83R2439 JAM-D
By: Birdwell, Nichols S.B. No. 214
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the Texas Department
of Housing and Community Affairs; authorizing and otherwise
affecting the application of certain fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. GENERAL OPERATIONS AND ADMINISTRATION OF THE TEXAS
DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS
SECTION 1.01. Section 2306.022, Government Code, is amended
to read as follows:
Sec. 2306.022. APPLICATION OF SUNSET ACT. The Texas
Department of Housing and Community Affairs is subject to Chapter
325 (Texas Sunset Act). Unless continued in existence as provided
by that chapter, the department is abolished and this chapter
expires September 1, 2025 [2013].
SECTION 1.02. Section 2306.043(c), Government Code, is
amended to read as follows:
(c) The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a
hearing before the State Office of Administrative Hearings [board]
on the occurrence of the violation, the amount of the penalty, or
both.
SECTION 1.03. Section 2306.044(a), Government Code, is
amended to read as follows:
(a) Not later than the 20th day after the date the person
receives the notice, the person in writing may:
(1) accept the determination and recommended penalty
of the director; or
(2) make a request for a hearing before the State
Office of Administrative Hearings [board] on the occurrence of the
violation, the amount of the penalty, or both.
SECTION 1.04. Section 2306.045, Government Code, is amended
to read as follows:
Sec. 2306.045. HEARING. (a) If the person requests a
hearing before the State Office of Administrative Hearings [board]
or fails to respond in a timely manner to the notice, the director
shall set a hearing and give written notice of the hearing to the
person.
(b) The State Office of Administrative Hearings [board]
shall:
(1) hold the hearing;
(2) [and] make findings of fact and conclusions of law
about the occurrence of the violation and the amount of a proposed
penalty; and
(3) issue a proposal for decision regarding the
penalty and provide notice of the proposal to the board.
(c) Any administrative proceedings relating to the
imposition of a penalty under Section 2306.041 is a contested case
under Chapter 2001.
SECTION 1.05. Section 2306.046(a), Government Code, is
amended to read as follows:
(a) The board shall issue an order after receiving a
proposal for decision from the State Office of Administrative
Hearings under Section 2306.045. [Based on the findings of fact and
conclusions of law, the board by order may:
[(1) find that a violation occurred and impose a
penalty; or
[(2) find that a violation did not occur.]
SECTION 1.06. Section 2306.049(a), Government Code, is
amended to read as follows:
(a) Judicial review of a board order imposing an
administrative penalty is under the substantial evidence rule [by
trial de novo].
SECTION 1.07. Section 2306.6721, Government Code, is
transferred to Subchapter B, Chapter 2306, Government Code,
redesignated as Section 2306.0504, Government Code, and amended to
read as follows:
Sec. 2306.0504 [2306.6721]. DEBARMENT FROM PROGRAM
PARTICIPATION. (a) The board by rule shall adopt a policy
providing for the debarment of a person from participation in
programs administered by the department [the low income housing tax
credit program as described by this section].
(b) The department may debar a person from participation in
a department [the] program on the basis of the person's past failure
to comply with any condition imposed by the department in the
administration of its programs [connection with the allocation of
housing tax credits].
(c) The department shall debar a person from participation
in a department [the] program if the person:
(1) materially or repeatedly violates any condition
imposed by the department in connection with the administration of
a department program, including a material or repeated violation of
a land use restriction agreement regarding a development supported
with a [allocation of] housing tax credit allocation [credits]; or
(2) is debarred from participation in federal housing
programs by the United States Department of Housing and Urban
Development[; or
[(3) is in material noncompliance with or has
repeatedly violated a land use restriction agreement regarding a
development supported with a housing tax credit allocation].
(d) A person debarred by the department from participation
in a department [the] program may appeal the person's debarment to
the board.
