July-August 2015

The power of civil enforcement

Julie Countiss

Assistant County Attorney in Harris County

Celena Vinson

Assistant County Attorney in Harris County

How the Harris County Attorney’s Office uses civil courts to fight crime, including gang activity, prostitution, illegal clubs, and drug dealing

Gambling, prostitution, and drug dealing are big businesses in Harris County. Thus, we have no shortage of illegal game rooms, massage parlors, after-hours clubs, problem motels, and apartment complexes in our county. Law enforcement and criminal prosecutors are effective in punishing the criminal offenders, but the businesses profiting from these illegal acts too often stay in business, leading to a cycle of more arrests and more criminal prosecutions. In many parts of Harris County, law enforcement is repeatedly called to specific properties that are magnets for criminal activity. The job of law enforcement at these crime-ridden properties seems to be never-ending. Moreover, frequent criminal activity has a negative impact on the quality of life and property values in our neighborhoods. These businesses and criminal actors are nuisances to law enforcement and everyone living near them.
        Rather than relying solely on traditional law enforcement techniques to combat these nuisances, the Harris County Attorney’s Office is using the power of civil enforcement to put a stop to certain types of habitual criminal activity. Chapter 125 of the Texas Civil Practice and Remedies Code allows an individual, attorney general, district attorney, county attorney, or city attorney to file a lawsuit against a person who owns, maintains, or is party to a place that maintains a common nuisance. Nuisance abatement is one of the most effective ways to bring to task property owners who have failed to take reasonable steps to stop crime on their property. Harris County Attorney Vince Ryan has obtained numerous judgments requiring business owners to take reasonable measures to reduce crime. Through these lawsuits our office has shut down countless nuisance businesses and even enjoined gang members from stepping foot onto these properties. Because of this success, we have seen an increase in the number of cases brought to our office. Information typically comes from law enforcement, citizens living near these nuisance locations, and social. Recently, we filed a case based on evidence we retrieved from the Internet that resulted in an after-hours club closing.

The after-hours fight
During the Christmas holidays, our office received an email with a link to a YouTube video posted on Facebook. While we routinely use social media to make our case that a business is illegal or that an individual is a member of a criminal street gang, we were not prepared for what we saw on the Internet that day. The video depicted more than 100 individuals involved in a fight in a parking lot. The fight grew more intense as the eight-minute video played, and although the most serious injury was a stabbing, gunshots could be heard in the background. What was striking about the video, other than the size of the crowd, was that the fight took place just as the sun was coming up. We began our research of this location by running the calls for service. We wanted to know how many times police were called to this particular club and for what purpose. After looking at the call slips, speaking to law enforcement, and receiving a call from another tenant of the strip center, we realized this was “the party after the party.”
    Located in a strip center was Club Eclipse. There was no sign on the business indicating it was a club, but the calls for service and incident reports were incontrovertible. These reports revealed that parking lot brawls, aggravated robberies, stabbings, and shootings occurred at Club Eclipse often, as did selling and serving alcohol without a permit during prohibited hours. The club was not in compliance with the fire code despite the fact that crowds in excess of 200 people were often packed inside. The lines were long to get into Club Eclipse and the party inside was large.
    With the help of the Harris County Sheriff’s Office, Precinct 4 Constable’s Office, and agents from the Texas Alcoholic Beverage Commission, we were able to confirm that Club Eclipse did indeed sell alcohol without a license: The Texas Alcoholic Beverage Commission conducted an undercover investigation where undercover officers purchased and were served mixed drinks with liquor, even though the club had no permit. We also confirmed that the club operated from 2 to 7 a.m.; even with a permit, it is illegal to sell and serve alcohol after 2 a.m. This information gave us another cause of action against Club Eclipse. We could not only sue the club owner under Chapter 125 of the CPRC, but also under Chapter 101 of the Texas Alcoholic Beverage Code. This section allows the county attorney to sue a location as a nuisance that operates in violation of the CPRC or under circumstances contrary to the Code’s purposes.

