HomeMy WebLinkAbout1964 - 1974
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CITY OF DENTON
O F F I C E
MEMO RAN D U M DATE; February 26, 1964
TOt City Manager for Mayor. Whitson)
IllFROMt City Attorney
I SUBJECTS Zonin-j Classification Change
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In my opinion, it would require a material amendment to Article
13.21 of the City Code to place a concrete batching plant within
Article 13.20 ("U" class).
This would entail daleting the phrase "concrete batching or ready
mix plants" from Article 13.21 (a) (4), which would automatically
111 throw same into the "LX" classification by virtue of residual
1 Article 13.20 (a) (21). The Planning and Zoning Commission
should be consulted regarding this change in classification.
Notice of the change should be sent to all property owners (taken
from tax roll) within 200' of the area involved in said change#
including John Thomas landlord.
a Q. arton
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CITY OF DENTON 1
O F F I C E
M E M O R A N D U M
DATE: March 9, 1964
TO: City Manager
FROM: City Attorney
SUBJECT: City Building Code {
Port Arthur Inde endent School Dist, v,
~S.W 2d Cit of Groves
Court affirmed theecourp Ct-' Februar No. A~9570),
that the Civil A Y 19, 1964). Texas Supreme
School Dist, in t of the construction of 6a s.w' 2d 849) the city limits and held
said' " must comply with the cit Chool builTdhing within
The building of school buildings is but a necessary the better rule primary duty Of educating incident
dent school i be that the school buildings young. de
city, The stater has s
s the ubject to the reasonable ordinances ofdthe
of n~
k Texas and of the responsibilities of
The skate chose to fulfill protecting the health and safetuca the children
the local schooldistricts a
education ts tion thro
its nd duties ti discharge providing of its
the health, safety and cation through
gis duties of
municipalities, The citroperty of tho people by delegating protecting
responsibility o y • • does not usur gating such to the
to meet certain of the school district by the authority and
and management of individuals stand and an y requiring the buildings
f y more than it usurps the control
property and affairs b private corporations
by making them meet those same over their
This information came to m me standards.
Will shed some light on our office this date, and hope that it
previous discussions of thin matter.
This will also give us something further to discuss in If we ever get there,
Austin,
~ A, Q. -Barton
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CITY OF DENTON f7 It) 1
O F F I C E
M E M O R A N D U M
DATEr April 9, 1964
TOr City Manager
FROMr City Attorney
5UBJECTr Condemning as fire hazard
Article 1067 R.C.S
"The city council may. . . within such limits
of the city as it may designate and
in order to prescribe,
guard against the calamities of
fire, . . declare all wooden buildings in the
fire limits which they deem dangerous to
` contiguous buildings, or in causing or promoting i
fires, to be nuisance, and require and cause
the same to be removed in such manner as they
shall prescribe."
This article also prescribe a procedure for preventing all wooden
buildings
(no.l-fireproof within the fire limits which are damaged
to the extent of 50% of their value or more from being repaired
or rebuiltt and gives the council authority to declare any
dilapidated building a nuisance, and to direct the some to be
repaired, removed or abated in such a manner as they shall direct.
Article 8.03 of the City Code authorizes the Fire Marshall to inspect,
and to order removal or remedy. A fine is provided for against
anyone convicted of refusing to obey such proper order.
Article 8.08 of said Code establishes and describes three fire
limits of the City, as provided for in above R.C.S. Art. 1067.
Article 1015 City Council # Other powers.
"The governing body shall also have powerr
24. Dangerous buildings, etc. - To order, whenever
in the opinion of the city council, any building,
fence, shed, awning or any erection of any kind
or any part thereof is liable to fall down and
endanger persons or property, any owner or agent of
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Memorandum to City Manager
April. 91 1964
Page 2
the same, or any owner or occupant of the premises
on which such building, shed, awning or other erection
stands or to which it is attached, to take down
and remove the same, or any part thereof, within such
time as they may directr and to punish by fine and
imprisonment, or either, any neglect, failure or refusal
to comply therewith. The city council shall have power
to remove the same at the expense of the city, on
account of the owner of the property or premises, and
assess the expenses on the land on which it stood or
to which it was attached, and shall, by ordinance,
provide for such assessment, the mode and manner
of giving notice and the means of recovering any
such expenses."
in my opinion, the city, through its council, has the right to
protect all buildings and inhabitants within the prescribed fire I
limits from unsafe structures. Removal may be ordered by resolution,
and carried out summarily. I would recommend an inspection and
written statement from the fire marshal prior to passing such
resolution, and that reasonable notice be given the owner requiring
him to move it subject to a tine. It he does not remove it within
a reasonable time, the resolution ordering destruction should be
passed.
An ordinance establishing the procedure for such a removal may be
in order - though not absolutely essential.
This is riot in the area of eminent domain.
9C~k BBaarton
City Attorney
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CfTY OF DEW'VoN 1, r
0 F F 1 C E
Ih LFi0 RAN I)L'N
DAr E2 October 61 1965 1
r' TO= City Manager, for City Council ~I
rROMI City Attorne-
SSJER,"J..'i Res judicata applied to zoning Procedure
In a recent Mississippi case (Miss, Sup. Ct,) involving an appeal
from a City Coancil's denial of a request for zoning change, that
Court held thats (1) identical petitions may be dismissed with-
out hearing on doctrine of ran judicata (adjudication of past facts)
and in zoning cases no formal plea of res judicata is necessary=
(2) city Council correctly held that burden of proof was upon
applicant for zoning change to allege and prove material change of
i circumstances, i,e,, that new facts are present.
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In this case, more than one year had lapsed between petitions, but
burden was still on applicant to show that there was a new reason
for changing the zoning.
I believe that this in efood law, and the Council (or Planning and
zoning Commission) could adopt such a policy if it desired.
or Q. Barton
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CITY OF DENTON
O F F I C E
M E M O R A N D U M
DATES December 22, 1965
TO: City Manager
- ^1 FROM: City At-Forney
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i SUWF^T: Title opinion
Frederick Morris, Frances Morris Caruthers and Robert Leslie
Morris have good and marketable title to that tract of land
known as:
All that certain lot, parcel or tract of land situated in
the City and County of Denton, Texas, out of a 640 acre
Survey, Abstract No. 185, patentsul to John R. Henry, Assignee
of the B.B.B. & C.R,R. Company Script No. 1110 and being
part of a certain tract of land out of said survey conveyed
by E. 1), Ross at ux to G. P. Davis on August 28, 1906, as
nhown of record in volume 99, Page 4521 Deed Records of
Denton County, Texas, to wit:
Beginning at the southeast corner of said above mentioned
tract on the North boundary line of McKinney streetr
THENCE North 100'
THENCE West 60'
THENCE South 100'
THENCE East 60' to the place of beginning.
This opinion is derived from an examination of an abstract from
Duggan Abstract Company,and certified to 7100 A. M. December 15,
A. D. 1965. The taxes on the abovo property, rendered by Frederick
Morris, have been paid except for the followings
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School tax, 1965 only. ,
County tax, 1965 only • • • $ 52.
