By: Guillen, Raymond (Senate Sponsor - Lucio) H.B. No. 1604
(In the Senate - Received from the House May 6, 2011;
May 9, 2011, read first time and referred to Committee on
International Relations and Trade; May 21, 2011, reported
adversely, with favorable Committee Substitute by the following
vote: Yeas 4, Nays 0; May 21, 2011, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 1604 By: Lucio
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of land development, including county
building code standards for new residential construction, and sales
in certain counties and municipalities; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The purpose of the changes to Section 232.037,
Local Government Code, is to allow the state and certain counties to
be affected parties in claims against unscrupulous developers who
violate subdivision platting requirements under Subchapter B,
Chapter 232, Local Government Code, because the state and counties
may reasonably be expected to mitigate or ameliorate the conditions
created by those developers.
SECTION 2. Section 232.0031, Local Government Code, is
amended to read as follows:
Sec. 232.0031. STANDARD FOR ROADS IN SUBDIVISION. A county
may not impose under Section 232.003 a higher standard for streets
or roads in a subdivision than the county imposes on itself for the
construction of new streets or roads with a similar type and amount
of traffic.
SECTION 3. Section 232.022(d), Local Government Code, is
amended to read as follows:
(d) This subchapter does not apply if:
(1) all [each] of the lots of the subdivision are more
than [is] 10 [or more] acres; and
(2) restrictions are included in each deed that
prohibit each lot from being further subdivided into lots intended
to be used for residential purposes and notice of the restrictions
are included in each recorded plat.
SECTION 4. Section 232.023, Local Government Code, is
amended by amending Subsection (a) and adding Subsection (a-1) to
read as follows:
(a) A subdivider of land must have a plat of the subdivision
prepared if at least one of the lots of the subdivision is five
acres or less. A commissioners court by order may require each
subdivider of land to prepare a plat if at least one of the lots of a
subdivision is more than five acres but not more than 10 acres.
(a-1) A subdivision of a tract under this section
[subsection] includes a subdivision of real property by any method
of conveyance, including a contract for deed, oral contract,
contract of sale, or other type of executory contract, regardless
of whether the subdivision is made by using a metes and bounds
description.
SECTION 5. Subchapter B, Chapter 232, Local Government
Code, is amended by adding Section 232.0315 to read as follows:
Sec. 232.0315. NOTICE OF WATER AND WASTEWATER REQUIREMENTS
BY COUNTIES. (a) This section applies only to a county that sells:
(1) under Section 34.01, Tax Code, real property
presumed to be for residential use under Section 232.022; or
(2) under Section 3, Part VI, Texas Rules of Civil
Procedure, and Chapter 34, Civil Practice and Remedies Code, real
property presumed to be for residential use under Section 232.022,
taken by virtue of a writ of execution.
(b) A county shall include in the public notice of sale of
the property and the deed conveying the property a statement
substantially similar to the following:
"THIS SALE IS BEING CONDUCTED PURSUANT TO STATUTORY OR
JUDICIAL REQUIREMENTS. ______ (NAME OF COUNTY) AND THE SHERIFF'S
DEPARTMENT ARE ACTING ONLY AS CONDUITS OF INFORMATION. BIDDERS
WILL BID ON THE RIGHTS, TITLE, AND INTERESTS, IF ANY, IN THE REAL
PROPERTY OFFERED.
"THE PROPERTY IS SOLD AS IS, WHERE IS, AND WITHOUT ANY
WARRANTY, EITHER EXPRESS OR IMPLIED. NEITHER THE COUNTY NOR THE
SHERIFF'S DEPARTMENT WARRANTS OR MAKES ANY REPRESENTATIONS ABOUT
THE PROPERTY'S TITLE, CONDITION, HABITABILITY, MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE. BUYERS ASSUME ALL RISKS.
