82R17482 TJS-F
By: Miller of Comal, et al. H.B. No. 1168
Substitute the following for H.B. No. 1168:
By: Quintanilla C.S.H.B. No. 1168
A BILL TO BE ENTITLED
AN ACT
relating to smoke alarms and fire extinguishers in residential
rental units.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 92.006(a) and (b), Property Code, are
amended to read as follows:
(a) A landlord's duty or a tenant's remedy concerning
security deposits, security devices, the landlord's disclosure of
ownership and management, or utility cutoffs, as provided by
Subchapter C, D, E, or G, respectively, may not be waived. A
landlord's duty to install a smoke alarm [detector] under
Subchapter F may not be waived, nor may a tenant waive a remedy for
the landlord's noninstallation or waive the tenant's limited right
of installation and removal. The landlord's duty of inspection and
repair of smoke alarms [detectors] under Subchapter F may be waived
only by written agreement.
(b) A landlord's duties and the tenant's remedies concerning
security devices, the landlord's disclosure of ownership and
management, or smoke alarms [detectors], as provided by Subchapter
D, E, or F, respectively, may be enlarged only by specific written
agreement.
SECTION 2. The heading to Subchapter F, Chapter 92,
Property Code, is amended to read as follows:
SUBCHAPTER F. SMOKE ALARMS AND FIRE EXTINGUISHERS [DETECTORS]
SECTION 3. Sections 92.251, 92.252, 92.253, 92.254, 92.255,
92.257, 92.2571, 92.258, and 92.259, Property Code, are amended to
read as follows:
Sec. 92.251. DEFINITIONS [DEFINITION]. In this subchapter:
(1) "Bedroom" means a room designed with the intent
that it be used for sleeping purposes.
(2) "Dwelling [, "dwelling] unit" means a home, mobile
home, duplex unit, apartment unit, condominium unit, or any
dwelling unit in a multiunit residential structure. It also means a
"dwelling" as defined by Section 92.001.
(3) "Smoke alarm" means a device designed to detect
and to alert occupants of a dwelling unit to the visible and
invisible products of combustion by means of an audible alarm.
Sec. 92.252. APPLICATION OF OTHER LAW; MUNICIPAL
REGULATION. (a) The duties of a landlord and the remedies of a
tenant under this subchapter are in lieu of common law, other
statutory law, and local ordinances regarding a residential
landlord's duty to install, inspect, or repair a fire extinguisher
or smoke alarm [detector] in a dwelling unit. However, this
subchapter does not:
(1) affect a local ordinance adopted before September
1, 1981, that requires landlords to install smoke alarms
[detectors] in new or remodeled dwelling units before September 1,
1981, if the ordinance conforms with or is amended to conform with
this subchapter;
(2) limit or prevent adoption or enforcement of a
local ordinance relating to fire safety as a part of a building,
fire, or housing code, including any requirements relating to the
installation of smoke alarms [detectors] or the type of smoke
alarms [detectors];
(3) otherwise limit or prevent the adoption of a local
ordinance that conforms to this subchapter but which contains
additional enforcement provisions, except as provided by
Subsection (b); or
(4) affect a local ordinance that requires regular
inspections by local officials of smoke alarms [detectors] in
dwelling units and that requires smoke alarms [detectors] to be
operational at the time of inspection.
(b) If a smoke alarm [detector] powered by battery has been
installed in a dwelling unit built before September 1, 1987, in
compliance with this subchapter and local ordinances, a local
ordinance may not require that a smoke alarm [detector] powered by
alternating current be installed in the unit unless:
(1) the interior of the unit is repaired, remodeled,
or rebuilt at a projected cost of more than $5,000 [$2,500] and:
(A) the repair, remodeling, or rebuilding
requires a municipal building permit; and
(B) either:
(i) the repair, remodeling, or rebuilding
results in the removal of interior walls or ceiling finishes
exposing the structure; or
(ii) the interior of the unit provides
access for building wiring through an attic, crawl space, or
basement without the removal of interior walls or ceiling finishes;
(2) an addition occurs to the unit at a projected cost
of more than $5,000 [$2,500];
(3) a smoke alarm [detector] powered by alternating
current was actually installed in the unit at any time prior to
September 1, 1987; or
(4) a smoke alarm [detector] powered by alternating
current was required by lawful city ordinance at the time of initial
construction of the unit.