04
City tax, 1965 only . . . 17.04
54,00y
Total . .$123.89
Opinion rendered this 22nd day of December, 1965.
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CITY OF DENTON
O F F I C E r
M E M O R A N D U M
DATEt January 10, 1966
TOs City Manager
FROM= City Attorney
SUBJECT: zoning ordinances as applicable to state owned and used
property.
This gjai ion is taken primarily from A.L.R. 2d Volume 36 Page
653 and Volume 61 Page 9701 from 217 SW 2d 875; Texas Digest,
Zonings and Texas Jurisprudence 2d Volume 63 and Volume 39.
To begin with, as a practical matter, the immunity of the
sovereign often effectively bars the application of a zoning Ordi-
nance as used against the Governmental Agency in question, Prop-
erty directly owned and used by the State Government is expressly
I~ exempt front any local zoning Ordinance, and other Governmental
property (City, County) is probably exempt if it is not being used
in a proprietary function, and of course any Zoning ordinance may
include its own exemption.
Further, the power of eminent domain includes the power to
override Zoning regulations when that power is given to the State
or any Agency of the State,
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I Public Schools are not treated as State property, and do come
within the jurisdiction of city Zoning Regulations, Some cases,
however, have hold that such zoning Regulations as applicable to
public schools must bear a reasonable relation to the promotion of
health, safety, morals or the general welfare of the community.
It must be pointed ou"., however, that proper Ordinances enact-
ed by a Municipality for the purpose of promoting the health, safety,
morals, or the general welfare of the community are applicable to
the State unless it can be shown that the state use is actually para-
mount to, or more important than, the reasonn for the Ordinances.
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The City of McAllen vs. Morris, 217 Sw 2d 875:
rovidin that restrictions of
1, Amending ordinance of City p• to Municipal Buildings
'Coning Ordinance should not apply
and Structures doomed necessary by Board of Commissioners
of City for the safety, health, and general welfare of the
public, if otherwise valid, was not unenforceable on gxounds
that it wasitsbinhabita ts`againat violenceoandbtheir prop-
protecting
l/'-"1 arty against destruction by fire.
j 2, 7n absence of some restraint imposed by Constutional Pro-
vision or by action of the State Legislature, the Court of
Civil Appeals was. not inclined to adopt a restrictive view
of po•%ers of the City commission in exercising its function
under the Polico Power.
3, Provisions of zoning k:nabling Act do not preclude the Legis- I
lative body of the City ,rom providing in a cornprehensi~~om
zoning ordinance that Or•9imaniciballbuilding+~vand structures
erecting in any zone euah
as may be deemed necessary for the safety, health, and gen-
. oral welfare of the public.
Nothing was found in the Zoning Enabling Act, Articles 1011
it 4' that indicate an intention on the
I E A to 1011 .7, inclusive,
part of the Legislature to transfer the responsibilities
' ~ for providing prateation against fire from the Governing
Adjustment provided for by
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Body of a City to the Aoard o~
Article loll G. FurthAr, the l,rovieions of the zoning Enabl-
ing Act do not preclude LegislaL•ive Body o£ a City from
i providing in a Comprehdnsive zoning Ordinance that suahZone
4 inance shall not prevent the City from er°atingbendeemed
such Municipal Buildings and Structures as may
necessary for the safety, health and general welfare of the
public,
~ g 1 to the General Powers
The same ar uments, z am sure, would 9pp Y
of the State, and to the use of State prop Y
In summary, from a review of the moat recent authorities, includ-
~ ing those cited above, it appears that the general zoning ordinances
1 of a Municipalit~l~tipntoffguch 0 dinances clean Swouldpendanger the
except when a
health, safety, morals or general welfare of th° Community, an oven
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then, it would require approval by the Legislature of Texas to ',seed
an action for an injunction to remedy any such violation or prop
violation.
The State, of course, created the municipality and breathed life
into it. It could, should a Legislature be so foolish, destroy the
Municipality or reduce its powers to that of a lap dog.
To qualify this op4.nion, I must advise that it would be danger-
ous, and would be a breach of duty to ignore State activities and
permit State Agencies complete freedom of action. The State has
charged the municipalities with the duty of protecting its citizens
through its Police Powers. No other agency or body within a city
has this overall responsibility. Ergo, some of our Zoning ordinances
must necessarily apply to the state and State Agencies by virtue of
this duty.
I am sure, under proper circumstances, the Legislature would
aive its consent to enjoin the State or its Agents from certain 1
activities which would affect the health, safety, morals or general
welfare of the community.
The determination of whether the ordinance involved bears a
reasonable relation, or actual relation, to such health, safety, mor-
als or general welfare of the community would be in the lap of the
District Court, and each case must stand or fall on its own merits.
Respectfully submitted,
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ack Q. Barton
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CITY OF DENTON
o r F I C E
M E M O R A N D U M
DATSt June 10. 1966
TO% City Manager
' FROM: City Attorney
MJ
SUBJECTi Sewage Dispoaalt Opinion
enerally regulating Septic tanks is RevviS d
The only act g
thousand (350"any
1000)
civil Statutes Article 4477-1, and it does not apply to
county having less than three hundred fifty Census"
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inhabitants according to the last preceding Federal
erial districts and would
The other acts refer outr°instant question.
have no bearing
a Revised Civil Statutes Article 7621b istno sin point& and
ells £ r industricl and ~~±nicipal waata#
i Revised civil Statutes Article
refers only to wator pollution. merely estab-
7621d+ entitled State water ollution control, mere pollution
lishea a board and empowers tprovidedtfornherein". of the waters of the State as
Denton County has no authority to inspect Septic tanks
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prior to installation, unless such authority tanks iven adjo byi the
joining
f water pollution Control Board regarding such oning
Pro-
State waters. The County Commissione Courtahag ap a is ly
not enacted any ordinance regulating Septic
bable that they would not be authorized to enact such an
ordinance.
Even though septic tanks may not be inspected prior to
inatallationo or regulated by ordinance, if any~n&:,becomes a bona fide common law nuisance (odor, health) then an action to
abate it, in the form of an injunction n the or suit District damages The Court. may be brought by any injured party in suit for in-
County Health Officer or Attorney may ed arty if it is a
1 junction in such Court as well as the damag p
public nuisance.
Respectfully submitted,
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Jack C2.
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CITY OF DENTON
OFFICE
MEMORANDUM
DATE: June 131 1967
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TOt Jack Reynolds, City Manager.
FROMt City Attorney
SUBJECT: FIRE & HEALTH INSPECTIONS
Based on the recent United States Supreme Court decisions in CAMARA
Vs. MUNICIPAL COURT OF THE CITY & COUNTY OF SAN FRANCISCO and its
companion case, NORMAN SEE vs. CITY OF SEATTLE handed down June 5,
1967, it appears that the Fourth Amendment bars warrantless non
emergency inspections of residential and commercial property by city
health, building and fire inspectors without the occupants consent.