"IN SOME SITUATIONS, A LOT OF FIVE ACRES OR LESS IS PRESUMED
TO BE INTENDED FOR RESIDENTIAL USE. HOWEVER, IF THE PROPERTY LACKS
WATER OR WASTEWATER SERVICE, THE PROPERTY MAY NOT QUALIFY FOR
RESIDENTIAL USE. A POTENTIAL BUYER WHO WOULD LIKE MORE INFORMATION
SHOULD MAKE ADDITIONAL INQUIRIES OR CONSULT WITH PRIVATE COUNSEL."
(c) The statement required by Subsection (b) must be:
(1) printed:
(A) in accordance with the language requirements
of Section 232.025; and
(B) in 14-point boldface type or 14-point
uppercase typewritten letters; and
(2) read aloud at the sale, in accordance with the
language requirements of Section 232.025, by an agent of the
county.
(d) A sale conducted in violation of this section is void.
SECTION 6. Section 232.037, Local Government Code, is
amended by amending Subsection (a) and adding Subsection (e) to
read as follows:
(a) The attorney general, or the district attorney,
criminal district attorney, county attorney with felony
responsibilities, or county attorney of the county may take any
action necessary in a court of competent jurisdiction on behalf of
the state, an affected county subject to this subchapter, or
affected [on behalf of] residents to:
(1) enjoin the violation or threatened violation of
the model rules adopted under Section 16.343, Water Code;
(2) enjoin the violation or threatened violation of a
requirement of this subchapter or a rule adopted by the
commissioners court under this subchapter;
(3) recover civil or criminal penalties, attorney's
fees, litigation costs, and investigation costs; [and]
(4) require platting or replatting under Section
232.040;
(5) recover funds paid to the subdivider or an agent of
the subdivider, with interest;
(6) freeze the assets of the subdivider or an agent of
the subdivider; and
(7) void or rescind contracts.
(e) If the state or a county is a party to the claim, funds
recovered under Subsection (a)(5) must be divided between the
affected residents and the governmental entity or entities, with 50
percent of the recovery to be paid to the affected residents and the
other 50 percent to be paid to the governmental entity or entities.
Multiple governmental entities that are party to the claim must
divide money received under this subsection equally among the
entities.
SECTION 7. Section 232.072, Local Government Code, is
amended by amending Subsection (a) and adding Subsection (a-1) to
read as follows:
(a) The owner of a tract of land that divides the tract in
any manner that creates lots of five acres or less intended for
residential purposes must have a plat of the subdivision prepared.
A commissioners court by order may require each subdivider of land
to prepare a plat if at least one of the lots of a subdivision is
more than five acres but not more than 10 acres.
(a-1) A subdivision of a tract under this section includes a
subdivision of real property by any method of conveyance, including
a contract for deed, oral contract, contract of sale, or other type
of executory contract, regardless of whether the subdivision is
made by using a metes and bounds description.
SECTION 8. Subchapter C, Chapter 232, Local Government
Code, is amended by adding Section 232.0805 to read as follows:
Sec. 232.0805. SUIT BY PRIVATE PERSON IN ECONOMICALLY
DISTRESSED AREA. A person who has purchased or is purchasing a lot
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 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 to return the purchase price of the property, and
recover from the subdivider:
(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 232.072, require the subdivider to plat or amend or replat
an existing plat under Section 232.011 or 232.081, and recover from
the subdivider:
(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 9. Section 233.151, Local Government Code, is
amended to read as follows:
Sec. 233.151. DEFINITIONS. (a) In this subchapter:
(1) "New[, "new] residential construction" includes:
(A) [(1) residential] construction of a
residential dwelling [single-family house or duplex] on a vacant
lot; and
(B) [(2)] construction of an addition to an
existing residential dwelling or unit of a residential dwelling
[single-family house or duplex], if the addition will increase the
square footage or value of the existing residential dwelling or
unit, as applicable, [building] by more than 50 percent.
(2) "Residential dwelling" means a building
containing one to three individual units to be occupied for
residential purposes by one or more individuals and includes a
single-family dwelling, duplex, or triplex.
