81R7311 PAM-F
By: Zaffirini S.B. No. 2253
A BILL TO BE ENTITLED
AN ACT
relating to the authority of certain municipalities and counties to
regulate subdivisions near an international border.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 212.012, Local Government Code, is
amended by amending Subsections (a), (c), (d), (e), (f), (h), and
(i) and adding Subsections (j) and (k) to read as follows:
(a) Except as provided by Subsection (c), (d), or (j), an
entity described by Subsection (b) may not serve or connect any land
with water, sewer, electricity, gas, or other utility service
unless the entity has been presented with or otherwise holds a
certificate applicable to the land issued under Section 212.0115.
(c) An entity described by Subsection (b) may serve or
connect land with water, sewer, electricity, gas, or other utility
service regardless of whether the entity is presented with or
otherwise holds a certificate applicable to the land issued under
Section 212.0115 if:
(1) the land is covered by a development plat approved
under Subchapter B or under an ordinance or rule relating to the
development plat;
(2) the land was first served or connected with
service by an entity described by Subsection (b)(1), (b)(2), or
(b)(3) before September 1, 1987; or
(3) the land was first served or connected with
service by an entity described by Subsection (b)(4), (b)(5), or
(b)(6) before September 1, 1989[; or
[(4) the municipal authority responsible for
approving plats issues a certificate stating that:
[(A) the land:
[(i) was sold or conveyed to the person
requesting service by any means of conveyance, including a contract
for deed or executory contract, before:
[(a) September 1, 1995, in a county
defined under Section 232.022(a)(1); or
[(b) September 1, 2005, in a county
defined under Section 232.022(a)(2);
[(ii) is located in a subdivision in which
the entity has previously provided service;
[(iii) is located outside the limits of the
municipality;
[(iv) is located in a county to which
Subchapter B, Chapter 232, applies; and
[(v) is the site of construction of a
residence, evidenced by at least the existence of a completed
foundation, that was begun on or before:
[(a) May 1, 1997, in a county defined
under Section 232.022(a)(1); or
[(b) September 1, 2005, in a county
defined under Section 232.022(a)(2); or
[(B) the land was not subdivided after September
1, 1995, in a county defined under Section 232.022(a)(1), or
September 1, 2005, in a county defined under Section 232.022(a)(2),
and:
[(i) water service is available within 750
feet of the subdivided land; or
[(ii) water service is available more than
750 feet from the subdivided land and the extension of water service
to the land may be feasible, subject to a final determination by the
water service provider].
(d) In a county to which Subchapter B, Chapter 232, applies,
an entity described by Subsection (b) may serve or connect land with
water, sewer, electricity, gas, or other utility service that is
located in the extraterritorial jurisdiction of a municipality
regardless of whether the entity is presented with or otherwise
holds a certificate applicable to the land issued under Section
212.0115, if the municipal authority responsible for approving
plats issues a certificate stating that:
(1) the subdivided land:
(A) was sold or conveyed by a subdivider or
developer by any means of conveyance, including a contract for deed
or executory contract, before:
(i) September 1, 1995, in a county defined
under Section 232.022(a)(1);
(ii) September 1, 1999, in a county defined
under Section 232.022(a)(1) if, on August 31, 1999, the subdivided
land was located in the extraterritorial jurisdiction of a
municipality as determined by Chapter 42; or
(iii) September 1, 2005, in a county
defined under Section 232.022(a)(2);
(B) has not been subdivided after September 1,
1995, September 1, 1999, or September 1, 2005, as applicable under
Paragraph (A);
(C) is the site of construction of a residence,
evidenced by at least the existence of a completed foundation, that
was begun on or before:
(i) May 1, 2003, in a county defined under
Section 232.022(a)(1); or
(ii) September 1, 2005, in a county defined
under Section 232.022(a)(2); and
(D) has had adequate sewer services installed to
service the lot or dwelling;
(2) the subdivided land is a lot of record as defined
by Section 232.021(6-a) that is located in a county defined by
Section 232.022(a)(1) and has adequate sewer services installed
that are fully operable to service the lot or dwelling; or
(3) the land was not subdivided after September 1,
1995, in a county defined under Section 232.022(a)(1), or September
1, 2005, in a county defined under Section 232.022(a)(2), and:
(A) water service is available within 750 feet of
the subdivided land; or
(B) water service is available more than 750 feet
from the subdivided land and the extension of water service to the
land may be feasible, subject to a final determination by the water
service provider.
