Ryan Kellus TurnerGeneral Counsel and Director of EducationTexas Municipal Courts Education Center

Better Lights for Better Nights ConferenceAugust 15, 2014

Dripping Springs Ranch Park

ENFORCEMENT: LEGAL CONSIDERATIONS

1. HOW CAN WE ENFORCE A LIGHTING ORDINANCE?

Blinded by the lightRevved up like a deuce

Another runner in the night

• Criminal Enforcement

• Civil Enforcement

• By Government

• By Private Citizen Alleging Private Nuisance

• Public Education & Information

• Community Based

• Industry Based

• Incentives

• Assistance

“Carol Anne, listen to me. Do NOT go into the light. Stop where you are. Turn away

from it.

ENFORCEMENT AVENUES

Criminal Enforcement

• Municipalities (in Municipal Court)

• Ordinances per Local Govt. Code (General Law Cities)

• Ordinance per Charter (Home Rule Cities)

• Ordinances Required of Cities within 57 miles of the McDonald Observatory (Subchapter B, Ch. 229, LGC)

• Counties (in Justice Court)

• Observatories and Military Bases (Subchapter B, Ch. 240, LGC)

Civil Enforcement

• Municipal Ordinances (in District or County Court at Law) Ch. 54, LGC via Civil Penalties (Note: Sec. 30.00005(d)(2), LGC = Municipal Court of Record)

• Municipal Ordinances, Ch. 54, LGC via Quasi-Judicial Enforcement of Health and Safety Ordinances• Building and Standards Commission,

or• Civil Adjudication Process

• Cities and Counties Governed by Subchapters B, Ch. 229 and 240, LGC may seek Injunctions as Enforcement

GOVERNMENT ENFORCEMENT

“Marion, don't look at it. Shut your eyes, Marion. Don't look at it, no

matter what happens!”

“The dark side of the Force is a pathway to many abilities some

consider to be unnatural.”

2. WHERE CAN WE ENFORCE A LIGHTING ORDINANCE?

I saw the light I saw the lightNo more darkness no more night

Now I'm so happy no sorrow in sight

Praise the Lord I saw the light

Territorial Limits of Municipality?

• Take Your Pick!

• Law Enforcement

• Extrajudicial Enforcement

THE ANSWER: IT DEPENDS.

ETJ

• Extent: ½ Mile to 5 Miles of Municipal Boundaries, Depending on Population of City

• Criminal Enforcement in EJT Depends on:1. Type of Municipality

(General Law or Home Rule)2. Subject Matter of Ordinance3. Jurisdiction (i.e. Authority

of a Court) - Express or Implied

4. Venue (i.e, Place of Trial) – Not an Element of Offense: Proof by Preponderance

Unincorporated Parts (i.e., “The Sticks”)• Extrajudicial Enforcement• Keep Up the Dialog: IDA,

IESA, LEED, Builders, Manufacturers

• Educate Rural Communities

• Educate County Commissioners and County Judges

• Legal Enforcement• Private Nuisance Law

Suits

ETJ & UNINCORPORATED PARTS?

There is a darkness on the edge of town

There is a darkness on the edge of town

3. WHAT ARE THE EVIDENTIARY AND PROOF ISSUES?

Turn on your heartlightIn the middle of a young boy's

dreamDon't wake me up too soon

Gonna take a ride across the moon

You and me

• What About Light Art?

• What About the 1st Amendment?

THIS RAISES INTERESTING QUESTIONS

DOES IT MATTER WHO IS SHINING THE LIGHT?

DOES IT MATTER WHY THEY ARE SHINE THE LIGHT?

“PROVE IT!”• Prove What? The Challenge of Writing an

Enforceable Law

• Paper Work Violation?

• Performance Standard Violation?

• Witnesses

• Personal Knowledge of Light Trespass?

• Expert Witne$$es

You can't start a fire, you can't start a fire without a spark

This gun's for hire even if we're just dancing in the dark

“DID YOU FOLLOW THE INSTRUCTIONS?”

• Admissibility• Light Trespass versus Trespass: Fourth

Amendment Issues for Governments - Camara

• Photometry •Kyllo

•Daubert/Kelly

• FOLLOW on:

The stars at night are big and bright deep in the heart of Texas

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