The court also held that a warrant for health, building and fire
inspections of residential or commercial premises need not be based
on the reasonableness of a need to conduct periodic, area-wide in-
spections. These cases particularly applied to a residential apart-
mant unit; and a locked commercial warehouse, In my opinion this
f requirement for a warrant would not apply to areas open to the public, M
or to inspections which arise from an emergency situation when there
is no time to obtain a search warrant.
The basic holding of the two canes is that a person may :at be pro-
secuted for exercising his constitutional right to insist, that the
inspector obtain a warrant authorizing entry upon his private dwell-
, i ing or his locked warehouse.
r 5ucMated procedures Conduct all inspections as usual by obtaining
permission of the owner or occupant. In those rare ernes where entry
is refused, contact this office and I will obtain a %.,ar.rant. If an
emergency exists, and you feel that an immediate inspection is nec-
essary to protect public property or safety, and there is no time to
obtain a warrant, go ahead and make the necessary inspection and
seizure of property if justified - BUT EXERCISE CAUTION and be sure
you are right.
ack . Barton
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November 21, 1967
Tommy Gill
I Peat, Marwick, Mitchell & Company
I 211 North Brvay
ballasp Texas 75201
Dear M cai i l e
Pursuant to your request to this office for an opinion con-
; earning outstanding liabilities of the city of. Denton, the
following summaries should be adequate.
; z of X20 vs. Bill &,ynoho condemnation ease involv-
ing an appeal from an award of $746.00 deposited July 21, i
19660 and will result in an probable verdict in the neighbor-
hood of $2000.00 or less.
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The City of Denton vs. Loonard J. Trio soh> condemnation case
involving an award of $370.00 deposited July 21, 1966, which
was appealed and could result in a verdict in the neighbor-
hood of $10000.00.
The.C ty of Dentpn vs. 7~ghn 00. i nx cans condemnation case in-
volving %n award of $45000 deposited June l5, 1966, and
which was appealed with a probable verdict value of $1,000.00.
City of Denton vs. lsffi C. and E. B. X&nk*, condemnation
f suit award $222.00 on July 21, 1966, which was appealed, with
a probable verdict value of $500.00.
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j billy. as Hardin vs, efts fS Pa lk Ccng acJ%ion Comnanv and
the City of Menton, personal injury suit ariiiing from else-
trical injuries by a non-employee of the City. The City of
Denton has a probable defense in this ease, and we feel that
we can got a verdict in our favor. Due to the complexities
and amount involved in this case, there is very little likely.
hood of a settlement even for nuisance value, The petition,
howeverr is praying for damages in the neighborhood of
0200)00000,
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` Mr• Naves~iez 211
1~~ 'PomdY Gill rpr ~
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The atheY outatyr►ding litigations is relatively sninot, inr
aluding recont alail" rulsm exceed $5,000,00 to nattla itch
by the City will probably not
do urge
ouY requesto and we
k we trust this letter sataiditsy r stria, contiQenae as
and reiterate that you enezal public lcnowleage•
this iM not a scatter tot y
Yours vary ,racy,
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drank p. Barton
pity Attorney
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OPINION N0. 67-33
TAXATION OF LAND PURCHAStD BY STATE .'AGENCY
Where property is sold to a body politic having the
power of condemnation, no taxes are owed to any unit of
government for that portion of the year when tittle is held
by the agency of government. Article 7151, second paragraph,
RCS. But the owner of the property on January 1 is per-
sonally liable for the months of the year that he owned the
property.
Attorney General's Opinion No. 4749 (1942) holds that
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when property is acquired by the Federal Government, no
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lien for taxes is enforceable against such property.
this opinion and the opinion no. WW-110 (1957) hold that
the owner on January 1 is personally liable for the entire
years taxes. But both of these opinions were written prior
to Dick„isOn vs. City of San Antonio, 439 S.W. 2nd 640 1
(Texas Civil Appeals, 1961). This case upheld an exemption
for eights months of the years taxes, when a city acquired
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property from a private owner on May 1. The Court said at
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Page 642:
"...We think the act (Article 7151) implements and
effectuates the provisions of the Constitution
exempting property owned by a Municipality, and re-
sults in equal and-uniform taxation, so fir as the
private owner is concorned, and exemption for the
Municipality, as required by the Constitution
otherwise, the Municipality would have to pay the
owner of property an amount equal to taxes for
the remainder of the year, in addition ttohisfair
value of. the property. Or, if the property sold
only for its fair value, the seller wood loser the
amount of taxes he is required to pay
mainder of the year..."
On the basis, it is my opinion that the owner of
privately owned property on January 1 is personally liable
for tares for that year on a pro rata basis for the number
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of months that he held title to the property, but that no
specific lien for unpaid taxes may be enforced against the
property for the unpaid taxes after title passes to the
state, one of its agencies, or any other body politic.
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The rule is otherwise when the
prapaxty is sold to
a tax exempt organization, such as a church, which is not
a body politic, In this case, the taxpayer who owns the
property on January 1 is personally liable for the whole
years taxes on such property, and Attorney General's
opinion No. 0-5122 (1943) holds that while the church is
not liable for an
I y portion of the taxes, the property is
burdened with a lien despite'ownership by the .,hurch and
its utilization as church property.
Attached to this opinion, is a copy of a letter from
Riley E. Fletcher, General Counsel of the Texas Municipal
League, to Canyon dated February 13, 1967) which supports
my position.
Respectfully submitted,'
~-r ?yAttorney n
DATES September 281 1967
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' `S'z~Si~ TI~Xta,S MUNICXI'ALL~AG~L1E '
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.803 VAUGHN UU)LUINQ AU64'[N~ TF xA8 78701 • AREA CODS 612 GlteaAwood 8.0001
' hll"I')IRN J. \1.\'1.1'1311\VH `1 ~ ~ ~ ~ ~ l~
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q nu,ua CWIOMI f//y
F'abruary 13, 1467 ~ 1
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1 Mr, Elton Vox '
i Attornoy at Law
. P. Q. l3ox b67
Canyon, Texas 74015
Dear Mr. Cox; . .
fihank you for your phone call on February 8 asking whether or not ;
whop a church ok a hospital foundation purchases property aftor Janus
' ary 1, the owner of s~ch property on January 1 will owe texas ert ,
the entlro year or onl far those months that he owned the prop, Y .
"fhle letter is written on tho assumption that tho purchaser of the
property to sxeznpt' from taxation under the Constttutlon and laws of
~ Texas, Dickison v. City of San Antonio, 349 S, W.2d 640 (Tex. Clv,
App, , 1961, error •rafused, n. r. e, ~ discusses the btatory of Article
7151, and statue that as originally adoptod in 1909, it constated of
' ~ what is new paragraph one' of the Act. Under thin paragraph when
ii < ~ land was owned by a tax exompt agency or organlzatton on January 1, .
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and thereafter it was sold to o'n~ordina~ry taxpayer, the land becarzlo
liable for tho numbor af~ months In the, year during which It was owned ,c
. J by the' ordinary taxpayer.
