A MISDEMEANOR TO INTERFERE WITH THE EXECUTION OF A
SEARCH WARRANT, PROVIDING DEFINITIONS, AUTHORIZING THE ISSUANCE AND EXECUTION
OF SEARCH WARRANTS, ESTABLISHING WHEN SEARCH WARRANTS ARE NOT REQUIRED, REQUIRING
PROBABLE CAUSE, REQUIRING A SWORN AFFIDAVIT, REQUIRING CERTAIN FORMALITIES,
PROVIDING THE MANNER IN WHICH SEARCH WARRANTS ARE TO BE EXECUTED AND NOTICE
GIVEN, ESTABLISHING THE TIME DURING WHICH A SEARCH WARRANT MAY BE EXECUTED,
AUTHORIZING THE EXECUTING INSPECTOR TO SEEK ASSISTANCE IN EXECUTING THE SEARCH
WARRANT, PROHIBITING THE SEIZING OF TANGIBLE GOODS OR THE MAKING OF ARRESTS,
PROVIDING THE MANNER IN WHICH A RETURN IS MADE, PROVIDING FOR THE KEEPING OF
RECORDS, PROVIDING FOR NO CONFLICTS WITH OTHER LAWS; PROVIDING FOR A PENALTY AS
PROVIDED IN SECTION 1-5 OF THE CITY CODE, PROVIDING FOR A SAVINGS CLAUSE AND
PROVIDING FOR PUBLICATION.
WHEREAS, the City of Lubbock is a home rule municipality having the powers
of local self-government and can adopt any regulation not preempted by, nor
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prohibited to, the State of Texas, and
WHEREAS, the State of Texas has provided for the issuance of search
warrants to fire marshals and health officers and has not specifically prohibited
home rule cities from adopting similar legislation providing for the issuance
of search warrants to other classes of code inspectors as well, and
WHEREAS, heretofore there has not been a uniform policy among the various
City departments as to whether they were expressly authorized to use search
warrants incidental to the enforcement of various City codes, such as the
building inspection, zoning and housing codes, and
WHEREAS, the City Council for the City of Lubbock recognized that recent
changes have occurred in the law pertaining to making warrantless searches for
violations of such codes, which changes the City Council wish to incorporate
into its code enforcement programs, NOW THEREFORE:
BE IT ORDAINED BY THE CITY COUNCIL FOR THE CITY OF LUBBOCK:
SECTION 1. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a chapter, to be numbered 2A, which said chapter shall
be captioned as follows:
"CHAPTER 2A
CODE ENFORCEMENT SEARCH WARRANTS"
SECTION 2. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a section, to be numbered 2A-l, which said section
reads as follows:
"REPEALER. All provisions in this Code of Ordinances making the refusal
to permit a warrantless search or inspection a misdemeanor are hereby
repealed."
SECTION 3. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a section, to be numbered 2A-2, which said section
reads as follows:
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"PENALTY. Any person interfering with the execution of a lawful search
warrant issued pursuant to this chapter shall be guilty of a misdemeanor
and upon conviction thereof shall be fined in any sum not to exceed
two hundred dollars, ($200.00). Each day such violation is committed
or permitted to continue shall constitute a separate offense, and shall
be punishable as such hereunder."
SECTION 4. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a section, to be numbered 2A-3, which said section
reads as follows:
"DEFINITIONS. Magistrate: shall mean any Judge of a Municipal Court
for the City of Lubbock, Texas.
Inspector: shall mean any official inspector for any department of
the City of Lubbock; Texas, which is charged with code enforcement,
including, but not limited to, inspectors for the departments of Zoning
and Environmental Control, Housing and Building Inspection.
Search warrant: shall mean a written order, issued by a magistrate
and directed to any inspector, as defined in this section, commanding
him to any specified premises to determine the presence of a violation
or violations of any ordinance or ordinances of the City of Lubbock,
Texas."
SECTION 5. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a section, to be numbered 2A,-4, which said section
reads as follows:
"WARRANTS AUTHORIZED. Except as provided in Sec. 2A-5 following,
inspectors are hereby authorized and directed to seek and obtain
search warrants from magistrates, as provided in this chapter, before
making any inspection incidental to the enforcement of any provision
in this Code of Ordinances. Magistrates are hereby. authorized to issue
such warrants subject to the requirements of this chapter."
SECTION 6. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a section, to be numbered 2A-5, which said section
reads as follows:
"WARRANTS.NOT REQUIRED. Search warrants shall not be required under
the following circumstances:
(a) when permission to inspect has been granted by someone apparently
having charge or control of those premises; for the purpose of this
sub-section, permission to inspect may be granted either verbally,
in writing or by some other action indicating consent, or
(b) when there exists an imminent danger or peril to human life, limb
or property and any delays resulting from the application for a search
warrant would materially increase the likelihood of loss from such
danger or peril, or
(c} when the inspection can be executed by a person who is an invitee
on premises held open to the general public; for the purposes of this
sub-section a person ceases to be an invitee when he has been instructed
to leave the premises or otherwise terminate his inspection by someone
having charge or control of those premises."
