Code Harassment Needs a Texas-Sized Solution

Texas A&M Journal of Property Texas A&M Journal of Property

Law Law

Volume 8

Number 2

Student Articles Edition

Article 4

2-16-2022

Code Harassment Needs a Texas-Sized Solution Code Harassment Needs a Texas-Sized Solution

David Seth Morrison

Texas A & M University - College Station

, [email protected]

Follow this and additional works at: https://scholarship.law.tamu.edu/journal-of-property-law

Part of the Administrative Law Commons, Law and Society Commons, and the Property Law and Real

Estate Commons

Recommended Citation Recommended Citation

David S. Morrison,

Code Harassment Needs a Texas-Sized Solution

, 8 Tex. A&M J. Prop. L. 141 (2022).

Available at: https://doi.org/10.37419/JPL.V8.I2.4

This Notes & Comments is brought to you for free and open access by Texas A&M Law Scholarship. It has been

accepted for inclusion in Texas A&M Journal of Property Law by an authorized editor of Texas A&M Law

Scholarship. For more information, please contact aretteen@law.tamu.edu.

141

CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION

David Seth Morrison

†

Abstract

Municipal Code Enforcement exists to abate nuisances and re-

solve conflicts between neighbors. Code enforcement often discovers

nuisances through citizen complaints. Cities and code enforcement de-

partments have taken great lengths to protect complainants from re-

taliation, but these protections have extended too far and created a

problem in reverse. Code harassment occurs when people make ex-

cessive or false reports to code enforcement departments to harass

neighbors. Code enforcement officers do their jobs and investigate the

complaints leading to visits and fines. Many people are shocked to find

they can do nothing to stop the harassment save leaving their resi-

dence because the law offers no protection against such behavior.

With a focus on Texas, this Comment looks at the three causes that

enable code harassment, places them within the larger framework of

code compliance reform that has occurred in the past twenty years,

and offers a framework for creating solutions, including reforming the

Texas Citizens Participation Act, establishing confidential code en-

forcement reporting, and creating a vexatious reporter law.

I. INTRODUCTION ............................................................................. 142

II. MUNICIPAL CODE ENFORCEMENT .............................................. 146

A. General Overview ........................................................... 146

1. Types of Issues .......................................................... 147

DOI: https://doi.org/10.37419/JPL.V8.I2.4

†

J.D. Candidate, Texas A&M University School of Law, Spring 2022. I would like

to thank Professor Angela Morrison for serving as my faculty advisor; this Comment

would be a skeleton of its current form without her advice and feedback. I would

also like to thank Ryan Cairns, my Note and Comment Editor, for reading through

eight drafts of this Comment and providing his insight. Finally, I would like to thank

Jonathan D. Berry for helping me to discover the topic of code harassment. I worked

with him on a code harassment case during my internship with his firm, and our

many frustrations spawned my interest in further researching the topic and finding a

potential solution.

142 TEXAS A&M J. PROP. L. [Vol. 8

2. Identifying Code Violations ...................................... 147

3. Gaining Compliance .................................................. 149

B. Texas Perspective ............................................................ 149

III. MODERN CODE ENFORCEMENT PROBLEMS ............................... 152

A. Abatement ........................................................................ 152

B. Officer Discretion ............................................................ 154

C. Neighborhood Discord .................................................... 158

IV. CODE HARASSMENT: AN UNADDRESSED ISSUE ........................ 161

A. The Texas Citizens Participation Act .............................. 161

B. Anonymous Reporting ..................................................... 162

C. Molding Causes of Action ............................................... 165

1. Criminal Law ............................................................. 165

2. Tort Law .................................................................... 167

V. CREATING A SOLUTION .............................................................. 170

A. Rolling Back the Texas Citizens Participation Act ......... 170

B. Transitioning Anonymous Reporting to Confidential

Reporting ....................................................................... 173

C. Creating a Vexatious Reporting Law .............................. 174

VI. CONCLUSION ............................................................................. 177

I. INTRODUCTION

In 2016, a resident of San Antonio’s Beacon Hill neighborhood

created a “fearful environment.”

As neighbors repaired their drive-

ways, the resident would stand in front of the neighbor’s properties

with a tape measure to ensure the repairs conformed to the city code.

A man bought a building he had lived in as a tenant for years, only to

discover that the resident was reporting him to the city for such of-

fenses as parking his car in front of his building.

An elderly woman,

who had lived in the neighborhood for 50 years, felt forced to leave

“because she felt that [she had] been driven out of the neighborhood.”

The issue became so pervasive that the neighborhood association,

code compliance department, and city council revised the Neighbor-

hood Conservation District plan in 2017 to alleviate the resident’s be-

havior.

. Gilbert Garcia, Beacon Hill Businesses Cry Code-Compliance Harassment,

SAN ANTONIO EXPRESS-NEWS (Oct. 22, 2016), https://www.expressnews.com/news

/news_columnists/gilbert_garcia/article/Beacon-Hill-businesses-cry-code-compli-

ance-10124431.php [https://perma.cc/DEW9-U4YV].

. Id.

. Id.; BEACON HILL AREA NEIGHBORHOOD CONSERVATION DISTRICT,

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 143

The resident’s actions against neighbors are an example of what

this Comment calls “code harassment.”

In such situations, a person

makes an overwhelming number of reports to local municipal code

enforcement agencies against another person.

Code enforcement of-

ficers, in attempting to perform their jobs, become tools in neighbor-

hood disputes.

Sometimes, officers recognize that they are “becom-

ing involved in what they define as private disputes.”

Other times,

officers may find it difficult to separate the harassment from genuine

complaints; consider an incident in Florida where an officer issued a

warning “for feeding ducks in [her] back yard instead of on the water,

as city codes prescribe.”

The effects of code harassment are far reaching. First, code har-

assment wastes city resources as overburdened code compliance de-

partments investigate large volumes of harassing complaints.

Sec-

ond, citizens suffer as code compliance officers send letters, knock on

their doors, enter and search their property, issue fines, and take legal

actions against them.

Oftentimes, this causes people to forfeit their

BEACON HILL AREA NCD PLAN 2017 REVISIONS, at 2 (June 22, 2017), https:/

/www.sanantonio.gov/Portals/0/Files/Planning/NPUD/NCD5_BeaconHill.pdf

[https://perma.cc/S3XE-Z5VW].

. See Bob LaMendola, Vengeful Neighbors Trigger ‘Code Terrorism,’ S. FLA.

SUN SENTINEL (Apr. 30, 1989), https://www.sun-sentinel.com/news/fl-xpm-1989-

04-30-8901220735-story.html [https://perma.cc/CKQ9-QYX4].

. See id.

. See id.; Gilbert Garcia, Beacon Hill Businesses Cry Code-Compliance Har-

assment, SAN ANTONIO EXPRESS-NEWS (Oct. 22, 2016), https://www.express-

news.com/news/news_columnists/gilbert_garcia/article/Beacon-Hill-businesses-

cry-code-compliance-10124431.php [https://perma.cc/DEW9-U4YV].

. H. Laurence Ross, Housing Code Enforcement as Law in Action, 17 L. &

POL’Y 133, 143 (1995) [hereinafter Law in Action].

. See Bob LaMendola, Vengeful Neighbors Trigger ‘Code Terrorism,’ S. FLA.

SUN SENTINEL (Apr. 30, 1989), https://www.sun-sentinel.com/news/fl-xpm-1989-

04-30-8901220735-story.html [https://perma.cc/CKQ9-QYX4].

. See generally H. Laurence Ross, Housing Code Enforcement and Urban De-

cline, 16 J. OF AFFORDABLE HOUS. & CMTY. DEV. L. 29, 39 (1996) [hereinafter Ur-

ban Decline] (“The code is very much underenforced due to community and inspec-

tion agency resource limitations . . . . An inspector’s luckiest discovery is that an

address is outside the city limits.”); Marie Saavedra, Mayor Acts as Code Compli-

ance Representative for a Day in West Dallas, WFAA (Feb. 27, 2020), https:/

/www.wfaa.com/article/news/local/dallas-mayor-puts-eyes-on-the-problem-of-ne-

glected-properties/287-509695c2-99e6-4331-94af-f3063305dd34 [https://perma.cc

/XA96-UB86] (quoting Dallas Mayor Eric Johnson stating, “I think one of the big-

gest barriers is just manpower and time. It’s a big city and code violations can be

many.”).

. See generally Dallas News Administrator, Sounding Off: Is Code Enforced

in Your Neighborhood?, THE DALL. MORNING NEWS (July 21, 2013, 11:00 AM),

144 TEXAS A&M J. PROP. L. [Vol. 8

homes and property and leave an area to avoid further harassment.

Finally, judicial resources are wasted as citizens attempt to fight code

enforcement and harassing neighbors with inadequate means.

Although code harassment seems confined to neighborhood dis-

putes, the internet has provided a transnational and national platform

for code harassers.

In 2016, a concentrated campaign led by anony-

mous, “self-proclaimed ‘Right Wing Safety Squads’” found on the

website 4chan

closed down local Do-It-Yourself (“DIY”) spaces—

unsanctioned and makeshift locations where “marginalized and trans-

gressive groups”

gathered to play and hear music—in Toronto, “Bal-

timore, Denver, Fort Worth, Richmond, Knoxville, [and] Nashville.”

Group members would locate videos of DIY events online and identify

and report fire and building hazards to local authorities.

A 4-chan

thread explained the rationale of the “Right Wing Safety Squads” ac-

tions, stating, “[DIY Spaces] are open hotbeds of liberal radicalism

and degeneracy and now YOU can stop them by reporting all such

places you may be or may become aware of to the authorities . . . .”

The rise of the internet and the ease of anonymous communication

https://www.dallasnews.com/news/2013/07/21/sounding-off-is-code-enforced-in-

your-neighborhood/ [https://perma.cc/UBV4-7VD6] (“No matter what is done, no-

body will be happy, so get used to it.”); Bob LaMendola, Vengeful Neighbors Trig-

ger ‘Code Terrorism,’ S. FLA. SUN SENTINEL (Apr. 30, 1989), https://www.sun-sen-

tinel.com/news/fl-xpm-1989-04-30-8901220735-story.html [https://perma.cc

/CKQ9-QYX4] (“I live on Social Security. I’m so sick I don’t care if they put me in

jail. Who would do something like that?”).

. See generally Gilbert Garcia, Beacon Hill Businesses Cry Code-Compliance

Harassment, SAN ANTONIO EXPRESS-NEWS (Oct. 22, 2016), https://www.express-

news.com/news/news_columnists/gilbert_garcia/article/Beacon-Hill-businesses-

cry-code-compliance-10124431.php [https://perma.cc/DEW9-U4YV]; Robert F.

Blomquist, Extreme American Neighborhood Law, 45 GONZ. L. REV. 335, 407

(2009) (citing Clanton v. Carr, No. A104203, 2004 WL 2988609, at *1 (Cal. Ct.

App. Dec. 28, 2004)) (illustrating where general harassment from a neighbor forced

a family to relocate after three years).

. See generally in re Lipsky, 411 S.W.3d 530, 536–37 (Tex App.—Fort Worth

2013, pet. denied) (suing for defamation, business disparagement, and civil conspir-

acy).

. See Sara Gwendolyn Ross, Transgressive DIY (“Do-It-Yourself”) Spaces,

Mixed Virtual/Physical Affinity Spaces, and Building Code Vigilantism, 13 ALB.

GOV’T. L. REV. 233, 262 (2019) [hereinafter DIY].

. Id. at 261.

. Id. at 275.