~ ~ T~aragraph 2 of the Aat was addod in 1943 to provldo that if t'no land '
) ' was cold to or acquirod by thn tl. S. Government diter January 1, ,
) tho tarpayar who owned tho land on January 1 would only bo liable
: ~ for the months that ho owned tho property. St was not until 1951 •
that the additional language "or any othor body politic" way addod to
~ ~ paragraph 2, The key to paragraph 2 id that the purchaser must
1 ~ 'boa "body politic" and ,must have the power of emino}~t domain, re• ,
~ gardlesa of whether liho land is bought or. cundemnod. paragraph 7.
ie the only authority which grants to an ordinary taxpayer owning
1~Ind on January 1 any raliot from paying a whole year's taros Far
. 4hat yoar, ax,d thin relief la aacordod to tho taxpayor ~ if he Hells
it to a "body pollt~c" with the power of condomnation,
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' ~ ~ ~ ~ Clriolrl NublMrUOn's'l~xA9'DOWN A~ O['PY ~
" •An ArwoSrUon of Clusa for Munlolyrl Prol~rwr
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February 13, 1967' • '
Mr. Elton E, Cox
Canyon, TexaH
lea go 2 '
Since neither a church nor a private hoopital foundation are bodies
politic nor do they have the power of condemnation, the taxpayer
who owns property on January 1 is liable for the entire yoar's taxes,
oven if he solls it to a church or private hoopital foundation at
some time during the year thereafter, I checked with Tom deSteiguar,
Asuiatant City Attorney, in charge of collecting delinquent taxes for d
the city of Austin, and this is the rule they follow, Only when land
is sold to some agency of government, does the City of Austin allow
exemption from taxes for those months after January 1 when the
property is 'owned by some agency' of government, federal, state or
local.
Thank you again.for your phone call,' Mfr. Coxi please call on us'
any tirne we may bo otseervice toyou,
Sincerely yours,
'Riley E. Fletcher
daneral.Counsel
OPINION NO. 67-34
JOHN ROADY ADDSTION
A fair summary of the history of the Citys negotiations 1
with John Roady is set out in a memorandum from the City
Engineer, which is attached to this opinion. A telephone
conversation with the former City Engineer, Conrad Callicoate,
supports this position.
There is a contract, verified by Earl Coleman, by and
between B. F. Daniel, Earl L. Coleman, W. F. Hamilton, Denton
Independent School District, and the City of Denton, which
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contract is dated February 28, 1955. The apparent reason for
the execution of this contract was to straighten a meandering
creek running upon tha property of the named parties to pro-
mote the orderly development of the land of these owners, and
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to facilitate drainage for the mutual benefit of all the named
parties. This creek was relocated along Fulton Street, and
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i to the east of the John Ready Addition along the west side of
property owned by B. F. Daniel and other named parties. Pur-
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suant to this agreement, B. F. Daniel agreed to deposit with
the City of Denton the sum of Two Thousand Dollars which was
to be used by the City to apply on the cost of the construction
of four bridges as follows, to wits
(a) At the west end of the prasent Emery Drive in
t said addition (owned by H. F. Daniel)p
(b) At the west end of the present Cordell Street
in said addition (owned by B. F. Daniel)i
j (c) over and across the relocated creek across
Fulton Street)
(d) over the relocated creek across Crescent Street.
The City of Denton agreed to construct or cause to be
constructed such bridges at such locations within a mason-
able length of time from the date of the contract (February
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j 28, 1955) and specially agreed to construct or cause to be
constructed the bridges on Fulton Street and Crescent Street ¢
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not later than June 30, 1955. The other parties to the con-
tract expressly agreed to certain other promises connected
with the relocation of this creek, and the development of
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the land owned by the named parties.
None of the land involved in the contract W& presently
known as the John Roady Addition.
` Neither John Roady nor any predecessor in title was a
party to the above contract.
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There is no record that the contract has been fulfilled
in other respects, or is even still in force. The statute
of limitations, and the doctrine of laches, would prevent
any action under the contract or for breach of contract. if
the Two Thousand Dollars was deposited with the City by
B. F. Daniel (and there is some evidence that it has been)
j then it is probable that such sum has been used for the con-
struction of the other listed bridges. If the sum was to be
pro-rated between the bridges at Five Hundred apiece, then
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the City hae still fulfilled its obligation because it has
spent, or will spend, more than Five Hundred for the Cordell
Street bridge for paving.
All the contract required was for the City to construct,
or cause to be constructed, those certain bridges. The City
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did cause the Cordell bridge to be constructed,
The agreement between the City and John Roady for the
construction of the Cordell Street bridge was separate and
distinct from the 1955 contract, The City granted certain
concessions to john Roady for his promise to construct the
bridge, and pave it, at his expense, He did make this
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Promise, and the City has spent more than Five Hundred Dollars
in reliance on it.
SUMMARY: John Roady was lawfully required to connect
hie subdivision to existing streets outside of the subdivision
at his own expense, by ordinance Article 13.07 (b) (1). 1
This requirement is to prevent a subdivider from isolating
his subdivision from the City at large, which is dangerous to
health and safety by preventing adequate police and fire pro-
tection, and emergency calls by ambulance, etc,
The City has a duty to protect its people. That is why
we exercise paramount rights over a subdivider, as he does
not have such a duty, The ordinance contemplates crossing I
private property of another as it uses the phrase "outside
of the subdivision".
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Tn my opinion, the maximum amount the City could be
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responsible for would be Five Hundred Dollars, if the full
amount of Two Thousand Dollars was deposited, and if it was
not used on the other bridges. Too many facts remain unknown
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for a precise statement. At any rate, if there is any obliga-
tion) it would be moral, and not legal.
Respectfully submitted,
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J Q. Barton
ty Attorney
DATE: September 29, 1967
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CITY OF DENTON
O!"FICE
MEMORANDUM ,
DATE; September 26, 1967
TO: City Attorney
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FROM; Director of Community Development
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SUBJECT; John Roady Subdivision r
Article 13.071 Appendix A, of the Code of Ordirhanc3s requires
a aubdivider to install all streets, curb and gutter, and drainage
improvements Including the necessary connections outside of the
subdivision at his own expense, and it was under this ordinance that
John Roady was held responsible for the construction of the bridge
and the pavement on Cordell Street Between his subdivision and the
existing street 40 feet beyond the eastern boundary of the subdivision.
The bridge was constructed and accepted by the City, as was the ,j
I pavement within the Pubdivisica. The acceptance of the pavement,
however, specifically excluded the east end of Cordell Street, where
k the street was not completed within the subdivision, nor connected
to the existing street 40 feet beyond the subdivision.
Upon reviewing the plans for street paving, it was discovered
by this office that n portion of the concrete curb and gutter on the
f east end of Cordell was not installed as indicated on the drawings, and
was too high to allow the street to connect smoothly with the bridge.
As you know, the City is not a party to the contract between a
subdivider and his engineer; and the City does not, and indeed cannot,
check all grades set by the subdividor's engineer, It was my feeling
therefore, that any correction of the grades to make them conform to those
indicated on the approved drawings should be made by the subdivider,
While the City does approve the construction as conformtug to City
specifications, no approval is given to grades, neithc, +.s reco.nmendation
given for payment to the engineer for establishing grades,
At a meeting held in my office between Mr. Roady, his engineer, and
myself, the following agreement was reachedi
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1. Mr, Roady and his engineer were to share equally the cost of
removing and reinstalling curb and gutter where required to
conform to the approved drawings.