ARTICLE 2. LOW INCOME HOUSING TAX CREDIT PROGRAM
SECTION 2.01. Section 2306.6710(b), Government Code, is
amended to read as follows:
(b) If an application satisfies the threshold criteria, the
department shall score and rank the application using a point
system that:
(1) prioritizes in descending order criteria
regarding:
(A) financial feasibility of the development
based on the supporting financial data required in the application
that will include a project underwriting pro forma from the
permanent or construction lender;
(B) quantifiable community participation with
respect to the development, evaluated on the basis of a resolution
concerning the development that is voted on and adopted by:
(i) the governing body of a municipality
[written statements from any neighborhood organizations on record
with the state or county in which the development is to be located
and] whose boundaries contain the proposed development site; or
(ii) the commissioners court of a county
whose boundaries contain the proposed development site, if the
proposed site is located outside the boundaries of a municipality;
(C) the income levels of tenants of the
development;
(D) the size and quality of the units;
(E) the commitment of development funding by
local political subdivisions;
(F) [the level of community support for the
application, evaluated on the basis of written statements from the
state representative or the state senator that represents the
district containing the proposed development site;
[(G)] the rent levels of the units;
(G) [(H)] the cost of the development by square
foot;
(H) [(I)] the services to be provided to tenants
of the development; [and]
(I) [(J)] whether, at the time the complete
application is submitted or at any time within the two-year period
preceding the date of submission, the proposed development site is
located in an area declared to be a disaster under Section 418.014;
and
(J) quantifiable community participation with
respect to the development, evaluated on the basis of written
statements from any neighborhood organizations on record with the
state or county in which the development is to be located and whose
boundaries contain the proposed development site;
(2) uses criteria imposing penalties on applicants or
affiliates who have requested extensions of department deadlines
relating to developments supported by housing tax credit
allocations made in the application round preceding the current
round or a developer or principal of the applicant that has been
removed by the lender, equity provider, or limited partners for its
failure to perform its obligations under the loan documents or
limited partnership agreement; and
(3) encourages applicants to provide free notary
public service to the residents of the developments for which the
allocation of housing tax credits is requested.
SECTION 2.02. Section 2306.6718(b), Government Code, is
amended to read as follows:
(b) The department shall provide the elected officials with
an opportunity to comment on the application during the application
evaluation process [provided by Section 2306.6710] and shall
consider those comments in evaluating applications [under that
section].
SECTION 2.03. Subchapter DD, Chapter 2306, Government Code,
is amended by adding Section 2306.6739 to read as follows:
Sec. 2306.6739. HOUSING TAX CREDITS FINANCED USING FEDERAL
EMERGENCY FUNDS. (a) To the extent the department receives federal
emergency funds that must be awarded by the department in the same
manner as and that are subject to the same limitations as awards of
housing tax credits, any reference in this chapter to the
administration of the housing tax credit program applies equally to
the administration of the federal funds, subject to Subsection (b).
(b) Notwithstanding any other law, the department may
establish a separate application procedure for the federal
emergency funds that does not follow the uniform application cycle
required by Section 2306.1111 or the deadlines established by
Section 2306.6724, and any reference in this chapter to an
application period occurring in relation to those federal emergency
funds refers to the period beginning on the date the department
begins accepting applications for the federal funds and continuing
until all of the available federal funds are awarded.
ARTICLE 3. MANUFACTURED HOUSING
SECTION 3.01. Section 2306.6022, Government Code, is
amended by adding Subsections (e) and (f) to read as follows:
(e) The division director may allow an authorized employee
of the division to dismiss a complaint if an investigation
demonstrates that:
(1) a violation did not occur; or
(2) the subject of the complaint is outside the
division's jurisdiction under this subchapter.
(f) An employee who dismisses a complaint under Subsection
(e) shall report the dismissal to the division director and the
board. The report must include a sufficient explanation of the
reason the complaint was dismissed.