. Id. at 259–61.

. Id. at 262.

. Id. at 263.

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 145

have allowed code harassment to expand from a limited neighborhood

scope into a potential tool for silencing political opponents.

Within the past two decades, legal scholars and activists have crit-

icized and called for reform of code enforcement policy.

Code en-

forcement departments have implemented many of these reforms,

however, the conversation has excluded code harassment and its

causes.

This Comment seeks to incorporate code harassment into the lit-

erature surrounding code enforcement because current code enforce-

ment reform efforts have fallen short. Accordingly, the Comment pro-

poses solutions that lawmakers and code enforcement agencies should

adopt in the future. Code enforcement is not uniform across the United

States,

so this Comment focuses on Texas as an illustrative case

study of the problem and proposes potential solutions in the hopes that

other states and cities can modify and enact similar measures.

Four sections comprise this Comment. Section II provides a gen-

eral overview of code enforcement agencies and a description of code

enforcement in various Texas cities. Section III sets out the three prob-

lems—abatement, officer discretion, and neighborhood discord—that

scholars and organizations have identified over the past two decades

with code enforcement and explains their connection to code harass-

ment. Section IV analyzes the three components that enable code har-

assment in Texas: the Texas Citizens Participation Act, anonymous

reporting, and the lack of a clear cause of action. Finally, Section V

proposes three solutions that would address code harassment: amend-

ing the Texas Citizens Participation Act, transitioning from anony-

mous reporting to confidential reporting, and creating a vexatious re-

porter law which would allow people to directly address code

harassment in court. Addressing code harassment is important because

. See id. at 262; Jonathan Simmons, What to Do When Code Enforcement Be-

comes a Weapon?, PALM COAST OBSERVER (July 8, 2015), https://www.palm-

coastobserver.com/article/what-do-when-code-enforcement-becomes-weapon

[https://perma.cc/2QH8-XZK6].

. See generally Marilyn L. Uzdavines, Barking Dogs: Code Enforcement is

All Bark and No Bite (Unless the Inspectors Have Assault Rifles), 54 WASHBURN

L.J. 161 (2014); Urban Decline, supra note 11; Jonathan Simmons, What to Do

When Code Enforcement Becomes a Weapon?, PALM COAST OBSERVER (July 8,

2015), https://www.palmcoastobserver.com/article/what-do-when-code-enforce-

ment-becomes-weapon [https://perma.cc/2QH8-XZK6].

. See generally Uzdavines, supra note 22; Urban Decline, supra note 11.

. See Uzdavines, supra note 22, at 168.

146 TEXAS A&M J. PROP. L. [Vol. 8

it will offer relief to victims

and prevent code harassment from en-

larging into a tool that individuals and groups use to accomplish in-

vidious objectives, such as silencing political opponents

or segregat-

ing communities.

II. MUNICIPAL CODE ENFORCEMENT

Texas provides an excellent definition of Code Enforcement

as the inspection of public or private premises for the purpose

of identifying environmental hazards, including: fire or

health hazards; nuisance violations; unsafe building condi-

tions; and violations of any fire, health, or building regula-

tion, statute, or ordinance; and improving and rehabilitating

those premises with regard to those hazards.

This Section explains how code enforcement agencies generally

accomplish this goal before comparing code enforcement in the Texas

cities of Fort Worth, San Antonio, and Lubbock.

A. General Overview

Code enforcement is an issue that cuts right to the heart of every-

day life and impacts everybody within a community. In Dallas, Texas,

for instance, Mayor Eric Johnson spent an entire day as a code com-

pliance officer to see how the department resolved the 300,000 com-

plaints it receives each year.

During his stint as an officer, Johnson

saw a vacant lot filled with “trash, tires, and a broken fence” and stated

that this was “certainly one of the things you hear about the most be-

cause it gets right to people’s quality of life.”

Johnson’s focus on

various forms of trash illustrates the primary purpose of code

. Gilbert Garcia, Beacon Hill Businesses Cry Code-Compliance Harassment,

SAN ANTONIO EXPRESS-NEWS (Oct. 22, 2016), https://www.expressnews.com/news

/news_columnists/gilbert_garcia/article/Beacon-Hill-businesses-cry-code-compli-

ance-10124431.php [https://perma.cc/DEW9-U4YV].

. See DIY, supra note 15, at 260–62.

. See Francisco Alvarado, Lake Worth Uses Cops, Code Enforcement in Bra-

zen Effort to Get Rid of City’s Poor, FLA. BULLDOG (Mar. 5, 2019), https:/

/www.floridabulldog.org/2019/03/lake-worth-uses-cops-code-enforcement-in-bra-

zen-effort-to-get-rid-of-citys-poor/ [https://perma.cc/RPE8-5TAP].

. TEX. OCC. CODE § 1952.001(1).

. Marie Saavedra, Mayor Acts as Code Compliance Representative for a Day

in West Dallas, WFAA (Feb. 27, 2020), https://www.wfaa.com/article/news/local

/dallas-mayor-puts-eyes-on-the-problem-of-neglected-properties/287-509695c2-

99e6-4331-94af-f3063305dd34 [https://perma.cc/XA96-UB86].

. Id.

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 147

enforcement: to resolve nuisances and get people to comply with the

law, whether by choice or through various forms of force.

Code cases

that end up out of an officer’s hand, in court for instance, are viewed

as failures because compliance was not reached.

1. Types of Issues

Code enforcement officers confront both internal and external is-

sues.

Internal issues are those that people, mostly tenants, complain

about within their own dwellings, “for example, lack of adequate

heat.”

Such issues fall under the purview of the warranty of habita-

bility and exist to hold landlords accountable for the state of proper-

ties.

External issues are those that people complain about outside

their own dwellings or about other people, such as trash or tall grass.

Such issues fall under the purview of nuisance law and are designed

to uphold health and safety within the community.

2. Identifying Code Violations

Most code enforcement agencies in the United States operate as

complaint-driven systems.

A complaint-driven system relies heavily

on community involvement to selectively enforce city ordinances

where needed rather than proactively searching for violations.

Code

enforcement officers respond to individual complaints so that each

neighborhood can determine what it will tolerate for itself.

For ex-

ample, if a person lives “in an area where it’s OK for a trailer” to be

in the front yard, then nobody will complain.

Such systems encour-

age the community to police itself and allow code enforcement to

. Law in Action, supra note 9, at 149; JULIUS ZSAKO, CODE ENFORCEMENT

BEST PRACTICES: SAFETY, CUSTOMER SERVICE & COMMUNICATIONS 6 (2018).

. Law in Action, supra note 9, at 153.

. Id. at 140.

. Id.

. Ezra Rosser, Rural Housing and Code Enforcement: Navigating Between

Values and Housing Types, 13 GEO. J. ON POVERTY L. & POL’Y. 33, 40 (2006).

. Law in Action, supra note 9, at 140.

. See id. at 134; ZSAKO, supra note 31, at 10.

. Uzdavines, supra note 22, at 163–64.

. Id.

. Betsy Calvert, Code Enforcement Starts With Neighbors, Ends With Govern-

ment, SUN PORT CHARLOTTE (Apr. 12, 2019), https://www.yoursun.com/charlotte

/news/code-enforcement-starts-with-neighbors-ends-with-government/article

_217c3096-4a70-11e9-96ba-ab64eac85ce6.html [https://perma.cc/CGB3-XDNF].

. Id.

148 TEXAS A&M J. PROP. L. [Vol. 8

adopt a hands-off approach.

As one Dallas resident stated, code en-

forcement officers cannot magically know a problem exists unless cit-

izens “help the city help us.”

A minority of code enforcement agencies adopt proactive sys-

tems.

One such method is the use of periodic inspections where in-

spectors designate a time period to go block by block through an area

looking for violations.

Periodic inspections, however, are time con-

suming, expensive, and often impossible to accomplish with the lim-

ited personnel code enforcement agencies have at their disposal.

Another method is geographic inspections, where inspectors fo-

cus on the areas that often have the most violations.

This method

addresses “the neediest areas” of the community and can compensate

for a lack of reporting but fails to address needs in other parts of the

community.

Complaint-driven systems often must adopt some elements of

proactive enforcement to avoid discrimination claims.

A code en-

forcement officer will, for instance, respond to a complaint and, after

inspecting the reported property, survey the area for similar violations

before leaving to avoid charges of discrimination or favoritism.

Such

accompanying practices can often cause friction between officers and

community members who feel as though officers patrol the streets

looking for any excuse to harass them.

. See id.

. Dallas News Administrator, Sounding Off: Is Code Enforced in Your Neigh-

borhood?, THE DALL. MORNING NEWS (July 21, 2013, 11:00 AM), https://www.dal-

lasnews.com/news/2013/07/21/sounding-off-is-code-enforced-in-your-neighbor-

hood/ [https://perma.cc/UBV4-7VD6].

. Uzdavines, supra note 22, at 163.

. Id.

. Bob LaMendola, Vengeful Neighbors Trigger ‘Code Terrorism,’ S. FLA. SUN

SENTINEL (Apr. 30, 1989), https://www.sun-sentinel.com/news/fl-xpm-1989-04-30

-8901220735-story.html [https://perma.cc/CKQ9-QYX4].

. See Betsy Calvert, Code enforcement starts with neighbors, ends with gov-

ernment, SUN PORT CHARLOTTE (Apr. 12, 2019), https://www.yoursun.com/char-

lotte/news/code-enforcement-starts-with-neighbors-ends-with-government/article

_217c3096-4a70-11e9-96ba-ab64eac85ce6.html [https://perma.cc/CGB3-XDNF].

. See Uzdavines, supra note 22, at 163–64.

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 149

3. Gaining Compliance

After discovering a violation, a code enforcement officer first is-

sues a notice of violation to the noncomplier.

A notice of violation

is a single letter or series of letters sent to a noncomplier and includes

the noncomplier’s name, “a brief description of the code violation,” “a

request to eliminate the code violation by a date certain,” and “a brief

quote from the code which describes the violation . . . [and] penalties

for non-compliance.”

After sending out the notice of violation, code enforcement offic-

ers will generally default to negotiating with the noncomplier.

Justi-

fying this default approach, one code compliance officer stated, “I

don’t have anyone in court. If they get to court they stop working on

the building. I want to work with them.”

The approach also comes

from a belief that community outreach creates “a positive atmosphere

[leading] to safer and more attractive communities, thereby helping to

foster better places in which to live, work, play and invest.”

When negotiation fails, violators can end up in court before a

judge who assesses a fine for the violation.

Some code enforcement

departments have the authority to fix nuisances themselves and charge

the costs to the noncomplier using a lien on the property.

B. Texas Perspective

Code enforcement in Texas is a regulated occupation.

Code en-

forcement officers in Texas are licensed and registered and must un-

dergo continuing training and education.

Code enforcement officers

. INT’L CODE COUNCIL, LEGAL ASPECTS OF CODE ADMINISTRATION 42–43

(2017).

. ZSAKO, supra note 31, at 47; See also INT’L CODE COUNCIL, supra note 52,

at 42–45.

. Urban Decline, supra note 11, at 36–37

. Id. at 37.

. ZSAKO, supra note 31, at 6–7.

. Law in Action, supra note 9, at 153–54; Uzdavines, supra note 22, at 171.

. See FORT WORTH, TEX., CODE OF ORDINANCES app. B, art. II, §§ 11A-52 to

-54 (2021).

. TEX. OCC. CODE § 1952.001.

