PRESENTER: Presenter
Valeria Acevedo, City Attorney
Body
SUBJECT: Title
Approval of the second and final reading of an ordinance amending the New Braunfels Code of Ordinances, Chapter 1, Section 1-8, to update the maximum fine for illegal dumping and to specify the culpable mental state for ordinance violations that carry a fine above $500.00.Header
DEPARTMENT: City Attorney’s Office
Body
COUNCIL DISTRICTS IMPACTED: All districts
BACKGROUND INFORMATION:
[The first reading of this ordinance was unanimously approved on July 8, 2024.]
This ordinance is part of an effort by staff to update outdated ordinances. In 2015, state law on illegal dumping fines increased the maximum fine from $2,000 to $4,000, but the ordinance did not get updated at that time. According to municipal court records, there has been one illegal dumping case a year in 2022, 2023, and 2024, with window fines ranging from $200.00 up to $2,000.00. This ordinance amendment would update the local maximum fine to reflect state law.
The second amendment is to Sec. 1-8 (c) to establish recklessness as the culpable mental state a defendant has to have for violations of ordinances with a set fine above $500.00. Under the Texas Penal Code, municipal ordinances may dispense with a required mental state thereby making them strict liability offenses. However, if the offense is punishable by a fine in excess of $500.00, the ordinance may not dispense with a required mental state. Cities may choose to prescribe a culpable mental state of intentional, knowing or reckless for such offenses. State law (Penal Code 6.03(c) defines reckless as follows: “A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”
ISSUE:
The maximum fine for illegal dumping needs to be increased as reflected in the Local Government Code. Secondly, the Texas Penal Code requires that a culpable mental state be prescribed for those ordinance violations with a set fine of more than $500.00.
FISCAL IMPACT:
To date, there have only been three illegal dumping cases in the last three years that resulted in fines of $200.00 up to $2,000.00 being paid at the New Braunfels Municipal Court.
Recommendation
RECOMMENDATION:
Staff recommends approval of this ordinance.