After-hours club is a ­common nuisance
Under Chapter 125, a suit can be brought on behalf of the State of Texas against any person who maintains, owns, uses, or is a party to a place for purposes constituting a nuisance and the action may be brought in rem against the place itself. A person who maintains a place to which persons habitually go for a certain activity, who knowingly tolerates the activity, and who fails to make reasonable attempts to abate the activity, maintains a common nuisance. The statute lists the 22 crimes that are considered nuisances.
    On January 20 of this year, we filed suit against the owners of Club Eclipse, the landlord, and the property in rem, outlining the many reasons Club Eclipse was in fact a common nuisance and requesting that the defendants be temporarily and permanently enjoined from operating it as such.
    The hearing on our temporary injunction occurred on February 20, with the owner of Club Eclipse attending the hearing along with her attorney. The landowner did not appear at the hearing, despite being served with the lawsuit and receiving notice. Our burden at the temporary injunction hearing was to introduce evidence to convince the judge we would likely succeed at trial and that the public would suffer probable injury unless the defendants were ordered to take reasonable steps to abate ongoing criminal activities.
    To prove habitual criminal activity occurred at Club Eclipse, we introduced into evidence offense reports that documented aggravated assaults and robberies. Offense reports and arrest records are also admissible to show knowledge on the part of the defendants, according to Chapter 125. Because Chapter 125 allows evidence of the general reputation of a place to show the existence of a nuisance, we also called law enforcement officers to testify about the reputation of the club, referring to the offense reports that Club Eclipse was known to be a nuisance.
    In addition to showing that habitual criminal activity occurs at a location, we were required to prove that the defendants did not take reasonable steps to abate the crime. Not only were we prepared to offer evidence of the defendants’ non-compliance with the Alcohol and Beverage Code and the fire code violations, we also had testimony that the security guards at Club Eclipse frequently called police when they could not control the large, unruly crowd of patrons. The video clip of the fight in the parking lot helped make our case that Club Eclipse had become a haven for violent crime and was a danger to the community and to Harris County law enforcement.
    We emphasized to the judge that the repeated criminal activity irreparably harmed the public and would continue unless the judge ordered the club to take action. The judge granted our request against all defendants, including the missing landowner, and ordered the defendants to take the following steps to prevent crime on the premises:
    1)    prohibit selling, serving, or consumption of alcohol at the club;
    2)    close the club between the hours of 10:30 p.m. and 10:30 a.m.;
    3)    check all IDs and bags at a station outside the club’s entrance;
    4)    refuse entrance to anyone found in violation of the law;
    5)    install cameras inside and outside the club, store the video for 30 days, and make it available to law enforcement within 24 hours of request;
    6)    hire two licensed, uniformed peace officers to be on premises while the club is open;
    7)    report any illegal activity to law enforcement, maintain a log of law enforcement activity, and report that to the county attorney’s office on a weekly basis;
    8)    perform criminal background checks on all current and future employees and terminate or refuse employment for those convicted of a felony or drug offense in the past 10 years; and
    9)    comply with all fire safety codes.
    These requirements are responsive to the type of criminal activity occurring at Club Eclipse. The addition of licensed peace officers and surveillance cameras on the property would certainly deter aggravated assaults and other weapons-related crimes, as would checking patrons’ bags prior to entering the club. Requiring that Club Eclipse close at 10:30 p.m. would prevent the large crowds from gathering inside and outside Club Eclipse to drink and party after other clubs had closed.
    Rather than comply with the judge’s order, the owner decided to close the club and recently entered into an agreed permanent injunction with the State of Texas. The terms of the agreement require the club owner to permanently vacate the premises. If we had not moved for the temporary injunction, we would have had to wait for a final trial and then prove to the jury or judge that this club was a nuisance. The judge’s ruling on the temporary injunction made survival impossible for this illegal after-hours club. Club Eclipse closed its doors permanently, thereby abating the nuisance.

Gang members are a ­public nuisance
In some cases, law enforcement makes us aware of numerous repeated arrests and convictions against known criminals at a particular location. These gang members wreak havoc in particular neighborhoods, making things difficult for law enforcement and for the people living there. Apartment complexes and convenience stores in Harris County have been victims of certain gangs when their members repeatedly commit crimes on their properties. Law enforcement has requested our assistance to prevent these gang members from wasting more of their resources and to help fight crime in these neighborhoods.
    Section 125.062 of the Civil Practice and Remedies Code states that a combination or criminal street gang that continuously or regularly associates in gang activities is a public nuisance. Section 71.01 of the Penal Code defines “combination” as three or more persons who collaborate in carrying on criminal activities. The habitual use of a place by a combination or a criminal street gang for engaging in gang activity is a public nuisance.
    In an effort to take back certain problem properties in Harris County, our office has sued more than 80 individual gang members as public nuisances, as well as 40-plus condo owners and convenience stores as public nuisances for allowing gang activity on their properties.
    We obtained crime statistics from analysts at the sheriff’s office and the Houston Police Department for these problem areas to determine if we could meet the criteria necessary to enjoin these gang members from going onto these properties. We needed to show that a particular gang engaged in gang activities at least five times in a period of not more than 12 months at the designated location. After reading the reports outlining the crime in these areas, we determined that we could meet this element. Because law enforcement was documenting each actor’s gang affiliation and criminal activity, we could prove the gangs were a public nuisance and sue the individual gang members.
    In a case involving the Bloods and Crips gangs, we used the crime statistics and information from apartment and business owners, residents, and law enforcement to create a “safety zone,” a geographic area from which gang members are barred. These gangs were nuisances to the people living in this zone and to law enforcement, who spent substantial resources responding to issues at these properties. Many of these individuals, including apartment managers, were desperate for our help. Gangs had victimized them and their properties for years.
    We counted more than 50 gang members who had committed gang activity within the zone. These crimes ranged from aggravated assaults to criminal trespass. The zone was approximately one-third of a square mile in size and included four apartment complexes, a residential neighborhood, two schools, and a strip center containing several businesses.
    Suing 50-plus gang members in one lawsuit is not an easy task. Each defendant must be located and personally served with the petition as well as a Show Cause Order ordering that person to appear at a temporary injunction hearing. Just as in the Club Eclipse case, we wanted quick action to prevent additional nuisances from occurring pending final trial. Rather than wait to have our case heard at trial (which can take over a year), we asked for a temporary injunction so that we could get in front of the judge more quickly and get temporary relief for nearby residents.  
    At the temporary injunction hearing, we presented evidence of each defendant’s gang affiliation, as well as his participation in gang activity within the zone. Nineteen witnesses testified, including gang experts and apartment managers. At the conclusion of the hearing, we requested that the defendants be prohibited from entering the zone for any purpose. About 10 to 15 gang members showed up and most signed Agreed Permanent Injunctions, though a couple stayed through the hearing and one even cross-examined an officer.
    After presenting our evidence, the judge granted our request and ultimately we received a permanent injunction against all 44 of the defendants that were located and served with the petition and Show Cause Order. (We non-suited the remaining gang members whom we were unable to serve.) The court order enjoins these Crips and Bloods from using the safety zone for the purpose of engaging in or facilitating gang activity and permanently bans them from the zone.
    This injunction has given law enforcement an extra tool to combat gangs and protect the people living in and around the safety zone. Under §71.021 of the Penal Code, law enforcement is able to arrest any of these defendants on sight if officers catch them inside the zone. They are subject to criminal and civil penalties for violation of a court order. The Harris County District Attorney’s Office has supported our efforts to abate this criminal activity by requesting harsh punishments for offenders of the gang injunctions. The ability to combine criminal and civil enforcement against these offenders is a powerful and effective way to clean up these neighborhoods.

