Introduction/Preliminary
Remarks
 Thank you, Ryan Turner
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Subject Matter – NOISE!
Time Slot
Presentation length
First case
 Audience Poll
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Prosecuting under 6 months?
Prosecuting under 1 year?
Prosecuting under 2 years?
Anyone prosecuting a noise case?
 Type?
 Outcome?
Noise Cases are Important!
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 Video – FL murder trial
 Current status
 Mistrial on murder; convicted of attempted murder
 Retrial likely to take place in June 2014
 Role of prosecutors
 Will not be prosecuting the murder or attempted murder
but may be prosecuting the loud music aspect
Today’s Program
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 What is noise and sound?
 Review state and local laws regarding noise
 Analyze how to prosecute a noise case
 Pitfalls
 Case Examples: Beaumont and Austin
Q&A
What is “noise?”
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 Negative connotation
 Noise:
 1. sound, especially of a loud, harsh, or confused kind:
deafening noise;
 2. a sound of any kind;
 3. loud shouting, outcry, or clamor;
 4. a nonharmonious or discordant group of sounds; and
 5. an electric disturbance in a communications system that
interferes with or prevents reception of a signal or of
information, as the buzz on a telephone or snow on a
television screen.
What is “sound?”
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 Positive Connotation
 Sound:
 1. the sensation produced by stimulation of the organs of
hearing by vibrations transmitted through the air or other
medium.
 2. mechanical vibrations transmitted through an elastic
medium, traveling in air at a speed of approximately 1087
feet (331 meters) per second at sea level.
 3. the particular auditory effect produced by a given cause
 4. any auditory effect; any audible vibrational disturbance
 5. a noise, vocal utterance, musical tone, or the like
Sound Good
and Noise Bad!
Human Hearing
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 Hearing range usually describes the range of frequencies that
can be heard by humans or other animals, though it can also
refer to the range of levels. The human range is commonly
given as 20 to 20,000 Hz, though there is considerable variation
between individuals, especially at high frequencies, and a
gradual decline with age is considered normal. Sensitivity also
varies with frequency, as shown by equal-loudness contours.
 Decibels provide a relative measure of sound intensity. The
unit is based on powers of 10 to give a manageable range of
numbers to encompass the wide range of the human hearing
response, from the standard threshold of hearing at 1000 Hz to
the threshold of pain at some ten trillion times that intensity.
Decibel Chart
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Subway train at 200'
Jackhammer at 50'
Train whistle at 500'
City traffic (inside car)
Environmental Noise
Telephone dial tone
0
20
40
60
80 100
Decibel Chart statistics taken from a study by Marshall Chasin, Center for Human Performance & Health, Ontario, Canada
Decibel Chart
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Sandblasting, loud
rock concert
Power saw at 3'
Snowmobile,
motorcycle
Environmental Noise
(level at which
sustained exposure
may result in hearing
loss) = 90-95 dB
Power mower at 3'
Hand Drill
85 90 95 100 105 110 115 120
Decibel Chart
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Pneumatic riveter at 4'
Environmental Noise
(Pain begins) = 125 dB
0
50
100
150
Decibel Chart
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Loudest sound
possible
Environmental Noise
(Even short term
exposure can cause
permanent damage Loudest recommended
exposure WITH hearing
protection) = 140 dB
Death of hearing
tissue
12 Gauge shotgun
blast
Jet engine at 100'
0
50 100 150 200 250
Decibel Chart
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Rock Music Peak
Clarinet
Violin
Sound Levels of
Music
Normal Piano Practice
0
50
100
150
200
Phone apps!
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 Your phone as a decibel meter
 Accurate? Reliable?
 Type of phone?
 Calibration?
 No case law
Prosecuting Noise Cases State Law
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 Sec. 42.01. DISORDERLY CONDUCT.
 (a) A person commits an offense if he intentionally or
knowingly:
 (5) makes unreasonable noise in a public place other than a
sport shooting range, as defined by Section 250.001, Local
Government Code, or in or near a private residence that he has
no right to occupy;
 (c) For purposes of this section:
 (2) a noise is presumed to be unreasonable if the noise exceeds
a decibel level of 85 after the person making the noise receives
notice from a magistrate or peace officer that the noise is a
public nuisance.
 (d) An offense under this section is a Class C misdemeanor
unless committed under Subsection (a)(7) or (a)(8), in which
event it is a Class B misdemeanor.
Prosecuting Noise Cases- Local Laws
and Relevant Case Law
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 General Noise Ordinance language–
-Reasonable person standard
-Peace, comfort, and repose
-Catchall language
City of Missouri City
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Sec. 30-81. Excessive noise.
