By: Martin H.B. No. 1682 73R4462 KLL-F A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to enclosures around pools and spas owned, controlled, or 1-3 maintained by multi-unit rental complex owners or property owners 1-4 associations; providing a civil penalty. 1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-6 SECTION 1. Subtitle A, Title 9, Health and Safety Code, is 1-7 amended by adding Chapter 757 to read as follows: 1-8 CHAPTER 757. POOL YARD ENCLOSURES 1-9 Sec. 757.001. DEFINITIONS. In this chapter: 1-10 (1) "Self-closing and self-latching device" means a 1-11 device that causes a gate to automatically close without human or 1-12 electrical power after it has been opened and to automatically 1-13 latch without human or electrical power when the gate closes. 1-14 (2) "Doorknob lock" means a lock that is in a doorknob 1-15 and that is operated from the exterior by a key, card, or 1-16 combination and from the interior without a key, card, or 1-17 combination. 1-18 (3) "Dwelling" or "rental dwelling" means one or more 1-19 rooms rented to one or more tenants for use as a permanent 1-20 residence under a lease. The term does not include a room rented 1-21 to overnight guests. 1-22 (4) "French doors" means double doors, sometimes 1-23 called double-hinged patio doors, that provide access from a 1-24 dwelling interior to the exterior, and in which each of the two 2-1 doors are hinged and closable so that the edge of one door closes 2-2 immediately adjacent to the edge of the other door with no 2-3 partition between the doors. "French door" means either one of the 2-4 two doors. 2-5 (5) "Keyed dead bolt" means a door lock that is not in 2-6 the doorknob, that locks by a bolt in the doorjamb, that has a bolt 2-7 with at least a one-inch throw if installed after September 1, 2-8 1993, and that is operated from the exterior by a key, card, or 2-9 combination and operated from the interior by a knob or lever 2-10 without a key, card, or combination. The term includes a doorknob 2-11 lock that contains a bolt with at least a one-inch throw. 2-12 (6) "Keyless dead bolt" means a door lock that is not 2-13 in the doorknob, that locks by a bolt into the portion of the 2-14 doorjamb surface that faces the edge of the door when the door is 2-15 closed or into a metal doorjamb that serves as the strike plate, 2-16 that has a bolt with at least a one-inch throw, that cannot be 2-17 operated by a key, card, combination, lever, or knob from the 2-18 door's exterior, that can only be operated by a knob or lever from 2-19 the door's interior, and that is installed inside the door or on 2-20 the interior surface of the door. The term does not include any 2-21 other type of lock or latch, such as a chain latch, flip latch, 2-22 surface-mounted slide bolt, mortise door bolt, surface-mounted 2-23 barrel bolt, surface-mounted swing bar door guard, spring-loaded 2-24 night latch, or foot bolt. 2-25 (7) "Multi-unit rental complex" means two or more 2-26 dwelling units in one or more buildings that are under common 2-27 ownership, managed by the same owner, managing agent, or management 3-1 company, and located on the same lot or tract of land or adjacent 3-2 lots or tracts of land. The term includes a condominium project. 3-3 The term does not include: 3-4 (A) a facility primarily renting rooms to 3-5 overnight guests; or 3-6 (B) a single-family home or adjacent 3-7 single-family homes that are not part of a condominium project. 3-8 (8) "Pool" means a permanent swimming pool, permanent 3-9 wading or reflection pool, or permanent hot tub or spa over 18 3-10 inches deep, located at ground level, above ground, below ground, 3-11 or indoors. 3-12 (9) "Pool yard" means an area that contains a pool. 3-13 (10) "Pool yard enclosure" or "enclosure" means a 3-14 fence, wall, or combination of fences, walls, gates, windows, or 3-15 doors that completely surround a pool. 3-16 (11) "Property owners association" means an 3-17 association of property owners for a residential subdivision, 3-18 condominium, cooperative, town home project, or other project 3-19 involving residential dwellings. 3-20 (12) "Sliding door handle latch" means a latch or lock 3-21 that is near the handle on a sliding glass door, that is operated 3-22 with or without a key, and that is designed to prevent the door 3-23 from being opened. 3-24 (13) "Sliding door pin lock" means a pin or rod that 3-25 is inserted from the interior side of a sliding glass door at the 3-26 side opposite the door's handle and that is designed to prevent the 3-27 door from being opened or lifted. 4-1 (14) "Sliding door security bar" means a bar or rod 4-2 that can be placed at the bottom of or across the interior side of 4-3 the fixed panel of a sliding glass door and that is designed to 4-4 prevent the sliding panel of the door from being opened. 4-5 (15) "Tenant" means a person who is obligated to pay 4-6 rent or other consideration and who is authorized to occupy a 4-7 dwelling, to the exclusion of others, under a verbal or written 4-8 lease or rental agreement. 