Ord. 0220-08 02-14-00ORDINANCE NO. 220-8
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PEARLAND,
TEXAS, AMENDING ARTICLE 1, IN GENERAL, OF CHAPTER 30,
UTILITIES, OF THE CITY OF PEARLAND CODE OF ORDINANCES, AS
IT MAY HAVE BEEN, FROM TIME TO TIME, AMENDED, TO AUTHORIZE
THE ASSESSMENT OF CHARGES AGAINST PERSONS RESPONSIBLE
FOR ILLEGAL CONNECTIONS OR TAMPERING WITH EQUIPMENT AND
TO ESTABLISH PROCEDURES TO TERMINATE SERVICES ON
DELINQUENT ACCOUNTS; HAVING A SAVINGS CLAUSE,
A SEVERABILITY CLAUSE, AND A REPEALER CLAUSE; PROVIDING
FOR CODIFICATION AND AN EFFECTIVE DATE; AND DECLARING AN
EMERGENCY BECAUSE THE NEED TO REGULATE UTILITIES INURES
TO THE BENEFIT OF THE PUBLIC AND, THEREFORE, BEARS
DIRECTLY UPON THE HEALTH, SAFETY AND WELFARE OF THE
CITIZENRY.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That Section 30-7, Termination of Service Authorized, of Chapter 30,
Utilities, of the City of Pearland Code of Ordinances, be and the same is hereby
amended to read as follows, to -wit:
"Section 30-7. Termination of service authorized.
... All non -emergency disconnections effected without the customer's
consent shall comply with the procedures set forth in Section 30-24."
Section 2. That Section 30-14, Damage, Trespass of Equipment, of
Chapter 30, Utilities, of the City of Pearland Code of Ordinances, be and the same is
hereby amended to read as follows, to -wit:
"Section 30-14. Damage, trespass of equipment.
It shall be unlawful for any person, not having authority to do so, to open
any water hydrant or tamper with any utility service furnished by the city to
consumers, or to in any other way molest, damage or trespass upon any
equipment or premises belonging to the city connected with any service.
Any repair or replacement expense resulting from damage caused in violation
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of this section shall be assessed against the person or persons responsible for
the damage."
Section 3. That Section 30-20, Unlawful Connections, of Chapter 30, Utilities,
of the City of Pearland Code of Ordinances, be and the same is hereby amended to
read as follows, to -wit:
"Section 30-20. Unlawful connections.
Any person who shall make any connection in any manner to any utility
system, whether owned by the city or not, without the prior knowledge and
consent of the owner of such utility system shall be deemed guilty of a
misdemeanor. Any person found in violation of this section shall be responsible
for all water illegally obtained. Water charge estimates shall be made by the
city's water department and shall be based on an average month of the
previous year. If an estimate is not possible, then the amount assessed shall
be the monthly minimum usage charge."
Section 4. That Chapter 30, Utilities, of the City of Pearland Code of
Ordinances, be and the same is hereby amended by ADDING Section 30-23 of said
Code of Ordinances to hereafter provide as follows:
"Section 30-23. Rebuttable presumption.
There shall be a rebuttable presumption in prosecutions under this
chapter that the owner of record of real property that is found to have received
unmetered water as a result of an unlawful connection in violation of
Section 30-20 to have tampered with equipment in violation of Section 30-14
is responsible for the unlawful connection or the tampering with equipment."
Section 5. That Chapter 30, Utilities, of the City of Pearland Code of
Ordinances, be and the same is hereby amended by ADDING Section 30-24 of said
Code of Ordinances to hereafter provide as follows:
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"Section 30-24. Termination procedures.