. Id. § 1952.051(a)–(b) (an executive director and commission is required to

enforce and create standards and educational requirements); Id. §§ 1952.102–.103

(setting out licensing requirements to become a code enforcement officer); Id. §

1952.1051 (requiring continuing education and training for code enforcement offi-

cials); Id. § 1952.151 (stating conditions for suspending or revoking a code enforce-

ment official’s license).

150 TEXAS A&M J. PROP. L. [Vol. 8

are distinctly different from police officers, despite conducting inves-

tigations, imposing fines on people for infractions, and often working

in the same building.

Despite state regulation of code enforcement licensing, code en-

forcement officers operate differently from city to city based on the

city ordinance code.

In Fort Worth, for instance, code enforcement

operates as its own independent department.

The department oper-

ates on a complaint-driven system,

but checking on the status of a

complaint requires a complainant to submit their identity with the

complaint.

The “Fort Worth Code Rangers,” a volunteer system

where code enforcement officers train concerned citizens in the com-

munity to report violations, supplements Fort Worth’s complaint

driven system.

After discovering a violation and issuing a notice of

violation, officers may abate the nuisances themselves, provide subse-

quent notice of the abatement to owners, and place liens on property

to cover the abatement expenses.

In San Antonio, code enforcement operates as its own independ-

ent department.

The department operates on a complaint-driven

. See Code Enforcement, CITY OF EL PASO, https://www.elpasotexas.gov/po-

lice-department/code-compliance [https://perma.cc/L2BX-95DT]; TEX. CRIM.

PROC. CODE § 2.12 (Texas law recognizes thirty-five different positions as police

officers and none include code enforcement officers); TEX. OCC. CODE § 1952.003

(“This state or a political subdivision of this state may engage in code enforcement

without employing a person registered under this chapter.”); Experience Require-

ments, TEX. DEP’T OF LICENSING & REGUL., https://www.tdlr.texas.gov/ceo

/ceofaq.htm [https://perma.cc/G63Z-7E5D] (a police officer must make a “career

change” to be a code enforcement officer).

. See generally, FORT WORTH, TEX., CODE OF ORDINANCES app. B, art. II, §§

11A-6 to -101 (2020); SAN ANTONIO, TEX., PROPERTY MAINTENANCE CODE ch. 1,

§§ 101.1–604.3 (2020).

. FORT WORTH, TEX., CODE OF ORDINANCES app. B, art. II, § 11A-6 (2020).

. Request a City Service, FORT WORTH, https://fortworth-csrprod-

cwi.motorolasolutions.com/servicerequest.mvc/srintake [https://perma.cc/LFJ3-

8AAX].

. Check Service Request Status, FORT WORTH, https://fortworth-csrprod-

cwi.motorolasolutions.com/StatusCheck.mvc/StatusCheck [https://perma.cc/A65F-

EYV5].

. Code Rangers, FORT WORTH, http://cctfortworth.org/coderangers

/#:~:text=The%20Code%20Rangers%20program%20seeks,reports%20of%20sus-

pected%20code%20violations [https://perma.cc/RRL3-5UWT].

. FORT WORTH, TEX., CODE OF ORDINANCES app. B, art. II, §§ 11A-52 to -54

(2020).

. SAN ANTONIO, TEX., PROPERTY MAINTENANCE CODE, ch. 1, §§ 101.1–104.6

(2018) (established through the San Antonio Property Maintenance Code, also called

the Development Services Department).

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 151

system, but does not foreclose proactive inspection.

After discover-

ing a violation, officers must serve a notice of violation on the violator,

bring the violator into court if the violation is not fixed, and impose a

fine “not less than one hundred dollars and not more than two thousand

dollars.”

The code does “not preclude the City Attorney from insti-

tuting appropriate action to restrain, correct or abate a violation.”

In Lubbock, code enforcement operates as a subdivision of the

city’s environmental inspection services.

The city reporting system

is not anonymous because it requires calling or signing into an online

account in order to submit a complaint.

At times, the code enforce-

ment department goes out into the community looking for violations.

After discovering a violation, officers may abate the nuisances within

one year of notice, provide subsequent notice to owners of the abate-

ment, and charge the owner for abatement.

Enforcement systems and the anonymity of reporting systems

separate the three cities above. Both Fort Worth and Lubbock enforce

the city code through abating nuisances and charging the property

owner,

while San Antonio fines property owners for non-compli-

ance.

Fort Worth depends on a complaint-based system,

while San

Antonio and Lubbock use a mixture of proactive and complaint-based

. Code Enforcement Process, SAN ANTONIO, https://www.sanantonio.gov/ces

/Services [https://perma.cc/X5TY-KPFK].

. SAN ANTONIO, TEX., PROPERTY MAINTENANCE CODE ch. 1, §§ 106.1–106.6

(2018).

. Id. at § 106.5.

. LUBBOCK, TEX., CODE OF ORDINANCES ch. 34, § 34.02.031 (2020).

. Code Enforcement, LUBBOCK, https://ci.lubbock.tx.us/departments/code-en-

forcement/services [https://perma.cc/WQ4A-PKAV].

. Avery Travis, Code Enforcement on the Lookout for Violations, KAMC

NEWS (Apr. 5, 2018), https://www.everythinglubbock.com/news/kamc-news/code-

enforcement-on-the-lookout-for-violations/ [https://perma.cc/XUK4-85HY].

. LUBBOCK, TEX., CODE OF ORDINANCES ch. 34, § 34.02.035 (2020).

. See FORT WORTH, TEX., CODE OF ORDINANCES app. B, art. II, §§ 11A-52 to

-54 (2019); LUBBOCK, TEX., CODE OF ORDINANCES ch. 34, § 34.02.035 (2020).

. See SAN ANTONIO, TEX., PROPERTY MAINTENANCE CODE ch. 1, § 106.4

(2018).

. See Request a City Service, FORT WORTH, https://fortworth-csrprod-

cwi.motorolasolutions.com/servicerequest.mvc/srintake [https://perma.cc/LFJ3-

8AAX]; Code Rangers, FORT WORTH, http://cctfortworth.org/coderangers

/#:~:text=The%20Code%20Rangers%20program%20seeks,reports%20of%20sus-

pected%20code%20violations [https://perma.cc/RRL3-5UWT] (requiring regis-

tered Fort Worth residents to search for violations and submit complaints to Fort

Worth Code Enforcement).

152 TEXAS A&M J. PROP. L. [Vol. 8

systems.

Lubbock does not use anonymous complaints,

while both

San Antonio and Fort Worth allow the submission of anonymous com-

plaints.

III. MODERN CODE ENFORCEMENT PROBLEMS

Scholars have identified three major problems with modern code

enforcement: inadequate abatement procedures, officer discretion, and

failure to resolve neighborhood disputes.

This Section discusses

each of these problems with both proposed and enacted solutions and

further explains how these problems inadequately address code har-

assment.

A. Abatement

Code enforcement’s purpose is compliance.

Scholars have crit-

icized code enforcement mechanisms, such as San Antonio’s fine sys-

tem, as ineffective because they prevent noncompliers from address-

ing issues.

For example, Professor Marilyn L. Uzdavines provides

the example of a homeowner who had to move for foreclosure to avoid

jail time for failing to repair her damaged roof.

The homeowner’s

house was in foreclosure when the roof was damaged,

but code en-

forcement still cited her, ordered her to make repairs, and threatened

to incarcerate her.

The homeowner could not fix her roof because

. See Code Enforcement Process, SAN ANTONIO, https://www.sanantonio.gov

/ces/Services [https://perma.cc/X5TY-KPFK]; Code Enforcement, LUBBOCK, https:

//ci.lubbock.tx.us/departments/code-enforcement/services [https://perma.cc/WQ4A

-PKAV]; Avery Travis, Code Enforcement on the Lookout for Violations, KAMC

NEWS (Apr. 5, 2018), https://www.everythinglubbock.com/news/kamc-news/code-

enforcement-on-the-lookout-for-violations/ [https://perma.cc/XUK4-85HY].

. See Code Enforcement, LUBBOCK, https://ci.lubbock.tx.us/departments/code

-enforcement/services [https://perma.cc/WQ4A-PKAV]; Sign in, SEECLICKFIX,

https://seeclickfix.com/oauth/login [https://perma.cc/4QYX-W8MF] (showing the

account creation page before submitting a complaint to Lubbock Code Enforcement

Department).

. See Request a City Service, FORT WORTH, https://fortworth-csrprod-

cwi.motorolasolutions.com/servicerequest.mvc/srintake [https://perma.cc/LFJ3-

8AAX]; Code Enforcement Process, SAN ANTONIO, https://www.sanantonio.gov

/ces/Services [https://perma.cc/X5TY-KPFK].

. See generally Uzdavines, supra note 22, at 161; Rosser, supra note 35 at 33.

. ZSAKO, supra note 31, at 47.

. Uzdavines, supra note 22, at 190.

. Id. at 175–76.

. Id. at 176.

. Id.

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 153

she had no money, insurance refused to pay on a foreclosing house,

and lenders refused assistance because she was not the owner.

Send-

ing the woman to jail would not have accomplished code enforce-

ment’s objective, fixing the roof.

Rather than taking actions that re-

solve issues, many code enforcement departments rely on outdated

practices that punish citizens and prevent compliance.

In addition, code enforcement officers sometimes avoid acting for

fear of harming people in the community.

One code enforcement of-

ficer voiced his concern with imposing actions and fines against “poor

and elderly owner-occupants” stating:

I can’t bother her. She is eighty years old, like my mother.

To fix that would be ten, twelve, thousand dollars. It can’t be

worth that. It would be better for her to put money in the bank

at ten percent and having something to eat.

In such situations, code enforcement officers see potential intervention

as a negative course of action that harms, rather than benefits, a com-

munity.

In the past two decades, and especially since the 2008 housing

crash which lead to a rise of abandoned and decaying homes,

some

states have attempted to use super-liens to address inadequate abate-

ment procedures.

Although many Texas cities allow city officials to

abate nuisances on their own and file liens,

such liens are treated as

normal liens and fall behind any already existing liens on a property.

A super-lien takes priority over other liens.

This allows homeown-

ers, especially those with little money, to pay for abatement, usually

property improvements that make life better, before paying other debts

. Id.

. See SAN. ANTONIO, TEX., PROPERTY MAINTENANCE CODE ch. 1, § 106.4

(2018).

. Urban Decline, supra note 11, at 36; Rosser, supra note 35, at 92.

. Urban Decline, supra note 11, at 36.

. See id.

. Uzdavines, supra note 22, at 184–85.

. Id. at 181–85 (Louisiana has explicitly authorized super-liens throughout the

state allowing it to recover $3.4 million. Florida and Massachusetts have attempted

to establish super-liens by giving priority to certain liens through select court cases

with marginal success.).

. See FORT WORTH, TEX., CODE OF ORDINANCES, app. B, art. II, §§ 11A-52 to

-54 (2019); LUBBOCK, TEX., CODE OF ORDINANCES ch. 34, § 34.02.035 (2020).

. Uzdavines, supra note 22, at 181.

. Id.

154 TEXAS A&M J. PROP. L. [Vol. 8

that may keep a property in disrepair.

Super-liens work better than

fines because they use government money to immediately fix and re-

solve issues, the stated objective of code enforcement, rather than de-

priving homeowners of money while simultaneously demanding com-

pliance.

100

Abatement and enforcement mechanisms do not address code

harassment. Abatement issues exist in the space between code en-

forcement officers and property owners and do not include complain-

ants;

101

a person who makes a report to code enforcement has no con-

trol over code enforcement’s actions.

