S.B. No. 540
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 or Subsection (b) of this
2-21 section;
2-22 (3) a building <as well as permanent buildings.>
2-23 <(c) These standards and specifications shall be adhered to
2-24 in all buildings> leased or occupied <rented> in whole or in part
2-25 for use by the state under any lease or rental agreement entered
2-26 into on or after January 1, 1972;
2-27 (4) a privately funded building or facility<. To such
3-1 extent as is not contraindicated by federal law or beyond the power
3-2 of the state's regulation, these standards shall also apply to
3-3 buildings or facilities leased or rented for use by the state
3-4 through partial or total use of federal funds. Facilities which
3-5 are the subject of lease or rental agreements on January 1, 1972,
3-6 will not be required to meet standards and specifications for the
3-7 term of the existing lease or rental agreement but must be brought
3-8 into compliance before a lease or rental agreement is renewed.
3-9 Where it is determined by the governmental department, agency, or
3-10 unit concerned that full compliance with any particular standard is
3-11 impractical, the reasons for such determination shall be set forth
3-12 in written form by those making the determination and forwarded to
3-13 the department. If it is determined that full compliance is not
3-14 practical, there shall be substantial compliance as determined by
3-15 the department with the standard or specification to the maximum
3-16 extent practical, and the file system maintained by the department
3-17 shall include the written record of the determination that it is
3-18 impractical to comply fully with a particular standard or
3-19 specification and shall also set forth the extent to which an
3-20 attempt will be made to comply substantially with the standard or
3-21 specification.>
3-22 <(d) Except as otherwise provided in subsection (e) of this
3-23 section, these standards and specifications shall be adhered to in
3-24 buildings> defined as a "public accommodation" by Section 301(7) of
3-25 the Americans with Disabilities Act <(ADA)> of 1990 (42 U.S.C.
3-26 Section 12181), <(P.L. 101-336)> that is <are> constructed or
3-27 substantially renovated, modified, or altered on or after January
4-1 1, 1992; and
4-2 (5) a privately funded building or facility defined as
4-3 a "commercial facility" by Section 301, Americans with Disabilities
4-4 Act of 1990 (42 U.S.C. Section 12181), that is constructed or
4-5 substantially renovated, modified, or altered on or after September
4-6 1, 1993.
4-7 (b) To the extent there is no conflict with federal law and
4-8 it is not beyond the state's power of regulation, the standards
4-9 adopted under this article also apply to a building or facility
4-10 constructed in this state, or a building or facility leased or
4-11 rented for use by the state, through the use of federal funds.
4-12 (c) <(e)> The commissioner may <shall have the authority to>
4-13 waive or modify accessibility standards adopted under this article
4-14 <and specifications> when:
4-15 (1) the application of the <such> standards <and
4-16 specifications> is considered by the commissioner to be irrelevant
4-17 to the nature, use, or function of a building or facility covered
4-18 by this article; or
4-19 (2) the owner of a building or facility that is the
4-20 subject of a request for a waiver or modification of a standard
4-21 under this subsection, or the owner's designated agent, presents
4-22 proof to the commissioner that compliance with the particular
4-23 standard is impracticable.
4-24 (d) An owner of a building described by Subsection (a)(3) of
4-25 this section or of a building or facility leased or rented for use
4-26 by the state through the use of federal funds, or the owner's
4-27 designated agent, must present to the commissioner the proof
5-1 required by Subsection (c)(2) of this section before the date the
5-2 owner:
5-3 (1) submits a bid proposal in relation to the award of
5-4 a contract for the lease or rental of the building or facility; or
5-5 (2) is awarded the contract for the lease or rental of
5-6 the building or facility if the state does not advertise for bids.
5-7 (e) The commissioner may <shall> not waive or modify any
5-8 standard or specification when:
5-9 (1) waiving or modifying a standard or specification
5-10 <such action> would result in a significant impairment of the
5-11 acquisition of goods and services by persons with disabilities or
5-12 substantially reduce the potential for employment of persons with
5-13 disabilities; or
5-14 (2) the proof presented to the commissioner under
5-15 Subsection (c)(2) of this section is not adequate.
5-16 (f) All evidence supporting waiver or modification
5-17 determinations made by the commissioner shall be made a matter of
5-18 record and become part of the file system maintained by the
5-19 department.