4-9 (16) "Window latch" means a device on a window or 4-10 window screen that prevents the window or window screen from being 4-11 opened and that is operated without a key and only from the 4-12 interior. 4-13 Sec. 757.002. APPLICATION. This chapter applies only to: 4-14 (1) a pool owned, controlled, or maintained by the 4-15 owner of a multi-unit rental complex or by a property owners 4-16 association; and 4-17 (2) doors and windows of rental dwellings opening into 4-18 the pool yard of a multi-unit rental complex or condominium, 4-19 cooperative, or town home project. 4-20 Sec. 757.003. ENCLOSURE FOR POOL YARD. (a) Except as 4-21 otherwise provided by Section 757.005, the owner of a multi-unit 4-22 rental complex with a pool or a property owners association that 4-23 owns, controls, or maintains a pool shall completely enclose the 4-24 pool yard with a pool yard enclosure. 4-25 (b) The height of the pool yard enclosure must be at least 4-26 48 inches as measured from the ground on the side away from the 4-27 pool. 5-1 (c) Openings under the pool yard enclosure may not allow a 5-2 sphere four inches in diameter to pass under the pool yard 5-3 enclosure. 5-4 (d) If the pool yard enclosure is constructed with 5-5 horizontal and vertical members, and the distance between the tops 5-6 of the horizontal members is at least 45 inches, the openings may 5-7 not allow a sphere four inches in diameter to pass through the 5-8 enclosure. 5-9 (e) If the pool yard enclosure is constructed with 5-10 horizontal and vertical members, and the distance between the tops 5-11 of the horizontal members is less than 45 inches, the openings may 5-12 not allow a sphere 1-3/4 inches in diameter to pass through the 5-13 enclosure. 5-14 (f) If the pool yard enclosure is constructed with diagonal 5-15 members and no vertical members, such as a lattice fence, the 5-16 openings may not allow a sphere 1-3/4 inches in diameter to pass 5-17 through the enclosure. 5-18 (g) If the pool yard enclosure is constructed with chain 5-19 link metal fencing material, the openings may not allow a sphere 5-20 1-1/4 inches in diameter to pass through the enclosure. 5-21 (h) Decorative designs or cutouts on or in the pool yard 5-22 enclosure may not contain any openings greater than 1-3/4 inches in 5-23 any direction. 5-24 (i) Indentations or protrusions in a solid pool yard 5-25 enclosure without any openings may not be greater than normal 5-26 construction tolerances and tooled masonry joints on the side away 5-27 from the pool. 6-1 (j) Permanent equipment or structures may not be constructed 6-2 or placed in a manner that makes them readily available for 6-3 climbing over the pool yard enclosure. 6-4 (k) The wall of a building may be part of the pool yard 6-5 enclosure only if the doors and windows in the wall comply with 6-6 Sections 757.006 and 757.007. 6-7 (l) The owner of a multi-unit rental complex with a pool or 6-8 a property owners association that owns, controls, or maintains a 6-9 pool is not required to: 6-10 (1) build a pool yard enclosure at specified locations 6-11 or distances from the pool other than distances for minimum 6-12 walkways around the pool; or 6-13 (2) conform secondary pool yard enclosures, located 6-14 inside or outside the primary pool yard enclosure, to the 6-15 requirements of this chapter. 6-16 Sec. 757.004. GATES. (a) Except as otherwise provided by 6-17 Section 757.005, a gate in a fence or wall enclosing a pool yard as 6-18 required by Section 757.003 must: 6-19 (1) have a self-closing and self-latching device; 6-20 (2) have hardware enabling it to be locked, at the 6-21 option of whoever controls the gate, by a padlock or a built-in 6-22 lock operated by key, card, or combination; and 6-23 (3) open outward away from the pool yard. 6-24 (b) Except as otherwise provided by Subsection (c) and 6-25 Section 757.005, a gate latch must be installed so that it is at 6-26 least 60 inches above the ground, except that it may be installed 6-27 lower if: 7-1 (1) the latch is installed on the pool yard side of 7-2 the gate only and is at least three inches below the top of the 7-3 gate; and 7-4 (2) the gate or enclosure has no opening greater than 7-5 one-half inch in any direction within 18 inches from the latch, 7-6 including the space between the gate and the gate post to which the 7-7 gate latches. 7-8 (c) A gate latch may be located 42 inches or higher above 7-9 the ground if the gate cannot be opened except by key, card, or 7-10 combination, on both sides of the gate. 7-11 Sec. 757.005. EXISTING POOL YARD ENCLOSURES. (a) If a pool 7-12 yard enclosure is constructed or modified before January 1, 1994, 7-13 and no municipal ordinance containing standards for pool yard 7-14 enclosures were applicable at the time of construction or 7-15 modification, the enclosure must comply with the requirements of 7-16 Sections 757.003 and 757.004, except that: 7-17 (1) if the enclosure is constructed with chain link 7-18 metal fencing material, the openings in the enclosure may not allow 7-19 a sphere 2-1/4 inches in diameter to pass through the enclosure; or 7-20 (2) if the enclosure is constructed with horizontal 7-21 and vertical members and the distance between the tops of the 7-22 horizontal members is at least 36 inches, the openings in the 7-23 enclosure may not allow a sphere four inches in diameter to pass 7-24 through the enclosure. 