Texas 2009 - 81st Regular

Texas House Bill HB3871 Compare Versions

Only one version of the bill is available at this time.

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1	1	81R10969 AJA-D
2	2	By: Veasey H.B. No. 3871
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the operation of the Texas Residential Construction
8	8	Commission; providing an administrative penalty.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 401.002, Property Code, is amended by
11	11	adding Subdivision (5-a) to read as follows:
12	12	(5-a) "Commissioner" means the residential
13	13	construction commissioner.
14	14	SECTION 2. Subtitle B, Title 16, Property Code, is amended
15	15	by adding Chapter 405 to read as follows:
16	16	CHAPTER 405. RESIDENTIAL CONSTRUCTION COMMISSIONER
17	17	Sec. 405.001. EXECUTIVE DIRECTOR AND PRESIDING OFFICER.
18	18	(a) The residential construction commissioner is a member of the
19	19	commission who serves as the commission's executive director and as
20	20	the presiding officer of the commission.
21	21	(b) The governor, with the advice and consent of the senate,
22	22	shall appoint the commissioner.
23	23	(c) Except as provided by Section 405.002(1), the governor
24	24	shall appoint the commissioner without regard to the race, color,
25	25	disability, sex, religion, age, or national origin of the
26	26	appointee.
27	27	Sec. 405.002. QUALIFICATIONS. The commissioner must:
28	28	(1) be at least 30 years of age; and
29	29	(2) have resided in the state for at least five years.
30	30	Sec. 405.003. COMPENSATION. The commissioner is entitled
31	31	to compensation as provided by the General Appropriations Act.
32	32	Sec. 405.004. CERTAIN BUSINESS INTERESTS AND OTHER
33	33	RELATIONSHIPS PROHIBITED. (a) A person may not serve as
34	34	commissioner if, in the 10 years before the date the person would
35	35	take office, the person was employed by a person engaged in the
36	36	business of residential construction or real estate sales or by a
37	37	Texas trade association, as defined by Section 406.004, in the
38	38	field of residential construction.
39	39	(b) The commissioner may not be married to or have been
40	40	married to an employee of a person engaged in the business of
41	41	residential construction.
42	42	Sec. 405.005. MAY NOT BE PARTY TO CERTAIN SUITS. A person
43	43	may not serve as commissioner if, at the time the person would take
44	44	office, the person is or ever has been a party to a lawsuit
45	45	involving a person engaged in the business of residential
46	46	construction or real estate sales.
47	47	Sec. 405.006. REMOVAL. The commissioner may be removed
48	48	from office by the senate.
49	49	SECTION 3. Sections 406.001(a) and (c), Property Code, are
50	50	amended to read as follows:
51	51	(a) The Texas Residential Construction Commission consists
52	52	of the commissioner and eight [nine] members appointed by the
53	53	governor with the advice and consent of the senate as follows:
54	54	(1) three [four] members must be builders who each
55	55	hold a certificate of registration under Chapter 416;
56	56	(2) three members must be representatives of the
57	57	general public;
58	58	(3) one member must be a licensed professional
59	59	engineer who practices in the area of residential construction;
60	60	and
61	61	(4) one member must be either a licensed architect who
62	62	practices in the area of residential construction or a building
63	63	inspector who meets the requirements set forth in Chapter 427 and
64	64	practices in the area of residential construction.
65	65	(c) A person may not be a public member of the commission if:
66	66	(1) the person or the person's spouse:
67	67	(A) [(1)] is a builder registered with the
68	68	commission, or is otherwise registered, certified, or licensed by a
69	69	regulatory agency in the field of residential construction;
70	70	(B) [(2)] is employed by or participates in the
71	71	management of a business entity or other organization regulated by
72	72	or receiving money from the commission;
73	73	(C) [(3)] owns or controls, directly or
74	74	indirectly, more than a 10 percent interest in a business entity or
75	75	other organization regulated by or receiving money from the
76	76	commission; or
77	77	(D) [(4)] uses or receives a substantial amount
78	78	of tangible goods, services, or money from the commission other
79	79	than compensation or reimbursement authorized by law for commission
80	80	membership, attendance, or expenses;
81	81	(2) in the 10 years before the date the person would
82	82	take office, the person has been employed by a person engaged in the
83	83	business of residential construction or real estate sales or a
84	84	Texas trade association in the field of residential construction;
85	85	or
86	86	(3) the person is or ever has been a party to a lawsuit
87	87	involving a builder or real estate entity.
