### ATTORNEY GENERAL OF TEXAS GREG ABBOTT

March 13,2003

The Honorable Dib Waldrip Coma1 County Criminal District Attorney 150 North Seguin, Suite 307 New Braunfels, Texas 78 130 Opinion No. GA-0034 Re: Whether a county may require the owner of a “junked vehicle” to erect a fence or other screening objects in order to shield the vehicle from public view (RQ-0605-JC)
Dear Mr. Waldrip: You ask whether a county may require the owner of a “junked vehicle” to erect a fence or other screening objects in order to shield the vehicle from public view. Subchapter E, chapter 683 of the Transportation Code addresses the abatement ofjunked vehicles as apublic nuisance. Section 683.072 provides, in relevant part, that “[a]junked vehicle, including part of ajunked vehicle, that is visiblefrom apublic place orpublic right-of-way

. . .is a public nuisance.” TEX.TRANSP.CODEANN. 4 683.072(7) (Vernon 1999) (emphasis added). Section 683.071 of the Transportation Code defines “junked vehicle”: In this subchapter, “junked vehicle” means a vehicle that is self-propelled and: (1) does not have lawfully attached to it: (A) an unexpired license plate; or 

# w a valid motor vehicle inspection certificate; and 

### (2)is: 

### (4 wrecked, dismantled or partially dismantled, or discarded; or (B) inoperable and has remained inoperable for more than:The Honorable Dib Waldrip - Page 2 (GA-0034)

(i) 72 consecutive hours, ifthe vehicle is on public property; or (ii) 30 consecutive days, if the vehicle is on private property. Id. 0683.071 (Vernon Supp. 2003). Under section 683.073 ofthe Transportation Code, the offense of maintaining “a public nuisance described by section 683.072” is “a misdemeanor punishable by a fine not to exceed $200.” Id. 8 683.073(a)-(b) (Vemon 1999). Upon conviction, the court must “order abatement and removal ofthe nuisance.” Id. 9683.073(c). Additionally, pursuant to section 683.074, a municipality or county is empowered to “adopt procedures that conform to this subchapter for the abatement and removal from private or public property or apublic right-of-way of ajunked vehicle orpart of ajunked vehicle as apublic nuisance.” Id. 4683.074(a) (Vernon Supp. 2003). Sections 683.074, 683.075, and 683.076 describe the procedures a county must follow in order to abate and remove the nuisance, including notice, public hearing, judicial orders, and cancellation ofthe vehicle’s certificate oftitle. Section 683.078 governs removal ofajunked vehicle to “a scrapyard, amotor vehicle demolisher, or a suitable site operated by amunicipality or county.” Id. 6 683.078(a) (Vernon 1999). You ask whether a county, pursuant to its authority to abate and remove a “junked vehicle” as a nuisance, may impose fencing and screening requirements. Ajunked vehicle may be classified as a “public nuisance” subject to abatement and removal under subchapter E, chapter 683 ofthe Transportation Code, onZyifit “is visible from apublic place or public right-of-way.” Id. 8 683.072. We must therefore consider the meaning of the term “visible.” The term is not defined by statute or Texas case law. According to its common usage, “visible” means “capable of being seen; that by its nature is an object of sight; perceptible by the sense of sight.” XIX OXFORD ENGLISHDICTIONARY 687 (2d ed. 1989). See TEX.GOV’TCODEANN. $3lLOll(a)(V emon 1998) (“Words and phrases shall be read in context and construed according to the rules of grammar and common usage.“). The few out-of-state judicial decisions that have considered the meaning of “visible” accord with this definition. See, e.g., StriefeZ v. Charles-ikytLeaman P ‘ship, 733 A.2d 984,990 (Me. 1999) (“‘Visible’ means capable of being seen by persons who may view the premises.“); Colonial Trust v. Breuer, 69 A.2d 126, 129 (Pa. 1949) (“‘Visible’ means perceivable by the eye . . . .“1;Tritt v.Judd kMoving &Storage, Inc., 574 N.E.2d 1178,1185 (Ohio App. 3d 1990) (“Visible means perceivable by the eye.“). Thus, in order to avoid classification as a “public nuisance” under section 683.072 of the Transportation Code, ajunked vehicle or apart thereof, need only be non-visible from apublic place or public right-of-way. No particular kind of camouflage is required by the statute to render the vehicle non-visible. Consequently, acounty may not compel the owner of ajunked vehicle to erect fencing, trees, shrubbery, or any other specific kind of screening. In order to abate and remove the nuisance, the county must demonstrate that ajunked vehicle “is visible from apublic place orpublic right-of-way,” i.e., capable of being seen from such location. Whether any particular form of camouflage is sufficient in a given instance to render ajunked vehicle non-visible is of course a question of fact for the county to determine in the first instance.The Honorable Dib Waldrip - Page 3 (GA-0034)