SECTION 3.02. Subchapter AA, Chapter 2306, Government Code,
is amended by adding Section 2306.6023 to read as follows:
Sec. 2306.6023. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION. (a) The division shall develop and implement a
policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008 for the adoption of division rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009 to assist in the resolution of
internal and external disputes under the division's jurisdiction.
(b) The division's procedures relating to alternative
dispute resolution must conform, to the extent possible, to any
model guidelines issued by the State Office of Administrative
Hearings for the use of alternative dispute resolution by state
agencies.
(c) The division shall:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) provide training as needed to implement the
procedures for negotiated rulemaking or alternative dispute
resolution; and
(3) collect data concerning the effectiveness of those
procedures.
SECTION 3.03. Section 1201.003(17), Occupations Code, is
amended to read as follows:
(17) "License holder" or "licensee" means a person who
holds a department-issued license as a manufacturer, retailer,
broker, [rebuilder,] salesperson, or installer.
SECTION 3.04. Sections 1201.055(a) and (b), Occupations
Code, are amended to read as follows:
(a) With guidance from the federal Housing and Community
Development Act of 1974 (42 U.S.C. Section 5301 et seq.) and from
the rules and regulations adopted under the National Manufactured
Housing Construction and Safety Standards Act of 1974 (42 U.S.C.
Section 5401 et seq.), the board shall establish fees as follows:
(1) if the department acts as a design approval
primary inspection agency, a schedule of fees for the review of
HUD-code manufactured home blueprints and supporting information,
to be paid by the manufacturer seeking approval of the blueprints
and supporting information;
(2) except as provided by Subsection (e), a fee for the
inspection of each HUD-code manufactured home manufactured or
assembled in this state, to be paid by the manufacturer of the home;
(3) a fee for the inspection of an alteration made to
the structure or plumbing, heating, or electrical system of a
HUD-code manufactured home, to be charged on an hourly basis and to
be paid by the person making the alteration;
(4) a fee for the inspection of the rebuilding of a
salvaged manufactured home, to be paid by the retailer [rebuilder];
(5) a fee for the inspection of a used manufactured
home to determine whether the home is habitable for the issuance of
a new statement of ownership and location; and
(6) a fee for the issuance of a seal for a used mobile
or HUD-code manufactured home.
(b) In addition to the fees imposed under Subsections
(a)(2), (3), and (4), a manufacturer or [,] a person making an
alteration, [or a rebuilder,] as appropriate, shall be charged for
the actual cost of travel of a department representative to and
from:
(1) the manufacturing facility, for an inspection
described by Subsection (a)(2); or
(2) the place of inspection, for an inspection
described by Subsection (a)(3) or (4).
SECTION 3.05. Section 1201.056, Occupations Code, is
amended to read as follows:
Sec. 1201.056. LICENSE FEES. (a) The board shall establish
fees for the issuance and renewal of licenses for:
(1) manufacturers;
(2) retailers;
(3) brokers;
(4) salespersons; and
(5) [rebuilders; and
[(6)] installers.
(b) The board by rule may establish a fee for reprinting a
license issued under this chapter.
SECTION 3.06. Sections 1201.101(e) and (f-1), Occupations
Code, are amended to read as follows:
(e) A person may not repair, rebuild, or otherwise alter a
salvaged manufactured home unless the person holds a [rebuilder's
or] retailer's license.
(f-1) A retailer may not be licensed to operate more than
[at a principal location and] one location [or more branch
locations] under a single license[; provided, however, that a
separate application must be made for each branch, and each branch
must be separately bonded].
SECTION 3.07. Sections 1201.103(a) and (b), Occupations
Code, are amended to read as follows:
(a) An applicant for a license as a manufacturer, retailer,
broker, [rebuilder,] or installer must file with the director a
license application containing:
(1) the legal name, address, and telephone number of
the applicant and each person who will be a related person at the
time the requested license is issued;
(2) all trade names, and the names of all other
business organizations, under which the applicant does business
subject to this chapter, the name of each such business
organization registered with the secretary of state, and the
address of such business organization;
(3) the dates on which the applicant became the owner
and operator of the business; and
(4) the location to which the license will apply.
