By: Sibley, Brown S.B. No. 941
A BILL TO BE ENTITLED
AN ACT
1-1 relating to enclosures around pools and spas owned, controlled, or
1-2 maintained by multiunit rental complex owners or property owners
1-3 associations; providing a civil penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle A, Title 9, Health and Safety Code, is
1-6 amended by adding Chapter 757 to read as follows:
1-7 CHAPTER 757. POOL YARD ENCLOSURES
1-8 Sec. 757.001. DEFINITIONS. In this chapter:
1-9 (1) "Self-closing and self-latching device" means a
1-10 device that causes a gate to automatically close without human or
1-11 electrical power after it has been opened and to automatically
1-12 latch without human or electrical power when the gate closes.
1-13 (2) "Doorknob lock" means a lock that is in a doorknob
1-14 and that is operated from the exterior by a key, card, or
1-15 combination and from the interior without a key, card, or
1-16 combination.
1-17 (3) "Dwelling" or "rental dwelling" means one or more
1-18 rooms rented to one or more tenants for use as a permanent
1-19 residence under a lease. The term does not include a room rented
1-20 to overnight guests.
1-21 (4) "French doors" means double doors, sometimes
1-22 called double-hinged patio doors, that provide access from a
1-23 dwelling interior to the exterior and in which each of the two
1-24 doors are hinged and closable so that the edge of one door closes
2-1 immediately adjacent to the edge of the other door with no
2-2 partition between the doors. "French door" means either one of the
2-3 two doors.
2-4 (5) "Keyed dead bolt" means a door lock that is not in
2-5 the doorknob, that locks by a bolt in the doorjamb, that has a bolt
2-6 with at least a one-inch throw if installed after September 1,
2-7 1993, and that is operated from the exterior by a key, card, or
2-8 combination and operated from the interior by a knob or lever
2-9 without a key, card, or combination. The term includes a doorknob
2-10 lock that contains a bolt with at least a one-inch throw.
2-11 (6)(A) "Keyless bolting device" means a door lock not
2-12 in the doorknob that locks:
2-13 (i) with a bolt with one-inch throw into a
2-14 strike plate screwed into the portion of the doorjamb surface that
2-15 faces the edge of the door when the door is closed or into a metal
2-16 doorjamb that serves as the strike plate, operable only by knob or
2-17 lever from the door's interior and not in any manner from the
2-18 door's exterior, and that is commonly known as a keyless dead bolt;
2-19 or
2-20 (ii) by a drop bolt system operated by
2-21 placing a central metal plate over a metal doorjamb restraint which
2-22 protrudes from the doorjamb and which is affixed to the doorjamb
2-23 frame by means of three case-hardened screws at least three inches
2-24 in length. One half of the central plate must overlap the interior
2-25 surface of the door and the other half of the central plate must
2-26 overlap the doorjamb when the plate is placed over the doorjamb
2-27 restraint. The drop bolt system must prevent the door from being
3-1 opened unless the central plate is lifted off of the doorjamb
3-2 restraint by a person who is on the interior side of the door.
3-3 (B) The term does not include a chain latch,
3-4 flip latch, surface-mounted slide bolt, mortise door bolt,
3-5 surface-mounted barrel bolt, surface-mounted swing bar door guard,
3-6 spring-loaded nightlatch, foot bolt, or other lock or latch.
3-7 (7) "Multiunit rental complex" means two or more
3-8 dwelling units in one or more buildings that are under common
3-9 ownership, managed by the same owner, managing agent, or management
3-10 company, and located on the same lot or tract of land or adjacent
3-11 lots or tracts of land. The term includes a condominium project.
3-12 The term does not include:
3-13 (A) a facility primarily renting rooms to
3-14 overnight guests; or
3-15 (B) a single-family home or adjacent
3-16 single-family homes that are not part of a condominium project.
3-17 (8) "Pool" means a permanent swimming pool, permanent
3-18 wading or reflection pool, or permanent hot tub or spa over 18
3-19 inches deep, located at ground level, above ground, below ground,
3-20 or indoors.
3-21 (9) "Pool yard" means an area that contains a pool.
3-22 (10) "Pool yard enclosure" or "enclosure" means a
3-23 fence, wall, or combination of fences, walls, gates, windows, or
3-24 doors that completely surround a pool.
3-25 (11) "Property owners association" means an
3-26 association of property owners for a residential subdivision,
3-27 condominium, cooperative, town home project, or other project
4-1 involving residential dwellings.