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2. Mr. Roady's engineer was to design a reverse vertical cu°.ve
in the street to meut the bridge with as little of the existing
curb as possible being removed.
3. The City would set the construction stakes for the redesigned
section of the street.
4. Mr. Ready would pay for the construction of the street required
to meet the existing street to the east.
5. Tile City would pay for any cost of repairing and rebuilding the
existing street on the east side of the creek in order to match
the now pavement. ,
I Subsequently the connection was designed as agreed by the engineer, and
these drawings are in my office at the present time
Mr. Ready has indicated to me on no less than five soparate occasions,
both by telephone and in person, that he has contacted a local contractor
in order to make arrangements for the street to be completed.
Since the ordinance required the completion of all street improvements
before issuance of building permits, Mr. Ready was informed that no building
could take place until the street connection was made. It is common 4.
practice to allow a subdivider a number of permits when rite street
construction nears completion, in order that he may have those houses
ready for sale, and have a more rapid return on his investment In utility
and street improvements. Ten permits had already been issued before it
became apparent that the street connection was to be delayed, but no
permits have been issued since that time.
When the owners of the newly constructed Medical Clinic adjacent
to Mr. Ready's subdivision desired to purchase a portion of the subdivision
for possible future expansion, Mr. Ready assured me that the money obtained
from the sale would be used to complete the street connection. Due to 1
the fact that I felt enough property remained to assure compliance with
i the paving ordinance requirement, and based on his assurance of co.pletion
of paving, I agreed not to withhold building permits from the single lot
to be sold to the Medical Clinic,
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Twice HInce tho snlo of this lot, Mr. Roady has conic by my office
to Lell nie Out +u'ranfgmnunCS oro being made to complete Lho paving.
! I do not believe that the City ties in any way delayed the
construction of this street. I believe, rather, that Mr. Roady has been
given every consideration possible in order to help him complete his
subdivision, As to any pressure brought against him, the only pressure I
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was that of the ordinance itself which requires the completion of street
and drainage improvements before the issuance of building permits. This
is the same ordinance with which all other subdividers in the City of
Denton must comply, and one which this office is required by ordinance
to enforce.
Robert L. Pearce
Director of Community Development
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i1 CITY 01' DENTON
MEMORANDUM
DATE: February 8, 1968
TO: city manager
FROM: City Attorney
SUBJECT: Dog Licensing Requirement
in It appears that the problem previously discussed regard-
{ g the inability of certain persons to have the dogs vaccinated
within six months of coming to town, or within six months of
j knowledge of our ordinance, can be solved by amending Section
4-43 of the Code, under the caption, fng and term of 1 ; no o~i to
read as follows:
The fee for such license shall be Two Dollars
($2.00) per year for each dog, payable in advance,
such fee to be due and payable on or before the
first day of January of each year. All licenses
f issued hereunder shall expire December. 31 of the
calendar year for which issued. Persons arriving
in the City who have a valid vaccination certificate
{ issued by a qualified veterinarian may obtain a
license for the current year pro-rated to the end
of such year provided that the terminating date of
the license issued shall not be more than one year
from the date of such
lict+nse fee may be prior vaccination, and the
Y pro-rated for the remainder of
the licensing year. All licenses for the ensuing
year may be issued on and after November 1 of the
preceding year, and shall be effective
ensuing calendar during said
year.
The licenses we issue would not have to be any different
from those we currently issue, and the information on each
would be the same. The only improvement over this rewording
of Section 4-43 would be to permit the issuance of licenses
for portions of the year, as it now requires licenses to be
issued only on and after November 1 which, as you know, has
presented a problem.
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See if you agree that this is a possible solution, and
we can talk more about it later,
me, d 7 have also talked to three of ourklocal rveterinarians,
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CITY OF DPNTON
MEM013ANDUM
DATE: October 12, 1970
i~ TO: Jim White
PROM: Jack Barton
SUBJECT: Taxi Chauffeurs License Pee
On August 271 1970) the Corpus Christi Court of Civil
Appeals held that the trial court correctly enjoined the City
of Corpus Christi from charging and collecting fees as a pre-
requisite to the issuance of a chauffeurs license; and the
court declared such provision of the Corpus Christi Ordinance
void.
The case: Plaintiff, a taxi driver, sued the City of Corpus
Christi for a declaratory judgment that the ordinance
requir- ing the license fee was void, and to enjoin its enforcement.
R.C.S. Art. 6687b deals with licensing operators and provides
for payments of a fee to the State. R.C.S. Art. 6698 authorizes
cities to license and regulate the use of motor vehicles for
hire, but prohibits the levying of occupation tax or license
fees.
Perhaps we should re-evaluate our position.
Jack V.-13; rton
JQB:,js
cc: Ralph Mann
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LEGAL OI'IN ION . N0 . 71-1
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DATE: January 4 ) 1971
TO ! Planning, and Zoning Commission
FROM: City Attorney A
SUBJECT: Definition of Subdivision
From R.C.S. Art. 974a: Any owner In a City, or within five (5)
miles of a City, who divides same in two (2) or more parts for
purpose of, laying out, any subdivision.., for any addition to a
City....or for laying out surburban lots.or building lots.... a
shall plat; same, and submit to Planning; and Zoning; of that City
for approval.
'The Penal Code, and Art. 974a--2 define "subdivider" as a person
who divides a tract of real. property under circumstances to which
Art. q'(4a Is applicable.
All. the cases construing; these articles except agricultural pur-
poses from the meaning of subdivision, and do not permit the re-
f quirement of a plat for such purposes.
f Our Code Appendix A, Art. 13.02, under raragraph (a), Subdivision,
reads, as follows:
The term "subdivision" as used in Part I of this Chapter
e,hall mean the division of ate, tract or parcel of land into
two or more parts for the purpose, immediate or fiktt•tire, of
sale or building development;, This term shall riot. Include
division or development for aEr.ricultural purposes, buL shall
j includn resubdIvielon and industrial development (emphasis
added).
' Art. 13.03 requires that all subdivisions be platted, and 1
provides requirements therefore. No metes and bounds sale
will be recognized, unless sold for agricultural purposes, i
However, the Texas Courts have imposed their own interpretations
o!' provisions almost identical to the above, The problem is
apparently the meaning of "division or development for agricultrual~
purposes".
The recent trend established by several Civil Appeals decisions,
approved by the Supreme Court, is to support subdivision control
by cities, if reasonable. The rule that a sale of one tract or
five acres or more, or of one tract from large acreage) is
presumed to be for agricultural purposes, was changed by the Texas
Supreme Court in 1970.
The new rule Is that each sale of a portion of a larger tract own- is
ed by a seller Is deemed a subdivision (i.e., dividing; a tract of
record into two or more tracts) and therefore must be done by plat,
unless the owner can show that the pt'onosod sale is in fart r.ri-
mari~j for agriculttivaL purposes.