Sec. 92.253. EXEMPTIONS. (a) This subchapter does not
apply to:
(1) a dwelling unit that is occupied by its owner, no
part of which is leased to a tenant;
(2) a dwelling unit in a building five or more stories
in height in which smoke alarms [detectors] are required or
regulated by local ordinance; or
(3) a nursing or convalescent home licensed by the
[Texas] Department of State Health Services and certified to meet
the Life Safety Code under federal law and regulations.
(b) Notwithstanding this subchapter, a person licensed [by
the State Board of Insurance] to install fire alarms or fire
detection devices under Chapter 6002 [Article 5.43-2], Insurance
Code, shall comply with that chapter [article] when installing
smoke alarms [detectors].
Sec. 92.254. SMOKE ALARM [DETECTOR]. (a) A smoke alarm
[detector] must be:
(1) designed to detect both the visible and invisible
products of combustion;
(2) designed with an alarm audible to a person in the
bedrooms it serves; and
(3) [powered by battery, alternating current, or other
power source as required by local ordinance;
[(4)] tested and listed for use as a smoke alarm
[detector] by Underwriters Laboratories, Inc., Factory Mutual
Research Corporation, or United States Testing Company, Inc.[; and
[(5) in good working order.]
(a-1) If requested by a tenant as an accommodation for a
person with a hearing-impairment disability or as required by law
as a reasonable accommodation for a person with a
hearing-impairment disability, a smoke alarm [detector] must, in
addition to complying with Subsection (a), be capable of alerting a
hearing-impaired person in the bedrooms it serves.
(b) Except as provided by Section 92.255(b), a smoke alarm
may be powered by battery, alternating current, or other power
source as required by local ordinance. The power system and
installation procedure of a security device that is electrically
operated rather than battery operated must comply with applicable
local ordinances.
Sec. 92.255. INSTALLATION AND LOCATION [IN NEW
CONSTRUCTION]. (a) A [Before the first tenant takes possession of
a dwelling unit, the] landlord shall install at least one smoke
alarm in [detector outside, but in the vicinity of,] each separate
bedroom in a [the] dwelling unit. In addition[, except]:
(1) if the dwelling unit is designed to use a single
room for dining, living, and sleeping, the smoke alarm [detector]
must be located inside the room;
(2) if multiple [the] bedrooms are served by the same
corridor, at least one smoke alarm [detector] must be installed in
the corridor in the immediate vicinity of the bedrooms; and
(3) if the dwelling unit has multiple levels, at least
one smoke alarm must be [bedroom is] located on each [a] level
[above the living and cooking area, the smoke detector for the
bedrooms must be placed in the center of the ceiling directly above
the top of the stairway].
(b) If a dwelling unit was occupied as a residence before
September 1, 2011, or a certificate of occupancy was issued for the
dwelling unit before that date, a smoke alarm installed in
accordance with Subsection (a) may be powered by battery and is not
required to be interconnected with other smoke alarms. [In this
section, "bedroom" means a room designed with the intent that it be
used for sleeping purposes.]
Sec. 92.257. INSTALLATION PROCEDURE. (a) Subject to
Subsections (b) and (c), a smoke alarm [detector] must be installed
according to the manufacturer's recommended procedures.
(b) A smoke alarm [detector] must be installed on a ceiling
or wall. If on a ceiling, it must be no closer than six inches to a
wall. If on a wall, it must be no closer than six inches and no
farther than 12 inches from the ceiling.
(c) A smoke alarm [detector] may be located other than as
required by Subsection (a) or (b) if a local ordinance or a local or
state fire marshal approves.