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It shall be unlawful for any person to make, permit or allow to be made, or cause to be made or continued, any loud,
unnecessary or unusual noise or any noise which annoys, disturbs, injures or endangers the comfort, repose, health,
peace, safety or welfare of others within the limits of the city, unless the making and continuing of such noise is
necessary for the improvement, protection or preservation of property or the health, safety, life or limb of some
person.
(Code 1981, § 17-3)
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Sec. 30-82. Prohibited noises.
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The acts enumerated in this section are declared to be loud, disturbing and unnecessary noises in violation of this
article, but such enumeration shall not be deemed to be exclusive.
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(1)
Sirens or gongs on vehicles. It shall be unlawful for any person to carry or to use upon any vehicle, other
than police or fire department vehicles or other emergency vehicles, any gong or siren similar to that used on
ambulances or vehicles of the police and fire department.
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(2)
Mufflers. No person shall operate a gasoline engine or any similar engine of any kind unless the engine
shall be equipped with an exhaust muffler in effective working condition, which muffler shall be used whenever the
engine is in operation so that there will be no excessive or unusual noise, or the engine shall be so constructed or
designed that the noise is deadened as if such engine were equipped with a muffler. No person shall operate a
motor vehicle upon any street unless such motor vehicle is equipped with a muffler at all times in good working
order sufficient to prevent excessive or unusual noise.
City of Missouri City
(continued)
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(3)
[Un-muffled engine brake, compression brake, mechanical exhaust or braking device.] The
use or operation, without a muffler, of any engine brake, compression brake, mechanical exhaust
device, or other similar device designed to aid in the braking or deceleration of any vehicle is
prohibited. It shall be a defense to prosecution under this subsection that the braking device was
used during an occurrence or set of occurrences which necessitated immediate braking or
deceleration to avoid actual or imminent physical trauma, property damage or loss.
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(4)
Noisy vehicles generally. It shall be unlawful to use any automobile, motorcycle or other
vehicle out of repair or so loaded or in such a manner as to create any loud or noisy grating,
grinding, rattling or other noise.
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(5)
Radios, phonographs and musical instruments. It shall be unlawful for any person to use,
operate or permit to be played, used or operated any radio receiving set, television set, musical
instrument, phonograph or other machine or device for the producing or reproducing of sound in
such a manner as to disturb the peace, quiet and comfort of the neighboring inhabitants, or at any
time with louder volume than is necessary for convenient hearing for persons who are in the
room, vehicle or chamber in which such machine or device is operated and who are voluntary
listeners thereto.
City of Missouri City
(continued)
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(6)
Building operations at night. It shall be unlawful for any person, in conducting any
building operations between the hours of 10:00 p.m. and 7:00 a.m., to operate or use any
piledriver, steam shovel, pneumatic hammer, derrick, pump, generator, steam or electric hoist or
other apparatus, the use of which is at the time loud or unusually noisy, except in case of
emergency, or except in the case in which such building operation requires continuous operation
in excess of 15 hours. In circumstances falling within the latter exception, written application must
be made to the city demonstrating the necessity of continuous operation and city approval must
be secured prior to the start of such operation. All such continuous operations shall be started at
or near 7:00 a.m. to minimize the amount of evening hours of such operation. In addition, the
person conducting such building operations shall take all reasonable efforts to mitigate the noise
caused by such operations, such as erecting a noise-deflecting structure around the operation.
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(7)
Noise near school, church, court or hospital. The creation of any excessive noise on any
street adjacent to any school, institution of learning, church or court while such institution is in
use, or adjacent to any hospital, which unreasonably interferes with the workings of such
institution, or which disturbs or unduly annoys patients in the hospital, is hereby prohibited,
provided conspicuous signs are displayed in such street indicating that the street is a school,
hospital, church or court street.
(Code 1981, § 17-3(a)—(f); Ord. No. O-04-30, § 1, 7-6-2004; Ord. No. O-08-36, §§ 1, 2, 7-7-2008)
Specific Noise Ordinances
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 Specific Noise Ordinances
 City of Terrell, Texas
 Section 8-17. Noise.
 (a) Prohibited when causing stress, discomfort or injury to persons.
Any unreasonably loud, disturbing, unnecessary noise in excess of 85
decibels at distance of 50 feet from the property line which causes
material distress, discomfort or injury to persons or ordinary
sensibilities in the immediate vicinity thereof is hereby declared to be a
nuisance and is hereby prohibited.