(e) An entity described by Subsection (b) may provide
utility service to land described by Subsection (d) [Subsection
(c)(4)(A)] only if the person requesting service:
(1) is not the land's subdivider or developer or the
subdivider's or developer's agent; and
(2) provides to the entity a certificate described by
Subsection (d) [(c)(4)(A)].
(f) [(e)] A person requesting service may obtain a
certificate under Subsection (d) [Subsection (c)(4)(A)] only if the
person is the owner or purchaser of the subdivided land and provides
to the municipal authority responsible for approving plats
documentation containing [either]:
(1) a copy of the means of conveyance or other
documents that show that the land was sold or conveyed by a
subdivider or developer [to the person requesting service] before
September 1, 1995, before September 1, 1999, or before September 1,
2005, as applicable under Subsection (d)[, and a notarized
affidavit by that person that states that construction of a
residence on the land, evidenced by at least the existence of a
completed foundation, was begun on or before May 1, 1997, or on or
before September 1, 2005, as applicable]; [or]
(2) for a certificate issued under Subsection (d)(1),
a notarized affidavit by the person requesting service that states
that [the property was sold or conveyed to that person before
September 1, 1995, or before September 1, 2005, as applicable, and
that] construction of a residence on the land, evidenced by at least
the existence of a completed foundation, was begun on or before May
1, 2003, in a county defined by Section 232.022(a)(1) or September
1, 2005, in a county defined by Section 232.022(a)(2), and the
request for utility connection or service is to connect or serve a
residence described by Subsection (d)(1)(C);
(3) a notarized affidavit by the person requesting
service that states that the subdivided land has not been further
subdivided after September 1, 1995, September 1, 1999, or September
1, 2005, as applicable under Subsection (d); and
(4) evidence that adequate sewer service or facilities
have been installed and are fully operable to service the lot or
dwelling from an entity described by Subsection (b) or the
authorized agent responsible for the licensing or permitting of
on-site sewage facilities under Chapter 366, Health and Safety Code
[May 1, 1997, or on or before September 1, 2005, as applicable].
[(f) A person requesting service may obtain a certificate
under Subsection (c)(4)(B) only if the person provides to the
municipal authority responsible for approving plats an affidavit
that states that the property was not sold or conveyed to that
person from a subdivider or the subdivider's agent after September
1, 1995, or after September 1, 2005, as applicable.]
(h) This section may not be construed to abrogate any civil
or criminal proceeding or prosecution or to waive any penalty
against a subdivider or developer for a violation of a state or
local law, regardless of the date on which the violation occurred.
(i) In this section:
(1) "Developer" has the meaning assigned by Section
232.021.
(2) "Foundation" means the lowest division of a
residence, usually consisting of a masonry slab or a pier and beam
structure, that is partly or wholly below the surface of the ground
and on which the residential structure rests.
(3) [(2)] "Subdivider" has the meaning assigned by
Section 232.021.
(j) Except as provided by Subsection (k), this section does
not prohibit a water or sewer utility from providing in a county
defined by Section 232.022(a)(1) water or sewer utility connection
or service to a residential dwelling that:
(1) is provided water or wastewater facilities under
or in conjunction with a federal or state funding program designed
to address inadequate water or wastewater facilities in colonias or
to residential lots located in a county described by Section
232.022(a)(1);
(2) is an existing dwelling identified as an eligible
recipient for funding by the funding agency providing adequate
water and wastewater facilities or improvements;
(3) when connected, will comply with the minimum state
standards for both water and sewer facilities and as prescribed by
the model subdivision rules adopted under Section 16.343, Water
Code; and
(4) is located in a project for which each political
subdivision with jurisdiction over the project or the approval of
plats within the project area has approved the improvement project
by order, resolution, or interlocal agreement under Chapter 791,
Government Code.
(k) A utility may not serve any subdivided land with water
utility connection or service under Subsection (j) unless the
entity receives a determination that adequate sewer services have
been installed to service the lot or dwelling from the municipal
authority responsible for approving plats, an entity described by
Subsection (b), or the authorized agent responsible for the
licensing or permitting of on-site sewage facilities under Chapter
366, Health and Safety Code.