7-25 (b) If a pool yard enclosure is constructed or modified 7-26 before January 1, 1994, and if the enclosure is in compliance with 7-27 applicable municipal ordinances existing on January 1, 1994, and 8-1 containing standards for pool yard enclosures, Sections 757.003, 8-2 757.004(a)(3), and 757.004(b) do not apply to the enclosure. 8-3 Sec. 757.006. DOOR. (a) A door, sliding glass door, or 8-4 French door may not open directly into a pool yard if the date of 8-5 electrical service for initial construction of the building or pool 8-6 is on or after January 1, 1994. 8-7 (b) A door, sliding glass door, or French door may open 8-8 directly into a pool yard if the date of electrical service for 8-9 initial construction of the building or pool is before January 1, 8-10 1994, and the pool yard enclosure complies with Subsection (c), 8-11 (d), or (e), as applicable. 8-12 (c) If a door of a building, other than a sliding glass door 8-13 or screen door, opens into the pool yard, the door must have a: 8-14 (1) latch that automatically engages when the door is 8-15 closed; 8-16 (2) spring-loaded door-hinge pin, automatic door 8-17 closer, or similar device to cause the door to close automatically; 8-18 and 8-19 (3) keyless dead bolt that is installed not less than 8-20 36 inches or more than 48 inches above the interior floor. 8-21 (d) If French doors of a building open to the pool yard, one 8-22 of the French doors must comply with Subsection (c)(1) and the 8-23 other door must have: 8-24 (1) a keyed dead bolt or keyless dead bolt capable of 8-25 insertion into the doorjamb above the door, and a keyless dead bolt 8-26 capable of insertion into the floor or threshold; or 8-27 (2) a bolt with at least a 3/4-inch throw installed 9-1 inside the door and operated from the edge of the door that is 9-2 capable of insertion into the doorjamb above the door, and another 9-3 bolt with at least a 3/4-inch throw installed inside the door and 9-4 operated from the edge of the door that is capable of insertion 9-5 into the floor or threshold. 9-6 (e) If a sliding glass door of a building opens into the 9-7 pool yard, the sliding glass door must have: 9-8 (1) a sliding door handle latch or sliding door 9-9 security bar that is installed not more than 48 inches above the 9-10 interior floor; and 9-11 (2) a sliding door pin lock that is installed not more 9-12 than 48 inches above the interior floor. 9-13 (f) A door, sliding glass door, or French door that opens 9-14 into a pool yard from an area of a building that is not used by 9-15 residents and that has no access to an area outside the pool yard 9-16 is not required to have a lock, latch, or dead bolt. 9-17 (g) A keyed dead bolt, keyless dead bolt, sliding door pin 9-18 lock, or sliding door security bar installed before September 1, 9-19 1993, may be installed not more than 54 inches from the floor. 9-20 Sec. 757.007. WINDOW AND WINDOW SCREENS. A wall of a 9-21 building may not be used as part of a pool yard enclosure unless 9-22 each window in the wall has a latch and unless each window screen 9-23 on a window in the wall is affixed by a window screen latch, 9-24 screws, or similar means. This section does not require the 9-25 installation of window screens. 9-26 Sec. 757.008. BUILDING IN POOL YARD. Each door, sliding 9-27 glass door, window, and window screen of each dwelling unit in a 10-1 residential building located in the enclosed pool yard must comply 10-2 with Sections 757.006 and 757.007. 10-3 Sec. 757.009. REPAIR AND MAINTENANCE. (a) The owner of a 10-4 multi-unit rental complex or a rental dwelling in a condominium, 10-5 cooperative, or town home project with a pool or a property owners 10-6 association that owns, controls, or maintains a pool shall exercise 10-7 ordinary and reasonable care to maintain, repair, and keep in good 10-8 working order the pool yard enclosures, gates, self-closing and 10-9 self-latching devices, window latches, and other latches required 10-10 by this chapter and within the control of the owner or property 10-11 owners association. 10-12 (b) The duty of repair and maintenance applies only if the 10-13 owner or property owners association knows or should know, in the 10-14 exercise of ordinary care, that a pool yard enclosure, gate, 10-15 self-closing and self-latching device, window latch, or other latch 10-16 required by this chapter is in need of repair or maintenance. 