(A) Nonemergency Termination: Whenever the City is authorized to
terminate a customer's water services against that customer's consent and under
the provisions of this subsection or whenever the City otherwise terminates water
services to a customer in a nonemergency situation other than by the customer's
request, the City shall first provide notice in the form and manner described below
to the customer and afford the customer an opportunity for a hearing in the form and
manner described below before the termination of such services. If after the City
has complied with the notice requirements as described below, the customer does
not request a hearing for review of the termination within the specified time, the City
may terminate water services to the customer on the day and at the time specified
in the notice to the customer or within five (5) calendar days thereafter. Any time
elapsing after the declared termination date, the elapsing of which is due to the
pendency of a hearing or the extension of time granted pursuant to a hearing, shall
not be considered when calculating the five (5) days in which the City may terminate
water after a declared termination date.
1. Notice. Notice must be sent to a water customer at least eight (8) days
prior to the proposed termination date of the services to that customer if
notice is sent by mail, or at least five (5) days prior to termination if notice is
delivered by the Utility Billing Department. The notice may be incorporated
into the customer's monthly bill, sent by certified letter, or hand delivered to
the customer by a Utility Billing Department employee or other person
designated by the City to deliver such notices. The notice must be written
and clearly communicate the following information:
(a) The name of the customer whose service is proposed to be
terminated;
(b) The address where service is proposed to be terminated;
(c) The reason for the proposed termination, including the amount
of delinquency if nonpayment of charges is the reason for
termination;
(d) The day and time after which the water service will be
terminated unless the conditions bringing about the termination
are sooner remedied;
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(e) That the customer has the right to appear and be heard at a
hearing to contest the proposed termination prior to the date of
termination if the customer believes that there is an error in the
reason for the proposed termination, including, but not limited
to, an error in the existence or amount of a delinquency;
(f) The means by which the customer may arrange for such a
hearing;
(g) The date by which the customer must request and set the
hearing in order to receive it, which deadline may be no earlier
than one day prior to the termination date, nor may that
deadline ever be sooner than five (5) days from the date of
sending of notice, the five (5) days not including weekdays on
which City offices are closed for holidays.
2. After the deadline for requesting a hearing, as described in
subsection 30-24(A)(1)(g), has passed, a customer may still request a
hearing to review the decision to terminate the customers water service
within ten (1 0) days of the mentioned deadline upon presentation to the City
Manager of an affidavit declaring that the customer, through no fault of that
customer, did not receive notice of termination in time to act upon the same.
When a hearing pursuant to this subsection is requested, the City Manager
shall as soon as practicable make a determination of whether the appeal
appears to be meritorious, and if the City Manager finds it is meritorious the
City Manager shall order the continuation or restoration of services pending
the appeal. If the hearing officer finds in favor of the customer, the Hearing
Officer may order restoration of service.
3. If the customer to whom water service is proposed to be terminated
is a landlord who supplies water services to tenant water users, the City
shall attempt to give notice to the tenant water users pursuant to subsection
(C) of this Section.
4. Hearing: Should any customer request a hearing to review the
decision to terminate that customer's water services, the hearing shall be
presided over by the City Manager or any fair and neutral person he may
appoint, which person must be of managerial employment and not involved
in the original decision to terminate services, hereafter in this context known
as the Hearing Officer. The hearing shall be held no sooner then the next
business day nor later than fifteen (15) business days after being requested
by the customer. The Hearing Officer may, in his discretion, delay or
advance the hearing time upon showing of good cause by the customer. At
the hearing, the customer shall be given the opportunity to be heard in
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person to present the customer's case, to present testimony from other
persons, and to admit documents. The customer may be represented by
counsel, though the City shall in no case provide counsel. The customer
shall be given the opportunity to confront and cross examine any witnesses
appearing against him at the hearing. The customer may request that a
representative of the Utility Billing Department be present at the hearing and
be subject to questioning. However, the rules of evidence for civil or criminal
trials need not be enforced. The City's reasons for terminating the
customer's water service shall be stated at the hearing. Upon reaching a
final decision, the Hearing Officer shall state his reasons for reaching that
decision and state the evidence on which he relied in reaching those
conclusions. Should the Hearing Officer find in favor of the customer, the
customer's water service shall continue. Should the Hearing Officer find
against the customer, the customer's water service shall be terminated. The
Hearing Officer shall have the power to grant extensions, modify billings, and
fashion other reliefs as would be equitable.