(b) A license application must be accompanied by:
(1) proof of the security required by this subchapter;
[and]
(2) payment of the fee required for issuance of the
license; and
(3) the information and the cost required under
Section 1201.1031.
SECTION 3.08. Subchapter C, Chapter 1201, Occupations Code,
is amended by adding Section 1201.1031 to read as follows:
Sec. 1201.1031. CRIMINAL HISTORY RECORD INFORMATION
REQUIREMENT FOR LICENSE. (a) The department shall require that an
applicant for a license or renewal of an unexpired license submit a
complete and legible set of fingerprints, on a form prescribed by
the board, to the department or to the Department of Public Safety
for the purpose of obtaining criminal history record information
from the Department of Public Safety and the Federal Bureau of
Investigation. The applicant is required to submit a set of
fingerprints only once under this section unless a replacement set
is otherwise needed to complete the criminal history check required
by this section.
(b) The department shall refuse to issue a license to or
renew the license of a person who does not comply with the
requirement of Subsection (a).
(c) The department shall conduct a criminal history check of
each applicant for a license or renewal of a license using
information:
(1) provided by the individual under this section; and
(2) made available to the department by the Department
of Public Safety, the Federal Bureau of Investigation, and any
other criminal justice agency under Chapter 411, Government Code.
(d) The department may enter into an agreement with the
Department of Public Safety to administer a criminal history check
required under this section.
(e) The applicant shall pay the cost of a criminal history
check under this section.
SECTION 3.09. Section 1201.104(a), Occupations Code, is
amended to read as follows:
(a) Except as provided by Subsection (g), as a requirement
for a manufacturer's, retailer's, broker's, installer's, [salvage
rebuilder's,] or salesperson's license, a person who was not
licensed or registered with the department or a predecessor agency
on September 1, 1987, must, not more than 12 months before applying
for the person's first license under this chapter, attend and
successfully complete eight hours of instruction in the law,
including instruction in consumer protection regulations.
SECTION 3.10. Section 1201.106(a), Occupations Code, is
amended to read as follows:
(a) An applicant for a license or a license holder shall
file a bond or other security under Section 1201.105 for the
issuance or renewal of a license in the following amount:
(1) $100,000 for a manufacturer;
(2) $50,000 for a retailer [retailer's principal
location];
(3) [$50,000 for each retailer's branch location;
[(4) $50,000 for a rebuilder;
[(5)] $50,000 for a broker; or
(4) [(6)] $25,000 for an installer.
SECTION 3.11. Section 1201.110, Occupations Code, is
amended to read as follows:
Sec. 1201.110. SECURITY: DURATION. The department shall
maintain on file a security other than a bond canceled as provided
by Section 1201.109(a) until the later of:
(1) the second anniversary of the date the
manufacturer, retailer, broker, or installer[, or rebuilder]
ceases doing business; or
(2) the date the director determines that a claim does
not exist against the security.
SECTION 3.12. Section 1201.116(a), Occupations Code, is
amended to read as follows:
(a) The department shall renew a license if, before the
expiration date of the license, the department receives the renewal
application and payment of the required fee as well as the cost
required under Section 1201.1031 [before the expiration date of the
license].
SECTION 3.13. Section 1201.357, Occupations Code, is
amended by adding Subsection (b-1) to read as follows:
(b-1) As authorized by Section 1201.6041, the director may
order a manufacturer, retailer, or installer, as applicable, to pay
a refund directly to a consumer as part of an agreed order described
by Subsection (b) instead of or in addition to instituting an
administrative action under this chapter.
SECTION 3.14. Section 1201.461(d), Occupations Code, is
amended to read as follows:
(d) A person may not sell, convey, or otherwise transfer to
a consumer in this state a manufactured home that is salvaged. A
salvaged manufactured home may be sold only to a licensed retailer
[or licensed rebuilder].