5-20 SECTION 2. Section 5, Article 9102, Revised Statutes, is
5-21 amended by amending Subsections (b), (d), and (e) and adding
5-22 Subsection (f) to read as follows:
5-23 (b) The commissioner has <shall have> all necessary powers
5-24 to require compliance with the department's <commissioner's> rules
5-25 and regulations and modifications thereof and substitutions
5-26 therefor. The commission may also impose an administrative penalty
5-27 under Section 17, Article 9100, Revised Statutes, on a building
6-1 owner for a violation of this article or a rule adopted under this
6-2 article. Each day that the violation is not corrected constitutes
6-3 a separate violation. The commissioner when the commission
6-4 considers imposing an administrative penalty under this section,
6-5 shall first notify a person responsible for the building and allow
6-6 that person 90 days to bring the building into compliance. The
6-7 commissioner shall have the authority to extend the 90-day period
6-8 when circumstances justify such extension.
6-9 (d) All plans and specifications for construction or for the
6-10 substantial renovation, modification, or alteration of a building
6-11 or facility that has an estimated construction cost of $50,000 or
6-12 more and that is <buildings> subject to the provisions of this
6-13 article shall be submitted to the department for review and
6-14 approval prior to the time that construction or that substantial
6-15 renovation, modification, or alteration on the building or facility
6-16 begins in accordance with rules and regulations adopted by the
6-17 commissioner. Plans <The plans> and specifications related to the
6-18 building or facility shall be submitted to the department by the
6-19 architect, interior designer, or engineer who has overall
6-20 responsibility for the design of the constructed or reconstructed
6-21 building or facility. The <building> owner shall submit the plans
6-22 and specifications to the department if there is no architect,
6-23 interior designer, or engineer with that responsibility <unless the
6-24 cost of the construction or reconstruction project is less than
6-25 $50,000>. Likewise, any substantial modification of approved plans
6-26 shall be resubmitted to the department for review and approval.
6-27 The plans and specifications that are not approved or disapproved
7-1 by the department within 30 days from the receipt of the plans and
7-2 specifications are automatically approved. If an architect,
7-3 interior designer, or engineer required to submit or resubmit plans
7-4 and specifications to the department fails to do so in a timely
7-5 manner, the commissioner shall report the fact to the Texas Board
7-6 of Architectural Examiners or the State Board of Registration for
7-7 Professional Engineers, as appropriate.
7-8 (e) The commissioner may review plans and specifications,
7-9 make inspections, and issue certifications that structures not
7-10 otherwise covered by this article are free of architectural
7-11 barriers and in compliance with the provisions of this article.
7-12 The department shall inspect each building and facility that has an
7-13 estimated construction cost of $50,000 or more and that is subject
7-14 to this article not later than <within> the first anniversary of
7-15 <year after> the date that construction or substantial renovation,
7-16 modification, or alteration of the building or facility is
7-17 completed. The department shall inspect each building that is
7-18 subject to this article because of a lease to the state during the
7-19 first year of the lease.
7-20 (f)(1) The commissioner shall contract with a municipality
7-21 to perform the commissioner's review and inspection functions for
7-22 privately financed buildings that are not leased by the state or a
7-23 political subdivision if:
7-24 (A) the municipality requests permission to
7-25 perform such duties;
7-26 (B) the municipality is staffed with a
7-27 sufficient number of qualified personnel to perform such duties in
8-1 the judgment of the commissioner; and
8-2 (C) the municipality agrees to contract terms
8-3 required by the commissioner.
8-4 (2) The commissioner shall require municipal personnel
8-5 who perform such duties to comply with qualification or
8-6 certification requirements adopted or approved by the commissioner.
8-7 The commissioner, not later than April 1, 1994, shall adopt
8-8 qualification requirements or implement certification programs
8-9 under this subsection and shall commence entering into contracts
8-10 with municipalities qualifying under this subsection.
8-11 SECTION 3. This Act takes effect September 1, 1993.
8-12 SECTION 4. The importance of this legislation and the
8-13 crowded condition of the calendars in both houses create an
8-14 emergency and an imperative public necessity that the
8-15 constitutional rule requiring bills to be read on three several
8-16 days in each house be suspended, and this rule is hereby suspended.