Ordinance 1986-18
o RD I Nr:iNCE NO. ......,3.'-.,.=../...(............. .......
BE I NG AN DRD I NACE T I TLE:D "CODE ENFORCEMENT SEARCH WAI~RANTS" 'J
REPEALING THOSE PROVISIONS IN OTHER ORDINANCES MAKING THE
REFUSAL TO PERMIT A WARRANTLESS SEARCH A MISDEMEANOR, MAKING
IT UNLAWFUL TO INTERFERE WITH THE EXECUTION OF A SEARCH
WARRANT, PROVIDING DEFINITIONS, AUTHDRIZING THE ISSUANCE AND
EXECUTION OF SEARCH WARRANTS, ESTABLISHING WHEN SEARCH
WARRANTS ARE NOT REQUIRED, REQUIRING PROBABLE CAUSE,
REQUIRING A SWORN AFFIDAVIT, REQUIRING CERTAIN
FORMALITIES, PROVIDING THE MANNER IN WHICH SEARCH WARRANTS
ARE TO BE EXECUTED AND NOTICE GIVEN, ESTABLISHING THE TIME
DURING WHICH A SEARCH WARRANT MAY BE EXECUTED, AUTHORIZING
THE EXECUTING INSPECTOR TO SEEK ASSISTANCE IN EXECUTING THE
SEARCH WARRANT, PROHIBITING THE SEIZING OF TANGIBL.E GOODS OR
THE MAKING OF ARREST, PROVDING THE MANNER IN WHICH A RETURN
IS MADE, PROVIDING FOR THE KEEPING OF RECORDS, PROVIDING FOR
NO CONFLICTS WITH OTHER LAWS; PROVIDING FOR A PENAL.TY
CLAUSE, PROVIDING FOR A SEVERANCE CLAUSE, AND PROVIDING FOR
PUBLICATION, PROVIDING AN EFFECTIVE DATE:
WHEREAS:
h,,~\li'('lg the
'r'egulat iOY"1
Texas, and
The City of Wylie is a home rule municipality
powers of local self-goverment and can adopt any
not preempted by, nor prohibited to, the State of
WHEREAS: The State of Texas has provided for the issuance
of search warrants to fire marshals and health officers and
has not specifically prohibited home rule cities from
adopting similar legislation providing for the issuance of
search warrants to other classes of code inspectors as well,
and
WHEREAS: Heretofore there has not been a uniform policy
among the various City departments as to whether they were
expressly authorized to use search warrants incidental to
the enforcement of various City codes, such as the building
inspection, zoning and housing codes, and
WHEREAS: The City Council for the City of Wylie reconized
that recent changes have occurred in the law pertaining to
making warrantless searches for violations of such codes,
which changes the City Council wish to incorporate into its
code enforcement programs, NOW THEREFORE:
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WYLIE,
TEXA!:; :
f:3ECTION L "REPEm..ER. All p~'ovisions in i:~ll
making the refusal to permit a warrantless
iY'lspect ion a misdemeano~'" a~'e he~'eby ~'epealed."
o~'d i Y"lances
se~.:\ ~'ch O~'"
SECTIDN i:::. "PENALTY. It shall be I..mlawful fo~' any pE~~'son
to interfer with the execution of a lawful search warrant
issu(;?d pu~"suaY"lt to this o~'dinaY'lce. II
f:3ECT I ON 3.
"DEFINITIONS.
(1) Magistrate: Shall mean any Judge of a Municipal Court
for the City of Wylie, Texas.
(2) Inspector: Shall mean any official
department of the City of Wylie, Texas,
\I.Jith code f..~Y"lfo~'cement, iY"lcludiY'lg, but
inspectors for the departments of Zoning
Control, Housing and Building Inspection.
inspector for any
which is charged
Y"lot limited to,
aY"ld EY'lv i ~'(:omeY"lt a 1
(3) Search Warrant: Shall mean a written order, issued by
a magistrate and directed to any inspector, as defined in
this section, commanding him to any specified premises to
determine the presence of a violation or violations of any
or~diY"lance Or~ or~din"H'lces of thE? City of WyliE?, TE?xas."