4-2 (12) "Sliding door handle latch" means a latch or lock
4-3 that is near the handle on a sliding glass door, that is operated
4-4 with or without a key, and that is designed to prevent the door
4-5 from being opened.
4-6 (13) "Sliding door pin lock" means a pin or rod that
4-7 is inserted from the interior side of a sliding glass door at the
4-8 side opposite the door's handle and that is designed to prevent the
4-9 door from being opened or lifted.
4-10 (14) "Sliding door security bar" means a bar or rod
4-11 that can be placed at the bottom of or across the interior side of
4-12 the fixed panel of a sliding glass door and that is designed to
4-13 prevent the sliding panel of the door from being opened.
4-14 (15) "Tenant" means a person who is obligated to pay
4-15 rent or other consideration and who is authorized to occupy a
4-16 dwelling, to the exclusion of others, under a verbal or written
4-17 lease or rental agreement.
4-18 (16) "Window latch" means a device on a window or
4-19 window screen that prevents the window or window screen from being
4-20 opened and that is operated without a key and only from the
4-21 interior.
4-22 Sec. 757.002. APPLICATION. This chapter applies only to:
4-23 (1) a pool owned, controlled, or maintained by the
4-24 owner of a multiunit rental complex or by a property owners
4-25 association; and
4-26 (2) doors and windows of rental dwellings opening into
4-27 the pool yard of a multiunit rental complex or condominium,
5-1 cooperative, or town home project.
5-2 Sec. 757.003. ENCLOSURE FOR POOL YARD. (a) Except as
5-3 otherwise provided by Section 757.005, the owner of a multiunit
5-4 rental complex with a pool or a property owners association that
5-5 owns, controls, or maintains a pool shall completely enclose the
5-6 pool yard with a pool yard enclosure.
5-7 (b) The height of the pool yard enclosure must be at least
5-8 48 inches as measured from the ground on the side away from the
5-9 pool.
5-10 (c) Openings under the pool yard enclosure may not allow a
5-11 sphere four inches in diameter to pass under the pool yard
5-12 enclosure.
5-13 (d) If the pool yard enclosure is constructed with
5-14 horizontal and vertical members and the distance between the tops
5-15 of the horizontal members is at least 45 inches, the openings may
5-16 not allow a sphere four inches in diameter to pass through the
5-17 enclosure.
5-18 (e) If the pool yard enclosure is constructed with
5-19 horizontal and vertical members and the distance between the tops
5-20 of the horizontal members is less than 45 inches, the openings may
5-21 not allow a sphere 1-3/4 inches in diameter to pass through the
5-22 enclosure.
5-23 (f) Decorative designs or cutouts on or in the pool yard
5-24 enclosure may not contain any openings greater than 1-3/4 inches in
5-25 any direction.
5-26 (g) Indentations or protrusions in a solid pool yard
5-27 enclosure without any openings may not be greater than normal
6-1 construction tolerances and tooled masonry joints on the side away
6-2 from the pool.
6-3 (h) Permanent equipment or structures may not be constructed
6-4 or placed in a manner that makes them readily available for
6-5 climbing over the pool yard enclosure.
6-6 (i) The wall of a building may be part of the pool yard
6-7 enclosure only if the doors and windows in the wall comply with
6-8 Sections 757.006 and 757.007.
6-9 (j) The owner of a multiunit rental complex with a pool or a
6-10 property owners association that owns, controls, or maintains a
6-11 pool is not required to:
6-12 (1) build a pool yard enclosure at specified locations
6-13 or distances from the pool other than distances for minimum
6-14 walkways around the pool; or
6-15 (2) conform secondary pool yard enclosures, located
6-16 inside or outside the primary pool yard enclosure, to the
6-17 requirements of this chapter.
6-18 Sec. 757.004. GATES. (a) Except as otherwise provided by
6-19 Section 757.005, a gate in a fence or wall enclosing a pool yard as
6-20 required by Section 757.003 must:
6-21 (1) have a self-closing and self-latching device;
6-22 (2) have hardware enabling it to be locked, at the
6-23 option of whoever controls the gate, by a padlock or a built-in
6-24 lock operated by key, card, or combination; and
6-25 (3) open outward away from the pool yard.