Sec. 92.2571. ALTERNATIVE COMPLIANCE. A landlord complies
with the requirements of this subchapter relating to the provision
of smoke alarms [detectors] in the dwelling unit if the landlord:
(1) has a fire detection device, as defined by Section
6002.002 [Article 5.43-2], Insurance Code, that includes a fire
alarm [smoke detection] device, as defined by Section 6002.002,
Insurance Code, installed in a dwelling unit; or
(2) for a dwelling unit that is a one-family or
two-family dwelling unit, installs smoke detectors in compliance
with Chapter 766, Health and Safety Code.
Sec. 92.258. INSPECTION AND REPAIR. (a) The landlord shall
inspect and repair a smoke alarm [detector] according to this
section.
(b) The landlord shall determine that the smoke alarm
[detector] is in good working order at the beginning of the tenant's
possession by testing the smoke alarm [detector] with smoke, by
operating the testing button on the smoke alarm [detector], or by
following other recommended test procedures of the manufacturer for
the particular model.
(c) During the term of a lease or during a renewal or
extension, the landlord has a duty to inspect and repair a smoke
alarm [detector], but only if the tenant gives the landlord notice
of a malfunction or requests to the landlord that the smoke alarm
[detector] be inspected or repaired. This duty does not exist with
respect to damage or a malfunction caused by the tenant, the
tenant's family, or the tenant's guests or invitees during the term
of the lease or a renewal or extension, except that the landlord has
a duty to repair or replace the smoke alarm [detector] if the tenant
pays in advance the reasonable repair or replacement cost,
including labor, materials, taxes, and overhead.
(d) The landlord must comply with the tenant's request for
inspection or repair of a smoke alarm within a reasonable time,
considering the availability of material, labor, and utilities.
(e) The landlord has met the duty to inspect and repair if
the smoke alarm [detector] is in good working order after the
landlord tests the smoke alarm [detector] with smoke, operates the
testing button on the smoke alarm [detector], or follows other
recommended test procedures of the manufacturer for the particular
model.
(f) The landlord is not obligated to provide batteries for a
battery-operated smoke alarm [detector] after a tenant takes
possession if the smoke alarm [detector] was in good working order
at the time the tenant took possession.
(g) A smoke alarm [detector] that is in good working order
at the beginning of a tenant's possession is presumed to be in good
working order until the tenant requests repair of the smoke alarm
[detector] as provided by this subchapter.
Sec. 92.259. LANDLORD'S FAILURE TO INSTALL, INSPECT, OR
REPAIR. (a) A landlord is liable according to this subchapter if:
(1) the landlord did not install a smoke alarm
[detector] at the time of initial occupancy by the tenant as
required by this subchapter or a municipal ordinance permitted by
this subchapter; or
(2) the landlord does not install, inspect, or repair
the smoke alarm [detector] on or before the seventh day after the
date the tenant gives the landlord written notice that the tenant
may exercise his remedies under this subchapter if the landlord
does not comply with the request within seven days.
(b) If the tenant gives notice under Subsection (a)(2) and
the tenant's lease is in writing, the lease may require the tenant
to make the initial request for installation, inspection, or repair
of a smoke alarm in writing.
SECTION 4. The heading to Section 92.2611, Property Code,
is amended to read as follows:
Sec. 92.2611. TENANT'S DISABLING OF A SMOKE ALARM
[DETECTOR].
SECTION 5. Section 92.2611, Property Code, is amended by
amending Subsections (a), (b), (c), (d), and (f) and adding
Subsection (d-1) to read as follows:
(a) A tenant is liable according to this subchapter if the
tenant removes a battery from a smoke alarm [detector] without
immediately replacing it with a working battery or knowingly
disconnects or intentionally damages a smoke alarm [detector],
causing it to malfunction.
(b) Except as provided in Subsection (c), a landlord of a
tenant who is liable under Subsection (a) may obtain a judgment
against the tenant for damages suffered by the landlord because the
tenant removed a battery from a smoke alarm [detector] without
immediately replacing it with a working battery or knowingly
disconnected or intentionally damaged the smoke alarm [detector],
causing it to malfunction.