SECTION 3.15. Subchapter M, Chapter 1201, Occupations Code,
is amended by adding Section 1201.6041 to read as follows:
Sec. 1201.6041. DIRECT CONSUMER COMPENSATION. (a) Instead
of requiring a consumer to apply for compensation from the trust
fund under Subchapter I, the director may order a manufacturer,
retailer, broker, or installer, as applicable, to pay a refund
directly to a consumer who sustains actual damages resulting from
an unsatisfied claim against a licensed manufacturer, retailer,
broker, or installer if the unsatisfied claim results from a
violation of:
(1) this chapter;
(2) a rule adopted by the director;
(3) the National Manufactured Housing Construction
and Safety Standards Act of 1974 (42 U.S.C. Section 5401 et seq.);
(4) a rule or regulation of the United States
Department of Housing and Urban Development; or
(5) Subchapter E, Chapter 17, Business & Commerce
Code.
(b) For purposes of this section, the refund of a consumer's
actual damages is determined according to Section 1201.405.
(c) The director shall prepare information for notifying
consumers of the director's option to order a direct refund under
this section, shall post the information on the department's
Internet website, and shall make printed copies available on
request.
SECTION 3.16. Sections 1201.610(a), (b), and (f),
Occupations Code, are amended to read as follows:
(a) The [If the director has reasonable cause to believe
that a person licensed under this chapter has violated or is about
to violate any provision of this chapter or rules adopted by the
department under this chapter, the] director may issue without
notice and hearing an order to cease and desist from continuing a
particular action or an order to take affirmative action, or both,
to enforce compliance with this chapter if the director has
reasonable cause to believe that a person has violated or is about
to violate any provision of this chapter or a rule adopted under
this chapter.
(b) The director may issue an order to any person [licensee]
to cease and desist from violating any law, rule, or written
agreement or to take corrective action with respect to any such
violations if the violations in any way are related to the sale,
financing, or installation of a manufactured home or the providing
of goods or services in connection with the sale, financing, or
installation of a manufactured home unless the matter that is the
basis of such violation is expressly subject to inspection and
regulation by another state agency; provided, however, that if any
matter involves a law that is subject to any other administration or
interpretation by another agency, the director shall consult with
the person in charge of the day-to-day administration of that
agency before issuing an order.
(f) If a person licensed under this chapter fails to pay an
administrative penalty that has become final or fails to comply
with an order of the director that has become final, in addition to
any other remedy provided by law, the director, after not less than
10 days' notice to the person, may without a prior hearing suspend
the person's license. The suspension shall continue until the
person has complied with the cease and desist order or paid the
administrative penalty. During the period of suspension, the
person may not perform any act requiring a license under this
chapter, and all compensation received by the person during the
period of suspension is subject to forfeiture to the person from
whom it was received.
SECTION 3.17. Section 1302.061, Occupations Code, is
amended to read as follows:
Sec. 1302.061. MANUFACTURED HOMES. This chapter does not
apply to a person or entity licensed as a manufacturer, retailer,
[rebuilder,] or installer under Chapter 1201 and engaged
exclusively in air conditioning and refrigeration contracting for
manufactured homes if the installation of air conditioning
components at the site where the home will be occupied is performed
by a person licensed under this chapter.
