1-1 By: Sibley S.B. No. 941
1-2 (In the Senate - Filed March 11, 1993; March 15, 1993, read
1-3 first time and referred to Committee on State Affairs; May 7, 1993,
1-4 reported adversely, with favorable Committee Substitute by the
1-5 following vote: Yeas 7, Nays 0; May 7, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Harris of Dallas x
1-9 Rosson x
1-10 Carriker x
1-11 Henderson x
1-12 Leedom x
1-13 Lucio x
1-14 Luna x
1-15 Nelson x
1-16 Patterson x
1-17 Shelley x
1-18 Sibley x
1-19 West x
1-20 Whitmire x
1-21 COMMITTEE SUBSTITUTE FOR S.B. No. 941 By: Sibley
1-22 A BILL TO BE ENTITLED
1-23 AN ACT
1-24 relating to enclosures around pools and spas owned, controlled, or
1-25 maintained by multiunit rental complex owners or property owners
1-26 associations; providing a civil penalty.
1-27 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-28 SECTION 1. Subtitle A, Title 9, Health and Safety Code, is
1-29 amended by adding Chapter 757 to read as follows:
1-30 CHAPTER 757. POOL YARD ENCLOSURES
1-31 Sec. 757.001. DEFINITIONS. In this chapter:
1-32 (1) "Self-closing and self-latching device" means a
1-33 device that causes a gate to automatically close without human or
1-34 electrical power after it has been opened and to automatically
1-35 latch without human or electrical power when the gate closes.
1-36 (2) "Doorknob lock" means a lock that is in a doorknob
1-37 and that is operated from the exterior by a key, card, or
1-38 combination and from the interior without a key, card, or
1-39 combination.
1-40 (3) "Dwelling" or "rental dwelling" means one or more
1-41 rooms rented to one or more tenants for use as a permanent
1-42 residence under a lease. The term does not include a room rented
1-43 to overnight guests.
1-44 (4) "French doors" means double doors, sometimes
1-45 called double-hinged patio doors, that provide access from a
1-46 dwelling interior to the exterior and in which each of the two
1-47 doors are hinged and closable so that the edge of one door closes
1-48 immediately adjacent to the edge of the other door with no
1-49 partition between the doors. "French door" means either one of the
1-50 two doors.
1-51 (5) "Keyed dead bolt" means a door lock that is not in
1-52 the doorknob, that locks by a bolt in the doorjamb, that has a bolt
1-53 with at least a one-inch throw if installed after September 1,
1-54 1993, and that is operated from the exterior by a key, card, or
1-55 combination and operated from the interior by a knob or lever
1-56 without a key, card, or combination. The term includes a doorknob
1-57 lock that contains a bolt with at least a one-inch throw.
1-58 (6)(A) "Keyless bolting device" means a door lock not
1-59 in the doorknob that locks:
1-60 (i) with a bolt with one-inch throw into a
1-61 strike plate screwed into the portion of the doorjamb surface that
1-62 faces the edge of the door when the door is closed or into a metal
1-63 doorjamb that serves as the strike plate, operable only by knob or
1-64 lever from the door's interior and not in any manner from the
1-65 door's exterior, and that is commonly known as a keyless dead bolt;
1-66 or
1-67 (ii) by a drop bolt system operated by
1-68 placing a central metal plate over a metal doorjamb restraint which
2-1 protrudes from the doorjamb and which is affixed to the doorjamb
2-2 frame by means of three case-hardened screws at least three inches
2-3 in length. One half of the central plate must overlap the interior
2-4 surface of the door and the other half of the central plate must
2-5 overlap the doorjamb when the plate is placed over the doorjamb
2-6 restraint. The drop bolt system must prevent the door from being
2-7 opened unless the central plate is lifted off of the doorjamb
2-8 restraint by a person who is on the interior side of the door.
2-9 (B) The term does not include a chain latch, flip latch,
2-10 surface-mounted slide bolt, mortise door bolt, surface-mounted
2-11 barrel bolt, surface-mounted swing bar door guard, spring-loaded
2-12 nightlatch, foot bolt, or other lock or latch.
2-13 (7) "Multiunit rental complex" means two or more
2-14 dwelling units in one or more buildings that are under common
2-15 ownership, managed by the same owner, managing agent, or management
2-16 company, and located on the same lot or tract of land or adjacent
2-17 lots or tracts of land. The term includes a condominium project.
2-18 The term does not include:
2-19 (A) a facility primarily renting rooms to
2-20 overnight guests; or
2-21 (B) a single-family home or adjacent
2-22 single-family homes that are not part of a condominium project.
