73R8415 MJW-F
By Linebarger H.B. No. 1268
Substitute the following for H.B. No. 1268:
By Van de Putte C.S.H.B. No. 1268
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to registration requirements for family homes and to deed
1-3 and zoning restrictions of family homes; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. (a) The legislature recognizes that the demand
1-6 for child care is increasing and that family homes are the primary
1-7 child care choice for the parents of Texas. Family home care is
1-8 especially critical in serving parents with infants and parents of
1-9 chronically ill or disabled children. As the demand for child care
1-10 options increases, it is important to increase the availability of
1-11 and encourage quality in the services provided by family homes.
1-12 (b) Family homes are required by law to operate in a
1-13 residential setting and are compatible with other residential
1-14 activities. Nevertheless, local deed restrictions and zoning
1-15 ordinances often operate to prohibit family homes. As a result,
1-16 some providers do not register with the Department of Protective
1-17 and Regulatory Services, resulting in unregulated, potentially
1-18 inappropriate, or even dangerous child care.
1-19 (c) It is the intent of the legislature that a coordinated,
1-20 comprehensive system of child care services be made available to
1-21 the parents of Texas; that family homes remain a viable choice for
1-22 parents; that unregulated family homes become registered so that
1-23 the quality of their services will be improved; and that the legal
1-24 status of family homes in residential areas be clarified so that
2-1 the availability of family home care will increase.
2-2 SECTION 2. Section 42.002(9), Human Resources Code, is
2-3 amended to read as follows:
2-4 (9) "Family home" means a home that regularly provides
2-5 care in the caretaker's own residence for not more than six
2-6 children under 14 years of age, excluding the caretaker's own
2-7 children, and that provides care after school hours for not more
2-8 than six additional elementary school children, but the total
2-9 number of children, including the caretaker's own, does not exceed
2-10 12 at any given time. The term does not include a home that
2-11 provides care exclusively for any number of children who are the
2-12 children, grandchildren, nieces, or nephews of the caretaker,
2-13 whether by affinity or consanguinity or as the result of a
2-14 relationship created by a court decree.
2-15 SECTION 3. Section 42.052(f), Human Resources Code, is
2-16 amended to read as follows:
2-17 (f) A family home may not place a public advertisement that
2-18 uses the title "registered family home" or any variation of the
2-19 phrase unless the home is registered <with the division> under this
2-20 chapter. Any public advertisement for a registered family home
2-21 which uses the title "registered family home" must contain a
2-22 provision in bold type stating: "THIS HOME IS REGISTERED WITH THE
2-23 <TEXAS> DEPARTMENT OF PROTECTIVE AND REGULATORY <HUMAN> SERVICES
2-24 BUT IS NOT LICENSED <OR INSPECTED>."
2-25 SECTION 4. Section 42.075(a), Human Resources Code, is
2-26 amended to read as follows:
2-27 (a) A person is subject to a civil penalty of not less than
3-1 $50 nor more than $100 for each day of violation and for each act
3-2 of violation if the person:
3-3 (1) threatens serious harm to a child in a facility by
3-4 violating a provision of this chapter or a department rule or
3-5 standard;
3-6 (2) violates a provision of this chapter or a
3-7 department rule or standard three or more times within a 12-month
3-8 period; <or>
3-9 (3) places a public advertisement for an unlicensed
3-10 facility; or
3-11 (4) operates a family home that is not registered as
3-12 required by Section 42.052(c) of this code.
3-13 SECTION 5. Section 42.076(c), Human Resources Code, is
3-14 amended to read as follows:
3-15 (c) A person who operates a family home that is not
3-16 registered as required by Section 42.052(c) of this code or who
3-17 places an advertisement for a registered family home in violation
3-18 of Section 42.052(f) of this code commits a Class C misdemeanor.
3-19 SECTION 6. Title 11, Property Code, is amended by adding
3-20 Chapter 204 to read as follows:
3-21 CHAPTER 204. OPERATION OF FAMILY HOMES IN RESIDENTIAL SUBDIVISIONS
3-22 Sec. 204.001. APPLICABILITY OF CHAPTER. (a) This chapter
3-23 applies to each residential real estate subdivision in the state.
3-24 (b) This chapter does not prohibit a restriction on the
3-25 operation of family homes in a condominium or other multifamily
3-26 structure in which dwelling units are individually owned.
3-27 Sec. 204.002. DEFINITIONS. In this chapter:
4-1 (1) "Family home" means a residential home that meets
4-2 the definition of and requirements applicable to a family home
4-3 under Chapter 42, Human Resources Code.
4-4 (2) "Owner" has the meaning assigned by Section
4-5 201.003.
4-6 (3) "Residential real estate subdivision" or
4-7 "subdivision" has the meaning assigned by Section 201.003.
4-8 (4) "Restrictive covenant" has the meaning assigned by
4-9 Section 202.001.
