Texas 2009 - 81st Regular

Texas House Bill HB3946 Compare Versions

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

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1	1	81R10964 UM-D
2	2	By: Vo H.B. No. 3946
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to establishing the office of property owners' association
8	8	ombudsman.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Title 11, Property Code, is amended by adding
11	11	Chapter 212 to read as follows:
12	12	CHAPTER 212. OFFICE OF PROPERTY OWNERS' ASSOCIATION OMBUDSMAN
13	13	SUBCHAPTER A. GENERAL PROVISIONS
14	14	Sec. 212.001. DEFINITIONS. In this chapter:
15	15	(1) "Homeowner" means a person who holds record title
16	16	to property in a residential subdivision and includes the personal
17	17	representative of a person who holds record title to property in a
18	18	residential subdivision.
19	19	(2) "Office" means the office of property owners'
20	20	association ombudsman established under this chapter.
21	21	(3) "Ombudsman" means the individual who has been
22	22	appointed to the office of property owners' association ombudsman.
23	23	(4) "Property owners' association" has the meaning
24	24	assigned by Section 209.002.
25	25	(5) "Residential subdivision" has the meaning
26	26	assigned by Section 209.002.
27	27	(6) "Restrictive covenant" has the meaning assigned by
28	28	Section 209.002.
29	29	Sec. 212.002. OFFICE OF PROPERTY OWNERS' ASSOCIATION
30	30	OMBUDSMAN. The independent office of property owners' association
31	31	ombudsman is established to provide a simple, affordable, and
32	32	neutral forum for the resolution of disputes between homeowners and
33	33	property owners' associations in residential subdivisions that are
34	34	subject to restrictive covenants that authorize a property owners'
35	35	association to collect regular or special assessments on all or a
36	36	majority of property in the subdivision.
37	37	Sec. 212.003. SUNSET PROVISION. The office is subject to
38	38	Chapter 325, Government Code (Texas Sunset Act). Unless continued
39	39	in existence as provided by that chapter, the office is abolished
40	40	September 1, 2023.
41	41	Sec. 212.004. RULES. The ombudsman may adopt rules as
42	42	necessary to implement this chapter.
43	43	Sec. 212.005. PUBLIC INTEREST INFORMATION. (a) The office
44	44	shall prepare information of public interest describing the
45	45	functions of the office.
46	46	(b) The office shall make the information available to the
47	47	public and appropriate state agencies.
48	48	Sec. 212.006. ACCESS TO PROGRAMS AND FACILITIES. (a) The
49	49	office shall prepare and maintain a written plan that describes how
50	50	a person who does not speak English can be provided reasonable
51	51	access to the office's programs.
52	52	(b) The office shall comply with federal and state laws for
53	53	program and facility accessibility.
54	54	[Sections 212.007-212.050 reserved for expansion]
55	55	SUBCHAPTER B. OMBUDSMAN
56	56	Sec. 212.051. APPOINTMENT; TERM. (a) The governor, with
57	57	the advice and consent of the senate, shall appoint a property
58	58	owners' association ombudsman to serve as the executive director of
59	59	the office. The ombudsman serves a two-year term that expires on
60	60	February 1 of each odd-numbered year.
61	61	(b) The governor shall appoint the ombudsman without regard
62	62	to the race, color, disability, sex, religion, age, or national
63	63	origin of the appointee.
64	64	Sec. 212.052. QUALIFICATIONS. To be eligible to serve as
65	65	ombudsman, a person must possess the knowledge and experience
66	66	necessary to practice mediation and other methods of dispute
67	67	resolution.
68	68	Sec. 212.053. BUSINESS INTEREST; SERVICE AS OMBUDSMAN. A
69	69	person is not eligible for appointment as ombudsman if the person or
70	70	the person's spouse is employed by or participates in the
71	71	management of a property owners' association or a business engaged
72	72	in residential construction, real estate sales, or property
73	73	management.
74	74	Sec. 212.054. LOBBYING ACTIVITIES. A person may not serve
75	75	as ombudsman or act as general counsel to the office if the person
76	76	is required to register as a lobbyist under Chapter 305, Government
77	77	Code, because of the person's activities for compensation related
78	78	to the operation of the office.
79	79	Sec. 212.055. GROUNDS FOR REMOVAL. (a) It is a ground for
80	80	removal from office if the ombudsman:
81	81	(1) does not have at the time of appointment or
82	82	maintain during service as ombudsman the qualifications required by
83	83	Section 212.052;
84	84	(2) violates a prohibition established by Section
85	85	212.053, 212.054, 212.056, or 212.102; or
86	86	(3) cannot, because of illness or disability,
87	87	discharge the ombudsman's duties for a substantial part of the
88	88	ombudsman's term.
89	89	(b) The validity of an action of the office is not affected
90	90	by the fact that the action is taken when a ground for removal of the
91	91	ombudsman exists.