2-23 (8) "Pool" means a permanent swimming pool, permanent
2-24 wading or reflection pool, or permanent hot tub or spa over 18
2-25 inches deep, located at ground level, above ground, below ground,
2-26 or indoors.
2-27 (9) "Pool yard" means an area that contains a pool.
2-28 (10) "Pool yard enclosure" or "enclosure" means a
2-29 fence, wall, or combination of fences, walls, gates, windows, or
2-30 doors that completely surround a pool.
2-31 (11) "Property owners association" means an
2-32 association of property owners for a residential subdivision,
2-33 condominium, cooperative, town home project, or other project
2-34 involving residential dwellings.
2-35 (12) "Sliding door handle latch" means a latch or lock
2-36 that is near the handle on a sliding glass door, that is operated
2-37 with or without a key, and that is designed to prevent the door
2-38 from being opened.
2-39 (13) "Sliding door pin lock" means a pin or rod that
2-40 is inserted from the interior side of a sliding glass door at the
2-41 side opposite the door's handle and that is designed to prevent the
2-42 door from being opened or lifted.
2-43 (14) "Sliding door security bar" means a bar or rod
2-44 that can be placed at the bottom of or across the interior side of
2-45 the fixed panel of a sliding glass door and that is designed to
2-46 prevent the sliding panel of the door from being opened.
2-47 (15) "Tenant" means a person who is obligated to pay
2-48 rent or other consideration and who is authorized to occupy a
2-49 dwelling, to the exclusion of others, under a verbal or written
2-50 lease or rental agreement.
2-51 (16) "Window latch" means a device on a window or
2-52 window screen that prevents the window or window screen from being
2-53 opened and that is operated without a key and only from the
2-54 interior.
2-55 Sec. 757.002. APPLICATION. This chapter applies only to:
2-56 (1) a pool owned, controlled, or maintained by the
2-57 owner of a multiunit rental complex or by a property owners
2-58 association; and
2-59 (2) doors and windows of rental dwellings opening into
2-60 the pool yard of a multiunit rental complex or condominium,
2-61 cooperative, or town home project.
2-62 Sec. 757.003. ENCLOSURE FOR POOL YARD. (a) Except as
2-63 otherwise provided by Section 757.005, the owner of a multiunit
2-64 rental complex with a pool or a property owners association that
2-65 owns, controls, or maintains a pool shall completely enclose the
2-66 pool yard with a pool yard enclosure.
2-67 (b) The height of the pool yard enclosure must be at least
2-68 48 inches as measured from the ground on the side away from the
2-69 pool.
2-70 (c) Openings under the pool yard enclosure may not allow a
3-1 sphere four inches in diameter to pass under the pool yard
3-2 enclosure.
3-3 (d) If the pool yard enclosure is constructed with
3-4 horizontal and vertical members and the distance between the tops
3-5 of the horizontal members is at least 45 inches, the openings may
3-6 not allow a sphere four inches in diameter to pass through the
3-7 enclosure.
3-8 (e) If the pool yard enclosure is constructed with
3-9 horizontal and vertical members and the distance between the tops
3-10 of the horizontal members is less than 45 inches, the openings may
3-11 not allow a sphere 1-3/4 inches in diameter to pass through the
3-12 enclosure.
3-13 (f) Decorative designs or cutouts on or in the pool yard
3-14 enclosure may not contain any openings greater than 1-3/4 inches in
3-15 any direction.
3-16 (g) Indentations or protrusions in a solid pool yard
3-17 enclosure without any openings may not be greater than normal
3-18 construction tolerances and tooled masonry joints on the side away
3-19 from the pool.
3-20 (h) Permanent equipment or structures may not be constructed
3-21 or placed in a manner that makes them readily available for
3-22 climbing over the pool yard enclosure.
3-23 (i) The wall of a building may be part of the pool yard
3-24 enclosure only if the doors and windows in the wall comply with
3-25 Sections 757.006 and 757.007.
3-26 (j) The owner of a multiunit rental complex with a pool or a
3-27 property owners association that owns, controls, or maintains a
3-28 pool is not required to:
3-29 (1) build a pool yard enclosure at specified locations
3-30 or distances from the pool other than distances for minimum
3-31 walkways around the pool; or
3-32 (2) conform secondary pool yard enclosures, located
3-33 inside or outside the primary pool yard enclosure, to the
3-34 requirements of this chapter.