Prostitution, promotion of prostitution, and human trafficking are among the specific crimes listed under Chapter 125 as nuisances. Experts will tell you that Houston, as a major seaport and with its proximity to the Mexican border, is a hub for human trafficking. Our lawsuits and investigations have revealed that cantinas, spas, strip clubs, and motels are magnets for this illegal activity. Many times these businesses are a front for perpetuating the most serious offenses—the exploitation of vulnerable individuals. Not only are the people working at these locations victims of crime, but so are the people living nearby. These businesses act as havens for habitual criminal activity and adversely affect everything that surrounds them.
    Our office files nuisance lawsuits to expose and eradicate these criminal enterprises. Too often, the landlords and owners of these locations turn a blind eye to what is happening on their property. Using civil remedies, we can uncover the truth.
    We have obtained injunctions requiring “massage parlors” and “spas” to shut down, as well as settlements that force property owners to take steps to prevent prostitution and human trafficking. Currently, we have a settlement with a motel that is in an area known nationally as The Track because of the number of prostitutes working on street corners. Video surveillance shows lines of cars picking up girls in this area.
    That video, plus arrests and convictions for prostitution at this location, were plenty of evidence for our office to file a Chapter 125 lawsuit against the motel’s owners. The agreement prohibits the motel from renting rooms by the hour, selling condoms, and having pornographic material in the rooms or available on TV, and authorities there are required to post the human trafficking hotline in each room—these are just a few of the provisions they are required to follow. We also sued the Burger King across the street from this motel because of its compliance with prostitution and drug dealing. Burger King has agreed to take numerous steps to eliminate the crime, including hiring security, reporting criminal activity, and running background checks on employees, specifically looking for crimes involving prostitution, aggravated prostitution, sexual assault, aggravated sexual assault, and human trafficking.
    On April 2 of this year, a Harris County judge issued a strong statement to a landlord who failed to respond to a Chapter 125 lawsuit regarding an illegal spa on his property. This location was the scene of an unlicensed massage parlor where multiple arrests for prostitution and violations of the Texas Occupations Code occurred over several years. We sued the landlord but didn’t have owner information on the spa, which is not uncommon. A judge granted a default judgment against the landlord, ordering him to terminate the spa’s lease. In addition, the landlord is prohibited from using the space where the spa was located for any reason for a term of one year. The order prohibits utility service providers from furnishing gas, water, and electricity to the premises during the one-year period.
These are just some of the ways our office is using civil remedies to crack down on crime in our county. After-hours clubs, illegal game rooms, massage parlors, and seedy motels adversely affect our community. The Harris County Attorney’s Office started the Neighborhood Protection program in the 1980s under the leadership of then-County Attorney Mike Driscoll. Since that time, our office has used civil law to sue a variety of illegal businesses and business owners. The law states, and we believe, that a business owner has a duty to protect the neighborhoods of which they are a part. i

Editor’s note:  As this issue was going to press, the Office of the Attorney General (OAG) sent out a news release to Texas prosecutors alerting them that the marketing and packaging of “designer drugs” often violates §§17.46(a) and (b) of the Texas Deceptive Trade Practices Act (DTPA). The OAG offers to bring a civil action under the DTPA against people and retail businesses that sell synthetic marijuana to obtain an injunction against the seller prohibiting sales of such drugs and obtain a judgment for civil penalties. Of course, county attorneys are authorized to bring their own DTPA actions against these drug sellers (without partnering with the attorney general), but those who want to join forces with the OAG are encouraged to contact Tommy Prud’homme at Tommy.Prud’homme @texasattorneygeneral.gov for more information.