10-17 (c) An owner's or property owners association's duty of 10-18 repair and maintenance under this section may not be waived under 10-19 any circumstances and may not be enlarged except by written 10-20 agreement. 10-21 Sec. 757.010. COMPLIANCE WITH CHAPTER. (a) Except as 10-22 provided by Subsection (b), a person who constructs or modifies a 10-23 pool yard enclosure to conform with this chapter may not be 10-24 required to construct the enclosure differently by a local 10-25 governmental entity, common law, or any other law. 10-26 (b) A municipality may continue to require greater overall 10-27 height requirements for pool yard enclosures if the requirements 11-1 exist under the municipality's ordinances on January 1, 1994. 11-2 Sec. 757.011. ENFORCEMENT BY GOVERNMENT. The attorney 11-3 general, a local health department, a municipality, or a county 11-4 having jurisdiction may enforce this chapter by injunction or other 11-5 lawful means. 11-6 Sec. 757.012. ENFORCEMENT BY OTHERS. (a) If an owner or 11-7 property owners association violates this chapter, a tenant in a 11-8 multi-unit rental complex, a member of a property owners 11-9 association, or any other person or the person's representative may 11-10 bring an action in a court of competent jurisdiction to: 11-11 (1) obtain a court order directing the owner or 11-12 property owners association to comply with this chapter; 11-13 (2) obtain a judgment against the owner or property 11-14 owners association for actual damages to the person resulting from 11-15 the violation; 11-16 (3) obtain a judgment against the owner or property 11-17 owners association for punitive damages resulting from the 11-18 violation if actual damages to the person were caused by the 11-19 owner's or property owners association's reckless and wanton 11-20 disregard for human safety; or 11-21 (4) obtain a judgment against the owner or property 11-22 owners association for a civil penalty of $500 if the owner or 11-23 property owners association fails to make reasonable efforts to 11-24 comply with this chapter after written notice by a tenant of the 11-25 apartment project or a member of the property owners association. 11-26 (b) A court may award reasonable attorney's fees and costs 11-27 to the prevailing party in an action brought under this section, 12-1 except that this subsection does not authorize the award of 12-2 attorney's fees and costs in an action for recovery of damages for 12-3 personal injury, wrongful death, or punitive damages. 12-4 Sec. 757.013. TENANT'S REQUEST FOR REPAIRS. A tenant in a 12-5 multi-unit rental complex with a pool may verbally request repair 12-6 of a keyed dead bolt, keyless dead bolt, sliding door latch, 12-7 sliding door pin lock, sliding door security bar, window latch, or 12-8 window screen latch unless a provision of a written lease executed 12-9 by the tenant requires that the request be made in writing. 12-10 Sec. 757.014. APPLICATION TO OTHER BODIES OF WATER AND 12-11 RELATED FACILITIES. The owner of a multi-unit rental complex or a 12-12 property owners association is not required to enclose a body of 12-13 water or construct barriers between the owner's or property owners 12-14 association's property and a body of water such as an ocean, bay, 12-15 lake, pond, bayou, river, creek, stream, spring, reservoir, stock 12-16 tank, culvert, drainage ditch, detention pond, or other flood or 12-17 drainage facility. 12-18 Sec. 757.015. EFFECT ON OTHER LAWS. (a) The duties 12-19 established by this chapter for an owner of a multi-unit dwelling 12-20 project, an owner of a dwelling in a condominium, cooperative, or 12-21 town home project, and a property owners association supersede 12-22 those established by common law, other statutory law, and local 12-23 ordinances relating to duties to install or repair: 12-24 (1) pool yard enclosures; 12-25 (2) pool yard enclosure gates and gate latches, 12-26 including self-closing and self-latching devices; 12-27 (3) keyed dead bolts, keyless dead bolts, sliding door 13-1 handle latches, sliding door security bars, self-latching and 13-2 self-closing devices and sliding door pin locks on doors that open 13-3 into a pool yard area and that are owned and controlled by the 13-4 owner or property owners association; and 13-5 (4) latches on windows that open into a pool yard area 13-6 and that are owned and controlled by the owner or property owners 13-7 association. 13-8 (b) This chapter does not affect any duties of a rental 13-9 dwelling owner, lessor, sublessor, management company, or managing 13-10 agent under Subchapter B or D, Chapter 92, Property Code. 13-11 SECTION 2. This Act takes effect January 1, 1994. 13-12 SECTION 3. The importance of this legislation and the 13-13 crowded condition of the calendars in both houses create an 13-14 emergency and an imperative public necessity that the 13-15 constitutional rule requiring bills to be read on three several 13-16 days in each house be suspended, and this rule is hereby suspended.