 (b) Prohibited when interfering with the comfortable enjoyment of a
dwelling, hotel or other type of residence. Any noise of such character,
intensity and continued duration in excess of 85 decibels at a distance
of 50 feet from the property line which substantially interferes with the
comfortable enjoyment of a dwelling, hotel or other type of residence
by persons of ordinary sensibilities is hereby declared to be a nuisance
and is hereby prohibited.
City of Terrell (continued)
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(c)
Violations. The following acts, among others, are declared to be nuisances in violation of
this section, but such enumeration shall not be deemed to be exclusive:
(1)
Musical instruments. The playing of any radio, phonograph or other musical instrument at
a level in excess of 85 decibels at a distance of 50 feet from the property line particularly between
the hours of 10:00 p.m. and 6:00 a.m. so as to annoy or disturb the quiet comfort or repose of
persons of ordinary sensibilities in any dwelling, hotel or other type of residence.
(2)
Loudspeakers and amplifiers. The use of any stationary loudspeaker or amplifier at a level in
excess of 85 decibels at a distance of 50 feet from the property line that annoys and disturbs
persons of ordinary sensibilities in the immediate vicinity thereof; it is a defense to prosecution
under this section if such loudspeakers and amplifiers were operated during a parade on a public
street within the city or at a public event on property owned by the city and advance permission
for such operation was obtained from the city manager or the chief of police.
(3)
Animals and birds. The keeping of any animal or bird which, by causing frequent or longcontinued noise, shall disturb the comfort and repose of any person of ordinary sensibilities in the
immediate vicinity.
(4)
Horns or other signal devices on vehicles. The continued or frequent sounding of any horn or
signal device on any automobile, motorcycle, bus or other vehicle except as a danger or warning
signal; the creation by means of any such signal device of any unreasonably loud or noise for any
unnecessary and unreasonable period of time.
City of Terrell (continued)
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 (5)
Operation of vehicles. The running of any automobile, motorcycle, or vehicle so
out of repair; so loaded or in such manner as to create loud or unnecessary granting,
grinding, jarring or rattling noise or vibrations.
 (6)
Exhaust without mufflers. The discharge into the open air of the exhaust of any
steam engine, stationary internal combustion engine, motor vehicle or boat engine
except through a muffler or other device which will effectively prevent loud or
explosive noises therefrom.
 (7)
Construction work. The erection, including excavation, demolition, alteration or
repair work on any building other than between the hours of 7:00 a.m. and 6:00 p.m.
on weekdays, exception case of urgent necessity in the interest of public safety and
convenience, and then only by permit from the city council which permit may be
renewed by the city council during the time the emergency exists.
 (8)
Near churches, schools and hospitals. The creation of any excessive noise on any
street adjacent to any church, school or institution of learning while the same is in
session or adjacent to any hospital which unreasonably interferes with the workings
of such institutions provided conspicuous signs are displayed on any such street
indicating that the street is a church, school or hospital street.
City of Terrell (continued)
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 (9)
Loading and unloading vehicles, etc. The creation of any loud and excessive noise
in connection with the loading or unloading of any vehicle in the opening and
destruction of bales, boxes, crates and containers.
 (10) Yelling, shouting, etc. Loud and raucous yelling, shouting, hooting, whistling,
or singing on the public streets, particularly between the hours of 11:00 p.m. and 7:00
a.m., or at any time or place which injures, endangers or disturbs the comfort, repose,
health, peace or safety of persons of ordinary sensibilities in any office dwelling,
hotel or other type of residence, or of any such persons in the vicinity.
 (11) Use of drums, etc. to attract attention. The use of any drum, loudspeaker or other
instrument or device for the purpose of attracting attention by the creation of noise to
any performance show or sale of merchandise.
 (12) Railroads. The blowing or sounding of any steam whistle, horn or signal devise
on any engine, locomotive car or vehicle adapted to the rails of a railroad in the city,
except as a warning or danger signal to persons or animals approaching, crossing or
using the tracks of the railroad shall constitute a violation of this section.
City of Terrell (continued)
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 (13) Engine brakes.
 a.
This subsection applies to the use or operation of an auxiliary or compression
engine brake (also known as "Jake" brake) which produces any noise in addition to
the normal operating engine noise is prohibited within the city limits. This provision
is not intended to prohibit the passage of vehicles equipped with engine brakes or
"Jake" brakes in posted areas but rather prohibit the use of such equipment in posted
areas.
 b.
It shall be unlawful for any driver of a truck or truck-tractor to activate or use
the unit's engine brake within the city limits except in an emergency situation.
 c.
The term "emergency situation," for purposes of this subsection, shall mean
one in which there is imminent danger of collision with property, persons or animals.