SECTION 2. Section 232.021, Local Government Code, is
amended by amending Subdivision (2) and adding Subdivisions (2-a),
(2-b), and (6-a) to read as follows:
(2) "Common promotional plan" means any plan or scheme
of operation undertaken by a single subdivider or developer or a
group of subdividers or developers acting in concert, either
personally or through an agent, to offer for sale or lease lots when
the land is:
(A) contiguous or part of the same area of land;
or
(B) known, designated, or advertised as a common
unit or by a common name.
(2-a) "Develop" means a structural improvement or
man-made change to a lot intended for residential use undertaken to
improve, enhance, or otherwise make suitable real property for
purposes of sale, resale, or lease.
(2-b) "Developer" means a person who owns any interest
in real property and directly or indirectly develops real property
in the ordinary course of business or as part of a common
promotional plan.
(6-a) "Lot of record" means:
(A) a lot, the boundaries of which were
established by a plat recorded in the office of the county clerk
before September 1, 1989, that has not been subdivided after
September 1, 1989; or
(B) a lot, the boundaries of which were
established by a metes and bounds description in a deed of
conveyance, a contract of sale, or other executory contract to
convey real property that has been legally executed and recorded in
the office of the county clerk before September 1, 1989, that has
not been subdivided after September 1, 1989.
SECTION 3. Section 232.024(b), Local Government Code, is
amended to read as follows:
(b) If any part of a plat applies to land intended for
residential housing and any part of that land lies in a floodplain,
the commissioners court shall not approve the plat unless:
(1) the subdivision is developed in compliance with
the minimum requirements of the National Flood Insurance Program
and local regulations or orders adopted under Section 16.315, Water
Code; and
(2) the plat evidences a restrictive covenant
prohibiting [as required by this subsection. The restrictive
covenant shall prohibit] the construction of residential housing in
any area of the subdivision that is in a floodplain unless the
housing is developed in compliance with the minimum requirements of
[qualifies for insurance under] the National Flood Insurance
Program and local regulations or orders adopted under Section
16.315, Water Code [Act of 1968 (42 U.S.C. Sections 4001 through
4127)].
SECTION 4. Section 232.028(b), Local Government Code, is
amended to read as follows:
(b) On the commissioners court's own motion or on the
written request of a subdivider, an owner or resident of a lot in a
subdivision, or an entity that provides a utility service, the
commissioners court shall make the following determinations
regarding the land in which the entity or commissioners court is
interested that is located within the jurisdiction of the county:
(1) whether a plat has been prepared and whether it has
been reviewed and approved by the commissioners court;
(2) whether water service facilities have been
constructed or installed to service the lot or subdivision under
Section 232.023 and are fully operable;
(3) whether sewer service facilities have been
constructed or installed to service the lot or subdivision under
Section 232.023 and are fully operable, or if septic systems are
used, whether the lot is served by a permitted on-site sewage
facility or lots in the subdivision can be adequately and legally
served by septic systems under Section 232.023; and
(4) whether electrical and gas facilities, if
available, have been constructed or installed to service the lot or
subdivision under Section 232.023.
SECTION 5. Section 232.029, Local Government Code, is
amended by amending Subsections (b), (c), (d), (e), and (i) and
adding Subsections (n) and (o) to read as follows:
(b) Except as provided by Subsections (c) and (k) or Section
232.037(c), a utility may not serve or connect any subdivided land
with electricity or gas unless the entity receives a determination
from the county commissioners court under Sections 232.028(b)(2)
and (3) [Section 232.028(b)(2)] that adequate water and sewer
services have been installed to service the lot or subdivision.
(c) An electric, gas, water, or sewer service utility may
serve or connect subdivided land with water, sewer, electricity,
gas, or other utility service regardless of whether the utility
receives a certificate issued by the commissioners court under
Section 232.028(a) or receives a determination from the
commissioners court under Section 232.028(b) if the utility is
provided with a certificate issued by the commissioners court that
states that:
(1) the subdivided land:
(A) was sold or conveyed by a subdivider or
developer [to the person requesting service] by any means of
conveyance, including a contract for deed or executory contract:
(i) before September 1, 1995; or
(ii) before September 1, 1999, if the
subdivided land on August 31, 1999, was located in the
extraterritorial jurisdiction of a municipality as determined by
Chapter 42;
(B) has not been subdivided after September 1,
1995, or September 1, 1999, as applicable under Paragraph (A) [is
located in a subdivision in which the utility has previously
provided service]; [and]
(C) is the site of construction of a residence,
evidenced by at least the existence of a completed foundation, that
was begun[:
[(i) on or before May 1, 1997; or
[(ii)] on or before May 1, 2003; and
(D) has had adequate sewer services installed to
service the lot or dwelling;
(2) the subdivided land is a lot of record and has
adequate sewer services installed that are fully operable to
service the lot or dwelling[, if the subdivided land on August 31,
1999, was located in the extraterritorial jurisdiction of a
municipality as determined by Chapter 42]; or
(3) [(2)] the land was not subdivided after September
1, 1995, and:
(A) water service is available within 750 feet of
the subdivided land; or
(B) water service is available more than 750 feet
from the subdivided land and the extension of water service to the
land may be feasible, subject to a final determination by the water
service provider.