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SECTION 7. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a section, to be numbered 2A-6, which said section
reads as follows:
"PROBABLE CAUSE. No search warrant shall be issued pursuant to this
chapter except on the presentation of evidence of probable cause to
believe that a violation or violations are present in the premises
sought to be inspected. In determining probable cause, the magistrate
is not limited to evidence of specific knowledge, but may consider
any of the following:
(a) the age and general condition of the premises;
(b) previous violations or hazards found present in the premises;
(c) the type of premises;
(d) the purposes for which the premises are used; and
(e) the presence of hazards or violations in and the general condition
of premises near the premises sought to be inspected."
SECTION 8. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a section, to be numbered 2A-7, which said section
reads as follows:
"AFFIDAVIT REQUIRED. A sworn affidavit setting forth substantial
facts towards establishing probable cause shall be filed in every
instance in which.a search warrant is requested."
SECTION 9. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a section, to be numbered 2A-8, which said section
reads as follows:
"WARRANT FORMALITIES. A search warrant issued pursuant to this Chapter
shall be sufficient if it contains the following requisites:
(a) that it run in the name of "The State Of Texas";
(b) that it identify, as near as may be, that premises to be inspected;
(c) that it command an inspector to inspect forthwith the premises
described; and
(d) that it be dated and signed by the magistrate."
SECTION 10. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a section, to be numbered 2A-9, which said section
reads as follows:
"EXECUTION OF WARRANTS. An inspector to whom a search warrant is
delivered shall execute it without delay and forthwith return it to
the proper magistrate. It must be executed within three days from
the time of its issuance, and shall be executed within a shorter period
if so directed in the warrant by the magistrate. The inspector shall,
upon going to the place ordered to be inspected, give notice of his
purpose to the person who has charge of or is an inmate of the place
described in the warrant. If such persons cannot be found, upon execution
of the search warrant, a copy of said warrant shall be affixed to the
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. -· front door of the building or premises inspected. In every instance,
entry shall be effected using the minimum force necessary according
to the circumstances."
SECTION 11. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a section, to be numbered 2A-10, which said section
reads as follows:
"DAYS ALLOWED FOR WARRANT TO RUN. The time allowed for the execution
of a search warrant shall be three whole days, exclusive of the day
of its issuance and of the day of its execution. The magistrate issuing
a search warrant under the provisions of this chapter shall endorse
on such search warrant the date and hour of the issuance of the same."
SECTION 12. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a section, to be numbered 2A-ll, which said section
reads as follows:
"POWER OF INSPECTOR EXECUTING WARRANT. In the execution of a search
warrant, the inspector may call to his aid any number of citizens in
this city, who shall be bound to aid in the execution of the same.11
SECTION 13. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a section, to be numbered 2A-12, which said section
reads as follows:
"NO POWER TO SEIZE TANGIBLE GOODS OR MAKE ARRESTS. The execution of
a search warrant issued pursuant to this chapter shall not include
any authority to make arrests or to seize tangible goods of a violation."
SECTION 14. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a section, to be numbered 2A-13, which said section
reads as follows:
"HOW RETURN IS MADE. Upon returning the search warrant, the inspector
shall state on the back of the same, or on some paper attached to it,
the manner in which it has been executed and shall likewise deliver
to the magistrate a copy of the report resulting from that inspection."
SECTION 15. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a section, to be numbered 2A-14, which said section
reads as follows:
flRECORDS TO BE KEPT. The magistrate shall keep a record of all proceedings
had before him in the cases of search warrants as part of the official
records of his court."
SECTION 16. That the Code of Ordinances, City of Lubbock, Texas is
hereby amended by adding a section, to be numbered 2A-15, which said section
reads as follows:
"CONFLICTS. Nothing in this chapter shall be construed to conflict
with any state or federal law and shall be in addition to ·any rights
granted thereby."
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SECTION 17. That violation of .any provisions of this Ordinance shall be
deemed a misdemeanor punishable by a fine not to exceed two hundred dollars as
provided in Section 1-5 of the City Code.
SECTION 18. That should any section, paragraph, sentence, clause,
phrase or word of this Ordinance be declared unconstitutional or invalid for
any reason, the remainder of this Ordinance shall not be affected thereby.
SECTION 19. That the City Secretary is hereby authorized to cause
publication of the descriptive caption of this Ordinance as an alternative
method provided by law.
AND IT IS SO ORDERED.
Passed by the City Council on first reading this !.Q_day of_~M~a~y ____ ,1979.
Passed by the City Council on second reading this 2.lt_day of Hay ,1979.
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ATTEST:
APPROVED AS TO FORM:
Leon G. Bean, Assistant City Attorney