3-35 Sec. 757.004. GATES. (a) Except as otherwise provided by
3-36 Section 757.005, a gate in a fence or wall enclosing a pool yard as
3-37 required by Section 757.003 must:
3-38 (1) have a self-closing and self-latching device;
3-39 (2) have hardware enabling it to be locked, at the
3-40 option of whoever controls the gate, by a padlock or a built-in
3-41 lock operated by key, card, or combination; and
3-42 (3) open outward away from the pool yard.
3-43 (b) Except as otherwise provided by Subsection (c) and
3-44 Section 757.005, a gate latch must be installed so that it is at
3-45 least 60 inches above the ground, except that it may be installed
3-46 lower if:
3-47 (1) the latch is installed on the pool yard side of
3-48 the gate only and is at least three inches below the top of the
3-49 gate; and
3-50 (2) the gate or enclosure has no opening greater than
3-51 one-half inch in any direction within 18 inches from the latch,
3-52 including the space between the gate and the gate post to which the
3-53 gate latches.
3-54 (c) A gate latch may be located 42 inches or higher above
3-55 the ground if the gate cannot be opened except by key, card, or
3-56 combination on both sides of the gate.
3-57 Sec. 757.005. EXISTING POOL YARD ENCLOSURES. (a) If a pool
3-58 yard enclosure is constructed or modified before January 1, 1994,
3-59 and no municipal ordinance containing standards for pool yard
3-60 enclosures were applicable at the time of construction or
3-61 modification, the enclosure must comply with the requirements of
3-62 Sections 757.003 and 757.004, except that:
3-63 (1) if the enclosure is constructed with chain link
3-64 metal fencing material, the openings in the enclosure may not allow
3-65 a sphere 2-1/4 inches in diameter to pass through the enclosure; or
3-66 (2) if the enclosure is constructed with horizontal
3-67 and vertical members and the distance between the tops of the
3-68 horizontal members is at least 36 inches, the openings in the
3-69 enclosure may not allow a sphere four inches in diameter to pass
3-70 through the enclosure.
4-1 (b) If a pool yard enclosure is constructed or modified
4-2 before January 1, 1994, and if the enclosure is in compliance with
4-3 applicable municipal ordinances existing on January 1, 1994, and
4-4 containing standards for pool yard enclosures, Sections 757.003,
4-5 757.004(a)(3), and 757.004(b) do not apply to the enclosure.
4-6 Sec. 757.006. DOOR. (a) A door, sliding glass door, or
4-7 French door may not open directly into a pool yard if the date of
4-8 electrical service for initial construction of the building or pool
4-9 is on or after January 1, 1994.
4-10 (b) A door, sliding glass door, or French door may open
4-11 directly into a pool yard if the date of electrical service for
4-12 initial construction of the building or pool is before January 1,
4-13 1994, and the pool yard enclosure complies with Subsection (c),
4-14 (d), or (e), as applicable.
4-15 (c) If a door of a building, other than a sliding glass door
4-16 or screen door, opens into the pool yard, the door must have a:
4-17 (1) latch that automatically engages when the door is
4-18 closed;
4-19 (2) spring-loaded door-hinge pin, automatic door
4-20 closer, or similar device to cause the door to close automatically;
4-21 and
4-22 (3) keyless bolting device that is installed not less
4-23 than 36 inches or more than 48 inches above the interior floor.
4-24 (d) If French doors of a building open to the pool yard, one
4-25 of the French doors must comply with Subsection (c)(1) and the
4-26 other door must have a:
4-27 (1) keyed dead bolt or keyless bolting device capable
4-28 of insertion into the doorjamb above the door and a keyless bolting
4-29 device capable of insertion into the floor or threshold; or
4-30 (2) bolt with at least a 3/4-inch throw installed
4-31 inside the door and operated from the edge of the door that is
4-32 capable of insertion into the doorjamb above the door and another
4-33 bolt with at least a 3/4-inch throw installed inside the door and
4-34 operated from the edge of the door that is capable of insertion
4-35 into the floor or threshold.
4-36 (e) If a sliding glass door of a building opens into the
4-37 pool yard, the sliding glass door must have a:
4-38 (1) sliding door handle latch or sliding door security
4-39 bar that is installed not more than 48 inches above the interior
4-40 floor; and
4-41 (2) sliding door pin lock that is installed not more
4-42 than 48 inches above the interior floor.
4-43 (f) A door, sliding glass door, or French door that opens
4-44 into a pool yard from an area of a building that is not used by
4-45 residents and that has no access to an area outside the pool yard
4-46 is not required to have a lock, latch, dead bolt, or keyless
4-47 bolting device.
4-48 (g) A keyed dead bolt, keyless bolting device, sliding door
4-49 pin lock, or sliding door security bar installed before September
4-50 1, 1993, may be installed not more than 54 inches from the floor.