92	92	Sec. 212.056. PROHIBITED REPRESENTATION OR EMPLOYMENT. A
93	93	former ombudsman may not represent any person or receive
94	94	compensation for services rendered on behalf of any person
95	95	regarding a case pending before the office before the second
96	96	anniversary of the date the person ceases to serve as ombudsman.
97	97	Sec. 212.057. ADMINISTRATION OF OFFICE. The ombudsman
98	98	shall administer and enforce this chapter, including preparing and
99	99	submitting to the legislature a budget for the office and approving
100	100	expenditures for professional services, travel, per diem, and other
101	101	actual and necessary expenses incurred in administering the office.
102	102	[Sections 212.058-212.100 reserved for expansion]
103	103	SUBCHAPTER C. PERSONNEL
104	104	Sec. 212.101. OFFICE PERSONNEL. (a) The ombudsman shall
105	105	employ professional, technical, and other employees necessary to
106	106	implement this chapter.
107	107	(b) Compensation for an employee shall be set under the
108	108	General Appropriations Act as provided by the legislature.
109	109	Sec. 212.102. TRADE ASSOCIATIONS. (a) In this section,
110	110	"trade association" means a cooperative and voluntarily joined
111	111	association of business or professional competitors designed to
112	112	assist its members and its industry or profession in dealing with
113	113	mutual business or professional problems and in promoting their
114	114	common interest.
115	115	(b) A person may not serve as ombudsman or be an employee of
116	116	the office employed in a "bona fide executive, administrative, or
117	117	professional capacity" as that phrase is used for purposes of
118	118	establishing an exemption to the overtime provisions of the federal
119	119	Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) if
120	120	the person is:
121	121	(1) an officer, employee, or paid consultant of a
122	122	trade association in the field of residential construction, real
123	123	estate sales, or property management; or
124	124	(2) the spouse of an officer, manager, or paid
125	125	consultant of a trade association in the field of residential
126	126	construction, real estate sales, or property management.
127	127	Sec. 212.103. CAREER LADDER PROGRAM; PERFORMANCE
128	128	EVALUATIONS. (a) The ombudsman or the ombudsman's designee shall
129	129	develop an intra-agency career ladder program. The program must
130	130	require intra-agency posting of all nonentry level positions
131	131	concurrently with any public posting.
132	132	(b) The ombudsman or the ombudsman's designee shall develop
133	133	a system of annual performance evaluations. All merit pay for
134	134	office employees must be based on the system established under this
135	135	subsection.
136	136	Sec. 212.104. QUALIFICATIONS AND STANDARDS OF CONDUCT. The
137	137	office shall provide to the ombudsman and office employees, as
138	138	often as necessary, information regarding their:
139	139	(1) qualifications for office or employment under this
140	140	chapter; and
141	141	(2) responsibilities under applicable laws relating
142	142	to standards of conduct for state officers or employees.
143	143	[Sections 212.105-212.150 reserved for expansion]
144	144	SUBCHAPTER D. REGISTRATION OF ASSOCIATIONS; FEES
145	145	Sec. 212.151. DUTY TO REGISTER. Each property owners'
146	146	association shall register annually with the office, providing:
147	147	(1) the name and contact information for the
148	148	association;
149	149	(2) the name and contact information for any
150	150	management company for the association;
151	151	(3) the location of each recorded governing document;
152	152	(4) the number of homeowners and the number of lots in
153	153	the subdivision governed by the association; and
154	154	(5) any other information required by the ombudsman.
155	155	Sec. 212.152. FEE. Each property owners' association shall
156	156	submit to the office with the association's registration under
157	157	Section 212.151 a fee equal to $4.00 multiplied by the number of
158	158	lots located in the subdivision governed by the association.
159	159	[Sections 212.153-212.200 reserved for expansion]
160	160	SUBCHAPTER E. POWERS AND DUTIES
161	161	Sec. 212.201. DUTIES OF OFFICE. The office shall:
162	162	(1) prepare, maintain, and make available to the
163	163	public:
164	164	(A) informational brochures regarding the
165	165	operation of property owners' associations, the law applicable to
166	166	deed restrictions and property owners' associations, and the rights
167	167	of homeowners with respect to property owners' associations,
168	168	including information regarding a property owners' association's
169	169	right to foreclose a lien on homeowner's property for unpaid
170	170	assessments and the right of the homeowner to redeem the property;
171	171	(B) disclosure forms and any other forms that may
172	172	assist owners of property in deed-restricted subdivisions; and
173	173	(C) a list of free and low-cost mediation
174	174	programs that may be available to mediate disputes between
175	175	homeowners and property owners' associations; and
176	176	(2) promote the availability of the materials prepared
177	177	under Subdivision (1) and other services provided by the office.
178	178	Sec. 212.202. HOMEOWNER PETITION FOR INVESTIGATION OF
179	179	ALLEGED VIOLATION. (a) A homeowner who is affected by an alleged
180	180	violation by a property owners' association or an agent of the
181	181	homeowner's rights under the law may submit a petition to the
182	182	ombudsman, in the form prescribed by the ombudsman, requesting that
183	183	the ombudsman investigate the alleged violation.