(B) Emergency Termination: Wheneverthe City is specifically authorized
by this Code to act pursuant to this subsection or whenever the City shall deem it
necessary due to an emergency situation to terminate a customer's water service
prior to giving notice and an opportunity for a hearing, the City shall give the
customer whose water service has been terminated notice of that termination
according to the requirements described below and afford that customer an
opportunity for a post -termination hearing to review the decision to terminate.
1. Notice: Wheneverthe City shall terminate a customer's water service
pursuant to this subsection, the City shall post notice on the door of the
premises to which water service was terminated, if possible, and shall on that
day send by certified letter notice to the customer at the customer's usual
billing address. The notice shall be in writing and shall clearly communicate
the following information:
(a) The name of the customer;
(b) The address to which service has been terminated;
(c) The reason for the termination;
(d) The customer has the right to appear and be heard at a
hearing to review the termination;
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(e) The customer must request the hearing for review of the
termination within twenty (20) days of the termination;
(f)
The means by which the customer may request the hearing for
review of the termination.
If the customer to whom water service has been terminated is a landlord who
supplies water services to tenant water users, the City shall attempt to give notice
to the tenant water users pursuant to the procedure set forth in subsection (C) of
this Section.
2. If a customer shall request a hearing to review the prior termination of that
customer's services, that request must be lodged by the customer within twenty (20)
days after termination and notice. Should the hearing officer find in favor of the
customer, water service shall be reconnected, otherwise to remain disconnected.
The hearing shall in all other respects, nature, procedures, and consequences be
identical to that described in subsection 30-24(A)(2) of this Section.
(C) Notice to Tenant Users: If a customer to whom water service is
proposed to be terminated or has been terminated, pursuant to the foregoing
provisions of this Section, is a landlord who supplies water to tenant users, and the
City is aware or should be aware that the customer supplies water to tenant users,
then the City shall provide notice to the tenant users of the proposed termination or
past termination. The notice to the tenant user need not state the name of that
tenant user nor the name of the water customer, but must communicate sufficient
information to inform the tenant user that his premises is covered by the proposed
or actual termination. The tenant user shall have the same rights to appeal that the
customer of the water services has under the foregoing provisions of this Section
and shall be so informed by the notice. The notice to the tenant users shall in all
other respects comply with the requirements of subsection (A)1 of this Section if
water service is proposed to be terminated or with subsection (B)1 of this Section
if services have already been terminated. Notices to tenant users may be sent by
United States mail addressed to the appropriate street address of the dwelling or
commercial unit, or posted on the door of the dwelling or commercial unit, or hand
delivered to the tenant or any other person residing at or employed at the tenant's
premises.
If the appropriate physical facilities are in place and the tenant otherwise
meets the requirements of this Chapter, the tenant user may establish water service
in his own name without being held responsible for any delinquencies owed by the
landlord."
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Section 6. That Chapter 30, Utilities, of the City of Pearland Code of
Ordinances, be and the same is hereby amended by ADDING Section 30-25 of said
Code of Ordinances to hereafter provide as follows:
"Section 30-25. Utility Liens.
(A) Water:
1. After the City has terminated a customer's water service pursuant
to the requirements of Section 30-24 of this Chapter, or after the City
terminates water service at a customer's request, the City's Utility Billing
Supervisor shall file a lien on the property which the terminated water
service served and in the amount that the customer whose service was
terminated owed to the City for water service at the time of the
termination of services.
2. If a property receives water services illegally, without having an
account with the City Utility Billing Department, then the Utility Billing
Supervisor shall file a lien against that property in the amount of the
proper charge for the water actually used, or, if there is no way of
determining the amount of water used, in the amount of the minimum
monthly water charge that would have been charged to that property had
a legitimate account been opened there multiplied by the number of
months during which that property illegally received such water services.