88	88	SECTION 4. Section 406.002(a), Property Code, is amended to
89	89	read as follows:
90	90	(a) Commission members serve staggered six-year terms, with
91	91	three members' terms expiring February 1 of each odd-numbered year.
92	92	The terms of [three of] the builder representatives must expire in
93	93	different odd-numbered years. The term of one of the
94	94	representatives of the general public must expire in each
95	95	odd-numbered year.
96	96	SECTION 5. Section 406.003, Property Code, is amended to
97	97	read as follows:
98	98	Sec. 406.003. ASSISTANT PRESIDING OFFICER; SECRETARY. [The
99	99	governor shall designate a member of the commission as the
100	100	presiding officer of the commission to serve in that capacity at the
101	101	pleasure of the governor.] At a regular meeting in February of each
102	102	year, the commission shall elect from its membership an assistant
103	103	[a vice] presiding officer and a secretary.
104	104	SECTION 6. Section 406.005(c), Property Code, is amended to
105	105	read as follows:
106	106	(c) If the commissioner [executive director] has knowledge
107	107	that a potential ground for removal of another commission member
108	108	exists, the commissioner [executive director] shall notify the
109	109	[presiding officer of the potential ground. The presiding officer
110	110	shall then notify the] governor and the attorney general that a
111	111	potential ground for removal exists. If a member of the commission
112	112	has knowledge that a [the] potential ground for removal of the
113	113	commissioner exists, the member [involves the presiding officer,
114	114	the executive director shall notify the next highest ranking
115	115	officer of the commission, who] shall notify the governor and the
116	116	attorney general that a potential ground for removal exists.
117	117	SECTION 7. Section 407.002, Property Code, is amended to
118	118	read as follows:
119	119	Sec. 407.002. OTHER PERSONNEL. The commissioner
120	120	[commission] may employ [other] personnel as necessary for the
121	121	administration of this title.
122	122	SECTION 8. Section 407.004, Property Code, is amended to
123	123	read as follows:
124	124	Sec. 407.004. QUALIFICATIONS AND STANDARDS OF CONDUCT
125	125	INFORMATION. The commissioner [executive director] or the
126	126	commissioner's [executive director's] designee shall provide to the
127	127	other members of the commission and to commission employees, as
128	128	often as necessary, information regarding the requirements for
129	129	office or employment under this title, including information
130	130	regarding a person's responsibilities under applicable laws
131	131	relating to standards of conduct for state officers or employees.
132	132	SECTION 9. Section 416.004(a), Property Code, is amended to
133	133	read as follows:
134	134	(a) The commission shall charge and collect:
135	135	(1) a filing fee of $750 for an application for an
136	136	original certificate of registration [that does not exceed $500];
137	137	(2) a fee of $500 for renewal of a certificate of
138	138	registration [that does not exceed $300]; and
139	139	(3) a late fee that does not exceed the amount of the
140	140	fee due if payment of a registration application or renewal fee due
141	141	under this title is late.
142	142	SECTION 10. Section 417.003(a), Property Code, is amended
143	143	to read as follows:
144	144	(a) The commission shall charge and collect:
145	145	(1) a filing fee of $100 for an application for
146	146	certification under this chapter [that does not exceed $100];
147	147	(2) a fee of $100 for renewal of a certification under
148	148	this chapter [that does not exceed $50]; and
149	149	(3) a late fee that does not exceed the amount of the
150	150	fee due if payment of a registration or application fee due under
151	151	this title is late.
