Untitled Texas Attorney General Opinion ( 2003 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
March 13,2003
The Honorable Dib Waldrip Opinion No. GA-0034
Coma1 County Criminal District Attorney
150 North Seguin, Suite 307 Re: Whether a county may require the owner of
New Braunfels, Texas 78 130 a “junked vehicle” to erect a fence or other
screening objects in order to shield the vehicle
from public view (RQ-0605-JC)
Dear Mr. Waldrip:
You ask whether a county may require the owner of a “junked vehicle” to erect a fence or
other screening objects in order to shield the vehicle from public view.
Subchapter E, chapter 683 of the Transportation Code addresses the abatement of junked
vehicles as a public nuisance. Section 683.072 provides, in relevant part, that “[a] junked vehicle,
including part of a junked vehicle, that is visible from a public place or public right-of-way . . . is
a public nuisance.” TEX. TRANSP. CODE ANN. 4 683.072(7) (Vernon 1999) (emphasis added).
Section 683.071 of the Transportation Code defines “junked vehicle”:
In this subchapter, “junked vehicle” means a vehicle that is
self-propelled and:
(1) does not have lawfully attached to it:
(A) an unexpired license plate; or
w a valid motor vehicle inspection
certificate; and
(2) is:
(4 wrecked, dismantled or partially
dismantled, or discarded; or
(B) inoperable and has remained inoperable
for more than:
The Honorable Dib Waldrip - Page 2 (GA-0034)
(i) 72 consecutive hours, if the
vehicle is on public property; or
(ii) 30 consecutive days, if the
vehicle is on private property.
Id. 0 683.071 (Vernon Supp. 2003). Under section 683.073 of the Transportation Code, the offense
of maintaining “a public nuisance described by section 683.072” is “a misdemeanor punishable by
a fine not to exceed $200.” Id. 8 683.073(a)-(b) (V emon 1999). Upon conviction, the court must
“order abatement and removal of the nuisance.” Id. 9 683.073(c). Additionally, pursuant to section
683.074, a municipality or county is empowered to “adopt procedures that conform to this
subchapter for the abatement and removal from private or public property or a public right-of-way
of a junked vehicle or part of a junked vehicle as a public nuisance.” Id. 4 683.074(a) (Vernon Supp.
2003). Sections 683.074, 683.075, and 683.076 describe the procedures a county must follow in
order to abate and remove the nuisance, including notice, public hearing, judicial orders, and
cancellation of the vehicle’s certificate of title. Section 683.078 governs removal of a junked vehicle
to “a scrapyard, a motor vehicle demolisher, or a suitable site operated by a municipality or county.”
Id. 6 683.078(a) (Vernon 1999). You ask whether a county, pursuant to its authority to abate and
remove a “junked vehicle” as a nuisance, may impose fencing and screening requirements.
A junked vehicle may be classified as a “public nuisance” subject to abatement and removal
under subchapter E, chapter 683 of the Transportation Code, onZy if it “is visible from a public place
or public right-of-way.” Id. 8 683.072. We must therefore consider the meaning of the term
“visible.” The term is not defined by statute or Texas case law. According to its common usage,
“visible” means “capable of being seen; that by its nature is an object of sight; perceptible by the
sense of sight.” XIX OXFORDENGLISHDICTIONARY687 (2d ed. 1989). See TEX. GOV’TCODE ANN.
$3lLOll(a)(V emon 1998) (“Words and phrases shall be read in context and construed according
to the rules of grammar and common usage.“). The few out-of-state judicial decisions that have
considered the meaning of “visible” accord with this definition. See, e.g., StriefeZ v. Charles-ikyt-
Leaman P ‘ship, 733 A.2d 984,990 (Me. 1999) (“‘Visible’ means capable of being seen by persons
who may view the premises.“); Colonial Trust v. Breuer, 69 A.2d 126, 129 (Pa. 1949) (“‘Visible’
means perceivable by the eye . . . .“1; Tritt v. Judd k Moving & Storage, Inc., 574 N.E.2d 1178,1185
(Ohio App. 3d 1990) (“Visible means perceivable by the eye.“).
Thus, in order to avoid classification as a “public nuisance” under section 683.072 of the
Transportation Code, a junked vehicle or a part thereof, need only be non-visible from a public place
or public right-of-way. No particular kind of camouflage is required by the statute to render the
vehicle non-visible. Consequently, a county may not compel the owner of a junked vehicle to erect
fencing, trees, shrubbery, or any other specific kind of screening. In order to abate and remove the
nuisance, the county must demonstrate that a junked vehicle “is visible from a public place or public
right-of-way,” i.e., capable of being seen from such location. Whether any particular form of
camouflage is sufficient in a given instance to render a junked vehicle non-visible is of course a
question of fact for the county to determine in the first instance.
The Honorable Dib Waldrip - Page 3 (GA-0034)
You also ask whether a county may import the fencing and screening requirements applicable
to automotive salvage yards and junkyards to vehicles parked on other private property. Section
396.021(b) of the Transportation Code provides, in relevant part:
(b) A person who operates a junkyard or an automotive
wrecking and salvage yard shall screen the junkyard or automotive
wrecking and salvage yard with a solid barrier fence at least eight feet
high. The fence must be painted a natural earth tone color and may
not have any sign appear on its surface other than a sign indicating the
business name.
(c) A person who operates a junkyard or an automotive
wrecking and salvage yard in a county with a population of 200,000
or less shall screen the junkyard or automotive wrecking and salvage
yard to at least six feet in height along the portion of the junkyard or
automotive wrecking and salvage yard that faces a public road or
residence. The person may screen the yard by any appropriate means,
including:
(1) a fence;
(2) natural objects; or
(3) plants.’
TEX. TRANSP. CODE ANN. 9 396.021(b)-(c) (Vernon 1999).
The fencing and screening standards applicable to junked vehicles in the possession of
licensed automotive salvage yards and junkyards under chapter 396 are not applicable to junked
vehicles maintained by individuals or businesses that do not fall within that category. In addition,
subchapter E, chapter 683 of the Transportation Code, which, as previously discussed, addresses the
abatement ofjunked vehicles as a public nuisance, is specifically inapplicable to a vehicle or vehicle
part “that is stored or parked in a lawful manner on private property in connection with the business
of a licensed vehicle dealer or junkyard,” provided that the vehicle or vehicle part is, inter alia,
“screened from ordinary public view by appropriate means, including a fence, rapidly growing trees,
or shrubbery.” Id. 6 683.077(a)(2)(C) (V emon Supp. 2003). Licensed automotive salvage yards and
junkyards must follow the fencing and screening requirements of section 396.012(b). Individuals
not embraced within the ambit of chapter 396 need only render a junked vehicle non-visible from
a public place or public right-of-way.
‘Section 396.021 does not apply to automotive wrecking and salvage yards covered by chapter 397 of the
Transportation Code, i.e., those in a county with a population of 3.3 million or more, not located in a municipality in that
county, and established on or after September, 1983. See TEX. TRANSP. CODE AN-N. ch. 397 (Vernon 1999 & Supp.
2003).
The Honorable Dib Waldrip - Page 4 (GA-0034)
SUMMARY
A county may abate and remove as a “public nuisance” any
“junked vehicle” that is visible from public or private property or a
public right-of-way. A county may not require a particular kind
of camouflage to render the vehicle non-visible. The fencing and
screening standards applicable to licensed automotive salvage yards
and junkyards under chapter 396 of the Transportation Code do not
apply to junked vehicles parked on other private property.
Very tru.ry yours,
AttomegLrB’eneral of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General - General Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee