Texas 2011 - 82nd Regular

Texas House Bill HB1604 Compare Versions

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1	1	By: Guillen, Raymond (Senate Sponsor - Lucio) H.B. No. 1604
2	2	(In the Senate - Received from the House May 6, 2011;
3	3	May 9, 2011, read first time and referred to Committee on
4	4	International Relations and Trade; May 21, 2011, reported
5	5	adversely, with favorable Committee Substitute by the following
6	6	vote: Yeas 4, Nays 0; May 21, 2011, sent to printer.)
7	7	COMMITTEE SUBSTITUTE FOR H.B. No. 1604 By: Lucio
8	8
9	9
10	10	A BILL TO BE ENTITLED
11	11	AN ACT
12	12	relating to the regulation of land development, including county
13	13	building code standards for new residential construction, and sales
14	14	in certain counties and municipalities; providing penalties.
15	15	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
16	16	SECTION 1. The purpose of the changes to Section 232.037,
17	17	Local Government Code, is to allow the state and certain counties to
18	18	be affected parties in claims against unscrupulous developers who
19	19	violate subdivision platting requirements under Subchapter B,
20	20	Chapter 232, Local Government Code, because the state and counties
21	21	may reasonably be expected to mitigate or ameliorate the conditions
22	22	created by those developers.
23	23	SECTION 2. Section 232.0031, Local Government Code, is
24	24	amended to read as follows:
25	25	Sec. 232.0031. STANDARD FOR ROADS IN SUBDIVISION. A county
26	26	may not impose under Section 232.003 a higher standard for streets
27	27	or roads in a subdivision than the county imposes on itself for the
28	28	construction of new streets or roads with a similar type and amount
29	29	of traffic.
30	30	SECTION 3. Section 232.022(d), Local Government Code, is
31	31	amended to read as follows:
32	32	(d) This subchapter does not apply if:
33	33	(1) all [each] of the lots of the subdivision are more
34	34	than [is] 10 [or more] acres; and
35	35	(2) restrictions are included in each deed that
36	36	prohibit each lot from being further subdivided into lots intended
37	37	to be used for residential purposes and notice of the restrictions
38	38	are included in each recorded plat.
39	39	SECTION 4. Section 232.023, Local Government Code, is
40	40	amended by amending Subsection (a) and adding Subsection (a-1) to
41	41	read as follows:
42	42	(a) A subdivider of land must have a plat of the subdivision
43	43	prepared if at least one of the lots of the subdivision is five
44	44	acres or less. A commissioners court by order may require each
45	45	subdivider of land to prepare a plat if at least one of the lots of a
46	46	subdivision is more than five acres but not more than 10 acres.
47	47	(a-1) A subdivision of a tract under this section
48	48	[subsection] includes a subdivision of real property by any method
49	49	of conveyance, including a contract for deed, oral contract,
50	50	contract of sale, or other type of executory contract, regardless
51	51	of whether the subdivision is made by using a metes and bounds
52	52	description.
53	53	SECTION 5. Subchapter B, Chapter 232, Local Government
54	54	Code, is amended by adding Section 232.0315 to read as follows:
55	55	Sec. 232.0315. NOTICE OF WATER AND WASTEWATER REQUIREMENTS
56	56	BY COUNTIES. (a) This section applies only to a county that sells:
57	57	(1) under Section 34.01, Tax Code, real property
58	58	presumed to be for residential use under Section 232.022; or
59	59	(2) under Section 3, Part VI, Texas Rules of Civil
60	60	Procedure, and Chapter 34, Civil Practice and Remedies Code, real
61	61	property presumed to be for residential use under Section 232.022,
62	62	taken by virtue of a writ of execution.
63	63	(b) A county shall include in the public notice of sale of
64	64	the property and the deed conveying the property a statement
65	65	substantially similar to the following:
66	66	"THIS SALE IS BEING CONDUCTED PURSUANT TO STATUTORY OR
67	67	JUDICIAL REQUIREMENTS. ______ (NAME OF COUNTY) AND THE SHERIFF'S
68	68	DEPARTMENT ARE ACTING ONLY AS CONDUITS OF INFORMATION. BIDDERS
69	69	WILL BID ON THE RIGHTS, TITLE, AND INTERESTS, IF ANY, IN THE REAL
70	70	PROPERTY OFFERED.
