81R10969 AJA-D
By: Veasey H.B. No. 3871
A BILL TO BE ENTITLED
AN ACT
relating to the operation of the Texas Residential Construction
Commission; providing an administrative penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 401.002, Property Code, is amended by
adding Subdivision (5-a) to read as follows:
(5-a) "Commissioner" means the residential
construction commissioner.
SECTION 2. Subtitle B, Title 16, Property Code, is amended
by adding Chapter 405 to read as follows:
CHAPTER 405. RESIDENTIAL CONSTRUCTION COMMISSIONER
Sec. 405.001. EXECUTIVE DIRECTOR AND PRESIDING OFFICER.
(a) The residential construction commissioner is a member of the
commission who serves as the commission's executive director and as
the presiding officer of the commission.
(b) The governor, with the advice and consent of the senate,
shall appoint the commissioner.
(c) Except as provided by Section 405.002(1), the governor
shall appoint the commissioner without regard to the race, color,
disability, sex, religion, age, or national origin of the
appointee.
Sec. 405.002. QUALIFICATIONS. The commissioner must:
(1) be at least 30 years of age; and
(2) have resided in the state for at least five years.
Sec. 405.003. COMPENSATION. The commissioner is entitled
to compensation as provided by the General Appropriations Act.
Sec. 405.004. CERTAIN BUSINESS INTERESTS AND OTHER
RELATIONSHIPS PROHIBITED. (a) A person may not serve as
commissioner if, in the 10 years before the date the person would
take office, the person was employed by a person engaged in the
business of residential construction or real estate sales or by a
Texas trade association, as defined by Section 406.004, in the
field of residential construction.
(b) The commissioner may not be married to or have been
married to an employee of a person engaged in the business of
residential construction.
Sec. 405.005. MAY NOT BE PARTY TO CERTAIN SUITS. A person
may not serve as commissioner if, at the time the person would take
office, the person is or ever has been a party to a lawsuit
involving a person engaged in the business of residential
construction or real estate sales.
Sec. 405.006. REMOVAL. The commissioner may be removed
from office by the senate.
SECTION 3. Sections 406.001(a) and (c), Property Code, are
amended to read as follows:
(a) The Texas Residential Construction Commission consists
of the commissioner and eight [nine] members appointed by the
governor with the advice and consent of the senate as follows:
(1) three [four] members must be builders who each
hold a certificate of registration under Chapter 416;
(2) three members must be representatives of the
general public;
(3) one member must be a licensed professional
engineer who practices in the area of residential construction;
and
(4) one member must be either a licensed architect who
practices in the area of residential construction or a building
inspector who meets the requirements set forth in Chapter 427 and
practices in the area of residential construction.
(c) A person may not be a public member of the commission if:
(1) the person or the person's spouse:
(A) [(1)] is a builder registered with the
commission, or is otherwise registered, certified, or licensed by a
regulatory agency in the field of residential construction;
(B) [(2)] is employed by or participates in the
management of a business entity or other organization regulated by
or receiving money from the commission;
(C) [(3)] owns or controls, directly or
indirectly, more than a 10 percent interest in a business entity or
other organization regulated by or receiving money from the
commission; or
(D) [(4)] uses or receives a substantial amount
of tangible goods, services, or money from the commission other
than compensation or reimbursement authorized by law for commission
membership, attendance, or expenses;
(2) in the 10 years before the date the person would
take office, the person has been employed by a person engaged in the
business of residential construction or real estate sales or a
Texas trade association in the field of residential construction;
or
(3) the person is or ever has been a party to a lawsuit
involving a builder or real estate entity.
SECTION 4. Section 406.002(a), Property Code, is amended to
read as follows:
(a) Commission members serve staggered six-year terms, with
three members' terms expiring February 1 of each odd-numbered year.
The terms of [three of] the builder representatives must expire in
different odd-numbered years. The term of one of the
representatives of the general public must expire in each
odd-numbered year.
SECTION 5. Section 406.003, Property Code, is amended to
read as follows:
Sec. 406.003. ASSISTANT PRESIDING OFFICER; SECRETARY. [The
governor shall designate a member of the commission as the
presiding officer of the commission to serve in that capacity at the
pleasure of the governor.] At a regular meeting in February of each
year, the commission shall elect from its membership an assistant
[a vice] presiding officer and a secretary.