BECT I 01\1 '+. "l-JA R RANTS AUTHO R I ZED.
Sec. 5 followiY"lg, iY"I~5pector~s ar~e
directed to seek and obtain
magistrates, as provided in this
any inspection incidental to
ordinance of the City of Wylie,
hereby authorized to issue such
l"eq u i r~emeY"d~ s () f t h :i s or~d:i Y"la nCE~. "
Except as provided in
hereby authorized and
search warrants from
or~d i Y"laY"lce, befor'€:~ rn<::\I.{ :i, nl]
the enforcement of any
Texc:\s. Magistr'atE~s ar~e
warrants subject to the
t;ECT I 01\1 ~5. "Wr=lRRAI\ITS I\IOT F~EOU I RED. Sea r~ch war"r~ant!5 =;h a], I
not be required under the following circumstances:
(a) When permission to inspect has been granted by someone
apparently having charge or control of those permises; for
the purpose of this sub-section, permission to inspect may
be granted either verbally, in writing or by some other
action indicating consent, or
(b) When there exists an imminent danger or peril
life, limb or property and any delays resulting
application for a search warrant would materially
the likelihood of loss frclrn such daYlger or peril, or
to h IJrnaY"1
f)'~om the
i Y"lc'r~ea ~5E~
((=) Wt,en the inspection can be executed by a persoYI who is
an invitee on premises held open to the general public; for
the purpose of this sub-section a person ceases to be an
invitee when he has been instructed to leave the premises or
otherwise terminate his inspection by someone having charge
en'" cont r~cll 0 f t rl ose pr~em i ses. "
SE=:CTIOI\I f=,. "PROBABLE CAUSE. 1\10 sear~ch wc:u'TaY'lt shall bE?
issued pursant to this ordinance except on the presentation
of evidence elf ~Jrobable cause to believe that violatj,on OY\
violations are present in the premises sought to be
inspected. In determining probable cause, the magistrate is
not limited to evidence of specific knowledge, but may
consider any of the following:
(a) The age and general condition of the premises;
( b)
Previous violations of hazards
fouY"ld pr~e~:;f.?'nt
in thE?
pr~em i f::;es ;
(c) The type of premises;
Cd) The purpose for which the premises are used; and
(e) The presence
general condition
i Y'lspect ed. "
of hazar~df::; Or'"
o f pr~em i ses Y"IE?a r~
vi 0 I at :i.OY"IS
the pr~em i SE~<::;
iY'1 aY"ld the
souqht to bE~
~3FCTIOI\I 7. "AFFID~WIT REOUIRED. ~) swm~Y"1 affidavit sett inr:1
forth substantial facts towards establishing probable cause
shall be filed in every instance in which a search warrant
:i. =; r~E?q uef::; t E!d. "
m::CT I 01\1 8.
pur'suant to
C()l'yt a i ns thE?
"Wf~RRANT FORMAL. I TIES.
this ordinance shall
following requisites~
A sear'ch war'r'ant
bf.? ~:;u ff i c i el'lt
issued
if it
(,::i) That it r'un i 1"1 t he Y'lam€~ of "The St Ed:; e of T(;?xas";
(b) That it
bE:~ i nf:5pect ed ;
identify, as near as may be, that premises to
(c) That it command an inspector to inspect forthwith the
premises described; and
(d) That it be dated a1"ld si~lned by the mag:i.str'atE'J.."
~3ECTION 9. "EXECUTION OF WARRANTS. A 1"1 i nspc"?ct Or' to whom a
search warrant is delivered shall execute it without delay
and forthwith return it to the proper magistrate. It must
be executed within three days from the time of its issuance,
and shall be executed within a shorter period if so directed
in the warrant by the magistrate. The inspector shall, upon
going to the place ordered to be inspected, give notice of
his purpose to the person who has charge of or is an inmate
of the place described in the warrant. If such persons
cannot be found, upon execution of the search warrant, a
copy of said warrant shall be affixed to the front door of
the building or premises inspected. In every instance,
entry shall be effected using the minimum force necessary
accor'd:i,ng to the cir'cumstances."