Although reducing the punitive nature of abatement procedures

can reduce the financial impacts on code harassment victims,

102

such

solutions fail to address code harassment’s other consequences. The

peace of mind and reputational damage a victim faces through re-

peated code enforcement encounters is a harm suffered long before

abatement procedures take place.

103

Although important and benefi-

cial, abatement reform is inadequate in addressing code harassment’s

causes or harms.

B. Officer Discretion

Another issue is the large amount of discretion cities and depart-

ments grant code enforcement officers.

104

When citizens complain, a

small handful of code enforcement officers decide what and how to

investigate and the approach used to resolve issues.

105

An investiga-

tion from an overzealous, negligent, or untrained officer can have dire

repercussions.

106

. Id. at 182.

100

. See id.

101

. See id. at 175 (showing that abatement issues are between code enforcement

officers and non-compliant residents).

102

. See id. at 181–85.

103

. See generally Dallas News Administrator, Sounding Off: Is Code Enforced

in Your Neighborhood?, THE DALL. MORNING NEWS (July 21, 2013, 11:00 AM),

https://www.dallasnews.com/news/2013/07/21/sounding-off-is-code-enforced-in-

your-neighborhood/ [https://perma.cc/UBV4-7VD6]; Bob LaMendola, Vengeful

Neighbors Trigger ‘Code Terrorism,’ S. FLA. SUN SENTINEL (Apr. 30, 1989), https:

//www.sun-sentinel.com/news/fl-xpm-1989-04-30-8901220735-story.html [https:/

/perma.cc/CKQ9-QYX4].

104

. See generally Law in Action, supra note 9; Uzdavines, supra note 22, at 161.

105

. See Law in Action, supra note 9, at 143–44.

106

. See, Uzdavines, supra note 22, at 178; ZSAKO, supra note 31, at 47; Urban

Decline, supra note 11, at 36–38 (“If it honestly takes 300 days to fix a violation I

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 155

For example, in Dallas, an elderly homeowner’s family suggested

a code enforcement officer’s action may have led to the homeowner’s

death.

107

A code enforcement officer and a police officer entered and

inspected a 95-year-old homeowner’s home without permission.

108

Two days later, the code enforcement officer returned with a case-

worker and told the homeowner she would no longer be able to live in

her home.

109

The homeowner had never interacted with police or city

representatives and suddenly found a police officer, code enforcement

officer, and caseworker in her home threatening to evict her.

110

The

homeowner died of a stroke within two weeks of the events, and her

son suggested that the code enforcement officer caused the home-

owner undue stress leading to her death.

111

The city fired the officer

stating her behavior was inconsistent with the standards of the code

enforcement department, but this occurred only after seven prior rep-

rimands.

112

City officials often dismiss negligent or overzealous incidents as

the mistake of one bad apple or use appeals of “common sense” that a

problem will not occur.

113

In a Florida case, for instance, the city at-

torney told the city council:

If the code enforcement officer receives, for the sake of ar-

gument, the 10th complaint on the same property from the

same anonymous source in one month, they’re going to grab

their investigator hat, and they’re going to use their common

sense—and I see it happen—and if there’s not a code viola-

tion, that’s the end of it.

114

Sometimes, however, cities themselves pressure code enforce-

ment officers to target vulnerable communities. Such a situation

will give the time,” but “if somebody lies to me I will burn them so bad that they

sure ‘nuf won’t forget it.”).

107

. Jimmy Isaac, Longview Could Face Lawsuit Over Code Officer’s Behavior,

LONGVIEW NEWS-J. (Feb. 22, 2018), https://www.news-journal.com/news/local

/longview-could-face-lawsuit-over-code-officers-behavior/article_67ab2ad1-9ea1-

540e-b126-6a33d01c5dff.html [https://perma.cc/RH22-4JLE].

108

. Id.

109

. Id.

110

. Id.

111

. Id.

112

. Id.

113

. Jonathan Simmons, What to Do When Code Enforcement Becomes a

Weapon?, PALM COAST OBSERVER (July 8, 2015), https://www.palm-

coastobserver.com/article/what-do-when-code-enforcement-becomes-weapon

[https://perma.cc/2QH8-XZK6].

114

. Id.

156 TEXAS A&M J. PROP. L. [Vol. 8

occurred in the city of Lake Worth, Florida, where a city council mem-

ber stated in a meeting, “We have to change the demographics, but no

one is willing to say it . . . Lake Worth is the default repository for the

poor and indigent.”

115

Another council member wanting “to attract in-

dividuals making $60,000 or more annually, preferably with a college

degree” stated, “I want that person. That person probably has a higher

level of education than our average resident.”

116

The council members

further stated that law and code enforcement could function as “‘the

stick’ to go after owners of dilapidated properties.”

117

Following the

statements, the city used “a $300,000 federal community block grant

to fund a citywide sweep” for violations that primarily targeted low-

income Guatemalan and Haitian residents.

118

Code enforcement offic-

ers used their discretion to target individuals in the community, for

example, towing specific cars parked on the street or fining the resi-

dents of a trailer park.

119

The Lake Worth council members’ comments followed a decade

of discriminatory code enforcement practices against Guatemalan and

Haitian residents. In 2006, a Lake Worth police officer entered a Gua-

temalan apartment to take a crime victim report and simultaneously

scanned the residence for code compliance violations to report to the

code compliance department, a practice that officers did not perform

when taking reports from white residents.

120

After reporting the inci-

dent to code compliance, 100 Guatemalan residents were forcibly

evacuated from the entire apartment complex.

121

Lawyers from the

Florida Equal Justice Center and Legal Aid Society of Palm Beach

County became involved, and the city settled, but the settlement did

115

. Francisco Alvarado, Lake Worth Uses Cops, Code Enforcement in Brazen

Effort to Get Rid of City’s Poor, FLA. BULLDOG (Mar. 5, 2019), https://www.florida-

bulldog.org/2019/03/lake-worth-uses-cops-code-enforcement-in-brazen-effort-to-

get-rid-of-citys-poor/ [https://perma.cc/RPE8-5TAP].

116

. Id.

117

. Id.

118

. Id.

119

. Id.

120

. Nancy Kinnally, Goldstein Award Winners Challenged Selective Code En-

forcement, THE FLA. BAR (June 1, 2010), https://www.floridabar.org/the-florida-bar

-news/goldstein-award-winners-challenged-selective-code-enforcement

/?fbclid=IwAR1nivcv7s1Mb_G1uG-VzjIfbOvftQxW7JL8L-KxgXD7XfBEpD

_vYY9g5hI [https://perma.cc/7AGA-SZ2E].

121

. Id.

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 157

little to prevent the subsequent authorization of discriminatory code

enforcement officer conduct.

122

One solution to negligent, overzealous, and discriminatory officer

discretions is the “co-production model,” which revolves around the

community.

123

The model uses community organizations that under-

stand the unique needs of their communities, negotiate what standard

the community should abide, and take it upon themselves to abate non

-compliance, for instance, boarding up abandoned houses and keeping

records of suspected drug dealings.

124

The approach was “successfully

implemented by several communities in Baltimore” in the late

1990s

125

and has seen increased adoption in the past two decades in

various cities across the United States.

126

Rather than fining residents

through city-wide standards, members of the community negotiate and

help one another make the community a better place.

127

When the

community organizations encounter a problem too difficult to handle

alone, code enforcement provides support through other enforcement

mechanisms.

128

An important aspect of the co-production model is that it deprives

code enforcement departments of their potential for abuse.

129

Rather

than forcing individual officers to make decisions from their view-

points alone, the model allows the community to help officers “de-

velop the best strategy . . . while at the same time building up commu-

nity morale.”

130

The result is that officers get “the extra help and

financial resources” they need while “the community gets a code

122

. Id.; Francisco Alvarado, Lake Worth Uses Cops, Code Enforcement in Bra-

zen Effort to Get Rid of City’s Poor, FLA. BULLDOG (Mar. 5, 2019), https:/

/www.floridabulldog.org/2019/03/lake-worth-uses-cops-code-enforcement-in-bra-

zen-effort-to-get-rid-of-citys-poor/ [https://perma.cc/9LBR-HTVM].

123

. Uzdavines, supra note 22, at 187.

124

. Id. at 188.

125

. Id.

126

. See CITIES RISE: CITIES FOR RESPONSIBLE INV. AND STRATEGIC ENF’T, THE

POWER & PROXIMITY OF CODE ENFORCEMENT: A TOOL FOR EQUITABLE

NEIGHBORHOODS 23–25 (June 2019) (describing examples in Minnesota, South Car-

olina, California, and Kansas); Code Rangers, FORT WORTH, http://cctfortworth.org

/coderangers/#:~:text=The%20Code%20Rangers%20program%20seeks,re-

ports%20of%20suspected%20code%20violations [https://perma.cc/RRL3-5UWT].

127

. Uzdavines, supra note 22, at 188.

128

. Id.

129

. Id. at 190.

130

. Id.

158 TEXAS A&M J. PROP. L. [Vol. 8

enforcement department that is listening to the community needs, and

working with the residents and not against them.”

131

Officer discretion is an additional component leading to code har-

assment. Oftentimes, a code enforcement officer can flag meritless

complaints and refuse to participate in a harassing complaint.

132

But

code officers make mistakes.

133

These mistakes can create situations

where a person finds themselves frequently investigated for non-com-

pliance.

134

Further, focusing on code enforcement officers ignores the perpe-

trator of such behavior, the complainant. Because of this, the co-pro-

duction model fails to address this aspect of code harassment since it

is usually a community member who is creating the harassment.

135

Although the co-production model mitigates the harms of officer dis-

cretion, it only shifts the authority that can continue to enable code

harassment.

C. Neighborhood Discord

The last code enforcement problem is the legal system’s general

inability to resolve neighbor disputes.

136

Oftentimes, code enforce-

ment, law enforcement, and court actions have no effect and even ex-

acerbate conflicts between neighbors.

137

In Tennessee, for instance, a

family submitted an anonymous complaint to local code enforcement

against their neighbors.

138

Code enforcement responded with a notice

131

. Id.

132

. See Law in Action, supra note 9, at 143–44.

133

. See generally Jimmy Isaac, Longview Could Face Lawsuit Over Code Of-

ficer’s Behavior, LONGVIEW NEWS-J. (Feb. 22, 2018), https://www.news-jour-

nal.com/news/local/longview-could-face-lawsuit-over-code-officers-behavior/arti-

cle_67ab2ad1-9ea1-540e-b126-6a33d01c5dff.html [https://perma.cc/RH22-4JLE].

134

. See Gilbert Garcia, Beacon Hill Businesses Cry Code-Compliance Harass-

ment, SAN ANTONIO EXPRESS-NEWS (Oct. 22, 2016), https://www.expressnews.com

/news/news_columnists/gilbert_garcia/article/Beacon-Hill-businesses-cry-code-

compliance-10124431.php [https://perma.cc/DEW9-U4YV]; Bob LaMendola,

Vengeful Neighbors Trigger ‘Code Terrorism,’ S. FLA. SUN SENTINEL (Apr. 30,

1989), https://www.sun-sentinel.com/news/fl-xpm-1989-04-30-8901220735-

story.html [https://perma.cc/CKQ9-QYX4].

135

. See Gilbert Garcia, Beacon Hill Businesses Cry Code-Compliance Harass-

ment, SAN ANTONIO EXPRESS-NEWS (Oct. 22, 2016), https://www.expressnews.com

/news/news_columnists/gilbert_garcia/article/Beacon-Hill-businesses-cry-code-

compliance-10124431.php [https://perma.cc/DEW9-U4YV].