ARTICLE 4. WEATHERIZATION ASSISTANCE PROGRAM
SECTION 4.01. Section 39.905(f), Utilities Code, is amended
to read as follows:
(f) Unless funding is provided under Section 39.903, each
unbundled transmission and distribution utility shall include in
its energy efficiency plan a targeted low-income energy efficiency
program as described by Section 39.903(f)(2), and the savings
achieved by the program shall count toward the transmission and
distribution utility's energy efficiency goal. The commission
shall determine the appropriate level of funding to be allocated to
both targeted and standard offer low-income energy efficiency
programs in each unbundled transmission and distribution utility
service area. The level of funding for low-income energy
efficiency programs shall be provided from money approved by the
commission for the transmission and distribution utility's energy
efficiency programs. The commission shall ensure that annual
expenditures for the targeted low-income energy efficiency
programs of each unbundled transmission and distribution utility
are not less than 10 percent of the transmission and distribution
utility's energy efficiency budget for the year. A targeted
low-income energy efficiency program must comply with the same
audit requirements that apply to federal weatherization
subrecipients. In an energy efficiency cost recovery factor
proceeding related to expenditures under this subsection, the
commission shall make findings of fact regarding whether the
utility meets requirements imposed under this subsection. The
state agency that administers the federal weatherization
assistance program shall [provide reports as required by the
commission to provide the most current information available on
energy and peak demand savings achieved in each transmission and
distribution utility service area. The agency shall] participate
in energy efficiency cost recovery factor proceedings related to
expenditures under this subsection to ensure that targeted
low-income weatherization programs are consistent with federal
weatherization programs and adequately funded.
ARTICLE 5. REPEALER
SECTION 5.01. The following provisions of the Government
Code are repealed:
(1) Section 2306.255(h);
(2) Section 2306.560(d); and
(3) Section 2306.6710(f).
ARTICLE 6. TRANSITION PROVISIONS
SECTION 6.01. The change in law made by this Act to Sections
2306.043, 2306.044, 2306.045, 2306.046, and 2306.049, Government
Code, applies only to a violation committed on or after the
effective date of this Act. A violation committed before the
effective date of this Act is governed by the law in effect when the
violation was committed, and the former law is continued in effect
for that purpose.
SECTION 6.02. The change in law made by this Act to Section
2306.6022, Government Code, applies only to a complaint filed on or
after the effective date of this Act. A complaint filed before the
effective date of this Act is governed by the law in effect at the
time the complaint was filed, and the former law is continued in
effect for that purpose.
SECTION 6.03. The changes in law made by this Act to
Sections 2306.6710 and 2306.6718, Government Code, apply only to an
application for low income housing tax credits that is submitted to
the Texas Department of Housing and Community Affairs during an
application cycle that begins on or after the effective date of this
Act. An application that is submitted during an application cycle
that began before the effective date of this Act is governed by the
law in effect at the time the application cycle began, and the
former law is continued in effect for that purpose.
SECTION 6.04. Notwithstanding Sections 1201.101(f-1) and
1201.106(a), Occupations Code, as amended by this Act, a retailer
licensed to operate one or more branch locations on or before the
effective date of this Act is not required to comply with the
changes in law made by those sections until March 1, 2014.
SECTION 6.05. (a) The change in law made by this Act in
amending Sections 1201.103 and 1201.104, Occupations Code, applies
only to an application for a license filed with the executive
director of the manufactured housing division of the Texas
Department of Housing and Community Affairs on or after the
effective date of this Act. An application for a license filed
before that date is governed by the law in effect on the date the
application was filed, and the former law is continued in effect for
that purpose.
(b) The change in law made by this Act in adding Section
1201.1031, Occupations Code, applies only to an application for a
license or license renewal filed with the executive director of the
manufactured housing division of the Texas Department of Housing
and Community Affairs on or after the effective date of this Act.
An application for a license or license renewal filed before that
date is governed by the law in effect on the date the application
was filed, and the former law is continued in effect for that
purpose.
(c) The change in law made by this Act in amending Section
1201.116, Occupations Code, applies only to an application for a
license renewal filed with the executive director of the
manufactured housing division of the Texas Department of Housing
and Community Affairs on or after the effective date of this Act.
An application for a license renewal filed before that date is
governed by the law in effect on the date the application was filed,
and the former law is continued in effect for that purpose.
ARTICLE 7. EFFECTIVE DATE
SECTION 7.01. This Act takes effect September 1, 2013.