(d) A utility may provide utility service to subdivided land
described by Subsection (c) [(c)(1)] only if the person requesting
service:
(1) is not the land's subdivider or developer or the
subdivider's or developer's agent; and
(2) provides to the utility a certificate described by
Subsection (c) [(c)(1)].
(e) A person requesting service may obtain a certificate
under Subsection (c) [(c)(1)] only if the person is the owner or
purchaser of the subdivided land and provides to the commissioners
court documentation containing [either]:
(1) [documentation containing:
[(A)] a copy of the means of conveyance or other
documents that show that the land was sold or conveyed by a
subdivider or developer before September 1, 1995, or before
September 1, 1999, as applicable under Subsection (c);
(2) [to the person requesting service:
[(i) before September 1, 1995; or
[(ii) before September 1, 1999, if the
subdivided land on August 31, 1999, was located in the
extraterritorial jurisdiction of a municipality as determined by
Chapter 42; and
[(B)] a notarized affidavit by that person
requesting service under Subsection (c)(1) that states that
construction of a residence on the land, evidenced by at least the
existence of a completed foundation, was begun[:
[(i) on or before May 1, 1997; or
[(ii)] on or before May 1, 2003, and the
request for utility connection or service is to connect or serve a
residence described by Subsection (c)(1)(C);
(3) [, if the subdivided land on August 31, 1999, was
located in the extraterritorial jurisdiction of a municipality as
determined by Chapter 42; or
[(2)] a notarized affidavit by the person requesting
service that states that the subdivided land has not been further
subdivided after[:
[(A) the property was sold or conveyed to that
person:
[(i) before] September 1, 1995, [;] or
[(ii) before] September 1, 1999, as
applicable under Subsection (c); and
(4) evidence that adequate sewer service or facilities
have been installed and are fully operable to service the lot or
dwelling from an entity described by Section 232.021(14) or the
authorized agent responsible for the licensing or permitting of
on-site sewage facilities under Chapter 366, Health and Safety Code
[if the subdivided land on August 31, 1999, was located in the
extraterritorial jurisdiction of a municipality as determined by
Chapter 42; and
[(B) construction of a residence on the land,
evidenced by at least the existence of a completed foundation, was
begun:
[(i) on or before May 1, 1997; or
[(ii) on or before May 1, 2003, if the
subdivided land on August 31, 1999, was located in the
extraterritorial jurisdiction of a municipality as determined by
Chapter 42].
(i) The prohibition established by this section shall not
prohibit a water, sewer, [an] electric, or gas utility from
providing water, sewer, electric, or gas utility connection or
service to a lot [being] sold, conveyed, or purchased through a
contract for deed or executory contract or other device by a
subdivider or developer prior to July 1, 1995, or September 1, 1999,
if on August 31, 1999, the subdivided land was located in the
extraterritorial jurisdiction of a municipality that has adequate
sewer services installed that are fully operable to service the lot
[which is located within a subdivision where the utility has
previously established service] and was subdivided by a plat
approved prior to September 1, 1989.
(n) Except as provided by Subsection (o), this section does
not prohibit a water or sewer utility from providing water or sewer
utility connection or service to a residential dwelling that:
(1) is provided water or wastewater facilities under
or in conjunction with a federal or state funding program designed
to address inadequate water or wastewater facilities in colonias or
to residential lots located in a county described by Section
232.022(a)(1);
(2) is an existing dwelling identified as an eligible
recipient for funding by the funding agency providing adequate
water and wastewater facilities or improvements;
(3) when connected, will comply with the minimum state
standards for both water and sewer facilities and as prescribed by
the model subdivision rules adopted under Section 16.343, Water
Code; and
(4) is located in a project for which each political
subdivision with jurisdiction over the project or the approval of
plats within the project area has approved the improvement project
by order, resolution, or interlocal agreement under Chapter 791,
Government Code, if applicable.