136

. See generally Blomquist, supra note 13.

137

. See generally id. at 336–45.

138

. Id. at 400 (citing Levy v. Franks, 159 S.W.3d 66, 70 (Tenn. Ct. App. 2004)).

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 159

of violation to the neighbor.

139

The neighbor was able to discover that

the family submitted the anonymous complaint, beginning a six-year

feud complete with death threats, court actions, and harassment.

140

During this time, city officials had no effect or ignored the conflict,

court-ordered mediation exacerbated the feud, and judges admonished

both parties equally in court.

141

Many code enforcement officers recognize their inability to re-

solve neighbor disputes.

142

Instead of resolving issues, officers some-

times pretend they do not exist.

143

Referring to a neighbor who con-

stantly complained, one officer stated, “I know the asshole who made

this complaint. She is always complaining on her neighbor, and never

for any good reason, so why waste time going there? I know it is noth-

ing.”

144

Moreover, when complaining neighbors keep submitting com-

plaints, code enforcement officers may take steps against the reporter

to stop the complaints. One officer stated, “When I suspect a vindic-

tive complaint from a neighbor, I go over and write up everything

there. You never hear from them again.”

145

Such admissions illustrate

that code enforcement officers are often aware they do not possess the

tools to resolve neighbor disputes and take steps to avoid acting as

intermediaries in the disputes.

146

Ironically, many neighbors expect and rely on city officials to re-

solve such issues.

147

A study in New York City found that one-third

of people have never interacted with their neighbors.

148

Further, the

study found that people living in “liminal zones,” areas of great racial

diversity, were far more likely to contact code enforcement than peo-

ple living in areas of low diversity.

149

Code enforcement’s inability to

resolve disputes was a contributing factor to the unrest of these areas

139

. Id.

140

. Id. at 400–05 (citing Levy, 159 S.W.3d at 70).

141

. Id.

142

. See generally Law in Action, supra note 9, at 143–44.

143

. Id. at 144.

144

. Id.

145

. Id.

146

. See id. at 143–44.

147

. Id. at 137.

148

. Laura Bliss, When Racial Boundaries are Blurry, Neighbors Take Com-

plaints Straight to 311, BLOOMBERG CITYLAB (Aug. 24, 2015, 3:01 PM), https:/

/www.bloomberg.com/news/articles/2015-08-24/neighbors-complain-most-to-311-

along-fuzzy-racial-boundaries-nyu-study-finds [https://perma.cc/N6DQ-3WCV].

149

. Id.

160 TEXAS A&M J. PROP. L. [Vol. 8

and increased community tension.

150

Scholars, therefore, have criti-

cized the abatement model as inadequate for resolving the problems

that such nuisances actually present.

151

Currently, no equitable solution or framework capable of resolv-

ing such issues exists.

152

This has led some scholars to look interna-

tionally for solutions, specifically at the United Kingdom’s “model of

Anti-Social Behavior Orders” (“ASBQs”), which arose from extreme

situations where the “outrageous behavior of one or two families,

groups or individuals [was] apparently beyond the reach of the

law.”

153

Such laws allow courts to use criminal penalties, “such as re-

stricted movement,” “even though [a person] may not be guilty of a

criminal offense.”

154

Of the three issues scholars have raised concerning problems with

municipal code enforcement, code enforcement officer’s inability to

resolve neighborhood disputes most closely addresses the problem.

Code harassment is, at its core, a conflict between individuals with an

intermediary in between. Although code harassment would not exist

without a code enforcement officer, it is the officer’s inability to man-

age a dispute that creates the problem.

155

However, the creation of a new law based around anti-social be-

havior would do little to provide relief to code harassment victims.

Such laws could prohibit or stop a neighbor’s actions, but the victim

of harassment still has suffered harm with no legal remedy.

156

Accordingly, code harassment is an unaddressed issue. Further,

proposed and enacted solutions to other code enforcement problems

fail to address code harassment because these solutions do not enable

a victim to seek a remedy from the harasser.

150

. Id.

151

. See Blomquist, supra note 13, at 431–32.

152

. See generally id. (detailing dozens of such failures by the American legal

system).

153

. Id. at 433.

154

. Id.

155

. See id. at 400–05 (citing Levy v. Franks, 159 S.W.3d 66, 70 (Tenn. Ct. App.

2004)).

156

. See id. at 406 (citing Clanton v. Carr, No. A104203, 2004 WL 2988609, at

*2–5 (Cal. Ct. App. Dec. 28, 2004)).

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 161

IV. CODE HARASSMENT: AN UNADDRESSED ISSUE

A Texas victim of code harassment has no clear and easy path to

relief in the State’s legal system. This problem is threefold: first, the

Texas Citizen’s Participation Act (“TCPA”) imposes a strict proce-

dural dam for code harassment claims; second, most cities allow anon-

ymous reporting that shields harassers’ identities; and third, there is

no cause of action that directly addresses code harassment. These three

issues prevent causes of action based on code harassment and shield

such harassing conduct from liability.

A. The Texas Citizens Participation Act

The “Texas Citizens Participation Act,” or “Anti-Slaap Law,” is

a procedural dam to code harassment claims.

157

The law allows a party

in a legal proceeding to file a motion to dismiss “if [the] legal action

is based on, relates to, or is in response to the party’s exercise of the

right of free speech [or] right to petition . . . .”

158

Courts have read the

definition of “right to petition” and “exercise of the right of free

speech” very broadly.

159

For instance, in In re Lipsky, the Fort Worth

Court of Appeals decided plaintiffs’ complaints to the EPA, that fur-

ther appeared in various publications, fell within the TCPA’s defini-

tion of “right to petition” and “exercise of the right of free speech.”

160

The plaintiffs properly exercised their right to petition because “the

statements at issue were made to encourage the ‘review of an is-

sue’ . . . by a ‘governmental body.’”

161

The exercise of right of free

speech was the basis of the plaintiff’s actions because the complaint

was “made in connection with a matter of public concern.”

162

157

. Laurel L. Baker, Limitations of the Texas Citizens Participation Act,

LAW.COM (Jan. 5, 2021, 03:00 PM), https://www.law.com/texaslawyer/2021/01/05

/limitations-of-the-texas-citizens-participation-act/ [https://perma.cc/3UYX-

GQPU].

158

. TEX. CIV. PRAC. & REM. CODE § 27.003(a) (2011) (amended 2019).

159

. See In re Lipsky, 411 S.W.3d 530, 543 (Tex App.—Fort Worth Apr. 22,

2013, pet. denied); Cunningham v. Waymire, 612 S.W.3d 47, 57–59 (Tex. App.—

Houston [14

Dist.] 2019, no pet.).

160

. 411 S.W.3d at 541–42, 545, 548.

161

. Id. at 542 (finding the communications to the public at large were “based on

[plaintiff’s] strategy to involve the EPA”).

162

. Id. at 542–43 (reasoning that chemicals in the drinking well were a health

risk, and fracking could affect others).

162 TEXAS A&M J. PROP. L. [Vol. 8

After Lipsky, complainants have used the TCPA to stop defama-

tion or slander suits based on their reports to code enforcement.

163

Maldonado v. Franklin, a court determined that a defendant’s com-

plaints to code enforcement about a plaintiff’s treatment of an outside

dog were “communications made in connection with a matter of public

concern.”

164

Looking at the San Antonio municipal code, the court de-

termined that San Antonio had made the welfare of an outside dog a

matter of public concern and the TCPA protected the defendant’s com-

plaints.

165

Therefore, code enforcement complaints, so long as they

conform to nuisances contained within the city ordinance code, are

protected speech subject to a TCPA dismissal.

166

B. Anonymous Reporting

Anonymous reporting is meant to protect reporters from the peo-

ple they report, as a case in Salt Lake City, Utah, demonstrates.

167

2018, a man killed a code enforcement officer, lit her truck on fire,

and set fire to the neighbor’s house he falsely blamed for reporting

him.

168

The man had a history of code enforcement violations for

“misdemeanor weed-control and bulky waste-accumulation

charges.”

169

Notably, a week before the murder, the man accused the

same neighbor of making the report, but she denied it.

170

Anonymity exists to allow people to make reports without fear of

retaliation, but anonymity also allows code harassers to act free of con-

sequences because the victim of harassment is unable to find out who

the harasser is. Most cities in Texas allow anonymous online reporting

that collects no personal information from a reporter; in such situa-

tions, a request for information from the code compliance department

would reveal no information besides the complaint’s content.

171

Thus,

163

. See Maldonado v. Franklin, No. 04-18-00819-CV, 2019 Tex. App. LEXIS

8747 (4th Dist. Ct., Bexar County, Tex. Sep. 30, 2019).

164

. Id. at *7.

165

. Id. at *8 (San Antonio’s municipal code “establishe[d] minimum standards

of care to safeguard humane care and treatment of animals.”).

166

. See id.

167

. Lindsay Whitehurst, Man Says He Killed City Worker Over Yard Rule ‘Har-

assment,’ ASSOCIATED PRESS (Aug. 10, 2018), https://apnews.com/article

/bde88b80d72147859f5d6a7a4d621ef2 [https://perma.cc/9CET-46TX].

168

. Id.

169

. Id.

170

. Id.

171

. See Check Service Request Status, FORT WORTH, https://fortworth-

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 163

a victim of code harassment seeking to bring an anonymous harasser

into court has two options: file an anonymous lawsuit in the hopes of

later discovering the identity of the harasser or submit a suit based on

a guess as to the who the harasser is and risk dismissal under the

TCPA.

Anonymous lawsuits, also known as John/Jane Doe suits, are not

accepted in Texas and are dismissed

172

unless specifically allowed by

statute.

173

In Dallas, for instance, a pro se litigant attempted to bring a

defamation claim against an unknown person who reported what he

called a “false complaint” to code enforcement.

174

The litigant later

had to amend his complaint to include the neighbor he blamed for the

complaint against him.

175

Alternatively, a plaintiff must sue a defendant and risk TCPA dis-

missal because the plaintiff cannot prove the defendant made a code

enforcement report. Once a defendant invokes the TCPA, plaintiffs

must prove “by clear and specific evidence a prima facie case for each

essential element of the claim in question,” or the court will dismiss

the complaint.

176

The TCPA “does not define what sort of evidence

satisfies the ‘clear and specific’ qualitative standard.”

177

In cases un-

related to the TCPA, Texas courts have said that evidence that sup-

ports a prima facie case is the “minimum quantum of evidence

csrprodcwi.motorolasolutions.com/StatusCheck.mvc/StatusCheck [https://perma.cc

/A65F-EYV5]; Code Enforcement Process, SAN ANTONIO, https://www.sananto-

nio.gov/ces/Services [https://perma.cc/X5TY-KPFK]; Code Enforcement,

LUBBOCK, https://ci.lubbock.tx.us/departments/code-enforcement/services [https:/

/perma.cc/WQ4A-PKAV] (showing the account creation page before submitting a

complaint to Lubbock Code Enforcement Department).

172

. Riston v. Doe #1, 161 S.W.3d 525, 528–29 (Tex. App.—Houston [14th

Dist.] 2004, pet. denied).

173

. TEX. CIV. PRAC. & REM. CODE § 16.0045(b), (d) (allowing the filing of a

John/Jane Doe suit to prevent the statute of limitations from running in personal

injury cases involving sexual assault).

174

. Complaint for Injunction & Declaratory Relief at 12–13, Khan v. City of

Dallas, No. 3:15-CV-3254-D, 2016 WL 3910859, (N.D. Tex. Mar. 18, 2016).