(b) The term "new residential construction" does not
include a structure that is constructed in accordance with Chapter
1201, Occupations Code, or a modular home constructed in accordance
with Chapter 1202, Occupations Code.
SECTION 10. Section 233.153, Local Government Code, is
amended to read as follows:
Sec. 233.153. BUILDING CODE STANDARDS APPLICABLE. (a) The
commissioners court of a county by order may require new [New]
residential construction [of a single-family house or duplex] in
the unincorporated area of the [a] county to [which this subchapter
applies shall] conform to the version of the International
Residential Code published as of May 1, 2008, or the version of the
International Residential Code that is applicable in the county
seat of that county.
(b) Standards required under this subchapter apply only to
new residential construction that begins after September 1, 2011
[2009].
(c) If a municipality located within a county to which this
subchapter applies has adopted a building code in the
municipality's extraterritorial jurisdiction, the building code
adopted by the municipality controls and building code standards
under this subchapter have no effect in the municipality's
extraterritorial jurisdiction, provided that the municipality:
(1) actively and diligently enforces the
municipality's adopted building code within its extraterritorial
jurisdiction; and
(2) establishes a process to inform utilities
providing service in the municipality's extraterritorial
jurisdiction of the prevailing building code.
(d) This subchapter may not be construed to:
(1) [require prior approval by the county before the
beginning of new residential construction;
[(2)] authorize the commissioners court of a county to
adopt or enforce zoning regulations; or
(2) [(3)] affect the application of the provisions of
Subchapter B, Chapter 232, to land development.
(e) In the event of a conflict between this subchapter and
Subchapter B, Chapter 232, the more stringent requirements
[provisions of Subchapter B, Chapter 232,] control.
[(f) A county may not charge a fee to a person subject to
standards under this subchapter to defray the costs of enforcing
the standards.]
SECTION 11. Subchapter F, Chapter 233, Local Government
Code, is amended by adding Section 233.1531 to read as follows:
Sec. 233.1531. BUILDING PERMITS. (a) The commissioners
court of a county to which this subchapter applies may, by order,
establish a building permit requirement to promote safe and uniform
building, plumbing, and electrical standards and to enforce the
building codes the county has adopted. If a commissioners court
adopts an order to establish a building permit requirement, the
county shall establish a mechanism by which the county issues a
building permit if the person submitting the application for the
permit:
(1) files information relating to the location of the
residence;
(2) files the building plans for the residence; and
(3) complies with the applicable regulations relating
to the issuance of the permit.
(b) A county may adopt rules it considers necessary to
administer its duties under this section and charge a reasonable
fee, not to exceed $500 per application, to defray the costs of
administering its duties under this section.
(c) The county shall deposit fees collected under this
section in an account in its general fund and dedicate the fees to
the building permit program. The funds in the account may be used
only for the purpose of administering the building permit program.
SECTION 12. Section 233.154(a), Local Government Code, is
amended to read as follows:
(a) A person who builds new residential construction
[described by Section 233.153] shall have the construction
inspected to ensure building code compliance in accordance with
this section as follows:
(1) for new residential construction on a vacant lot,
the following [a minimum of three] inspections must be performed
during the construction project to ensure code compliance, as
applicable, at the following stages of construction:
(A) the foundation stage, including [before] the
placement of concrete;
(B) the framing, electrical, plumbing, and
mechanical systems stage, before covering with drywall or other
interior wall covering; and
(C) on completion of the new residential
construction [of the residence];
(2) for new residential construction of an addition to
an existing residential dwelling [residence] as described by
Section 233.151(a)(1)(B) [233.151(a)(2)], the inspections under
Subdivision (1) must be performed as necessary based on the scope of
work of the construction project; and
(3) for new residential construction on a vacant lot
and for construction of an addition to an existing residential
dwelling [residence], the builder:
(A) is responsible for contracting to perform the
inspections required by this subsection with an inspector certified
by the International Code Council in the discipline[:
[(i) a licensed engineer;
[(ii) a registered architect;
[(iii) a professional inspector licensed by
the Texas Real Estate Commission;
[(iv) a plumbing inspector employed by a
municipality and licensed by the Texas State Board of Plumbing
Examiners;
[(v) a building inspector employed by a
political subdivision; or
[(vi) an individual certified as a
residential combination inspector by the International Code
Council]; and
(B) may use the same inspector for all the
required inspections or a different inspector for each required
inspection.