71	71	"THE PROPERTY IS SOLD AS IS, WHERE IS, AND WITHOUT ANY
72	72	WARRANTY, EITHER EXPRESS OR IMPLIED. NEITHER THE COUNTY NOR THE
73	73	SHERIFF'S DEPARTMENT WARRANTS OR MAKES ANY REPRESENTATIONS ABOUT
74	74	THE PROPERTY'S TITLE, CONDITION, HABITABILITY, MERCHANTABILITY, OR
75	75	FITNESS FOR A PARTICULAR PURPOSE. BUYERS ASSUME ALL RISKS.
76	76	"IN SOME SITUATIONS, A LOT OF FIVE ACRES OR LESS IS PRESUMED
77	77	TO BE INTENDED FOR RESIDENTIAL USE. HOWEVER, IF THE PROPERTY LACKS
78	78	WATER OR WASTEWATER SERVICE, THE PROPERTY MAY NOT QUALIFY FOR
79	79	RESIDENTIAL USE. A POTENTIAL BUYER WHO WOULD LIKE MORE INFORMATION
80	80	SHOULD MAKE ADDITIONAL INQUIRIES OR CONSULT WITH PRIVATE COUNSEL."
81	81	(c) The statement required by Subsection (b) must be:
82	82	(1) printed:
83	83	(A) in accordance with the language requirements
84	84	of Section 232.025; and
85	85	(B) in 14-point boldface type or 14-point
86	86	uppercase typewritten letters; and
87	87	(2) read aloud at the sale, in accordance with the
88	88	language requirements of Section 232.025, by an agent of the
89	89	county.
90	90	(d) A sale conducted in violation of this section is void.
91	91	SECTION 6. Section 232.037, Local Government Code, is
92	92	amended by amending Subsection (a) and adding Subsection (e) to
93	93	read as follows:
94	94	(a) The attorney general, or the district attorney,
95	95	criminal district attorney, county attorney with felony
96	96	responsibilities, or county attorney of the county may take any
97	97	action necessary in a court of competent jurisdiction on behalf of
98	98	the state, an affected county subject to this subchapter, or
99	99	affected [on behalf of] residents to:
100	100	(1) enjoin the violation or threatened violation of
101	101	the model rules adopted under Section 16.343, Water Code;
102	102	(2) enjoin the violation or threatened violation of a
103	103	requirement of this subchapter or a rule adopted by the
104	104	commissioners court under this subchapter;
105	105	(3) recover civil or criminal penalties, attorney's
106	106	fees, litigation costs, and investigation costs; [and]
107	107	(4) require platting or replatting under Section
108	108	232.040;
109	109	(5) recover funds paid to the subdivider or an agent of
110	110	the subdivider, with interest;
111	111	(6) freeze the assets of the subdivider or an agent of
112	112	the subdivider; and
113	113	(7) void or rescind contracts.
114	114	(e) If the state or a county is a party to the claim, funds
115	115	recovered under Subsection (a)(5) must be divided between the
116	116	affected residents and the governmental entity or entities, with 50
117	117	percent of the recovery to be paid to the affected residents and the
118	118	other 50 percent to be paid to the governmental entity or entities.
119	119	Multiple governmental entities that are party to the claim must
120	120	divide money received under this subsection equally among the
121	121	entities.
122	122	SECTION 7. Section 232.072, Local Government Code, is
123	123	amended by amending Subsection (a) and adding Subsection (a-1) to
124	124	read as follows:
125	125	(a) The owner of a tract of land that divides the tract in
126	126	any manner that creates lots of five acres or less intended for
127	127	residential purposes must have a plat of the subdivision prepared.
128	128	A commissioners court by order may require each subdivider of land
129	129	to prepare a plat if at least one of the lots of a subdivision is
130	130	more than five acres but not more than 10 acres.
131	131	(a-1) A subdivision of a tract under this section includes a
132	132	subdivision of real property by any method of conveyance, including
133	133	a contract for deed, oral contract, contract of sale, or other type
134	134	of executory contract, regardless of whether the subdivision is
135	135	made by using a metes and bounds description.
136	136	SECTION 8. Subchapter C, Chapter 232, Local Government
137	137	Code, is amended by adding Section 232.0805 to read as follows:
138	138	Sec. 232.0805. SUIT BY PRIVATE PERSON IN ECONOMICALLY
139	139	DISTRESSED AREA. A person who has purchased or is purchasing a lot
140	140	in a subdivision for residential purposes that does not have water
141	141	and sewer services as required by this subchapter and is located in
142	142	an economically distressed area, as defined by Section 17.921,
143	143	Water Code, from a subdivider may bring suit in the district court
144	144	in which the property is located or in a district court in Travis
145	145	County to:
146	146	(1) declare the sale of the property void, require the
147	147	subdivider to return the purchase price of the property, and
148	148	recover from the subdivider:
149	149	(A) the market value of any permanent
150	150	improvements the person placed on the property;
151	151	(B) actual expenses incurred as a direct result
152	152	of the failure to provide adequate water and sewer facilities;
153	153	(C) court costs; and
154	154	(D) reasonable attorney's fees; or
155	155	(2) enjoin a violation or threatened violation of
156	156	Section 232.072, require the subdivider to plat or amend or replat
157	157	an existing plat under Section 232.011 or 232.081, and recover from
158	158	the subdivider:
159	159	(A) actual expenses incurred as a direct result
160	160	of the failure to provide adequate water and sewer facilities;
161	161	(B) court costs; and
162	162	(C) reasonable attorney's fees.
163	163	SECTION 9. Section 233.151, Local Government Code, is
164	164	amended to read as follows:
165	165	Sec. 233.151. DEFINITIONS. (a) In this subchapter:
166	166	(1) "New[, "new] residential construction" includes:
167	167	(A) [(1) residential] construction of a
168	168	residential dwelling [single-family house or duplex] on a vacant
169	169	lot; and
170	170	(B) [(2)] construction of an addition to an
171	171	existing residential dwelling or unit of a residential dwelling
172	172	[single-family house or duplex], if the addition will increase the
173	173	square footage or value of the existing residential dwelling or
174	174	unit, as applicable, [building] by more than 50 percent.
175	175	(2) "Residential dwelling" means a building
176	176	containing one to three individual units to be occupied for
177	177	residential purposes by one or more individuals and includes a
178	178	single-family dwelling, duplex, or triplex.
179	179	(b) The term "new residential construction" does not
180	180	include a structure that is constructed in accordance with Chapter
181	181	1201, Occupations Code, or a modular home constructed in accordance
182	182	with Chapter 1202, Occupations Code.
183	183	SECTION 10. Section 233.153, Local Government Code, is
184	184	amended to read as follows:
185	185	Sec. 233.153. BUILDING CODE STANDARDS APPLICABLE. (a) The
186	186	commissioners court of a county by order may require new [New]
187	187	residential construction [of a single-family house or duplex] in
188	188	the unincorporated area of the [a] county to [which this subchapter
189	189	applies shall] conform to the version of the International
190	190	Residential Code published as of May 1, 2008, or the version of the
191	191	International Residential Code that is applicable in the county
192	192	seat of that county.
193	193	(b) Standards required under this subchapter apply only to
194	194	new residential construction that begins after September 1, 2011
195	195	[2009].
196	196	(c) If a municipality located within a county to which this
197	197	subchapter applies has adopted a building code in the
198	198	municipality's extraterritorial jurisdiction, the building code
199	199	adopted by the municipality controls and building code standards
200	200	under this subchapter have no effect in the municipality's
201	201	extraterritorial jurisdiction, provided that the municipality:
202	202	(1) actively and diligently enforces the
203	203	municipality's adopted building code within its extraterritorial
204	204	jurisdiction; and
205	205	(2) establishes a process to inform utilities
206	206	providing service in the municipality's extraterritorial
207	207	jurisdiction of the prevailing building code.
208	208	(d) This subchapter may not be construed to:
209	209	(1) [require prior approval by the county before the
210	210	beginning of new residential construction;
211	211	[(2)] authorize the commissioners court of a county to
212	212	adopt or enforce zoning regulations; or
213	213	(2) [(3)] affect the application of the provisions of
214	214	Subchapter B, Chapter 232, to land development.
215	215	(e) In the event of a conflict between this subchapter and
216	216	Subchapter B, Chapter 232, the more stringent requirements
217	217	[provisions of Subchapter B, Chapter 232,] control.
218	218	[(f) A county may not charge a fee to a person subject to
219	219	standards under this subchapter to defray the costs of enforcing
220	220	the standards.]
221	221	SECTION 11. Subchapter F, Chapter 233, Local Government
222	222	Code, is amended by adding Section 233.1531 to read as follows:
223	223	Sec. 233.1531. BUILDING PERMITS. (a) The commissioners
224	224	court of a county to which this subchapter applies may, by order,
225	225	establish a building permit requirement to promote safe and uniform
226	226	building, plumbing, and electrical standards and to enforce the
227	227	building codes the county has adopted. If a commissioners court
228	228	adopts an order to establish a building permit requirement, the
229	229	county shall establish a mechanism by which the county issues a
230	230	building permit if the person submitting the application for the
231	231	permit:
232	232	(1) files information relating to the location of the
233	233	residence;
234	234	(2) files the building plans for the residence; and
235	235	(3) complies with the applicable regulations relating
236	236	to the issuance of the permit.
237	237	(b) A county may adopt rules it considers necessary to
238	238	administer its duties under this section and charge a reasonable
239	239	fee, not to exceed $500 per application, to defray the costs of
240	240	administering its duties under this section.
241	241	(c) The county shall deposit fees collected under this
242	242	section in an account in its general fund and dedicate the fees to
243	243	the building permit program. The funds in the account may be used
244	244	only for the purpose of administering the building permit program.
245	245	SECTION 12. Section 233.154(a), Local Government Code, is
246	246	amended to read as follows:
247	247	(a) A person who builds new residential construction
248	248	[described by Section 233.153] shall have the construction
249	249	inspected to ensure building code compliance in accordance with
250	250	this section as follows:
251	251	(1) for new residential construction on a vacant lot,
252	252	the following [a minimum of three] inspections must be performed
253	253	during the construction project to ensure code compliance, as
254	254	applicable, at the following stages of construction:
255	255	(A) the foundation stage, including [before] the
256	256	placement of concrete;
257	257	(B) the framing, electrical, plumbing, and
258	258	mechanical systems stage, before covering with drywall or other
259	259	interior wall covering; and
260	260	(C) on completion of the new residential
261	261	construction [of the residence];
262	262	(2) for new residential construction of an addition to
263	263	an existing residential dwelling [residence] as described by
264	264	Section 233.151(a)(1)(B) [233.151(a)(2)], the inspections under
265	265	Subdivision (1) must be performed as necessary based on the scope of
266	266	work of the construction project; and
267	267	(3) for new residential construction on a vacant lot
268	268	and for construction of an addition to an existing residential
269	269	dwelling [residence], the builder:
270	270	(A) is responsible for contracting to perform the
271	271	inspections required by this subsection with an inspector certified
272	272	by the International Code Council in the discipline[:
273	273	[(i) a licensed engineer;
274	274	[(ii) a registered architect;
275	275	[(iii) a professional inspector licensed by
276	276	the Texas Real Estate Commission;
277	277	[(iv) a plumbing inspector employed by a
278	278	municipality and licensed by the Texas State Board of Plumbing
279	279	Examiners;
280	280	[(v) a building inspector employed by a
281	281	political subdivision; or
282	282	[(vi) an individual certified as a
283	283	residential combination inspector by the International Code
284	284	Council]; and
285	285	(B) may use the same inspector for all the
286	286	required inspections or a different inspector for each required
287	287	inspection.
288	288	SECTION 13. Subchapter F, Chapter 233, Local Government
289	289	Code, is amended by adding Section 233.1541 to read as follows:
290	290	Sec. 233.1541. OCCUPANCY OF RESIDENCE; CONNECTION OF
291	291	UTILITIES. (a) A utility may not serve or connect a residential
292	292	dwelling or unit of a residential dwelling with water, sewer,
293	293	electricity, or gas service unless the entity receives a
294	294	determination from the commissioners court that the residential
295	295	dwelling or unit:
296	296	(1) has been inspected in accordance with this
297	297	subchapter;
298	298	(2) has passed all inspections required by this
299	299	subchapter; and
300	300	(3) complies with applicable on-site sewage
301	301	regulations.
302	302	(b) The commissioners court shall:
303	303	(1) make the determination under Subsection (a) not
304	304	later than the 20th regular business day after the date it receives
305	305	a request for a determination;
306	306	(2) issue the certificate of determination of
307	307	inspection, if appropriate, not later than the 10th day after the
308	308	date the determination is made; and
309	309	(3) provide a certificate of occupancy, or other
310	310	relevant authorizing certificate, to a utility as proof of
311	311	compliance with required building codes.
312	312	SECTION 14. Section 233.155, Local Government Code, is
313	313	amended to read as follows:
314	314	Sec. 233.155. ENFORCEMENT OF STANDARDS. (a) If proper
315	315	notice is not submitted in accordance with Sections 233.154(b) and
316	316	(c), the county may take any or all of the following actions:
317	317	(1) refer the inspector to the appropriate regulatory
318	318	authority for discipline;
319	319	(2) in a suit brought by the appropriate attorney
320	320	representing the county in the district court, obtain appropriate
321	321	injunctive relief to prevent a violation or threatened violation of
322	322	a standard or notice required under this subchapter from continuing
323	323	or occurring; or
324	324	(3) refer the builder for prosecution under Section
325	325	233.157.
326	326	(b) The attorney general, or the district attorney,
327	327	criminal district attorney, county attorney with felony
328	328	responsibility, or county attorney of the county may take any
329	329	action necessary in a court of competent jurisdiction on behalf of
330	330	the state or on behalf of residents to:
331	331	(1) enjoin the violation or threatened violation of a
332	332	requirement of this subchapter or an order, rule, or standard
333	333	adopted by the commissioners court under this subchapter;
334	334	(2) recover civil or criminal penalties, attorney's
335	335	fees, litigation costs, and investigative costs;
336	336	(3) require correction of the noncomplying
337	337	conditions; and
338	338	(4) recover actual expenses incurred by the owner of
339	339	the residential dwelling as a result of the failure to build in
340	340	accordance with the adopted standards or take corrective actions.
341	341	(c) The attorney general, at the request of the district or
342	342	county attorney with jurisdiction, may conduct a criminal
343	343	prosecution under Section 233.157.
344	344	(d) During the pendency of any enforcement action brought,
345	345	any resident of an affected residential dwelling, or the attorney
346	346	general, district attorney, or county attorney on behalf of the
347	347	resident, may file a motion against the provider of utilities to
348	348	halt termination of pre-existing utility services. The services
349	349	may not be terminated if the court makes an affirmative finding
350	350	after hearing the motion that termination poses a threat to public
351	351	health, safety, or welfare of the resident.
352	352	(e) This section does not prohibit a utility from
353	353	disconnecting service without prior notice when a known dangerous
354	354	condition exists for as long as the condition exists. A disconnect
355	355	without notice shall be performed pursuant to rules approved by the
356	356	appropriate regulatory authority.
357	357	SECTION 15. Section 233.157, Local Government Code, is
358	358	amended to read as follows:
359	359	Sec. 233.157. OFFENSES; PENALTY; EXCEPTION. (a) A person
360	360	commits an offense if the person fails to provide proper notice in
361	361	accordance with Section 233.154 [Sections 233.154(b) and (c)].
362	362	(b) A person commits an offense if the person violates a
363	363	rule or order adopted under this subchapter.
364	364	(c) A person commits an offense if the person constructs new
365	365	residential construction that does not comply with a standard
366	366	adopted under this subchapter.
367	367	(d) Except as provided by Subsection (e), an [An] offense
368	368	under this section is a Class C misdemeanor.
369	369	(e) If it is shown at trial of an offense that the defendant
370	370	has previously been convicted of an offense three or more times
371	371	under this subchapter, the offense is a Class B misdemeanor.
372	372	(f) Venue for prosecution for a violation under this section
373	373	is in the county in which any element of the violation is alleged to
374	374	have occurred or in Travis County.