You also ask whether acounty may import the fencing and screening requirements applicable to automotive salvage yards and junkyards to vehicles parked on other private property. Section 396.021(b) of the Transportation Code provides, in relevant part: (b) A person who operates a junkyard or an automotive wrecking and salvage yard shall screen the junkyard or automotive wrecking and salvage yard with asolid barrier fence atleast eight feet high. The fence must be painted a natural earth tone color and may not have any sign appear on its surface other than asign indicating the business name. (c) A person who operates a junkyard or an automotive wrecking and salvage yard in a county with apopulation of 200,000 or less shall screen thejunkyard or automotive wrecking and salvage yard to at least six feet in height along the portion of thejunkyard or automotive wrecking and salvage yard that faces a public road or residence. The person may screen the yard by any appropriate means, including: (1) a fence; (2) natural objects; or (3) plants.’ TEX.TRANSP.CODEANN. 9 396.021(b)-(c) (Vernon 1999). The fencing and screening standards applicable to junked vehicles in the possession of licensed automotive salvage yards and junkyards under chapter 396 are not applicable to junked vehicles maintained by individuals or businesses that do not fall within that category. In addition, subchapter E, chapter 683 ofthe Transportation Code, which, aspreviously discussed, addresses the abatement ofjunked vehicles as apublic nuisance, is specifically inapplicable to avehicle or vehicle part “that is stored orparked in a lawful manner on private property in connection with the business of a licensed vehicle dealer orjunkyard,” provided that the vehicle or vehicle part is, inter alia, “screened from ordinary public view by appropriate means, including afence, rapidly growing trees, or shrubbery.” Id. 6683.077(a)(2)(C) (Vemon Supp. 2003). Licensed automotive salvage yards and junkyards must follow the fencing and screening requirements of section 396.012(b). Individuals not embraced within the ambit of chapter 396 need only render ajunked vehicle non-visible from apublic place or public right-of-way.

‘Section 396.021 does not apply to automotive wrecking and salvage yards covered by chapter 397 of the Transportation Code, i.e., those in a county with apopulation of 3.3 million or more, not located in amunicipality in that county, and established on or after September, 1983. See TEX. TRANSP.CODEAN-N.ch. 397 (Vernon 1999 & Supp. 2003).The Honorable Dib Waldrip - Page 4 (GA-0034)

SUMMARY A county may abate and remove as a “public nuisance” any “junked vehicle” that is visible from public or private property or a public right-of-way. A county may not require a particular kind of camouflage to render the vehicle non-visible. The fencing and screening standards applicable to licensed automotive salvage yards and junkyards under chapter 396 of the Transportation Code do not apply tojunked vehicles parked on other private property. Very tru.ryyours,

AttomegLrB’eneral of Texas

BARRY R. MCBEE First Assistant Attorney General DON R. WILLETT Deputy Attorney General - General Counsel NANCY S. FULLER Chair, Opinion Committee Rick Gilpin Assistant Attorney General, Opinion Committee