6-26 (b) Except as otherwise provided by Subsection (c) and
6-27 Section 757.005, a gate latch must be installed so that it is at
7-1 least 60 inches above the ground, except that it may be installed
7-2 lower if:
7-3 (1) the latch is installed on the pool yard side of
7-4 the gate only and is at least three inches below the top of the
7-5 gate; and
7-6 (2) the gate or enclosure has no opening greater than
7-7 one-half inch in any direction within 18 inches from the latch,
7-8 including the space between the gate and the gate post to which the
7-9 gate latches.
7-10 (c) A gate latch may be located 42 inches or higher above
7-11 the ground if the gate cannot be opened except by key, card, or
7-12 combination on both sides of the gate.
7-13 Sec. 757.005. EXISTING POOL YARD ENCLOSURES. (a) If a pool
7-14 yard enclosure is constructed or modified before January 1, 1994,
7-15 and no municipal ordinance containing standards for pool yard
7-16 enclosures were applicable at the time of construction or
7-17 modification, the enclosure must comply with the requirements of
7-18 Sections 757.003 and 757.004, except that:
7-19 (1) if the enclosure is constructed with chain link
7-20 metal fencing material, the openings in the enclosure may not allow
7-21 a sphere 2-1/4 inches in diameter to pass through the enclosure; or
7-22 (2) if the enclosure is constructed with horizontal
7-23 and vertical members and the distance between the tops of the
7-24 horizontal members is at least 36 inches, the openings in the
7-25 enclosure may not allow a sphere four inches in diameter to pass
7-26 through the enclosure.
7-27 (b) If a pool yard enclosure is constructed or modified
8-1 before January 1, 1994, and if the enclosure is in compliance with
8-2 applicable municipal ordinances existing on January 1, 1994, and
8-3 containing standards for pool yard enclosures, Sections 757.003,
8-4 757.004(a)(3), and 757.004(b) do not apply to the enclosure.
8-5 Sec. 757.006. DOOR. (a) A door, sliding glass door, or
8-6 French door may not open directly into a pool yard if the date of
8-7 electrical service for initial construction of the building or pool
8-8 is on or after January 1, 1994.
8-9 (b) A door, sliding glass door, or French door may open
8-10 directly into a pool yard if the date of electrical service for
8-11 initial construction of the building or pool is before January 1,
8-12 1994, and the pool yard enclosure complies with Subsection (c),
8-13 (d), or (e), as applicable.
8-14 (c) If a door of a building, other than a sliding glass door
8-15 or screen door, opens into the pool yard, the door must have a:
8-16 (1) latch that automatically engages when the door is
8-17 closed;
8-18 (2) spring-loaded door-hinge pin, automatic door
8-19 closer, or similar device to cause the door to close automatically;
8-20 and
8-21 (3) keyless bolting device that is installed not less
8-22 than 36 inches or more than 48 inches above the interior floor.
8-23 (d) If French doors of a building open to the pool yard, one
8-24 of the French doors must comply with Subsection (c)(1) and the
8-25 other door must have a:
8-26 (1) keyed dead bolt or keyless bolting device capable
8-27 of insertion into the doorjamb above the door and a keyless bolting
9-1 device capable of insertion into the floor or threshold; or
9-2 (2) bolt with at least a 3/4-inch throw installed
9-3 inside the door and operated from the edge of the door that is
9-4 capable of insertion into the doorjamb above the door and another
9-5 bolt with at least a 3/4-inch throw installed inside the door and
9-6 operated from the edge of the door that is capable of insertion
9-7 into the floor or threshold.
9-8 (e) If a sliding glass door of a building opens into the
9-9 pool yard, the sliding glass door must have a:
9-10 (1) sliding door handle latch or sliding door security
9-11 bar that is installed not more than 48 inches above the interior
9-12 floor; and
9-13 (2) sliding door pin lock that is installed not more
9-14 than 48 inches above the interior floor.
9-15 (f) A door, sliding glass door, or French door that opens
9-16 into a pool yard from an area of a building that is not used by
9-17 residents and that has no access to an area outside the pool yard
9-18 is not required to have a lock, latch, dead bolt, or keyless
9-19 bolting device.
9-20 (g) A keyed dead bolt, keyless bolting device, sliding door
9-21 pin lock, or sliding door security bar installed before September
9-22 1, 1993, may be installed not more than 54 inches from the floor.
9-23 Sec. 757.007. WINDOW AND WINDOW SCREENS. A wall of a
9-24 building constructed before January 1, 1994, may not be used as
9-25 part of a pool yard enclosure unless each window in the wall has a
9-26 latch and unless each window screen on a window in the wall is
9-27 affixed by a window screen latch, screws, or similar means. This
10-1 section does not require the installation of window screens. A
10-2 wall of a building constructed on or after January 1, 1994, may not
10-3 be used as part of a pool yard enclosure unless each ground floor
10-4 window in the wall is permanently closed and unable to be opened.