(o) A utility may not serve any subdivided land with water
utility connection or service under Subsection (n) unless the
entity receives a determination from the county commissioners court
under Section 232.028(b)(3) that adequate sewer services have been
installed to service the lot or dwelling.
SECTION 6. Sections 232.031(a) and (b), Local Government
Code, are amended to read as follows:
(a) Except as provided by Subsection (d), a subdivider or
developer may not sell or lease land in a subdivision first platted
or replatted after July 1, 1995, unless the subdivision plat is
approved by the commissioners court in accordance with Section
232.024.
(b) Not later than the 30th day after the date a lot is sold,
a subdivider or developer shall record with the county clerk all
sales contracts, including the attached disclosure statement
required by Section 232.033, leases, and any other documents that
convey an interest in the subdivided land.
SECTION 7. Sections 232.035(a) and (b), Local Government
Code, are amended to read as follows:
(a) A subdivider or developer or an agent of a subdivider or
developer may not cause, suffer, allow, or permit a lot to be sold
in a subdivision if the subdivision has not been platted as required
by this subchapter.
(b) Notwithstanding any other remedy at law or equity, a
subdivider or developer or an agent of a subdivider or developer may
not cause, suffer, allow, or permit any part of a subdivision over
which the subdivider or developer or an agent of the subdivider or
developer has control, or a right of ingress and egress, to become a
public health nuisance as defined by Section 341.011, Health and
Safety Code.
SECTION 8. Section 232.036(a), Local Government Code, is
amended to read as follows:
(a) A subdivider or developer commits an offense if the
subdivider or developer knowingly fails to file a plat or replat
required by this subchapter. An offense under this subsection is a
Class A misdemeanor.
SECTION 9. Section 232.038(a), Local Government Code, is
amended to read as follows:
(a) Except as provided by Subsection (b), a person who has
purchased or is purchasing a lot after July 1, 1995, in a
subdivision for residential purposes that does not have water and
sewer services as required by this subchapter and is located in an
economically distressed area, as defined by Section 17.921, Water
Code, from a subdivider or developer, may bring suit in the district
court in which the property is located or in a district court in
Travis County to:
(1) declare the sale of the property void, require the
subdivider or developer to return the purchase price of the
property, and recover from the subdivider or developer:
(A) the market value of any permanent
improvements the person placed on the property;
(B) actual expenses incurred as a direct result
of the failure to provide adequate water and sewer facilities;
(C) court costs; and
(D) reasonable attorney's fees; or
(2) enjoin a violation or threatened violation of
Section 232.032, require the subdivider or developer to plat or
replat under Section 232.040, and recover from the subdivider or
developer:
(A) actual expenses incurred as a direct result
of the failure to provide adequate water and sewer facilities;
(B) court costs; and
(C) reasonable attorney's fees.
SECTION 10. Sections 232.040(a), (b), and (c), Local
Government Code, are amended to read as follows:
(a) A subdivision plat must accurately reflect the
subdivision as it develops. If there is any change, either by the
intentional act of the subdivider or developer or by the forces of
nature, including changes in the size or dimension of lots or the
direction or condition of the roads, a plat must be revised in
accordance with Section 232.041.
(b) Except as provided by Subsection (c), a lot in a
subdivision may not be sold if the lot lacks water and sewer
services as required by this subchapter unless the lot is platted or
replatted as required by this subchapter. A subdivider or
developer or agent of a subdivider or developer may not transfer a
lot through an executory contract or other similar conveyance to
evade the requirements of this subchapter. The prohibition in this
subsection includes the sale of a lot:
(1) by a subdivider or developer who regains
possession of a lot previously exempt under Subsection (c) through
the exercise of a remedy described in Section 5.064 [Section
5.061], Property Code; or
(2) for which it is shown at a proceeding brought in
the district court in which the property is located that the sale of
a lot otherwise exempt under Subsection (c) was made for the purpose
of evading the requirements of this subchapter.
(c) Subsection (b) does not apply to [if] a seller other
than a subdivider, developer, or agent of a subdivider or developer
[resides on the lot].
SECTION 11. Section 232.029(f), Local Government Code, is
repealed.
SECTION 12. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2009.