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A good definiton or the term "agrI^ultural purposes" follows: ;
The cultivation of. the ground in large areas or fields,, in-
cluding the raisinj, and foeding of live ^tock: A use per-
twining to husbandry, tillage 'or Varmint;. 1
Such use could include a single family dwelling if incidental.
to the agricultural purpose.
CONCLUSION
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From and after this date, require all persons to divide land
only by nlat, literally following the provisions of our sub-
division regulations, being, Code Appendix A, as amended, and
refuse to recognize any metes and bounds sale if the metes and
bounds describe other than a lot or tract of record, unless the
r seller thereof, or the proposed buyer, can show that the trans- y
fer i.s primarily for agriculturs,l purposes.
' If a determination of that fact cannot be made by the staff, an
appeal may be taken to the Planning and Zoning Commission, then
to the District Court, etc.
,.Respectfully submitted,
Jack Q. Barton
City Attorney
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OPINION NO. 71-2
` C:[`L'Y DBPdSI'L'ORI L,S ; N.~,
ARTICLE 2559. COUNCIL, TO TAM APPLICATIONS FOR DEPOSITORY. I
(1) Notice that applications grill be received to be
published not less than one nor more than four weeks before
selection meeting in city newspaper;
(2) Application of banker to be submitted to City Sec-
retary prior to day of meeting.
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ARTICLE 2560. AWARD AND BOND.
(1) Award to be made to depository (ies) offeri.nF the
most favorable terms and conditions for handling of City funds;
(2) Right to reject any and all applications reserved to
City;
(3) Character and amount of funds to be designated by City;
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{11) Rate of interest for time deposits to be determined by
contract;
~l (5) Within five days after selection, depository to qualify
in one or more of the following ways at option of City;
(a) By executing and filing a bond or' bonds payable to City ;
signed by five or, more individua.). solvent sureties who i
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shall awn unencumbered real estate not exempt of a h
value equal to or, in excess of the total amount of the I
revenue of City for the next preceding year for which
bonds are made;
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(b) Same as above except bond or bonds to be issued by
solvent surety company; I
(c) Same as (a) above, which sureties shall, file an itomiz-
ed and verified financial statement which shall show i
worth of all to be equal to or in excess
aggregate net
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Of MWUnt Of bOn(1 (s) re'quit'ed,
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(d) Depositnry(i.es) may pledre with City, securities
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in an amount equal to the amount of said City funds
on deposit as designated and approved by City as to ~
kind and value.
(6) Bonds, security, etc,, subject to continuous investi-
gation and scrutiny of City.
ARTICLE 2561, DUSICNATING DEPOSITORY, ETC.
As soon as bond is given and approved, City to designate
depository(ies) and City Treasurer to transfer funds.
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ARTICLE 25290. SELEC'T'ION AND QUALIFICATION OF DrPOSITORJES
OF STATE AGENCIES AND POLITICAL SUBDIVISIONS.
(1) Hank not disqualified by having an employee of City + i
as stockholder, director or officer if said City employee is
not in a position of selecting said depository; a
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(2) Bank not disqualified if any of its officers, directors JI
or stockholders own more than 1074 of Bank's outstanding; capital i
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stock and at same time serves as member of Board, charged by law E
j with selecting depository; If said depository was selected by
majority vote, and bank officer, director or stockholder abstained ~
J from voting thereon,
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I OPINION NO. 73.-3
February 10,
WATER AND SEWI?R SYSTEMS VITHIN SUBDIVISIONS
13EQUIREMENTS AND RECOMMENDATIONS
Possibly the second most misunderstood ordinance of this
City is that known as the "Subdivision Regulation", printed as
Appendix A to the Code of Ordinances.
An opinion was rendered by this office earlier this year
regarding the definition of the term subdivision, therefore the
1 instant opinion will make no further comment thereon.
The immediate difficulty appears to involve the regulation
and requirements of water and sewer systems, and the express re-
quirement of connecting with City owned main,,,. Article 13.03,
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oovern:l-ng approval and platting procedure, paragraph (d), reads
as follows:
All water distribution and sewage collection Ustems,
includinf irecessarv extensions of existing mains with-
in or outside of' bile subdivision, shall be installed,
at the expense of the subdivider, as provided in Art-
icle 13.06 (emphasis mine),
Under paragraph (j) of Article 13.011, captioned Prellmi.n<i
Plats, we: find the following Information required:
Pre.limimary plans for water distribution and sewage
collection systems and drainage, including necessary
easements and construction outside the subdivision
(emphasis .nine).
Neither of the above quoted sections define what is necessary_
as to extending such mains, or, as to the eon3truction of the sys-
tems Pr se. The sections, respectively, merely place the finan-
eial responsibility if and when extensions are necessary, and re-
quirea pertinent information am to the developers plan for any
such system. He are referred to Article 13.06 for the specif.tcat.ions
of sunk sy3tcros, and for corps truct-i on re:qui.rements.
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Article 13.061 entit;l.ed Water Distribution and Sewage Collet-
tion Systems, paragraph (a), reads en toto as follows, JJ
(a) Drecif'icati.ans
The director of planning shall prepare and maintain
in his office the City of Denton s,pecif'ications f'er
grater distribution and sewage collection systems,
Paragraph (b) requires that no building permit will issue ~i
"until such systems are fully installed and in operation", and
mattes certain exceptions, This paragraph (b) refers back to
paragraph (a),
Paragraph (d) of said Article 13,06 again refers to necessar
j~..~ extensions, and requires the developer to construct same at his
own expense, and within easements obtained by him. This means that
if outside extensions are required by the City or desired by the
developer, then the developer must do it. This paragraph does riot
require outside extensions of mains any more than 13,07 (d) re titres
drainage improvements, or (e) require, alleys, Reflect a moment;
then react on.
Arti.ele 13,09 (s) grants the planning and zoning commission
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the right to vary and modif.'y all terms of the subdivision
regula- tions, under stated circumstances, and gives it the duty of judging
the application of such regulations to each specific case.
Section 25••37 of the Code regulates septic tanks as follows;
Sep"Ic tanks shall be installed in accordance with the pro--
visions of the plumbing code, and the City Health Officer
shall have the authority to prescribe additional onal refutations
for such installations to insure compliance with the stand
arils established by brie Texas State Department of Health.
Therefore, we find that septic tanks are expressly permitted
if up to State standards, unless :situated upon a lot of record any
portion of which is within 100 feet of a City sewer main where nor-
oral connection thereto can be made (Section 25.37 and also Section
25-II1), Dry closet,; and/or privy vaults are permitted under certain
circumstancos, and even required under certain other circumstances
(Sectionrs 25•-38 thhu 25-41),
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Code) be9tOWs upon the plumbing in- j
Section 17-•5U (Piuwnbi.nfI
specter the duty of inspectinv,, and approvint; the installation of
septic ta~rlcs. Plo cons tructt.otz f;uiclel.ines are stated,
Section 23-67 expressly prohibits the use of septic tanks for
Mobile Home Parks.