SECTION 6. Section 406.005(c), Property Code, is amended to
read as follows:
(c) If the commissioner [executive director] has knowledge
that a potential ground for removal of another commission member
exists, the commissioner [executive director] shall notify the
[presiding officer of the potential ground. The presiding officer
shall then notify the] governor and the attorney general that a
potential ground for removal exists. If a member of the commission
has knowledge that a [the] potential ground for removal of the
commissioner exists, the member [involves the presiding officer,
the executive director shall notify the next highest ranking
officer of the commission, who] shall notify the governor and the
attorney general that a potential ground for removal exists.
SECTION 7. Section 407.002, Property Code, is amended to
read as follows:
Sec. 407.002. OTHER PERSONNEL. The commissioner
[commission] may employ [other] personnel as necessary for the
administration of this title.
SECTION 8. Section 407.004, Property Code, is amended to
read as follows:
Sec. 407.004. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION. The commissioner [executive director] or the
commissioner's [executive director's] designee shall provide to the
other members of the commission and to commission employees, as
often as necessary, information regarding the requirements for
office or employment under this title, including information
regarding a person's responsibilities under applicable laws
relating to standards of conduct for state officers or employees.
SECTION 9. Section 416.004(a), Property Code, is amended to
read as follows:
(a) The commission shall charge and collect:
(1) a filing fee of $750 for an application for an
original certificate of registration [that does not exceed $500];
(2) a fee of $500 for renewal of a certificate of
registration [that does not exceed $300]; and
(3) a late fee that does not exceed the amount of the
fee due if payment of a registration application or renewal fee due
under this title is late.
SECTION 10. Section 417.003(a), Property Code, is amended
to read as follows:
(a) The commission shall charge and collect:
(1) a filing fee of $100 for an application for
certification under this chapter [that does not exceed $100];
(2) a fee of $100 for renewal of a certification under
this chapter [that does not exceed $50]; and
(3) a late fee that does not exceed the amount of the
fee due if payment of a registration or application fee due under
this title is late.
SECTION 11. Subtitle C, Title 16, Property Code, is amended
by adding Chapter 421 to read as follows:
CHAPTER 421. RECOVERY FUND
Sec. 421.001. DEFINITION. In this chapter, "fund" means
the recovery fund established under this chapter.
Sec. 421.002. RECOVERY FUND. (a) The commission shall
maintain a recovery fund to pay for repairs in accordance with
Section 421.003 and legal assistance provided under Section
426.009(c).
(b) The commission shall deposit into the fund:
(1) all fines collected by the commission; and
(2) half of the amount of the fees and other non-fine
income collected by the agency during a fiscal year that has not
been spent by the commission at the end of that fiscal year.
Sec. 421.003. EXPENDITURES FROM FUND. (a) A homeowner who
is unable to obtain repair of a construction defect in accordance
with a recommendation or appeals ruling issued under Subtitle D or
recover damages or obtain other relief for the construction defect
provided by law may request that the commission provide or pay for
part of the repairs in accordance with this section.
(b) The commission shall adopt rules establishing the items
that must be shown in an application for relief under this section
to establish the applicant's eligibility for the relief under
Subsection (a).
(c) The commission may:
(1) pay from the fund 25 to 50 percent of the estimated
cost of the repair, as the commission determines appropriate based
on the availability of money in the fund; or
(2) contract with a third-party vendor to make the
repairs and pay the vendor from the fund.
(d) A recovery by a homeowner under this section does not
limit the homeowner's right to obtain the remainder of the repair
costs or any other relief from the builder.
SECTION 12. Section 426.005, Property Code, is amended by
amending Subsection (b) and adding Subsection (g) to read as
follows:
(b) If the third-party inspector's recommendation or an
appeals ruling does not designate a method or manner of repair of a
construction defect, an [An] action described by Subsection (a)
must be filed:
(1) on or before the expiration of any applicable
statute of limitations or by the 45th day after the date the
third-party inspector issues the inspector's recommendation,
whichever is later; or
(2) if the recommendation is appealed, on or before
the expiration of any applicable statute of limitations or by the
45th day after the date the commission issues its ruling on the
appeal, whichever is later.