175

. Amended Complaint for Injunction & Declaratory Relief at p. 4, Khan v.

City of Dallas, No. 3:15-CV-3254-D, 2016 WL 3910859, (N.D. Tex. Mar. 18, 2016).

Note that even if Texas allowed anonymous lawsuits, their purpose is to grant a

plaintiff time to discover the identity of a defendant. Anonymous reporting leaves

no record of a reporter’s identity, therefore, the time extension an anonymous law-

suit provides would serve no purpose. See Riston, 161 S.W.3d at 530.

176

. TEX. CIV. PRAC. & REM. CODE § 27.005(b)–(c).

177

. In re Lipsky, 411 S.W.3d 530, 539 (Tex App.—Fort Worth 2013, pet. de-

nied) (quoting TEX. CIV. PRAC. & REM. CODE § 27.006(a)).

164 TEXAS A&M J. PROP. L. [Vol. 8

necessary to support a rational inference that the allegation of fact is

true.”

178

The plaintiff must provide evidence external to the plead-

ings.

179

Although the TCPA allows the court to permit “specified and

limited discovery relevant to [a] motion[,]”

180

it restricts the admissi-

ble evidence at the pleading stage to the pleadings and supporting af-

fidavits.

181

Therefore, the exception has little applicability to helping

a party overcome the procedural hurdle.

Texas courts have yet to apply the TCPA’s evidentiary standard

to anonymous code harassment, but a case from Austin, Texas demon-

strates how a court might apply the evidentiary standard. In Neyland

v. Thompson, a plaintiff successfully demonstrated a prima facie case

for defamation against four defendants the plaintiff alleged created

and distributed anonymous fliers to neighbors.

182

The plaintiff pro-

vided clear and specific evidence that the defendants published the

pamphlets using an eyewitness affidavit, one of the defendants distrib-

uted the fliers, and the other three defendants lack of a denial that they

published the fliers.

183

Without a denial from the other three defend-

ants, the presence of evidence showing one of the defendants was in

contact with defaming material was enough to move Thompson’s

claim from suspicion to a rational inference.

184

Thompson’s case shows that a court likely would have dismissed

the Dallas pro se litigant’s lawsuit against his neighbor—described

above—as mere suspicion. The amended complaint stated: “In or

about January of 2015, Plaintiff’s disgruntled neighbor . . . anony-

mously filed a false complaint with the City of Dallas.”

185

The

178

. Id. (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 233 (Tex.

2004)).

179

. Gensetix, Inc. v. Baylor Coll. of Med., 616 S.W.3d 630, 639 (Tex. App.—

Houston [14th Dist.] 2020, no pet.).

180

. TEX. CIV. PRAC. & REM. CODE § 27.006(b).

181

. Amy Bresnen et al., Targeting the Texas Citizen Participation Act: The 2019

Texas Legislature’s Amendments to a Most Consequential Law, 52 ST. MARY’S L.J.

63, 120 (2020).

182

. Neyland v. Thompson, No. 03-13-00643-CV, 2015 Tex. App. LEXIS 3337,

at *9 (Tex. App.—Austin Apr. 7, 2015, no pet.) (mem. op.) (The first flier was

signed anonymously, and the second was signed “Your concerned neighbors of

Sunchase.”).

183

. Id. at *22 (“[They] do not dispute that they made the statements alleged to

be defamatory.”).

184

. Id. at *22 n.8 (showing that the defendant the affidavit was against appealed

separately from the other three defendants).

185

. Am. Compl. for Inj. & Declaratory Relief, at 4, Khan, No. 3:15-CV-3254-D,

2016 WL 3910859 (N.D. Tex. 2016).

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 165

complaint further stated the neighbor “demanded that the blue tarp be

replaced with a beige color tarp; as it did not please her taste of color”

and that his “immediate family members and visiting friends heard

[the neighbor] complaining.”

186

The pro se litigant provided no sup-

porting affidavits or evidence to support his three factual claims.

187

Unlike the evidence in Thompson, the pro se litigant had no testimony

to show that his neighbor made the actual anonymous complaint; he

merely alleged that his neighbor disliked the color of the tarp he used.

Without evidence connecting the neighbor and the anonymous com-

plaint, the neighbor could deny submitting the complaint to code en-

forcement. The TCPA’s evidentiary standard at the pleading stage,

therefore, makes surviving motions to dismiss nearly insurmountable

in situations where a code harasser is anonymous.

188

Anonymous re-

porting, when combined with the TCPA, becomes a shield that code

harassers can use to avoid liability.

C. Molding Causes of Action

After identifying a code harasser, a person must still have a viable

cause of action to sue the harasser. Unlike criminal law that punishes

false reports to police officers or harassment itself, no clear law pro-

vides a civil remedy for code harassment, so lawyers must cobble var-

ious claims from tort law.

189

1. Criminal Law

Two failed criminal causes of action are false reporting and har-

assment. A false reporting claim offers Texas citizens no relief from

code harassment because code enforcement officials are not police of-

ficers.

190

A person is guilty of false reporting “if, with intent to de-

ceive, [the person] knowingly makes a false statement that is material

186

. Id.

187

. Id.at 4–6.

188

. Id. at 4–5. See Neyland, 2015 Tex. App. LEXIS 3337, at *22.

189

. See generally Long Canyon Phase II & III Homeowners Ass’n v. Cashion,

517 S.W.3d 212, 215 (Tex. App.—Austin 2017, no pet.) (suing for intentional in-

fliction of emotional distress, harassment, and negligence); Cunningham v. Way-

mire, No. 14-17-00883-CV, 2019 Tex. App. LEXIS 9253, at *52 (Tex. App.—Hou-

ston [1st Dist.] Oct. 22, 2019, no pet.) (suing for “libel, intentional infliction of

emotional distress, negligence, and conspiracy”).

190

. See Section I supra; Uzdavines, supra note 22, at 163.

166 TEXAS A&M J. PROP. L. [Vol. 8

to a criminal investigation.”

191

The person must make the statement

“to a peace officer or federal special investigator conducting the in-

vestigation; . . . any employee of a law enforcement agency that is au-

thorized by the agency to conduct the investigation and that actor

knows is conducting the investigation; or a corrections officer or

jailer.”

192

Nor does code harassment qualify as criminal harassment. Texas

does not recognize civil harassment as an independent cause of ac-

tion.

193

Criminal harassment occurs when, “with intent to harass,” a

person:

(1) initiates communication and makes an obscene “comment,

request, suggestion, or proposal”;

(2) “threatens . . . to inflict bodily injury . . . or to commit a fel-

ony against [a] person,” or the person’s family, house mem-

bers, or property;

(3) falsely reports that “another person has suffered death or se-

rious bodily injury”;

(4) repeatedly telephones another person “anonymously or in a

manner reasonably likely to harass, annoy, alarm, abuse, tor-

ment, embarrass, or offend”;

(5) makes and “intentionally fails to hang up or disengage” a tel-

ephone call;

(6) “knowingly permits a telephone under the person’s control to

be used” for harassment; or

(7) “sends repeated electronic communications . . . reasonably

likely to harass, annoy, alarm, abuse, torment, embarrass, or

offend another.”

194

Although many actions in the statute, such as sending electronic

communications when making an online report or repeatedly making

telephone calls, align with code harassment, the statute first requires

intent from the harasser.

195

For harassment, intent is result-oriented

and occurs if the result of the conduct is the perpetrator’s conscious

objective.

196

The code enforcement officer is an intermediary that

191

. TEX. PENAL CODE § 37.08(a).

192

. Id.

193

. Van Gilder v. Van Gilder, No. 03-18-00258-CV, 2018 Tex. App. LEXIS

4804, at *9–10 (Tex. App.—Austin June 28, 2018, no pet.).

194

. TEX. PENAL CODE § 42.07(a). An electronic communication is “a transfer of

signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted

in whole or in part by wire, radio, electromagnetic, photoelectronic, or photo-optical

systems.” Id. at § 42.07(b)(1).

195

. TEX. PENAL CODE § 42.07(a).

196

. Blount v. State, 961 S.W.2d 282, 284 (Tex. App.—Houston [1st Dist.] 1997,

writ ref’d).

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 167

disrupts this direct action and shields the harasser from criminal lia-

bility because the harasser intends to make a report that causes a city

employee to harass another person.

197

The problems code harassment

creates are, therefore, beyond the reach of current criminal law.

2. Tort Law

Tort law fails to provide an adequate solution for victims of code

harassment. Lawyers often use a variety of torts, notably defamation,

as causes of action against code harassment, but these causes of action

fail to provide relief for future harms, and defamation has critical flaws

in addressing code harassment.

198

In California, for example, a neighbor began a “‘campaign of har-

assment’ that the appellate court opined was ‘not hyperbole’” after a

court-ordered mediation should have solved the dispute.

199

For three

years, the neighbor would operate a chainsaw outside of a victim’s

bedroom even “while it was raining, and even when it was snow-

ing.”

200

The victim was able to bring a court action for numerous torts,

including “intentional infliction of emotional distress, nuisance, tres-

pass, and/or invasion of privacy” and won “$90,000 in compensatory

damages . . . and $5,000 in punitive damages,” but still had to move to

a different neighborhood because the neighbor continued to harass

him.

201

Although the victim was compensated for the past damages he

suffered, tort law was powerless to prevent future harm, and the victim

had to sell and leave his home.

In addition, courts are very unlikely to use injunctions to restrict

people’s access to state municipal resources.

202

Like code harassment,

vexatious litigation occurs when a person uses repeated litigation to

197

. See id.

198

. See Kinney v. Barnes, 443 S.W.3d 87, 101 (Tex. 2014) (“[An] injunction

prohibiting future speech based on that adjudication impermissibly threatens to

sweep protected speech into its prohibition and is an unconstitutional infringe-

ment.”); Burbage v. Burbage, 447 S.W.3d 249, 263 (Tex. 2014) (citing Hancock v.

Variyam, 400 S.W.3d 59, 71 (Tex. 2013)) (“A party may not recover exemplary

damages unless the plaintiff establishes actual damages.”).

199

. Blomquist, supra note 13, at 405 (citing Clanton v. Carr, No. A104203, 2004

WL 2988609, at *1 (Cal. Ct. App. Dec. 28, 2004)).

200

. Id. at 406 (citing Clanton, 2004 WL 2988609, at *1).

201

. Id. (citing Clanton, 2004 WL 2988609 at *2–5).

202

. See Chris Colby, Comment, There’s a New Sheriff in Town: The Texas Vex-

atious Litigants Statute and Its Application to Frivolous and Harassing Litigation,

31 TEX. TECH. L. REV. 1291, 1297 (2000).

168 TEXAS A&M J. PROP. L. [Vol. 8

harass another.

203

Texas courts had injunctions as a tool to restrict vex-

atious litigation, but were hesitant to issue them and reserved them

primarily for cases where a lawsuit was filed in multiple states.

204

Texas courts’ failure to use injunction to curb vexatious litigation

caused the Texas Legislature to create a vexatious litigation statute to

solve the problem.

205

A common cause of action brought against code harassment is

defamation,

206

where a defendant negligently “publishe[s] a false

statement” defaming the plaintiff and causing damages.

207

Defamation

does not provide a solution to code harassment because code harass-

ment can involve the publishment of true statements just as much as

false statements and the “qualified privilege” defense threatens to raise

the degree of fault to malice.

208

Looking at the first failure, defamation claims protect peoples’

reputations from false statements.