SUMMARY
There is no express prohibition of private water systems,
or of private sewago collection systems including; septic tanks,
in our subdivision reC;ulati.ons. The only regulations regarding
the type and construction of such systems is the aforesaid Article
13,06 which simply refers to specifications prepared and maintain-
ed by the director of planning, The utility franchise requirement
of Section 25-90 would control private grater and sewer systems
M which sell, or provide service, to others.
However, there is some question of our ability to refuse a
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franchise therefore without a valid reason based on public health,
safety or wo1fare, hence, such a requirement is of minimal value,
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and could not he used to prevent septic tanks or water wells der
fie,
~ RF,COMtAi?Nf)A!P1UI_IS
A, Draw a set of specifications for a grater system which
~ number of
would equal that of the City if more than a certain
persons (or families) are to be served thereby; a lesser set for.
fewer por3ons; and perhaps an even lesser set for a single family
use. Proximity to any existing, connectable, City water main
in these specifications. The plumb--
should be taken into account
ing code and health code enter into this control. substantially at
need
therefore the exi:;ting spoclflcaLicn3 may
the present time., ,
little change. All such specifi.c.ations should bcr in written form,
and kept In t•he office of the hi.reotor of Community Development,
bei.nf; the City's Director of Planning, All changes to any such
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specifacat;i.or;s should be communicated to all City officials
involved, and perhaps to the C1.ty-County Health Department.
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B. Draw a set; of specifications on the construction, in-
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stallation, use and maintenance of septic tanks. I seriously
doubt, under current case law ;Crawford; Hunt; etc.), that
septio tanks can be prohibited viithin the entire corporate
limits, but I do feel that severe regulations thereof may be
imposed, and can be ,justified.
Such specifications might include:
1. Number of persons or families per system (or tank);
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2. Construction standards as provided by the State, or
U.S.A.;
Density of the area within which the septic tank is
to.be used, and of the subdivision to contain same;
11. Number of septic tanks in use in or near the area
in question;
Soil conditions which may prevent effective and ade-
quate use; proximity to lake; pollution; ,
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6. Other conditions which may affect adequate use;
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7. Define "adequate use";
Proximity to existing City main based on a per-family
basis;
g. The type and nature of the subdivision itself;
10. Require annual. inspections by, perhaps, the plumbing
` Inspector, or the health officer, or sanitarian;
F 11. Provide for cleaning; and voiding upon order of the
inspector (based upon good reason);
12. Perhaps provide a septic tank fee, or maintenance
bond, or the like.
Clearly, the Planning and Toning Commisston, after a re-
commendation frorm the Director of Community Development and the
Director of Utilities, can require contiect.ion;; with exi.stine; water
and sewer mains prior to approving any subdivision plat, or re-
plat, or lot change, and not permit septic tanks, if such roquirc-
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meat bears a reasonable relation to the protection of the public.
Economics may be considered.
Therefor.o, it becomes even more important to establish such
standards, In the form of written but fluid specifications, OP
even codified ordinance;,, so that all will know what, "bears a ~
reasonable relation to the protection of the public". Unwritten
standards are hard to enforce, and difficult to prove in Court.
Regretably, in my opinion, the complete banning of septic
tanks at this time bears no such reasonable relation, as a matter
I 1 of law.
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CITY OF DENTON
MEMORANDUM
DATE : January 3, 1974
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TO : Wayne Autrey, Chief of Police
FROM W. Ralph Mann, City Attorney
SUBJECT: Height & Weight Requirements
Recent case law has held throughout the country that, minimum
height and weight requirements arbitrarily discriminate' against
women and some minority groups in restricting them from employ-
ment as police officers,
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Accordingly, it is the opinion of this office that any similar
Civil Service Regulation or departmental policy in effect within ~
your department are in violation of the Civil. Rights Act of 1873.1
42 U.S.C. 91983, and the Equal Protection, Clause of the Fourteenth
Amendment. To abide by such regulations and/or policy will quite
possibly subject you individuallyI other members of your
depart- ment and the city to civil liability.
Your cooperation will be appreciated.
W, RALP 1 MANN
WRMrjs
ear Dtooks Holt, Personnel Director
Jim White, City Manager
1 Paul C. Isham, Assistant: City Attorney
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THE NE19 CAMPAIGN CONTRIBUTIONS AND EXPENDITURES ACT
House Bill 4 as enacted by the 63rd Legislature amended the w•
Election Code. Eleven of the twelve then existing articles in
Chapter 14 were amendedl two new articles were added to that
chapter; and Article 3.05 was amended. Most of the new provi-
sions are of concern pr.i.marily to candidates and campaign managers.
No attempt will be made to cover those changes here. The follow-
ing is designed solely to answer the major questions in which the
general public may have interest.
WHO IS AUTHORIZED TO SOLICIT AND EXPEND FUNDS
FOR ELECTION CAMPAIGNS?
As in the past, candidates, their campaign managers and
assistant campaign managers may solicit and expend funds for
election campaigns. A major change made by the new enactment is
that political committees, whether organized in support of a
candidate or candidates or of an issue or issues, can expend
funds for election campaign purposes only through campaign
managers or assistant campaign managers. Such persons must be
designated by candidates and political committees by written
appointment filed with the Secretary of State for statewide
candidates or issues or with county clerks or applicable poli-
tical subdivisions for local candidates or issues. Political
committee campaign managers are subjected to the same reporting
requirements as candidates' campaign managers.
HOW MAY AN INDIVIDUAL LAWFULLY CONTRIBUTE TO AN ELECTION
CAMPAIGN?
The ordinary citizen may participate in election campaigns
in the following ways:
1. An individual not acting in concert with any other 1
person may expend out of his own funds as much as $100 for
postage, telephone or telegraph charges or other lawful campaign
expenditures to aid or defeat any candidate or measure provided
that the amount expended is not to be repaid to him.
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2. An individual may contribute his own personal services
and traveling expenses to aid or defeat any candidate or-measure
provided he will not be compensated or reimbursed for his services
J or expenses. 1
3, An individual may contribute funds directly to a candi-
date, political. committee, campaign manager, or assistant cam-
paign manager. The contributor should be aware thats
a. If the amount donated exceeds $10, his name and
address should be reported by the candidate, campaign manager
or assistant campaign manager.
b. If the amount contributed exceeds $100, he is
obligated to see to it that his contribution or loan was reported
and, if. it was n-t reported, to report the contribution or loan
to the proper official.
FOR WHAT PURPOSES MAY CAMPAIGN FUNDS LAWFULLY
BE EXPENDED?
Campaign funds may lawfully be expended only for the following
purposes:
1, Traveling expenses of the candidate, campaign manager,
or assistant campaign managers or of a secretary for a candidate.
2, Payment of fees or charges for placing the name of the
candidate on the ballot and for holding and making returns of the
election.
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iiirc of clerks and stenographers and cost of clerical
and stenographic work.
4. Telegraph and telephone charges, postage, freight, and rt,`
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express charges,
5, Printing and stationary.
5. Procuring and formulating lists of voters, making
canvasses of voters, and employing watchers.
7. Office rent.
8. Newspaper and other advertising and publicity.
9. Advertising and holding political meetings, demonstra-
tions, and conventions and payment of speakers and musicians
therefor.