4-10 Sec. 204.003. EXISTING FAMILY HOME EXEMPT FROM PROHIBITION
4-11 ON FAMILY HOMES. (a) Owners in a subdivision may not prohibit the
4-12 use of property in the subdivision as a family home through a
4-13 restrictive covenant or by any other means if the family home is
4-14 operating on September 1, 1993. The portion of a restrictive
4-15 covenant that prohibits such use is unenforceable with regard to a
4-16 family home operating on that date.
4-17 (b) This section applies to a family home operating on
4-18 September 1, 1993, without regard to whether the family home is
4-19 registered under Chapter 42, Human Resources Code.
4-20 (c) This section does not apply to a residential real estate
4-21 subdivision that prohibits use of property in the subdivision as a
4-22 family home under a restrictive covenant that limits use of the
4-23 property to residential use or that prohibits a business or trade
4-24 use of the property if the restrictive covenant has been and is
4-25 being strictly enforced to the extent that no business or trade use
4-26 of the property, incidental or otherwise, has been or is being
4-27 allowed.
5-1 Sec. 204.004. NEW FAMILY HOMES. A family home that begins
5-2 operating after September 1, 1993, must comply with the existing
5-3 procedures for amendment of a restrictive covenant that applies to
5-4 the subdivision in which the family home is located to the extent
5-5 that an amendment is required to allow operation of the family
5-6 home.
5-7 Sec. 204.005. REQUIREMENTS FOR FAMILY HOME PERMITTED. (a)
5-8 Owners of property in a subdivision may by rules adopted by a
5-9 majority of the owners at a properly called meeting at which a
5-10 quorum of the owners is present prescribe requirements relating to
5-11 the operation of a family home if the requirements do not have the
5-12 effect of indirectly prohibiting the operation of a family home
5-13 that is permitted to operate under this chapter or other law or of
5-14 unduly restricting the operation of such a family home.
5-15 (b) Requirements under this section may include:
5-16 (1) spacing and density requirements;
5-17 (2) requirements relating to use of common areas
5-18 within the subdivision; and
5-19 (3) restrictions on the total number of children cared
5-20 for in a registered family home as long as a minimum of six
5-21 children per family home is allowed.
5-22 SECTION 7. Subchapter A, Chapter 211, Local Government Code,
5-23 is amended by adding Section 211.0031 to read as follows:
5-24 Sec. 211.0031. ZONING OF FAMILY HOMES. (a) Use of property
5-25 as a family home registered under Chapter 42, Human Resources Code,
5-26 constitutes a residential use of the property for zoning purposes,
5-27 and the governing body of a municipality shall consider that use
6-1 as a permitted use in all zones in which residential uses are
6-2 permitted, including zones for single-family dwellings.
6-3 (b) This section does not prohibit a municipality from
6-4 placing a restriction on registered family homes under its zoning
6-5 authority if the restriction:
6-6 (1) applies equally to other residences subject to the
6-7 zoning authority; and
6-8 (2) does not have the effect of totally prohibiting
6-9 the operation of registered family homes in the regulated area.
6-10 (c) A municipality may use its zoning authority to:
6-11 (1) regulate the spacing or density of registered
6-12 family homes within a defined residential area;
6-13 (2) restrict the total number of children cared for in
6-14 a registered family home so long as the municipality allows a
6-15 minimum of six children per family home and follows the guidelines
6-16 established by the Department of Protective and Regulatory Services
6-17 regarding the number of children cared for in a family home, except
6-18 that a municipality may deviate from those guidelines in any part
6-19 of the municipality if the governing body determines that adherence
6-20 to the guidelines would create safety hazards due to the density of
6-21 homes, vehicular traffic, or other safety factors; and
6-22 (3) require notification before a registered provider
6-23 offers family home care.
6-24 (d) This section does not preempt or effect a prohibition
6-25 against a family home that is included in a restrictive covenant
6-26 that complies with Chapter 204, Property Code.
6-27 (e) In this section, "family home" means a residential home
7-1 that meets the definition of and requirements applicable to a
7-2 family home under Chapter 42, Human Resources Code.
7-3 SECTION 8. (a) This Act takes effect September 1, 1993.
7-4 (b) The change in law made by Section 6 of this Act applies
7-5 to a restrictive covenant without regard to whether the restrictive
7-6 covenant is adopted before, on, or after the effective date of this
7-7 Act. The portion of a restrictive covenant that prohibits the
7-8 operation of a family home that is operating on September 1, 1993,
7-9 is unenforceable on and after the effective date of this Act.
7-10 SECTION 9. The importance of this legislation and the
7-11 crowded condition of the calendars in both houses create an
7-12 emergency and an imperative public necessity that the
7-13 constitutional rule requiring bills to be read on three several
7-14 days in each house be suspended, and this rule is hereby suspended.