209

Therefore, 100 complaints to

code enforcement claiming a neighbor’s grass is not to code, if true,

are not actionable as defamation. Further, many ordinances are varia-

ble conditions that can be true when reported and false when investi-

gated.

210

For instance, imagine a harasser reports his neighbor when

the neighbor’s grass is an inch above code. A day after the report, the

neighbor mows his lawn. When a code enforcement officer arrives to

investigate, the grass is below an actionable length, but the neighbor’s

203

. Id. at 1292.

204

. Id. at 1297.

205

. Id. at 1293.

206

. See generally In re Lipsky, 411 S.W.3d 530, 537 (Tex App.—Fort Worth

2013, pet. denied) (suing for defamation, business disparagement, and civil conspir-

acy); Neyland v. Thompson, No. 03-13-00643-CV, 2015 Tex. App. LEXIS 3337, at

*16 (Tex. App.—Austin Apr. 7, 2015, no pet.) (suing for libel per se and slander per

se); Cunningham v. Waymire, 612 S.W.3d 52, 52 (Tex. App.—Houston [1st Dist.]

2019, no pet.) (suing for libel, intentional infliction of emotional distress, negli-

gence, and conspiracy).

207

. D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017);

see also Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 922 (Tex.

App.—Corpus Christi 1991, writ dism’d w.o.j.) (“Damages . . . include compensa-

tion for injuries to reputation or character, mental anguish and other like wrongs

incapable of money valuation.”).

208

. Dixon v. Sw. Bell Tel. Co., 607 S.W.2d 240, 242 (Tex. 1980).

209

. Austin v. Inet Tech., Inc., 118 S.W.3d 491, 496 (Tex. App.—Dallas 2003,

no pet.).

210

. Jonathan Simmons, What to Do When Code Enforcement Becomes a

Weapon?, PALM COAST OBSERVER (July 8, 2015), https://www.palm-

coastobserver.com/article/what-do-when-code-enforcement-becomes-weapon

[https://perma.cc/2QH8-XZK6].

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 169

report at the time was true. Even after 50 repetitions of this situation,

the harasser’s statements are not false, so the neighbor has no defama-

tion cause of action. Yet, the neighbor is still subject to multiple visits

from code enforcement officers attempting to do their jobs.

Defamation’s second failure is the qualified privilege defense, ap-

plying where “one of several persons” with a common interest makes

a statement “in a lawful manner and for a lawful purpose” with the

reasonable belief that another person is entitled to know.

211

A report

to code enforcement invokes a qualified privilege defense because it

reports potential matters of public concern to code enforcement offic-

ers.

212

In Honeycutt v. Forest Cove Property Owners’ Association, a

letter the defendants sent to four high school administrators about a

plaintiff hosting high school parties on his property was conditionally

privileged.

213

Given that students’ health and safety fell within the

school official’s duties and was of common interest to the community,

the defendants reasonably believed that school officials and other

neighbors were entitled to know about the plaintiff’s conduct.

214

The qualified privilege defense is likely to apply in defamation

suits for the same reason. Like school officials whose duty is to protect

the health and safety of students, code enforcement officers have a

duty to protect the city from nuisances.

215

Nuisances affect the com-

munity, so residents could reasonably believe that code enforcement

officers, whose duty is to resolve such issues, are entitled to know

about potential violations.

To overcome the privilege, the plaintiff must show that the har-

asser made the communication with actual malice,

216

defined as

“knowledge that it was false or with reckless disregard” that a “false

defamatory statement was made with a high degree of awareness of

[its] probable falsity.”

217

A plaintiff bringing a defamation claim

211

. Dixon, 607 S.W.2d at 242.

212

. See Honeycutt v. Forest Cove Prop. Owners’ Ass’n, No. 14-98-01255-CV,

2001 Tex. App. LEXIS 3173, at *13–14 (Tex. App.—Houston [14th Dist.] May 17,

2001, no pet.).

213

. Id. at *1–3, *13.

214

. Id. at *13–14 (“School officials have a common interest in protecting the

health and safety of their students on and off school grounds.”).

215

. See Law in Action, supra note 9, at 149; ZSAKO, supra note 31, at 6.

216

. Dun & Bradstreet, Inc. v. O’Neil, 456 S.W.2d 896, 899 (Tex. 1970); Ramos

v. Henry C. Beck Co., 711 S.W.2d 331, 335 (Tex. App.—Dallas 1986, no writ)

(plaintiff bears the burden of proving malice).

217

. Foster v. Upchurch, 624 S.W.2d 564, 566 (Tex. 1981).

170 TEXAS A&M J. PROP. L. [Vol. 8

against a code harasser, therefore, must show the harasser made each

report with malice. Such a requirement ignores the nature of code har-

assment. The aggregated behavior rather than the individual com-

plaints is the issue; it is the cumulation of all the complaints together

rather than the details of each complaint that makes the conduct de-

famatory.

218

Defamation is a square peg for a round hole. The tort can combat

code harassment but, like Tort law in general, is incapable of address-

ing the problem on its own.

V. CREATING A SOLUTION

Code harassment has no simple solution. Its three components—

the TCPA, anonymous reporting, and no cause of action—operate as

a single whole and solving one component without the others would

only allow the problem to continue. The following Section outlines

plausible reforms that would address code harassment’s root causes

and offer relief to victims.

A. Rolling Back the Texas Citizens Participation Act

To address code harassment, the Texas Legislature needs to re-

form the TCPA. As shown in Section IV of this Comment, code har-

assers invoke the TCPA using its broad language.

219

The TCPA’s

broad reach was not exclusive to code harassment and had similar ef-

fects on nearly every type of litigation in the State.

220

“From April

2018 until April 2019, the Office of Court Administration reported

99,300 filed documents referenc[ing] the TCPA.”

221

Judges and attor-

neys requested the Texas Legislature amend the law, and, on Septem-

ber 1, 2019, the Legislature created a new version with only one vote

218

. Gilbert Garcia, Beacon Hill Businesses Cry Code-Compliance Harassment,

SAN ANTONIO EXPRESS-NEWS (Oct. 22, 2016), https://www.expressnews.com/news

/news_columnists/gilbert_garcia/article/Beacon-Hill-businesses-cry-code-compli-

ance-10124431.php [https://perma.cc/DEW9-U4YV]; Betsy Calvert, Code Enforce-

ment Starts With Neighbors, Ends With Government, SUN PORT CHARLOTTE (Apr.

12, 2019), https://www.yoursun.com/charlotte/news/code-enforcement-starts-with-

neighbors-ends-with-government/article_217c3096-4a70-11e9-96ba-

ab64eac85ce6.html [https://perma.cc/CGB3-XDNF].

219

. See Bresnen et al., supra note 181, at 61.

220

. See id. at 62.

221

. Id.

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 171

against it.

222

Two notable changes of the amended law have some ap-

plicability to code harassment but are unlikely to have any serious ef-

fect on the issue.

The first change narrowed the initial application of the TCPA.

223

Before the amendment, the statute stated, “a court shall dismiss a legal

action against the moving party if the moving party shows by a pre-

ponderance of the evidence that the legal action is based on, relates to,

or is in response to a party’s exercise of the right of free speech [or]

right to petition.”

224

Now, the statute states, “a court shall dismiss a

legal action against the moving party if the moving party demonstrates

that the legal action is based on or is in response to a party’s exercise

of the right of free speech [or] right to petition.”

225

The two alterations to the statutory text were substituting the “pre-

ponderance of the evidence standard” with the word “demonstrates”

and the removal of the phrase “relates to.” The removal of the prepon-

derance of the evidence standard prevents the court from having to

apply a broad interpretation of the statute because the word “demon-

strates” is not yet defined.

226

Judges, therefore, will have a greater, but

not unlimited, amount of discretion in determining whether to dismiss

a case.

227

The removal of the phrase “relates to” attempts to prohibit

the broad application of the law to issues the legislature never intended

the law to impact, such as matters in probate court.

228

Now, courts may

be able to sever extraneous cases the legislature never intended the

statute to apply to through a narrow interpretation of the words “based

on” and “in response to.”

229

Unfortunately, the change is unlikely to impact code harassment

because reports to code compliance are a direct petition to the govern-

ment.

230

Code harassers have been able to invoke the TCPA using the

222

. Id. at 55.

223

. TEX. CIV. PRAC. & REM. CODE § 27.003(a) (comparing the 2011 statute with

the 2019 amendment).

224

. § 27.005(b).

225

. § 27.003(a).

226

. Bresnen et al., supra note 181, at 116.

227

. Id.

228

. Id. at 61, 113.

229

. See id.

230

. See In re Lipsky, 411 S.W.3d 530, 539 (Tex App.—Fort Worth 2013, pet.

denied); Cunningham v. Waymire, 612 S.W.3d 47, 67, 71 (Tex. App.—Houston

[14th Dist.] 2019, no pet.).

172 TEXAS A&M J. PROP. L. [Vol. 8

“based on” language, the strongest application of the statute.

231

Alt-

hough the amendment does not provide a direct solution to the stat-

ute’s protection of harassing behavior, it does illustrate a state-wide

acknowledgement that the law has been overly broad and may be a

sign of future changes.

The second change impacts the admissible evidence a court can

consider in a TCPA motion to dismiss.

232

Under the old law, a court

could only consider pleadings and supporting affidavits.

233

After the

amendment, a court can consider the “types of evidence allowed under

the summary-judgement rule: deposition transcripts, interrogatory an-

swers, admissions, stipulations of the parties, and authenticated or cer-

tified public records.”

234

The inclusion of new types of evidence prom-

ises to add more weight to a judge’s decision to allow additional

discovery under a motion to dismiss.

235

Although such a change prom-

ises to have some positive effect on defeating TCPA motions, the

amendment is unlikely to impact code harassment where evidence is

nearly impossible to gather.

236

Despite the amendments offering little solution to code harass-

ment, the additional exceptions added to the law offer an avenue for

future reform. The original law had four exemptions that shielded four

types of cases from the TCPA.

237

The amendment added 15 new ex-

emptions, including cases involving evictions, common law fraud

claims, and survivors of sexual assault.

238

Including code harassment

among these exemptions would be a method of removing TCPA pro-

tections from code harassers without relying on judicial interpretations

or complicated statutory construction. For instance, an exemption

could apply against defamation claims where the defendant has sub-

mitted 50 or more complaints to a municipal code compliance depart-

ment. Although the TCPA has undergone extensive reform, its broad

overreach and harsh evidentiary requirements promise to protect code

harassment until the legislature addresses the problem with further re-

forms.

231

. See Lipsky, 411 S.W.3d at 543; Cunningham, 612 S.W.3d at 67, 71.

232

. Bresnen et al., supra note 181, at 115–20.

233

. Id. at 114.

234

. Id. at 117.

235

. See id.

236

. See generally supra Section IV(b).

237

. Bresnen et al., supra note 181, at 100.

238

. Id. at 101–05.

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 173

B. Transitioning Anonymous Reporting to Confidential Reporting

Cities need to transition from anonymous to confidential report-

ing systems. Proponents of anonymous reporting argue that it protects

reporters from retaliation.

239

Without anonymous reporting, people

would be unwilling and unable to make use of code compliance

240

for

fear of retaliation and harm from neighbors.

241

However, adopting a

confidential reporting system, where code enforcement documents a

reporter’s identity but protects it from the public, is a solution that re-

tains the protections advocates of the anonymous system endorse

while addressing the problem of code harassment.

Municipalities should require complainants to provide their iden-

tity to authorities. In exchange, their identities could be confidential

and exempt from disclosure under the Texas Public Information Act,

which requires governmental authorities to disclose information to cit-

izens on request.

