By: Sibley S.B. No. 941
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.