SECTION 13. Subchapter F, Chapter 233, Local Government
Code, is amended by adding Section 233.1541 to read as follows:
Sec. 233.1541. OCCUPANCY OF RESIDENCE; CONNECTION OF
UTILITIES. (a) A utility may not serve or connect a residential
dwelling or unit of a residential dwelling with water, sewer,
electricity, or gas service unless the entity receives a
determination from the commissioners court that the residential
dwelling or unit:
(1) has been inspected in accordance with this
subchapter;
(2) has passed all inspections required by this
subchapter; and
(3) complies with applicable on-site sewage
regulations.
(b) The commissioners court shall:
(1) make the determination under Subsection (a) not
later than the 20th regular business day after the date it receives
a request for a determination;
(2) issue the certificate of determination of
inspection, if appropriate, not later than the 10th day after the
date the determination is made; and
(3) provide a certificate of occupancy, or other
relevant authorizing certificate, to a utility as proof of
compliance with required building codes.
SECTION 14. Section 233.155, Local Government Code, is
amended to read as follows:
Sec. 233.155. ENFORCEMENT OF STANDARDS. (a) If proper
notice is not submitted in accordance with Sections 233.154(b) and
(c), the county may take any or all of the following actions:
(1) refer the inspector to the appropriate regulatory
authority for discipline;
(2) in a suit brought by the appropriate attorney
representing the county in the district court, obtain appropriate
injunctive relief to prevent a violation or threatened violation of
a standard or notice required under this subchapter from continuing
or occurring; or
(3) refer the builder for prosecution under Section
233.157.
(b) The attorney general, or the district attorney,
criminal district attorney, county attorney with felony
responsibility, or county attorney of the county may take any
action necessary in a court of competent jurisdiction on behalf of
the state or on behalf of residents to:
(1) enjoin the violation or threatened violation of a
requirement of this subchapter or an order, rule, or standard
adopted by the commissioners court under this subchapter;
(2) recover civil or criminal penalties, attorney's
fees, litigation costs, and investigative costs;
(3) require correction of the noncomplying
conditions; and
(4) recover actual expenses incurred by the owner of
the residential dwelling as a result of the failure to build in
accordance with the adopted standards or take corrective actions.
(c) The attorney general, at the request of the district or
county attorney with jurisdiction, may conduct a criminal
prosecution under Section 233.157.
(d) During the pendency of any enforcement action brought,
any resident of an affected residential dwelling, or the attorney
general, district attorney, or county attorney on behalf of the
resident, may file a motion against the provider of utilities to
halt termination of pre-existing utility services. The services
may not be terminated if the court makes an affirmative finding
after hearing the motion that termination poses a threat to public
health, safety, or welfare of the resident.
(e) This section does not prohibit a utility from
disconnecting service without prior notice when a known dangerous
condition exists for as long as the condition exists. A disconnect
without notice shall be performed pursuant to rules approved by the
appropriate regulatory authority.
SECTION 15. Section 233.157, Local Government Code, is
amended to read as follows:
Sec. 233.157. OFFENSES; PENALTY; EXCEPTION. (a) A person
commits an offense if the person fails to provide proper notice in
accordance with Section 233.154 [Sections 233.154(b) and (c)].
(b) A person commits an offense if the person violates a
rule or order adopted under this subchapter.