10-5 Sec. 757.008. BUILDING IN POOL YARD. Each door, sliding
10-6 glass door, window, and window screen of each dwelling unit in a
10-7 residential building located in the enclosed pool yard must comply
10-8 with Sections 757.006 and 757.007.
10-9 Sec. 757.009. INSPECTION, REPAIR, AND MAINTENANCE. (a) An
10-10 owner of a multiunit rental complex or a rental dwelling in a
10-11 condominium, cooperative, or town home project with a pool or a
10-12 property owners association that owns, controls, or maintains a
10-13 pool shall exercise ordinary and reasonable care to inspect,
10-14 maintain, repair, and keep in good working order the pool yard
10-15 enclosures, gates, and self-closing and self-latching devices
10-16 required by this chapter and within the control of the owner or
10-17 property owners association.
10-18 (b) An owner of a multiunit rental complex or a rental
10-19 dwelling in a condominium, cooperative, or town home project with a
10-20 pool or a property owners association that owns, controls, or
10-21 maintains a pool shall exercise ordinary and reasonable care to
10-22 maintain, repair, and keep in good working order the window
10-23 latches, sliding door handle latches, sliding door pin locks, and
10-24 sliding door security bars required by this chapter and within the
10-25 control of the owner or property owners association after request
10-26 or notice from the tenant that those devices are malfunctioning or
10-27 in need of repair or replacement. A request or notice under this
11-1 subsection may be given orally unless a written lease applicable to
11-2 the tenant or written rules governing the property owners
11-3 association require the request or notice to be in writing. The
11-4 requirement in the lease or rules must be in capital letters and
11-5 underlined or in 10-point boldfaced print.
11-6 (c) An owner of a multiunit rental complex or a rental
11-7 dwelling in a condominium, cooperative, or town home project with a
11-8 pool or a property owners association that owns, controls, or
11-9 maintains a pool shall inspect the pool yard enclosures, gates, and
11-10 self-closing and self-latching devices on gates at least once every
11-11 31 days.
11-12 (d) An owner's or property owners association's duty of
11-13 inspection, repair, and maintenance under this section may not be
11-14 waived under any circumstances and may not be enlarged except by
11-15 written agreement with a tenant or occupant of a multiunit rental
11-16 complex or a member of a property owners association or as may be
11-17 otherwise allowed by this chapter.
11-18 Sec. 757.010. COMPLIANCE WITH CHAPTER. (a) Except as
11-19 provided by Subsection (b) and Section 757.011, a person who
11-20 constructs or modifies a pool yard enclosure to conform with this
11-21 chapter may not be required to construct the enclosure differently
11-22 by a local governmental entity, common law, or any other law.
11-23 (b) An owner of a multiunit rental complex or a rental
11-24 dwelling in a condominium, cooperative, or town home project with a
11-25 pool or a property owners association that owns, controls, or
11-26 maintains a pool may, at the person's option, exceed the standards
11-27 of this chapter or those adopted by the Texas Board of Health under
12-1 Section 757.011. A tenant or occupant in a multiunit rental
12-2 complex or a member of a property owners association may, by
12-3 express written agreement, require the owner of the complex or the
12-4 association to exceed those standards.
12-5 (c) A municipality may continue to require greater overall
12-6 height requirements for pool yard enclosures if the requirements
12-7 exist under the municipality's ordinances on January 1, 1994.
12-8 Sec. 757.011. AUTHORITY OF TEXAS BOARD OF HEALTH. The Texas
12-9 Board of Health may adopt rules requiring standards for the design
12-10 and construction of pool yard enclosures that exceed the
12-11 requirements of this chapter and that apply to all pools and pool
12-12 yards subject to this chapter. An owner of a multiunit rental
12-13 complex or a rental dwelling in a condominium, cooperative, or town
12-14 home project with a pool or a property owners association that
12-15 owns, controls, or maintains a pool shall comply with and shall be
12-16 liable for failure to comply with those rules to the same extent as
12-17 if they were part of this chapter.