(c) A tenant is not liable for damages suffered by the
landlord if the damage is caused by the landlord's failure to repair
the smoke alarm [detector] within a reasonable time after the
tenant requests it to be repaired, considering the availability of
material, labor, and utilities.
(d) A landlord of a tenant who is liable under Subsection
(a) may obtain or exercise one or more of the remedies in Subsection
(e) if:
(1) a lease between the landlord and tenant contains a
notice, in underlined or boldfaced print, which states in substance
that the tenant must not disconnect or intentionally damage a smoke
alarm [detector] or remove the battery without immediately
replacing it with a working battery and that the tenant may be
subject to damages, civil penalties, and attorney's fees under
Section 92.2611 of the Property Code for not complying with the
notice; and
(2) the landlord has given notice to the tenant that
the landlord intends to exercise the landlord's remedies under this
subchapter if the tenant does not reconnect, repair, or replace the
smoke alarm [detector] or replace the removed battery within seven
days after being notified by the landlord to do so.
(d-1) The notice in Subsection (d)(2) [Subdivision (2)]
must be in a separate document furnished to the tenant after the
landlord has discovered that the tenant has disconnected or damaged
the smoke alarm [detector] or removed a battery from it.
(f) A tenant's guest or invitee who suffers damage because
of a landlord's failure to install, inspect, or repair a smoke alarm
[detector] as required by this subchapter may recover a judgment
against the landlord for the damage. A tenant's guest or invitee
who suffers damage because the tenant removed a battery without
immediately replacing it with a working battery or because the
tenant knowingly disconnected or intentionally damaged the smoke
alarm [detector], causing it to malfunction, may recover a judgment
against the tenant for the damage.
SECTION 6. Subchapter F, Chapter 92, Property Code, is
amended by adding Sections 92.263 and 92.264 to read as follows:
Sec. 92.263. INSPECTION OF RESIDENTIAL FIRE EXTINGUISHER.
(a) If a landlord has installed a 1A10BC residential fire
extinguisher as defined by the National Fire Protection Association
or other non-rechargeable fire extinguisher in accordance with a
local ordinance or other law, the landlord or the landlord's agent
shall inspect the fire extinguisher:
(1) at the beginning of a tenant's possession; and
(2) within a reasonable time after receiving a written
request by a tenant.
(b) At a minimum, an inspection under this section must
include:
(1) checking to ensure the fire extinguisher is
present; and
(2) checking to ensure the fire extinguisher gauge or
pressure indicator indicates the correct pressure as recommended by
the manufacturer of the fire extinguisher.
(c) A fire extinguisher that satisfies the inspection
requirements of Subsection (b) at the beginning of a tenant's
possession is presumed to be in good working order until the tenant
requests an inspection in writing.
Sec. 92.264. DUTY TO REPAIR OR REPLACE. (a) The landlord
shall repair or replace a fire extinguisher at the landlord's
expense if:
(1) on inspection, the fire extinguisher is found:
(A) not to be functioning; or
(B) not to have the correct pressure indicated on
the gauge or pressure indicator as recommended by the manufacturer
of the fire extinguisher; or
(2) a tenant has notified the landlord that the tenant
has used the fire extinguisher for a legitimate purpose.
(b) If the tenant or the tenant's invited guest removes,
misuses, damages, or otherwise disables a fire extinguisher:
(1) the landlord is not required to repair or replace
the fire extinguisher at the landlord's expense; and
(2) the landlord is required to repair or replace the
fire extinguisher within a reasonable time if the tenant pays in
advance the reasonable repair or replacement cost, including labor,
materials, taxes, and overhead.
SECTION 7. Section 92.256, Property Code, is repealed.
SECTION 8. With respect to a dwelling unit first occupied or
for which a certificate of occupancy was issued before September 1,
2011, a landlord shall comply with the change in law made by Section
92.255, Property Code, as amended by this Act, on or before January
1, 2013.
SECTION 9. This Act takes effect September 1, 2011.