By:  Barrientos                                        S.B. No. 540
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to the elimination of architectural barriers encountered
    1-2  by persons with disabilities.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Section 2, Article 9102, Revised Statutes, is
    1-5  amended to read as follows:
    1-6        Sec. 2.  APPLICATION.  (a)  The standards <and
    1-7  specifications> adopted under this article <shall> apply to:
    1-8              (1)  a building or facility <all buildings and
    1-9  facilities> used by the public that is <which are> constructed, or
   1-10  substantially renovated, modified, or altered,  in whole or in part
   1-11  on or after January 1, 1970, through <by> the use of state, county,
   1-12  or municipal funds, or the funds of any political subdivision of
   1-13  the state;
   1-14              (2)  the<.  To such extent as is not contraindicated by
   1-15  federal law or beyond the state's power of regulation, these
   1-16  standards shall also apply to buildings and facilities constructed
   1-17  in this state through partial or total use of federal funds.  All
   1-18  buildings and facilities constructed in this state, or
   1-19  substantially renovated, modified, or altered, after the effective
   1-20  date of this article from any one of these funds or any combination
   1-21  thereof shall conform to each of the standards and specifications
   1-22  adopted under this article except where the governmental
   1-23  department, agency, or unit concerned shall determine, after taking
   1-24  all circumstances into consideration, that full compliance with any
    2-1  particular standard or specification is impracticable.  Where it is
    2-2  determined that full compliance with any particular standard or
    2-3  specification is impractical, the reasons for such determination
    2-4  shall be set forth in written form by those making the
    2-5  determination and forwarded to the department.  If it is determined
    2-6  that full compliance is not practicable, there shall be substantial
    2-7  compliance as determined by the department with the standard or
    2-8  specification to the maximum extent practical, and the file system
    2-9  maintained by the department shall include the written record of
   2-10  the determination that it is impractical to comply fully with a
   2-11  particular standard or specification and shall also set forth the
   2-12  extent to which an attempt will be made to comply substantially
   2-13  with the standard or specification.>
   2-14        <(b)  These standards and specifications shall be adhered to
   2-15  in those buildings and facilities under construction on the
   2-16  effective date of this article, unless the authority responsible
   2-17  for the construction shall determine that the construction has
   2-18  reached a state where compliance is impractical.  This article
   2-19  shall apply to> temporary or emergency construction of a building
   2-20  or facility described by this subsection;
   2-21              (3)  a building <as well as permanent buildings.>
   2-22        <(c)  These standards and specifications shall be adhered to
   2-23  in all buildings> leased or occupied <rented> in whole or in part
   2-24  for use by the state under any lease or rental agreement entered
   2-25  into on or after January 1, 1972;
   2-26              (4)  a privately funded building<.  To such extent as
   2-27  is not contraindicated by federal law or beyond the power of the
    3-1  state's regulation, these standards shall also apply to buildings
    3-2  or facilities leased or rented for use by the state through partial
    3-3  or total use of federal funds.  Facilities which are the subject of
    3-4  lease or rental agreements on January 1, 1972, will not be required
    3-5  to meet standards and specifications for the term of the existing
    3-6  lease or rental agreement but must be brought into compliance
    3-7  before a lease or rental agreement is renewed.  Where it is
    3-8  determined by the governmental department, agency, or unit
    3-9  concerned that full compliance with any particular standard is
   3-10  impractical, the reasons for such determination shall be set forth
   3-11  in written form by those making the determination and forwarded to
   3-12  the department.  If it is determined that full compliance is not
   3-13  practical, there shall be substantial compliance as determined by
   3-14  the department with the standard or specification to the maximum
   3-15  extent practical, and the file system maintained by the department
   3-16  shall include the written record of the determination that it is
   3-17  impractical to comply fully with a particular standard or
   3-18  specification and shall also set forth the extent to which an
   3-19  attempt will be made to comply substantially with the standard or
   3-20  specification.>
   3-21        <(d)  Except as otherwise provided in subsection (e) of this
   3-22  section, these standards and specifications shall be adhered to in
   3-23  buildings> defined as a "public accommodation" by Section 301(7) of
   3-24  the Americans with Disabilities Act <(ADA)> of 1990 (42 U.S.C.
   3-25  Section 12181), <(P.L.  101-336)> that is <are> constructed or
   3-26  substantially renovated, modified, or altered on or after January
   3-27  1, 1992; and
    4-1              (5)  a privately funded building defined as a
    4-2  "commercial facility" by Section 301, Americans with Disabilities
    4-3  Act of 1990 (42 U.S.C. Section 12181), that is constructed or
    4-4  substantially renovated, modified, or altered on or after September
    4-5  1, 1993.
    4-6        (b)  To the extent there is no conflict with federal law and
    4-7  it is not beyond the state's power of regulation, the standards
    4-8  adopted under this article also apply to a building or facility
    4-9  constructed in this state, or a building or facility leased or
   4-10  rented for use by the state, through the use of federal funds.