242

The legislature could add an exception to the

Texas Public Information, limiting a retaliatory neighbor’s access to a

complainant’s identity.

243

In this way, the information would be avail-

able only during discovery in litigation involving code harassment

244

but hidden from neighbors seeking to punish a neighbor for filing a

single report.

Nor would the switch from anonymous to confidential reporting

deter people from reporting code violations. For example, Lubbock

functions without anonymous or confidential reporting.

245

Lubbock

citizens must create and log into an account to access the online com-

plaint form.

246

This means Lubbock citizens cannot anonymously

239

. Jonathan Simmons, What to Do When Code Enforcement Becomes a

Weapon?, PALM COAST OBSERVER (July 8, 2015), https://www.palm-

coastobserver.com/article/what-do-when-code-enforcement-becomes-weapon

[https://perma.cc/2QH8-XZK6].

240

. Id.

241

. Lindsay Whitehurst, Man Says He Killed City Worker Over Yard Rule ‘Har-

assment,’ ASSOCIATED PRESS (Aug. 10, 2018), https://apnews.com/article

/bde88b80d72147859f5d6a7a4d621ef2 [https://perma.cc/9CET-46TX].

242

. TEX GOV’T CODE § 552.001.

243

. See § 552.1175(a)(8) (protecting police officers’ identities); § 552.002(18)

(protecting government settlement agreements).

244

. § 552.0055 (discovery requests are not a “request for information”).

245

. Code Enforcement, LUBBOCK, https://ci.lubbock.tx.us/departments/code-en-

forcement/services [https://perma.cc/WQ4A-PKAV]; Sign in, SEECLICKFIX, https:/

/seeclickfix.com/oauth/login [https://perma.cc/4QYX-W8MF].

246

. Code Enforcement, LUBBOCK, https://ci.lubbock.tx.us/departments/code-en-

forcement/services [https://perma.cc/WQ4A-PKAV]; Sign in, SEECLICKFIX, https:/

174 TEXAS A&M J. PROP. L. [Vol. 8

report. However, many citizens continue to regularly contact code en-

forcement for problems such as high weeds and junked vehicles.

247

The lack of an anonymous complaint system has not completely de-

terred Lubbock citizens’ use of code compliance.

248

Therefore, requir-

ing complainants to provide their identity in exchange for making the

information confidential to the public is an equitable solution that bal-

ances the complainant’s privacy with the need to identify harassing

reporters.

C. Creating a Vexatious Reporting Law

Available causes of action fail to directly address code harass-

ment. Without a clear cause of action, people cannot take the

knowledge that a specific person is harassing them and legally force

them to stop. Fortunately, Texas’s vexatious litigant law offers a clear

model for creating a vexatious reporter law.

249

A court may find a plaintiff a vexatious litigant if a defendant

shows that there is not a reasonable probability the plaintiff will suc-

ceed and the plaintiff:

(1) “commence[s], prosecute[s], or maintain[s] at least five liti-

gations” pro se that were “determined adverse,” left pending

for two years, or dismissed as frivolous;

(2) attempts “to relitigate, pro se,” a previous cause of action

“arising out of the same controversy”; or

(3) is already “a vexatious litigant in a case arising out of the

same controversy.”

250

A court may prohibit a vexatious litigant from filing new litigation

251

or require a security to pay the defendant’s attorney’s fees if the

court later dismisses the litigation.

252

There are four noteworthy features of the vexatious litigant law

allowing it to function:

/seeclickfix.com/oauth/login [https://perma.cc/4QYX-W8MF] (showing the ac-

count creation page before submitting a complaint to Lubbock Code Enforcement

Department).

247

. City of Lubbock Monthly Code Cases, ARCGIS INSIGHTS, https://in-

sights.arcgis.com/index.html#/view/675d4ea644c1494bb2b871e41393e8e2 (last

visited Oct. 15, 2021) (Filtering the reported code cases by month shows Lubbock

citizens made 1,814 reports to Lubbock Code Compliance during January 2021).

248

. Id.

249

. See supra Section IV(c)(2).

250

. TEX. CIV. PRAC. & REM. CODE § 11.054(1)–(3).

251

. § 11.101(a).

252

. §§ 11.055(a), (c), 11.057.

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 175

(1) there is a bright-line rule for the number of suits (five), during

a seven-year period;

253

(2) the law still allows for meritorious claims;

254

(3) every judge may block litigation up front;

255

and

(4) a vexatious litigant with a meritorious claim must post secu-

rity.

256

The first feature, that there is a bright-line rule for the number of suits,

limits the court’s ability to label people as vexatious litigants because

the person must meet an objective standard of unreasonableness.

257

The second feature, that the law still allows for meritorious claims,

allows the law to survive three constitutional challenges: First Amend-

ment deprivation, vagueness, and overbreadth.

258

The third feature,

every judge may block litigation up front, allows judges to prevent the

harassment before it begins, a process made simple with a public list

of vexatious litigants maintained and updated online.

259

The fourth

feature, a vexatious litigant with a meritorious claim must post secu-

rity, imposes a steep financial penalty for each filed litigation that

many vexatious litigants cannot afford with their persistent behav-

ior.

260

Using the four primary features of the vexatious litigant statute as

a guide, a vexatious reporter statute would first need to establish a

bright-line rule triggering the statute.

261

A rule with a minimum

threshold would prevent code enforcement departments from using the

statute to silence complaints. In drafting this requirement, lawmakers

would need to consult with code compliance officers to determine

what number of complaints are considered unacceptable harassment,

whether all or some of the reports need to be false, and whether the

253

. See Colby, supra note 202, at 1323.

254

. See id. at 1343–44.

255

. See id. at 1339–40.

256

. See id. at 1331.

257

. See Barker v. Hutt, 2012 Tex. App. LEXIS 5565, at *9–10 (Tex. App.—

Eastland July 12, 2012, no pet.).

258

. See Sparkman v. Microsoft Corp., No. 12-13-00175-CV, 2015 Tex. App.

LEXIS 2510, at *8–15 (Tex. App.—Tyler Mar. 18, 2015, pet. denied).

259

. See Vexatious Litigants, TEX. JUD. BRANCH, https://www.txcourts.gov/judi-

cial-data/vexatious-litigants/ [https://perma.cc/X8TX-LPL7].

260

. See Sparkman, 2015 Tex. App. LEXIS 2510, at *8–15 (confirming the dis-

missal of a case because a registered vexatious litigant failed to furnish a $7,500

security); Colby, supra note 202, at 1304.

261

. See TEX. CIV. PRAC. & REM. CODE § 11.054(1)–(2); Colby, supra note 202,

at 1323.

176 TEXAS A&M J. PROP. L. [Vol. 8

law should focus on complaints made against one person or com-

plaints made by a specific person.

Next, a vexatious reporter statute would need to hamper, but not

outright prevent, complaints to code enforcement from vexatious re-

porters.

262

This protects free speech rights and ensures that a court will

not strike the law on constitutional grounds.

263

Third, a vexatious reporter statute would need to require code en-

forcement departments to review reports for plausibility from known

vexatious reporters.

264

This would require code enforcement agencies

to review vexatious reporter’s complaints before making them public

or investigating them. A code enforcement officer would have to read

or discuss the claim, assess it, and take responsibility for accepting it.

This process, like a judge reviewing the merits of a litigation case,

establishes a roadblock that prevents officers from interacting with the

intended victim.

Lastly, a vexatious reporter statute would need to require vexa-

tious reporters to pay money to make complaints.

265

This imposes fi-

nancial penalties onto a system that is otherwise free.

266

A vexatious

reporter who would report every person in a neighborhood will have

to assess whether she can afford such behavior. Adding money into

the system curbs harassing behavior while still allowing the person the

opportunity to make her neighborhood a better place.

More importantly, creating a cause of action would promote judi-

cial efficiency. Currently, victims of code harassment mold and argue

claims, such as defamation, to enter court.

267

Attorneys add claims,

like negligence and even private nuisance, because the law is unclear

on what causes of action address this issue.

268

Judges, therefore, de-

vote significant resources to researching, analogizing, and trying such

262

. See TEX. CIV. PRAC. & REM. CODE § 11.101(a); Colby, supra note 202, at

1343–44.

263

. See Sparkman, 2015 Tex. App. LEXIS 2510, at *8–15.

264

. See TEX. CIV. PRAC. & REM. CODE § 11.101(a); Colby, supra note 202, at

1339–40.

265

. TEX. CIV. PRAC. & REM. CODE §§ 11.055(a), (c), 11.057; Colby, supra note

202, at 1331.

266

. Request a City Service, FORT WORTH, https://fortworth-csrprod-

cwi.motorolasolutions.com/servicerequest.mvc/srintake [https://perma.cc/LFJ3-

8AAX] (charging no fee for the submission of a complaint).

267

. See supra Section IV(c)(2).

268

. See id.

2022] CODE HARASSMENT NEEDS A TEXAS-SIZED SOLUTION 177

cases.

269

A clear cause of action with well-established limits and

boundaries would allow judges to dismiss claims filed under improper

causes of action while addressing the issue when properly presented.

Ultimately, creating a cause of action for code enforcement not only

allows victims to gain relief, but also eases the strain such cases place

on the legal system.

VI. CONCLUSION

Cities have focused their efforts on protecting reporters from

vengeful neighbors but, in the process, created a system that enables

some reporters to harass their neighbors. This Comment has shown

how these protections have extended too far.

270

In Texas, the TCPA,

anonymous reporting, and the lack of a specific cause of action are

three issues that enable code harassment.

271

Creating a solution to the

problem requires a simultaneous three-pronged approach that aims to

retain the positive parts of these three systems while minimizing their

negative aspects.

272

As a balanced solution, this Comment advocates

for the Texas Legislature to add code compliance complaints as an

exception to the TCPA, cities to transition from anonymous to confi-

dential reporting systems, and the Texas Legislature to create a vexa-

tious reporter statute.

273

Although code harassment has historically been a local problem

confined to neighborhood disputes,

274

the internet has expanded the

problem’s reach.

275

As the closure of DIY spaces shows, people and

groups will be able to use anonymous reporting to retaliate against po-

litical opponents or attack marginalized groups.

276

Without creating a

solution that addresses the problem today, code harassment could ex-

pand into a national tool of harassment.

Ultimately, this Comment argues that injecting additional over-

sight measures into the code enforcement process is the best way to

269

. See id.

270

. See supra Section IV.

271

. Id.

272

. See supra Section V.

273

. Id.

274

. See generally Bob LaMendola, Vengeful Neighbors Trigger ‘Code Terror-

ism,’ S. FLA. SUN SENTINEL (Apr. 30, 1989), https://www.sun-sentinel.com/news/fl

-xpm-1989-04-30-8901220735-story.html [https://perma.cc/CKQ9-QYX4].

275

. See generally DIY, supra note 15.

276

. Id.

178 TEXAS A&M J. PROP. L. [Vol. 8

fight code harassment. Hopefully, such oversight can catch the in-

stances when code enforcement departments fail and prevent situa-

tions where a neighbor with a tape measure forces another person to

abandon her home.

277

. See Gilbert Garcia, Beacon Hill Businesses Cry Code-Compliance Harass-

ment, SAN ANTONIO EXPRESS-NEWS (Oct. 22, 2016), https://www.expressnews.com

/news/news_columnists/gilbert_garcia/article/Beacon-Hill-businesses-cry-code-

compliance-10124431.php [https://perma.cc/DEW9-U4YV].