152	152	SECTION 11. Subtitle C, Title 16, Property Code, is amended
153	153	by adding Chapter 421 to read as follows:
154	154	CHAPTER 421. RECOVERY FUND
155	155	Sec. 421.001. DEFINITION. In this chapter, "fund" means
156	156	the recovery fund established under this chapter.
157	157	Sec. 421.002. RECOVERY FUND. (a) The commission shall
158	158	maintain a recovery fund to pay for repairs in accordance with
159	159	Section 421.003 and legal assistance provided under Section
160	160	426.009(c).
161	161	(b) The commission shall deposit into the fund:
162	162	(1) all fines collected by the commission; and
163	163	(2) half of the amount of the fees and other non-fine
164	164	income collected by the agency during a fiscal year that has not
165	165	been spent by the commission at the end of that fiscal year.
166	166	Sec. 421.003. EXPENDITURES FROM FUND. (a) A homeowner who
167	167	is unable to obtain repair of a construction defect in accordance
168	168	with a recommendation or appeals ruling issued under Subtitle D or
169	169	recover damages or obtain other relief for the construction defect
170	170	provided by law may request that the commission provide or pay for
171	171	part of the repairs in accordance with this section.
172	172	(b) The commission shall adopt rules establishing the items
173	173	that must be shown in an application for relief under this section
174	174	to establish the applicant's eligibility for the relief under
175	175	Subsection (a).
176	176	(c) The commission may:
177	177	(1) pay from the fund 25 to 50 percent of the estimated
178	178	cost of the repair, as the commission determines appropriate based
179	179	on the availability of money in the fund; or
180	180	(2) contract with a third-party vendor to make the
181	181	repairs and pay the vendor from the fund.
182	182	(d) A recovery by a homeowner under this section does not
183	183	limit the homeowner's right to obtain the remainder of the repair
184	184	costs or any other relief from the builder.
185	185	SECTION 12. Section 426.005, Property Code, is amended by
186	186	amending Subsection (b) and adding Subsection (g) to read as
187	187	follows:
188	188	(b) If the third-party inspector's recommendation or an
189	189	appeals ruling does not designate a method or manner of repair of a
190	190	construction defect, an [An] action described by Subsection (a)
191	191	must be filed:
192	192	(1) on or before the expiration of any applicable
193	193	statute of limitations or by the 45th day after the date the
194	194	third-party inspector issues the inspector's recommendation,
195	195	whichever is later; or
196	196	(2) if the recommendation is appealed, on or before
197	197	the expiration of any applicable statute of limitations or by the
198	198	45th day after the date the commission issues its ruling on the
199	199	appeal, whichever is later.
200	200	(g) If the third-party inspector's recommendation or the
201	201	appeals ruling designates a method or manner of repair of a
202	202	construction defect, an action described by Subsection (a) must be
203	203	filed on or before the expiration of any applicable statute of
204	204	limitations or not later than the 45th day after the date the
205	205	commission authorizes the filing of an action under Section
206	206	426.009, whichever is later.
207	207	SECTION 13. Chapter 426, Property Code, is amended by
208	208	adding Section 426.009 to read as follows:
209	209	Sec. 426.009. REPAIRS REQUIRED; AUTHORIZATION OF ACTION.
210	210	(a) Not later than the 45th day after the date a third-party
211	211	inspector's recommendation under Section 428.004 or a ruling on an
212	212	appeal under Section 429.001 is issued that designates a method or
213	213	manner of repair of a construction defect, the builder must perform
214	214	the repair as specified in the recommendation or ruling or pay to
215	215	the homeowner the estimated cost of the repair.
216	216	(b) If the builder does not make a repair or payment
217	217	required under Subsection (a) in the time prescribed by that
218	218	subsection, not later than the 91st day after the date the
219	219	recommendation or ruling was issued, the homeowner may request that
220	220	the commission authorize the filing of an action against the
221	221	builder.
222	222	(c) The commission shall adopt rules under which a
223	223	low-income homeowner, as established under criteria adopted by the
224	224	commission, may qualify for legal assistance from the commission in
225	225	pursuing an action filed by the homeowner under this section.