 (d)
Exceptions. This section does not apply to a permitted parade, carnival, church
event, or charitable activity sponsored by nonprofit organizations as well as other
similar permitted "special event(s)".
 (e)
Penalty. Any person, or persons, violating or failing to comply with any
provision of this section shall be fined, upon conviction, not less than $1.00 nor more
than $500.00, for each offense.
(Ord. No. 1608, 4-3-90; Ord. No. 1737, 4-19-94; Ord. No. 2139, § I, 11-5-02; Ord. No. 2259, § I, 2-15-05; Ord. No. 2412, Art. I, 5-19-09)
Common Types of Municipal Court
Noise Cases
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 Dog barking
 Loud music at a
residence
 Loud music in a vehicle
 Muffler
 Engine brake or jake
brake
 Construction before or
after hours
 Political Speech
Round 1
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 Rules of the game
 Top 3 answers on the board
 Name something difficult about prosecuting a dog
barking case?
Survey says…
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 Witness?
 Evidence?
 Voir dire and jury issues
 Others?
DISCUSSION
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 (1) Who will be the state’s witness? Police officer or
neighbor?
 (2) Will a citation be issued by a peace officer or will
neighbor swear out a complaint in municipal court?
 (3) Does your city only allow peace officers to issues
citations? Code officers?
 (4) If a complaint is sworn to, Court will issue Summons
based on probable cause.
Round 2
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 Loud music in vehicle
 Name something difficult about prosecuting this
type of case?
Survey says…
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 Distance?
 Windows?
 Modifications?
 Other?
Types of Noise Cases
 Loud music at a residence
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 This City has a loud party ordinance.
 Not sure what he means by you will pay the city to respond,
but I would have been concerned with the underage drinking!
 Loud music in vehicle
 Blanco v. State, 761 S.W.2d 38, 1988 Tex. App. LEXIS 2475
 See Complaint on next slide.
Types of Noise Cases
(continued)
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 Engine brake or jake brake case
 Muffler on Vehicle (old or after acquired)
 What is an after acquired muffler?
 See complaint on next slide.
 Construction before or after hours
 Can City Staff, with the exception of police, witness this
violation?
 Who do you issue a citation to? Manager? Foreman? Worker?
 When swearing out a complaint, how do you find out name
and information of the manager or foreman?
 How do you secure driver’s license information?
 Police officer issue citation versus code enforcement official?
Types of Noise Cases
(continued)
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 Political Speech
 Defendant’s conviction for making an unreasonable
noise after defendant refused to stop using a
megaphone while protesting near an abortion clinic
was affirmed.
 Statute was not unconstitutionally vague or
overbroad, but specifically precluded conduct
resulting in an unreasonable noise in a public place or
in or near a private residence. Thompson v. State, 2001
Tex. App. LEXIS 300.
Political Speech (continued)
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
§
42.04.
Defense
When
Conduct
Consists
of
Speech
or
Other
Expression
(a) If conduct that would otherwise violate Section 42.01(a)(5) (Unreasonable Noise), 42.03
(Obstructing Passageway), or 42.055 (Funeral Service Disruptions) consists of speech or
other communication, of gathering with others to hear or observe such speech or
communication, or of gathering with others to picket or otherwise express in a nonviolent
manner a position on social, economic, political, or religious questions, the actor must be
ordered to move, disperse, or otherwise remedy the violation prior to his arrest if he has
not yet intentionally harmed the interests of others which those sections seek to protect.
(b) The order required by this section may be given by a peace officer, a fireman, a person
with authority to control the use of the premises, or any person directly affected by the
violation.
(c) It is a defense to prosecution under Section 42.01(a)(5), 42.03, or 42.055:
(1) that in circumstances in which this section requires an order no order was given;
(2)
that
an
order,
if
given,
was
manifestly
unreasonable
in
scope;
or
(3) that an order, if given, was promptly obeyed.
Case examples: Beaumont
and Austin*
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Beaumont v. Starvin Marvin’s Bar and Grill 2011 Tex. App. LEXIS 10042
Austin example: Approve a resolution directing the City Manager to change the name of the
Downtown Venue Relocation Program to the Music Venue Assistance Program
Initiate, fund, and oversee a sound mitigation case study of music venue in an amount up to
$40,000 from Downtown Development Fund
To report recommendations on sound mitigation at music venues to Council
Subject to Council approval and availability of funds, to add $100,000 per fiscal year to
Downtown Development Fund until there is a balance of $750,000 for the program
*Relevant if you are a city attorney that does transaction work as well
Questions and Answers?
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