The Devil’s in the Details
A story about the shuttering of a strip club in Fort Worth caught our attention last week—not because of the scandalous establishment, but because of the lawsuit associated with it.
The story’s headline declared the state had filed a public nuisance lawsuit to close down the club, which had been the scene of repeated criminal activity. According to the article, between 2020 and 2022, the Tarrant County Sheriff’s Office received 247 calls for service to club, including multiple shootings and stabbings.
No one is disputing that this business is a nuisance to the community, or that the Tarrant County DA did the right thing in shutting it down. But digging just a bit deeper into the actual court filing reveals exactly what action was taken—a common nuisance lawsuit.
What’s the big deal—a nuisance is a nuisance, right?
Public nuisance is a broad and relatively imprecise term. The concept has developed over centuries (literally) in court rulings. Its historic use has always been to protect access to public property against actions that impede it.
Not all nuisances are public nuisances. There are lots of other nuisances that affect the health and welfare of the public—like this dangerous strip club in Fort Worth—but that does not make them a public nuisance in the eyes of the law. Texas classifies these other kinds of nuisances as “public health nuisances,” “common nuisances” or nuisances related to unincorporated areas.
Texas law, in fact, lists 28 specific actions where a “common nuisance” may exist, many of which involve criminal activity of the kind occurring at the aforementioned establishment.
Like centuries-old public nuisance lawsuits, common nuisance lawsuits are about abating the nuisance, meaning money damages aren’t recoverable, per se, unless an injunction prohibiting further harmful conduct is violated. And so, public nuisance lawsuits and common nuisance lawsuits have similarities, but they are not the same thing.
While this might seem like semantics to outside observers, the devil is in the details. Texas law is clear about what constitutes a common nuisance—going so far as to laundry-list those specific actions. It is less clear about what constitutes a public nuisance, making it easy to conflate the two.
The phrase “public nuisance” has both a colloquial definition and a technical legal definition, and they are seemingly used interchangeably, as the headline writer for this article has done. We saw this time and again in committee hearings on HB 1372—Chairman Cody Harris’ bill addressing abuses of old-school public nuisance lawsuits—during the regular session, even from the county attorneys who regularly file common nuisance lawsuits.
But these officials routinely and correctly use specific common nuisance pleadings to shut down criminal activity—not public nuisance pleadings that have nothing to do with shutting down a strip club. And despite committee testimony to the contrary, common nuisance lawsuits are not a method of reimbursing local governments for the cost of policing incurred by those criminal activities. That’s what our tax dollars are for.
To be clear, it is the old-school concept of public nuisance that would have been addressed by HB 1372. Nothing in the bill would have impacted the Tarrant County DA’s ability to bring a common nuisance lawsuit to shut down the criminal activity at this club.
HB 1372 would have created simple guardrails to help courts determine cases that the broad public nuisance doctrine should not apply to—namely those targeting legal or permitted activities after they have been authorized by the Legislature or a regulatory body. Unfortunately, it did not survive the legislative process.