(c) A person commits an offense if the person constructs new
residential construction that does not comply with a standard
adopted under this subchapter.
(d) Except as provided by Subsection (e), an [An] offense
under this section is a Class C misdemeanor.
(e) If it is shown at trial of an offense that the defendant
has previously been convicted of an offense three or more times
under this subchapter, the offense is a Class B misdemeanor.
(f) Venue for prosecution for a violation under this section
is in the county in which any element of the violation is alleged to
have occurred or in Travis County.
(g) It is an exception to the application of this section:
(1) that the residential dwelling or unit was
constructed before the effective date of this subchapter; or
(2) that:
(A) the person is an owner-occupant of a
residential dwelling or unit of a residential dwelling that is
classified by the Texas Department of Housing and Community Affairs
as a low-income household;
(B) the violation related to a building standard
or building code for that dwelling or unit; and
(C) the county:
(i) did not make available to the person a
grant or loan in an amount sufficient to cure the violation; or
(ii) made available to the person a loan
that was sufficient to cure the violation but that caused the
housing expenses of the person to exceed 30 percent of the person's
net income.
[(c) An individual who fails to provide proper notice in
accordance with Sections 233.154(b) and (c) is not subject to a
penalty under this subsection if:
[(1) the new residential construction is built by the
individual or the individual acts as the individual's own
contractor; and
[(2) the individual intends to use the residence as
the individual's primary residence.]
SECTION 16. Subchapter F, Chapter 233, Local Government
Code, is amended by adding Section 233.158 to read as follows:
Sec. 233.158. PROHIBITION ON USE OF STATE MONEY TO
REMEDIATE OR SUBSIDIZE SUBSTANDARD HOUSING. A county may not apply
for or receive state money to remediate or mitigate deficiencies in
substandard housing that are associated with new residential
construction commenced on or after September 1, 2011, unless the
county has adopted an order under Section 233.153(a) and is
enforcing the provisions of this subchapter.
SECTION 17. Section 16.343(g), Water Code, is amended to
read as follows:
(g) Before an application for funds under Section 15.407 or
Subchapter P, Chapter 15, or Subchapter K, Chapter 17, may be
considered by the board, if the area for which the funds are
proposed to be used is located:
(1) in a municipality, the municipality must adopt and
enforce the model rules pursuant to this section;
(2) in the extraterritorial jurisdiction of a
municipality, the applicant must demonstrate that the model rules
have been adopted and are enforced in the extraterritorial
jurisdiction by either the municipality or the county; or
(3) outside the extraterritorial jurisdiction of a
municipality:
(A) the county must adopt and enforce the model
rules pursuant to this section; and
(B) the applicant must demonstrate that the
county has complied with Paragraph (A) [a political subdivision
must adopt the model rules pursuant to this section. If the
applicant is a district, nonprofit water supply corporation, or
colonia, the applicant must be located in a city or county that has
adopted such rules. Applicants for funds under Section 15.407 or
Subchapter P, Chapter 15, or Subchapter K, Chapter 17, may not
receive funds under those provisions unless the applicable
political subdivision adopts and enforces the model rules].
SECTION 18. Section 232.0315, Local Government Code, as
added by this Act, applies only to a sale for which public notice is
required on or after the effective date of this Act. A sale for
which public notice is required before the effective date of this
Act is covered by the law in effect when the public notice was
provided, and the former law is continued in effect for that
purpose.
SECTION 19. The changes in law made by this Act to Sections
232.022, 232.023, and 232.072, Local Government Code, apply only to
a subdivision plat application submitted for approval on or after
the effective date of this Act. A subdivision plat application
submitted for approval before the effective date of this Act is
governed by the law in effect when the application was submitted,
and the former law is continued in effect for that purpose.
SECTION 20. A county is not required to adopt an order to be
eligible for state money as required by Section 233.158, Local
Government Code, as added by this Act, until September 1, 2012.
SECTION 21. This Act takes effect September 1, 2011.
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