(B) Garbage Collection:
1. After the City has terminated a customer's water service pursuant
to the requirements of Section 30-24 of this Chapter, or after the City
terminates water service or garbage service at the customer's request,
or after a customer without water service becomes more than fifty dollars
($50.00) delinquent for garbage service alone, the City's Utility Billing
Supervisor shall file a lien on the property which the terminated garbage
service served and in the amount that the customer whose service was
terminated owed to the City for garbage collection service at the time of
the termination of services.
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2. If a property receives garbage collection services illegally, without
having an account with the City Utility Billing Department, then the Utility
Billing Supervisor shall file a lien against that property in the amount of
the minimum monthly garbage collection charge that would have been
charged to that property had a legitimate account been opened there
multiplied by the number of months during which that property illegally
received such garbage collection services.
(C) Sewerage:
1. After the City has terminated a customer's water service pursuant
to the requirements of Section 30-24 of this Chapter, or after the City
terminates water service or sewer service at the customer's request, or
after a customer without water service becomes more then fifty dollars
($50.00) delinquent in payment for sewerage charges alone to the City,
the City's Utility Billing Supervisor shall file a lien on the property which
the terminated water service served and in the amount that the customer
whose service was terminated owed to the City for sewerage service at
the time of the termination of services or the accumulation of the
aforementioned delinquency in payment for sewerage services.
2. If a property receives sewerage services illegally, without having
an account with the City Utility Billing Department, then the Utility Billing
Supervisor shall file a lien against that property in the amount of the
minimum monthly sewerage charge that would have been charged to
that property had a legitimate account been opened there multiplied by
the number of months during which that property illegally received such
sewerage services.
(D) If a customer owes less then fifty dollars ($50.00) for the aggregate sum
of water charges, garbage collection charges, and sewerage charges at
the time of termination of any of those services, no lien shall be filed
against the property served by those services. If the customer is not
delinquent in payment at the time of termination of any of the services,
no lien shall be filed until that customer becomes delinquent in payment.
No lien shall be filed on any property that the City knows to be a
homestead as defined by the Texas Constitution.
(E) Any lien authorized by this Section shall be filed with the County Clerk of
Brazoria County, Texas, or with the County Clerk of the county in which
the property to which the lien will be attached is located. The City shall
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then have a privileged lien on as many lots or pieces of property as the
terminated services previously served and are described on the lien
instrument by metes and bounds, or by City lot and block description, or
by any other adequate description. The lien shall secure the charges
made by the City to these above discussed services rendered to that
property. Such a lien shall be filed pursuant to the authority granted in
Tex. Rev. Civ. Stat. Ann. Art. 1175 §11 (Vernon 1963) and Tex. Const.
Art. XI, §5. The lien shall bear ten percent (10%) per annum interest.
The Utility Billing Supervisor shall add to any lien filed pursuant to this
Section the amount of the filing fee charged by the County Clerk for filing
that lien. The lien shall be effective against that property if the account
holder or user of services of that property was either the owner of that
property, a tenant of that property or a permissive holder of that property,
or an adverse possessor of that property. It is further provided that for
any charges for which the lien authorized by this Section is designed to
secure, suit may be instituted and recovery in the foreclosure of that lien
may be had in the name of the City. The City Attorney is authorized to
file such suits.