   4-11        (c) <(e)>  The commissioner may <shall have the authority to>
   4-12  waive or modify accessibility standards adopted  under this article
   4-13  <and specifications> when:
   4-14              (1)  the application of the <such> standards <and
   4-15  specifications> is considered by the commissioner to be irrelevant
   4-16  to the nature, use, or function of a building or facility covered
   4-17  by this article; or
   4-18              (2)  the owner of a building or facility that is the
   4-19  subject of a request for a waiver or modification of a standard
   4-20  under this subsection, or the owner's designated agent, presents
   4-21  proof to the commissioner that compliance with the particular
   4-22  standard is impracticable.
   4-23        (d)  An owner of a building described by Subsection (a)(3) of
   4-24  this section, or the owner's designated agent, must present to the
   4-25  commissioner the proof required by Subsection (c)(2) of this
   4-26  section before the date the owner:
   4-27              (1)  advertises for bids for the purchase or use of the
    5-1  building; or
    5-2              (2)  enters into a contract for the use of the building
    5-3  if the owner does not advertise for bids.
    5-4        (e)  The commissioner may <shall> not waive or modify any
    5-5  standard or specification when:
    5-6              (1)  waiving or modifying a standard or specification
    5-7  <such action> would result in a significant impairment of the
    5-8  acquisition of goods and services by persons with disabilities or
    5-9  substantially reduce the potential for employment of persons with
   5-10  disabilities; or
   5-11              (2)  the proof presented to the commissioner under
   5-12  Subsection (c)(2) of this section is not adequate.
   5-13        (f)  All evidence supporting waiver or modification
   5-14  determinations made by the commissioner shall be made a matter of
   5-15  record and become part of the file system maintained by the
   5-16  department.
   5-17        SECTION 2.  Subsections (b), (d), and (e), Section 5, Article
   5-18  9102, Revised Statutes, are amended to read as follows:
   5-19        (b)  The commissioner has <shall have> all necessary powers
   5-20  to require compliance with the department's <commissioner's> rules
   5-21  and regulations and modifications thereof and substitutions
   5-22  therefor.  The commission may also impose an administrative penalty
   5-23  under Section 17, Article 9100, Revised Statutes, on a building
   5-24  owner for a violation of this article or a rule adopted under this
   5-25  article.  Each day that the violation is not corrected constitutes
   5-26  a separate violation.  The commissioner when the commission
   5-27  considers imposing an administrative penalty under this section,
    6-1  shall first notify a person responsible for the building and allow
    6-2  that person 90 days to bring the building into compliance.  The
    6-3  commissioner shall have the authority to extend the 90-day period
    6-4  when circumstances justify such extension.
    6-5        (d)  All plans and specifications for construction or for the
    6-6  substantial renovation, modification, or alteration of a building
    6-7  or facility that has an estimated construction cost of $50,000 or
    6-8  more and that is <buildings> subject to the provisions of this
    6-9  article shall be submitted to the department for review and
   6-10  approval prior to the time that construction or that substantial
   6-11  renovation, modification, or alteration on the building begins in
   6-12  accordance with rules and regulations adopted by the commissioner.
   6-13  Plans <The plans> and specifications related to the building shall
   6-14  be submitted to the department by the architect, interior designer,
   6-15  or engineer who has overall responsibility for the design of the
   6-16  constructed or reconstructed building.  The building owner shall
   6-17  submit the plans and specifications to the department if there is
   6-18  no architect, interior designer, or engineer with that
   6-19  responsibility <unless the cost of the construction or
   6-20  reconstruction project is less than $50,000>.  Likewise, any
   6-21  substantial modification of approved plans shall be resubmitted to
   6-22  the department for review and approval.  The plans and
   6-23  specifications that are not approved or disapproved by the
   6-24  department within 30 days from the receipt of the plans and
   6-25  specifications are automatically approved.  If an architect,
   6-26  interior designer, or engineer required to submit or resubmit plans
   6-27  and specifications to the department fails to do so in a timely
    7-1  manner, the commissioner shall report the fact to the Texas Board
    7-2  of Architectural Examiners or the State Board of Registration for
    7-3  Professional Engineers, as appropriate.
    7-4        (e)  The commissioner may review plans and specifications,
    7-5  make inspections, and issue certifications that structures not
    7-6  otherwise covered by this article are free of architectural
    7-7  barriers and in compliance with the provisions of this article.
    7-8  The department shall inspect each building and facility that has an
    7-9  estimated construction cost of $50,000 or more and that is  subject
   7-10  to this article not later than <within> the first anniversary of
   7-11  <year after> the date that construction or substantial renovation,
   7-12  modification, or alteration of the building or facility is
   7-13  completed.  The department shall inspect each building that is
   7-14  subject to this article because of a lease to the state during the
   7-15  first year of the lease.
   7-16        SECTION 3.  This Act takes effect September 1, 1993.
   7-17        SECTION 4.  The importance of this legislation and the
   7-18  crowded condition of the calendars in both houses create an
   7-19  emergency and an imperative public necessity that the
   7-20  constitutional rule requiring bills to be read on three several
   7-21  days in each house be suspended, and this rule is hereby suspended.