SF':::CTION 10. "DAYS i=H...I....OWED F(Jf~ WARRANT TO RUN. The time
allowed for the execution of a search warrant shall be three
whole days, exculsive of the day of its issuance and of the
day of its execution. The magistrate issuing a search
warrant under the provisions of this ordinance shall endorse
on such search warrant the date and hour of the issuance of
the f::;ame."
SECTION j, L "POWER OF IN!3PFCTOR EXECUTING WARRANT. 11"1 the
execution of search warrant, the inspector may call to his
aid any number of citizens in this City, who shall be bound
to aid in thf.? eXf.?cut i01"1 of thE? :;:;amE.?"
SECTION
ARI~ESTS.
to this
<::il"l"E?S t s
j,;:::. "NO POWER TO SEIZE TAN!3IBL.E GOODS
The execution of a search warrant issued
chapter shall not include any authority
()'I"'" t() se:i.ze t..::\Y"lgible r:1()()d<.::; clf 2\ \/i()l<:':\t i()lrlll II
OR MAKE
pur"suant
to make
SECTION j,3. "HOW RETUF~N 11:3 MADE. Upon l''''etur'ni1''lg the
search warrant, the inspector shall state on the back of the
same, or on some paper attached to it, ttle manner in which
it has been executed and shall likewise deliver to the
magistrate a copy of the report resulting from that
:i. nsp€?ct i 01"1. "
SECTION j,i+. "RE-~:CORDS TO BE KEPT. ThE? mafJif,;tr'ate shall
keep a record of all proceedings had before him in the cases
of search warrants as part of the official records of his
COUr"t. "
ElECT I ON l :'::j.. "CONFL. I Cn3. Not h :i. r"l gin t his onj :i. 1"1 a ncf.? sh all
be construed to conflict with any state or federal law and
f:"hall be :i,n addit:i,on to any r'il]hts gr-'a1"lted ther'eby."
SECTION lb. "PENALTY. A1"IY pel"'son, fir"rn, c.'()r'pOr"'r.:it ion Or"
other entity who is found guilty of violating the terms of
this ordinance shall be deemed guilty of a misdemeanor and
upon conviction of any such violation, shall be subject to a
fine not to exceed the maximum amount permitted by state
law. II
f.3ECTION 1,7. "~'3EVERABILITY. It is hey"'ehy decJ.i::n~ed to bE-?
the intention of the City Council that the sections,
paragraph, sentences, clauses, and phrases of this ordinance
are severable and if any phrase, clause, sentence or section
of this ordinance stlall be declared uY,constitutic'Flal or
invalid by any judgement or be declared or decree of a court
of competent jurisdiction, such unconstitutionality or
invalidity shall not affect any other remaining phrase,
clause, sentence, paragraph or section of this ordinance;
and the City Council hereby declares it would have passed
the remaining portions even though it had known the affected
parts would be held unconstitutional.
E;ECTIfJI'.11,8. "PUBL.ICATION. The capti.on of this; ot"dinance
shall be published one time in a newspaper of general
c1i~:;t'r"'ihution i'n the City of Wylie.! Texds. II
~:3ECTION 1, 9. "EFFECTIVE DATE.
effecti.ve upon publication of
of gE-?rleY~al ciY~cul<:~ti.on."
This ordinance shall become
its caption in a newspaper
PAs~:;r=:D AND APPROVED BY THE CITY COUNCIL OF TljE CITY OF
WYL IE,) TEXAf.3 TH I S THE ....../Lj-4_..,.....DAY OF J;:.:/2}..at.:t:t!./V...,.............., :1. 985
ATTEST:
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Ak i 1"1,) Mayc'l'"