(F) Notice and Hearing: After the filing of a lien pursuant to this Section, the
City secretary shall within thirty (30) days of the filing of that lien give the
owner of the property and the account holder notice that such a lien or
liens have been filed on that property and inform the owner and account
holder of their rights of appeal. Within thirty (30) days of the post mark
of the notice sent to the property owner or account holder, the property
owner or account holder may appeal the decision to impose the lien on
that property to the City Manager or any fair and impartial person the City
Manager may designate. The City Manager or his designee shall
authorize the release of the lien if the property owner or account holder
shows that no bill for the above mentioned services to his property
encumbered by the lien or liens is owing, or if the property owner shows
that the encumbered property is and at all times from the hour of the
filing of the lien or liens until the time of the appeal has been a
homestead as defined by the Texas Constitution. The City Manager or
his designee may modify or release the lien to reflect the true amount of
delinquency in payment for services to the property if the owner or
account holder demonstrates that a lesser bill is owing than the lien
alleged or if the Utility Billing Supervisor cannot show that all the lien
alleged is owing. The person last listed on the Brazoria County tax
records as being the owner of any given piece of property shall be
presumed to be the owner for purposes of this subsection, and the
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address listed for the owner on the Brazoria County tax records shall be
presumed to be the address of the owner.
(G) Whenever a person or entity pays all principal, interest, and the filing fee
of a lien validly filed pursuant to this Section, the Utility Billing Supervisor
shall execute a release of that lien and surrender it to the paying party.
The City shall not be responsible for filing that release.
(H) Declaration of Rental Property:
1. The owner of any property, which property is rented to another
and such tenant carries City water, sewer, or garbage collection services
in the tenant's name, may prevent the City from using that property as
security for the water, sewer, and garbage
2. When such a declaration has been filed with the City prior to the
time the account holder begins to receive services, the City shall collect
a deposit in the amount of Two Hundred Dollars ($200.00) if the property
to receive services is a single family residence, or Two Thousand Dollars
($2,000.00) if the property to receive services is a business or
commercial establishment. If a property owner wishes to declare in
regard to the bill of a person or entity already receiving services at a
particular property, that declaration shall not be effective until the posting
of a deposit in the appropriate amounts as described above.
3. Paragraph 2 of this subsection notwithstanding, an owner of
property who files the above described declaration on property, which is
rented to another and the tenant is carrying the City water, sewer, or
garbage collection services in the tenant's name at the time of the
passage of this Section, then such declaration shall become immediately
effective without the posting of a deposit in the amounts set forth in
paragraph 2. However, if water service is terminated to that tenant for
delinquency in payment, a deposit in the appropriate amount as
described above shall be collected before such City water, sewer, or
garbage collection service is resumed. Any service account for water,
sewer, or garbage collection service established after the passage of this
Section shall be subject to paragraphs 1 and 2 above of this subsection.
4. The declaration of rental property shall be valid only so long as
the person making such declaration owns such property, rents such
property to another, and the tenant of such property carries City water,
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sewer, or garbage collection services in the tenant's name. The owner
may revoke the declaration of rental property at any time by so notifying
the City in writing."
Section 7. Declaration of Emergency. The Council finds and determines that
the need to regulate utilities inures to the benefit of the public and, therefore, bears
directly upon the health, safety and welfare of the citizenry; and that this Ordinance
shall be adopted as an emergency measure, and that the rule requiring this Ordinance
to be read on two (2) separate occasions be, and the same is hereby waived
Section 8. Savings. All rights and remedies which have accrued in favor of
the City under this Ordinance and amendments thereto shall be and are preserved for
the benefit of the City.
Section 9. Severability. If any section, subsection, sentence, clause, phrase
or portion of this Ordinance is for any reason held invalid, unconstitutional or otherwise
unenforceable by any court of competent jurisdiction, such portion shall be deemed
a separate, distinct, and independent provision and such holding shall not affect the
validity of the remaining portions thereof.
Section 10. Repealer. All ordinances and parts of ordinances in conflict
herewith are hereby repealed but only to the extent of such conflict.
Section 11. Codification. It is the intent of the City Council of the City of
Pearland, Texas, that the provisions of this Ordinance shall be codified in the City's
official Code of Ordinances as provided hereinabove.
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Section 12. Effective Date. The Ordinance shall then become effective ten
(10) days from and after its passage on first and only reading.
PASSED and APPROVED on First and Only Reading this the 14th
day of February
ATTEST:
UNG
TY S CRETAR
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
, A. D., 2000.
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TOM REID
MAYOR