226	226	(d) A builder who fails to make a repair or payment required
227	227	under Subsection (a) is subject to disciplinary action and an
228	228	administrative penalty under Chapters 418 and 419. This subsection
229	229	does not apply if it is determined in a civil action that the
230	230	construction defect for which the method or manner of repair was
231	231	specified does not exist.
232	232	SECTION 14. Section 427.001(a), Property Code, is amended
233	233	to read as follows:
234	234	(a) A third-party inspector approved by the commission
235	235	must:
236	236	(1) meet the minimum qualifications prescribed by this
237	237	section and any other qualifications prescribed by the commission
238	238	by rule; and
239	239	(2) submit an application to the commission annually
240	240	with an application fee of $100 [in the amount required by the
241	241	commission by rule].
242	242	SECTION 15. Section 430.008(b), Property Code, is amended
243	243	to read as follows:
244	244	(b) A third-party warranty company must submit to the
245	245	commission an annual application [and fee] in the form [and in the
246	246	amount] required by the commission by rule and a $500 fee before the
247	247	company may be approved under this section.
248	248	SECTION 16. The following sections of the Property Code are
249	249	repealed:
250	250	(1) Sections 407.001 and 407.003; and
251	251	(2) Section 416.004(b).
252	252	SECTION 17. (a) As soon as practicable after the first
253	253	vacancy on the Texas Residential Construction Commission for a
254	254	builder member occurs on or after the effective date of this Act,
255	255	the governor shall appoint the residential construction
256	256	commissioner in accordance with this Act.
257	257	(b) Section 416.004(a), Property Code, as amended by this
258	258	Act, applies only to an original or renewal application for a
259	259	certificate of registration submitted on or after the effective
260	260	date of this Act. An application submitted before the effective
261	261	date of this Act is governed by the law in effect immediately before
262	262	the effective date of this Act, and that law is continued in effect
263	263	for that purpose.
264	264	(c) Section 417.003(a), Property Code, as amended by this
265	265	Act, applies only to an original or renewal application for
266	266	certification as a residential construction arbitrator submitted
267	267	on or after the effective date of this Act. An application
268	268	submitted before the effective date of this Act is governed by the
269	269	law in effect immediately before the effective date of this Act, and
270	270	that law is continued in effect for that purpose.
271	271	(d) Section 421.002(b), Property Code, as added by this Act,
272	272	applies only to a fine, fee, or other income collected on or after
273	273	the effective date of this Act. A fine, fee, or other income
274	274	collected before the effective date of this Act is governed by the
275	275	law in effect immediately before the effective date of this Act, and
276	276	that law is continued in effect for that purpose.
277	277	(e) Sections 421.003 and 426.009, Property Code, as added by
278	278	this Act, and Section 426.005, Property Code, as amended by this
279	279	Act, apply only to a third-party inspector's recommendation or an
280	280	appeals ruling regarding a request submitted under Section 428.001,
281	281	Property Code, on or after the effective date of this Act. A
282	282	recommendation or appeals ruling regarding a request submitted
283	283	before the effective date of this Act is governed by the law in
284	284	effect immediately before the effective date of this Act, and that
285	285	law is continued in effect for that purpose.
286	286	(f) Section 427.001(a), Property Code, as amended by this
287	287	Act, applies only to an application submitted by a third-party
288	288	inspector on or after the effective date of this Act. An
289	289	application submitted before the effective date of this Act is
290	290	governed by the law in effect immediately before the effective date
291	291	of this Act, and that law is continued in effect for that purpose.
292	292	(g) Section 430.008(b), Property Code, as amended by this
293	293	Act, applies only to an application of a third-party warranty
294	294	company submitted on or after the effective date of this Act. An
295	295	application submitted before the effective date of this Act is
296	296	governed by the law in effect immediately before the effective date
297	297	of this Act, and that law is continued in effect for that purpose.
298	298	SECTION 18. This Act takes effect September 1, 2009.