(g) If the third-party inspector's recommendation or the
appeals ruling designates a method or manner of repair of a
construction defect, an action described by Subsection (a) must be
filed on or before the expiration of any applicable statute of
limitations or not later than the 45th day after the date the
commission authorizes the filing of an action under Section
426.009, whichever is later.
SECTION 13. Chapter 426, Property Code, is amended by
adding Section 426.009 to read as follows:
Sec. 426.009. REPAIRS REQUIRED; AUTHORIZATION OF ACTION.
(a) Not later than the 45th day after the date a third-party
inspector's recommendation under Section 428.004 or a ruling on an
appeal under Section 429.001 is issued that designates a method or
manner of repair of a construction defect, the builder must perform
the repair as specified in the recommendation or ruling or pay to
the homeowner the estimated cost of the repair.
(b) If the builder does not make a repair or payment
required under Subsection (a) in the time prescribed by that
subsection, not later than the 91st day after the date the
recommendation or ruling was issued, the homeowner may request that
the commission authorize the filing of an action against the
builder.
(c) The commission shall adopt rules under which a
low-income homeowner, as established under criteria adopted by the
commission, may qualify for legal assistance from the commission in
pursuing an action filed by the homeowner under this section.
(d) A builder who fails to make a repair or payment required
under Subsection (a) is subject to disciplinary action and an
administrative penalty under Chapters 418 and 419. This subsection
does not apply if it is determined in a civil action that the
construction defect for which the method or manner of repair was
specified does not exist.
SECTION 14. Section 427.001(a), Property Code, is amended
to read as follows:
(a) A third-party inspector approved by the commission
must:
(1) meet the minimum qualifications prescribed by this
section and any other qualifications prescribed by the commission
by rule; and
(2) submit an application to the commission annually
with an application fee of $100 [in the amount required by the
commission by rule].
SECTION 15. Section 430.008(b), Property Code, is amended
to read as follows:
(b) A third-party warranty company must submit to the
commission an annual application [and fee] in the form [and in the
amount] required by the commission by rule and a $500 fee before the
company may be approved under this section.
SECTION 16. The following sections of the Property Code are
repealed:
(1) Sections 407.001 and 407.003; and
(2) Section 416.004(b).
SECTION 17. (a) As soon as practicable after the first
vacancy on the Texas Residential Construction Commission for a
builder member occurs on or after the effective date of this Act,
the governor shall appoint the residential construction
commissioner in accordance with this Act.
(b) Section 416.004(a), Property Code, as amended by this
Act, applies only to an original or renewal application for a
certificate of registration submitted on or after the effective
date of this Act. An application submitted before the effective
date of this Act is governed by the law in effect immediately before
the effective date of this Act, and that law is continued in effect
for that purpose.
(c) Section 417.003(a), Property Code, as amended by this
Act, applies only to an original or renewal application for
certification as a residential construction arbitrator submitted
on or after the effective date of this Act. An application
submitted before the effective date of this Act is governed by the
law in effect immediately before the effective date of this Act, and
that law is continued in effect for that purpose.
(d) Section 421.002(b), Property Code, as added by this Act,
applies only to a fine, fee, or other income collected on or after
the effective date of this Act. A fine, fee, or other income
collected before the effective date of this Act is governed by the
law in effect immediately before the effective date of this Act, and
that law is continued in effect for that purpose.
(e) Sections 421.003 and 426.009, Property Code, as added by
this Act, and Section 426.005, Property Code, as amended by this
Act, apply only to a third-party inspector's recommendation or an
appeals ruling regarding a request submitted under Section 428.001,
Property Code, on or after the effective date of this Act. A
recommendation or appeals ruling regarding a request submitted
before the effective date of this Act is governed by the law in
effect immediately before the effective date of this Act, and that
law is continued in effect for that purpose.
(f) Section 427.001(a), Property Code, as amended by this
Act, applies only to an application submitted by a third-party
inspector on or after the effective date of this Act. An
application submitted before the effective date of this Act is
governed by the law in effect immediately before the effective date
of this Act, and that law is continued in effect for that purpose.
(g) Section 430.008(b), Property Code, as amended by this
Act, applies only to an application of a third-party warranty
company submitted on or after the effective date of this Act. An
application submitted before the effective date of this Act is
governed by the law in effect immediately before the effective date
of this Act, and that law is continued in effect for that purpose.
SECTION 18. This Act takes effect September 1, 2009.