184	184	(b) In performing an investigation under this section, the
185	185	ombudsman may hold hearings, take testimony, subpoena witnesses,
186	186	and issue subpoenas for the production of relevant books, records,
187	187	or documents.
188	188	(c) Except as provided by Subsection (d) or (e), not later
189	189	than the 90th day after the date the office receives a petition
190	190	under this section, the office shall provide the petitioning
191	191	homeowner and the responding association with a statement of facts
192	192	and legal conclusions regarding the allegations made in the
193	193	petition.
194	194	(d) If the ombudsman determines that additional time is
195	195	needed to complete the investigation or to provide the statement of
196	196	facts and legal conclusions under this section, the office may
197	197	provide the statement of facts and legal conclusions not later than
198	198	the 180th day after the date the office receives the petition, if
199	199	the office notifies the petitioning homeowner and the responding
200	200	association of the need for the extension before the expiration of
201	201	the time for providing the statement under Subsection (c).
202	202	(e) Except as provided by this subsection, the ombudsman
203	203	shall complete an investigation concerning an election supervised
204	204	by the ombudsman under this chapter not later than the 15th day
205	205	after the date on which the petition is received by the office. For
206	206	good cause, the ombudsman may extend the time for completing the
207	207	investigation under this subsection by not more than 15 days.
208	208	Sec. 212.203. OMBUDSMAN PARTICIPATION IN MEDIATION. The
209	209	ombudsman may offer to participate in any mediation of a dispute
210	210	between a homeowner and a property owners' association.
211	211	Sec. 212.204. SUPERVISION OF ASSOCIATION ELECTIONS. The
212	212	ombudsman may offer to supervise a property owners' association
213	213	election, including a vote to elect or recall board members or to
214	214	decide a ballot proposition.
215	215	Sec. 212.205. OMBUDSMAN'S POWERS AND DUTIES NOT IMPAIRED.
216	216	An offer by the ombudsman to participate in a mediation or supervise
217	217	an election under this chapter, or the ombudsman's participation in
218	218	a mediation or supervision of an election, does not disqualify the
219	219	ombudsman from exercising any power or duty of the ombudsman under
220	220	this chapter, except that the ombudsman and the parties to a dispute
221	221	may, by written agreement, provide that the ombudsman is required
222	222	to maintain confidentiality of communications regarding the
223	223	mediation or election or adhere to other conditions regarding
224	224	action by the ombudsman.
225	225	Sec. 212.206. ENFORCEMENT ACTION BY ATTORNEY GENERAL OR
226	226	DISTRICT OR COUNTY ATTORNEY. (a) If an investigation by the
227	227	ombudsman results in a recommendation by the ombudsman that the
228	228	attorney general or a district or county attorney pursue litigation
229	229	concerning a property owners' association or the association's
230	230	agent, the ombudsman shall notify each petitioning homeowner and
231	231	each association board member of the recommendation.
232	232	(b) This section does not limit the authority of the
233	233	attorney general or a district or county attorney to take any action
234	234	with respect to a violation of a law or restrictive covenant or
235	235	limit a homeowner's right to seek any remedy provided by law.
236	236	(c) The attorney general shall enforce the ombudsman's
237	237	subpoenas and decisions regarding association elections supervised
238	238	by the ombudsman under this chapter or a determination by the
239	239	ombudsman that a violation of law justifies the removal of an
240	240	association board member, officer, manager, or other agent.
241	241	(d) If the attorney general determines that a property
242	242	owners' association has violated or threatened to violate a
243	243	homeowner's rights, the attorney general may seek temporary,
244	244	preliminary, or final injunctions, independent audits, removal of
245	245	directors, statutory penalties, or any other relief or penalty
246	246	provided by law.
247	247	Sec. 212.207. ANNUAL REPORT. The ombudsman shall publish
248	248	annually on the office's Internet website a report regarding:
249	249	(1) the number, type, and size of property owners'
250	250	associations in this state;
251	251	(2) how state law affects the operation and management
252	252	of associations;
253	253	(3) investigations of violations under this chapter
254	254	that result in a finding against an association by the ombudsman;
255	255	(4) how often homeowners use options for mediation or
256	256	arbitration, the costs incurred by homeowners in using those
257	257	options, and the decisions and awards resulting from those
258	258	mediation and arbitration procedures;
259	259	(5) the number of judicial and nonjudicial foreclosure
260	260	proceedings initiated by associations and the number of those
261	261	foreclosures completed by the associations and the reason for the
262	262	initiation of the proceedings; and
263	263	(6) any other issues the ombudsman considers of
264	264	concern to homeowners and associations.
265	265	SECTION 2. As soon as practicable after the effective date
266	266	of this Act, the governor shall appoint a property owners'
267	267	association ombudsman in accordance with Chapter 212, Property
268	268	Code, as added by this Act, to a term expiring February 1, 2011.
269	269	SECTION 3. This Act takes effect September 1, 2009.