10. Employing as counsel attorneys licensed in this State
and expenses of election contests and recounts.
11, Traveling expenses and salaries of all necessary campaign
staff in the lawful execution of their duties.
WHAT PENALTIES MAY BE IMPOSED ON AN
INDIVIDUAL WHO VIOLATES THE ACT?
An individual may violate the Act and be subject to
penalties under the following conditions:
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1. An individual who makes an unlawful campaign contri-
bution or expenditure may be fined not less than $100 nor more
than $5,000 or be imprisoned in the penitentiary for not less
than one nor more than five years or be both so fined and
imprisoned.
2, Any individual who makes an unlawful campaign contri-
bution or expenditure in support of a candidate will be. civilly
liable to each opposed candidate whose name appears on the ballot
E for double the amount or value of the unlawful campaign contri-
bution or expe:iditure and reasonable attorneys' fees for collect-
ing the same.
, I
j 3. An individual who makes an unlawful campaign co:ktri-
J bution or expenditure not expressly supporting any candidate
but opposing a particular candidate or candidates shall be
civilly liable to each opposed candidate for double the amount
or value of the unlawful campaign contribution or expenditure
and reasonable attorneys' fees for collecting the same.
A. Any individual who makes an unlawful campaign contri-
bution or expenditure shall also be civilly liable to the
State of Texas for an amount equal to triple the amount or
value of the unlawful campaign contribution or expenditure.
5. An individual whose contribution or loan in excess of
$100 was reported neither by the recipient nor by the individual
himself will be civilly liable to each opponent of the favored
j candidate for double the amount of the unreported contribution
II or loan and for reasonable attorneys' fees for collecting the
same,
6, Any individual who purchases political advertising
of any type without providing the printer or other media dis-
tributor with his full, name, address, and the name and address
of the candidate, political committee, or business entity
which he represents will be guilty of a felony and may be
Pined not less than $100 nor more than $5,000 or be imprisoned.
not less than one year nor more than five years or be both so
fined and imprisoned.
3.
TO WHAT ExTrNT MAY A CORPORATION LAWFULLY
PARTICIPATE IN ELECTION CAMPAIGNS?
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A corporation having the right of eminent domain is
authorized to engage in political advertising when, but only
when, an issue to be voted upon directly affects the granting,
refusing, existence or value of any franchise granted to the
corporation. In that event a corporation may lawfully present,
by any lawful means of publicity, facts and arguments bearing
on the issue and pay the expense thereof. Any publicity given, r
however, must contain a statement that it is sponsored and
paid for by the corporation. It is specifically provided that
this authority does not imply that a corporation can support a
candidate believed or committed to support the corporation's Ji
position. A corporation, therefore, can take a position only
on an issue affecting its franchise] it can neither support nor
oppose any candidate.
Corporations which have been in the business of lending
money for more than one year may loan money for campaign pur-
poses provided the loan is made in due course of business and
is not, directly or indirectly, a contribution.
1 HOW MAY THE ACT BE VIOLATED BY AND WHAT
f PENALTIES MAY BE IMPOSED UPON A CORPORATION?
A corporation will be in violation of the Act and subject
f to penalty under the following circumstances:
1. corporation making or promising a gift, loan, or
payment j.i: violation of the Act will be civilly liable for
double the amount or value of the gift or loan, promised or
made, to each opponent of the candidate or political committee
favored by the corporation.
2. Any corporation making or promising a gift, loan or
payment to any candidate, political committee, campaign manager,
assistant campaign manager or other person in violation of the
Act will be civilly liable to the State of Texas for an amount
equal to triple the amount or value of the loan or gift, promised
or paid.
i
s 3. Any corporation making or promising a gift or loan
' in violation of the Act will also be guilty of a felony and
E upon conviction may be fined not less than $1,000 nor more
i than $10,000.
4. Any officer or director of a corporation making or
promising an unlawful gift, loan or payment will be guilty
of a felony and upon conviction may be fined not less than
$100 nor more than $5,000 or be imprisoned not less than one
nor more than five years or be both so fined and imprisoned.
5. Any officer, agent or employee of a corporation who
` I uses or permits the use of any stock, money, assets or other
property contributed to it by another corporation or by a labor
union to aid in the election or defeat of any candidate or to pay
any part of the expenses of any candidate or part of the expenses
of any political committee or to aid in the success or defeat- of
any political question will be guilty of a felony and upon conviction
may be fined not less than $1.00 nor more t',an $5,000 or be imprisoned
in the penitentiary not less than one nor :core than five years or
be both so fined and imprisoned.
CAN A LABOR UNION LAWFULLY PARTICIPA'T'E; IN
ELEC'T'ION CAMPAIGNS? 444
The recently enacted measure reco,inizes and retains the
prohibition contained in Section 4b of Article 5154x, V.1.C.S.1
making it unlawful for any labor union to make any financial
contribution to any political party or to any person running
for political office,
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WHAT PENALTIES, 11' ANY, ARE IMPOSED UPON
LABOR UNIONS FOR VIOLATIONS OF THE ACTT
No specific penalties are imposed upon labor unions for iluc
violations of the Act, but any officer, agent or employee of
a labor union who uses or permits the use of money, assets or
other property contributed by the labor union to further the
cause of any political party or to aid in the election or defeat
of any candidate or to pay any part of the expenses of any
candidate or part of the expenses of any political campaign or
political headquarters or to aid in the success or defeat of
any political question will he guilty of a felony and upon con-
viction may be fined not less than $100 nor, more than $5,000
or be imprisoned in the penitentiary not less than one nor more than
five year or be both so fined and imprisoned.
WHAT EFFECT, IF ANY, DOES THE ACT
HAVE ON OTHER LEGAL ENTITIES?
If any corporation or labor union seeks indirectly to con-
tribute. to election campaigns by donating stock, money, assets
or other property to any other association engaged in religioust
l~ charitable or eleemosynary activities or to any commercial or
industrial club or to any civic organization, any officer, agent
or employee of the recipient who utilizes the contribution to
further the cause of any political party or to aid in the elec-
tion or defeat of any candidate or to pay any part of the expenses
of any candidate or the expenses of any campaign or political
headquarters or to aid in the success or defeat of any political
question to be voted upon will be guilty of a felony and upon
conviction may be fined not less than $100 nor more than $5,000
or be imprisoned in the penitentiary for not less than one nor
more than five years or be both so fined and imprisoned.
WILL THE NEWLY ADOPTED PENAL CODE
AFFECT POLITICAL CONTRIBUTIONS?
Some news media publicity has been given to provisions which,
in the Penal Code to become effective on January It 1974, will
make it unlawful for any public servant to accept a benefit for
past official behavior or any benefit of any kind from a person
interested in any matter within the jurisdiction of the public
t I servant or pending before or contemplated by the Legislature.
such provisions are in the Code, but the Code lists certain
specific defenses to prosecution under those provisions, one such
defense is that the benefit was "a contribution made under the
election laws for the political campaign of an effective public
servant when he is a candidate for nomination or election to public
F office."
CLARK, THOMASt DENIUS,
WINTERS & SH APIRO
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