375	375	(g) It is an exception to the application of this section:
376	376	(1) that the residential dwelling or unit was
377	377	constructed before the effective date of this subchapter; or
378	378	(2) that:
379	379	(A) the person is an owner-occupant of a
380	380	residential dwelling or unit of a residential dwelling that is
381	381	classified by the Texas Department of Housing and Community Affairs
382	382	as a low-income household;
383	383	(B) the violation related to a building standard
384	384	or building code for that dwelling or unit; and
385	385	(C) the county:
386	386	(i) did not make available to the person a
387	387	grant or loan in an amount sufficient to cure the violation; or
388	388	(ii) made available to the person a loan
389	389	that was sufficient to cure the violation but that caused the
390	390	housing expenses of the person to exceed 30 percent of the person's
391	391	net income.
392	392	[(c) An individual who fails to provide proper notice in
393	393	accordance with Sections 233.154(b) and (c) is not subject to a
394	394	penalty under this subsection if:
395	395	[(1) the new residential construction is built by the
396	396	individual or the individual acts as the individual's own
397	397	contractor; and
398	398	[(2) the individual intends to use the residence as
399	399	the individual's primary residence.]
400	400	SECTION 16. Subchapter F, Chapter 233, Local Government
401	401	Code, is amended by adding Section 233.158 to read as follows:
402	402	Sec. 233.158. PROHIBITION ON USE OF STATE MONEY TO
403	403	REMEDIATE OR SUBSIDIZE SUBSTANDARD HOUSING. A county may not apply
404	404	for or receive state money to remediate or mitigate deficiencies in
405	405	substandard housing that are associated with new residential
406	406	construction commenced on or after September 1, 2011, unless the
407	407	county has adopted an order under Section 233.153(a) and is
408	408	enforcing the provisions of this subchapter.
409	409	SECTION 17. Section 16.343(g), Water Code, is amended to
410	410	read as follows:
411	411	(g) Before an application for funds under Section 15.407 or
412	412	Subchapter P, Chapter 15, or Subchapter K, Chapter 17, may be
413	413	considered by the board, if the area for which the funds are
414	414	proposed to be used is located:
415	415	(1) in a municipality, the municipality must adopt and
416	416	enforce the model rules pursuant to this section;
417	417	(2) in the extraterritorial jurisdiction of a
418	418	municipality, the applicant must demonstrate that the model rules
419	419	have been adopted and are enforced in the extraterritorial
420	420	jurisdiction by either the municipality or the county; or
421	421	(3) outside the extraterritorial jurisdiction of a
422	422	municipality:
423	423	(A) the county must adopt and enforce the model
424	424	rules pursuant to this section; and
425	425	(B) the applicant must demonstrate that the
426	426	county has complied with Paragraph (A) [a political subdivision
427	427	must adopt the model rules pursuant to this section. If the
428	428	applicant is a district, nonprofit water supply corporation, or
429	429	colonia, the applicant must be located in a city or county that has
430	430	adopted such rules. Applicants for funds under Section 15.407 or
431	431	Subchapter P, Chapter 15, or Subchapter K, Chapter 17, may not
432	432	receive funds under those provisions unless the applicable
433	433	political subdivision adopts and enforces the model rules].
434	434	SECTION 18. Section 232.0315, Local Government Code, as
435	435	added by this Act, applies only to a sale for which public notice is
436	436	required on or after the effective date of this Act. A sale for
437	437	which public notice is required before the effective date of this
438	438	Act is covered by the law in effect when the public notice was
439	439	provided, and the former law is continued in effect for that
440	440	purpose.
441	441	SECTION 19. The changes in law made by this Act to Sections
442	442	232.022, 232.023, and 232.072, Local Government Code, apply only to
443	443	a subdivision plat application submitted for approval on or after
444	444	the effective date of this Act. A subdivision plat application
445	445	submitted for approval before the effective date of this Act is
446	446	governed by the law in effect when the application was submitted,
447	447	and the former law is continued in effect for that purpose.
448	448	SECTION 20. A county is not required to adopt an order to be
449	449	eligible for state money as required by Section 233.158, Local
450	450	Government Code, as added by this Act, until September 1, 2012.
451	451	SECTION 21. This Act takes effect September 1, 2011.
452	452	* * * * *