12-18 Sec. 757.012. ENFORCEMENT. (a) A tenant of an owner of a
12-19 multiunit rental complex, a member of a property owners
12-20 association, a governmental entity, or any other person or the
12-21 person's representative may maintain an action against the owner or
12-22 property owners association for failure to comply with the
12-23 requirements of this chapter. In that action, the person may
12-24 obtain:
12-25 (1) a court order directing the owner or property
12-26 owners association to comply with this chapter;
12-27 (2) a judgment against the owner or property owners
13-1 association for actual damages resulting from the failure to comply
13-2 with the requirements of this chapter;
13-3 (3) a judgment against the owner or property owners
13-4 association for punitive damages resulting from the failure to
13-5 comply with the requirements of this chapter if actual damages to
13-6 the person were caused by the owner's or property owners
13-7 association's intentional, malicious, or grossly negligent actions;
13-8 (4) a judgment against the owner or property owners
13-9 association for actual damages, and if appropriate, punitive
13-10 damages, if the owner or association was in compliance with this
13-11 chapter at the time of the pool-related damaging event but was
13-12 consciously indifferent to access being repeatedly gained to the
13-13 pool yard by unauthorized persons; or
13-14 (5) a judgment against the owner or property owners
13-15 association for a civil penalty of not more than $5,000 if the
13-16 owner or property owners association fails to comply with this
13-17 chapter within a reasonable time after written notice by a tenant
13-18 of the multiunit rental complex or a member of the property owners
13-19 association.
13-20 (b) A court may award reasonable attorney fees and costs to
13-21 the prevailing party in an action brought under Subsection (a)(5).
13-22 Sec. 757.013. TENANT'S REQUEST FOR REPAIRS. A tenant in a
13-23 multiunit rental complex with a pool may verbally request repair of
13-24 a keyed dead bolt, keyless bolting device, sliding door latch,
13-25 sliding door pin lock, sliding door security bar, window latch, or
13-26 window screen latch unless a provision of a written lease executed
13-27 by the tenant requires that the request be made in writing and the
14-1 provision is in capital letters and underlined or in 10-point
14-2 boldfaced print. A request for repair may be given to the owner or
14-3 the owner's managing agent.
14-4 Sec. 757.014. APPLICATION TO OTHER BODIES OF WATER AND
14-5 RELATED FACILITIES. The owner of a multiunit rental complex or a
14-6 property owners association is not required to enclose a body of
14-7 water or construct barriers between the owner's or property owners
14-8 association's property and a body of water such as an ocean, bay,
14-9 lake, pond, bayou, river, creek, stream, spring, reservoir, stock
14-10 tank, culvert, drainage ditch, detention pond, or other flood or
14-11 drainage facility.
14-12 Sec. 757.015. EFFECT ON OTHER LAWS. (a) The duties
14-13 established by this chapter for an owner of a multiunit dwelling
14-14 project, an owner of a dwelling in a condominium, cooperative, or
14-15 town home project, and a property owners association supersede
14-16 those established by common law, the Property Code, the Health and
14-17 Safety Code, the Local Government Code, and local ordinances
14-18 relating to duties to inspect, install, repair, or maintain:
14-19 (1) pool yard enclosures;
14-20 (2) pool yard enclosure gates and gate latches,
14-21 including self-closing and self-latching devices;
14-22 (3) keyed dead bolts, keyless bolting devices, sliding
14-23 door handle latches, sliding door security bars, self-latching and
14-24 self-closing devices, and sliding door pin locks on doors that open
14-25 into a pool yard area and that are owned and controlled by the
14-26 owner or property owners association; and
14-27 (4) latches on windows that open into a pool yard area
15-1 and that are owned and controlled by the owner or property owners
15-2 association.
15-3 (b) This chapter does not affect any duties of a rental
15-4 dwelling owner, lessor, sublessor, management company, or managing
15-5 agent under Subchapter D, Chapter 92, Property Code.
15-6 Sec. 757.016. NONEXCLUSIVE REMEDIES. The remedies contained
15-7 in this chapter are not exclusive and are not intended to affect
15-8 existing remedies allowed by law or other procedure.
15-9 Sec. 757.017. INTERPRETATION AND APPLICATION. The
15-10 provisions of this chapter shall be liberally construed to promote
15-11 its underlying purpose which is to prevent swimming pool deaths and
15-12 injuries in this state.
15-13 SECTION 2. This Act takes effect January 1, 1994.
15-14 SECTION 3. The importance of this legislation and the
15-15 crowded condition of the calendars in both houses create an
15-16 emergency and an imperative public necessity that the
15-17 constitutional rule requiring bills to be read on three several
15-18 days in each house be suspended, and this rule is hereby suspended.