4-51 Sec. 757.007. WINDOW AND WINDOW SCREENS. A wall of a
4-52 building constructed before January 1, 1994, may not be used as
4-53 part of a pool yard enclosure unless each window in the wall has a
4-54 latch and unless each window screen on a window in the wall is
4-55 affixed by a window screen latch, screws, or similar means. This
4-56 section does not require the installation of window screens. A
4-57 wall of a building constructed on or after January 1, 1994, may not
4-58 be used as part of a pool yard enclosure unless each ground floor
4-59 window in the wall is permanently closed and unable to be opened.
4-60 Sec. 757.008. BUILDING IN POOL YARD. Each door, sliding
4-61 glass door, window, and window screen of each dwelling unit in a
4-62 residential building located in the enclosed pool yard must comply
4-63 with Sections 757.006 and 757.007.
4-64 Sec. 757.009. INSPECTION, REPAIR, AND MAINTENANCE. (a) An
4-65 owner of a multiunit rental complex or a rental dwelling in a
4-66 condominium, cooperative, or town home project with a pool or a
4-67 property owners association that owns, controls, or maintains a
4-68 pool shall exercise ordinary and reasonable care to inspect,
4-69 maintain, repair, and keep in good working order the pool yard
4-70 enclosures, gates, and self-closing and self-latching devices
5-1 required by this chapter and within the control of the owner or
5-2 property owners association.
5-3 (b) An owner of a multiunit rental complex or a rental
5-4 dwelling in a condominium, cooperative, or town home project with a
5-5 pool or a property owners association that owns, controls, or
5-6 maintains a pool shall exercise ordinary and reasonable care to
5-7 maintain, repair, and keep in good working order the window
5-8 latches, sliding door handle latches, sliding door pin locks, and
5-9 sliding door security bars required by this chapter and within the
5-10 control of the owner or property owners association after request
5-11 or notice from the tenant that those devices are malfunctioning or
5-12 in need of repair or replacement. A request or notice under this
5-13 subsection may be given orally unless a written lease applicable to
5-14 the tenant or written rules governing the property owners
5-15 association require the request or notice to be in writing. The
5-16 requirement in the lease or rules must be in capital letters and
5-17 underlined or in 10-point boldfaced print.
5-18 (c) An owner of a multiunit rental complex or a rental
5-19 dwelling in a condominium, cooperative, or town home project with a
5-20 pool or a property owners association that owns, controls, or
5-21 maintains a pool shall inspect the pool yard enclosures, gates, and
5-22 self-closing and self-latching devices on gates at least once every
5-23 31 days.
5-24 (d) An owner's or property owners association's duty of
5-25 inspection, repair, and maintenance under this section may not be
5-26 waived under any circumstances and may not be enlarged except by
5-27 written agreement with a tenant or occupant of a multiunit rental
5-28 complex or a member of a property owners association or as may be
5-29 otherwise allowed by this chapter.
5-30 Sec. 757.010. COMPLIANCE WITH CHAPTER. (a) Except as
5-31 provided by Subsection (b) and Section 757.011, a person who
5-32 constructs or modifies a pool yard enclosure to conform with this
5-33 chapter may not be required to construct the enclosure differently
5-34 by a local governmental entity, common law, or any other law.
5-35 (b) An owner of a multiunit rental complex or a rental
5-36 dwelling in a condominium, cooperative, or town home project with a
5-37 pool or a property owners association that owns, controls, or
5-38 maintains a pool may, at the person's option, exceed the standards
5-39 of this chapter or those adopted by the Texas Board of Health under
5-40 Section 757.011. A tenant or occupant in a multiunit rental
5-41 complex or a member of a property owners association may, by
5-42 express written agreement, require the owner of the complex or the
5-43 association to exceed those standards.
5-44 (c) A municipality may continue to require greater overall
5-45 height requirements for pool yard enclosures if the requirements
5-46 exist under the municipality's ordinances on January 1, 1994.
5-47 Sec. 757.011. AUTHORITY OF TEXAS BOARD OF HEALTH. The Texas
5-48 Board of Health may adopt rules requiring standards for the design
5-49 and construction of pool yard enclosures that exceed the
5-50 requirements of this chapter and that apply to all pools and pool
5-51 yards subject to this chapter. An owner of a multiunit rental
5-52 complex or a rental dwelling in a condominium, cooperative, or town
5-53 home project with a pool or a property owners association that
5-54 owns, controls, or maintains a pool shall comply with and shall be
5-55 liable for failure to comply with those rules to the same extent as
5-56 if they were part of this chapter.
5-57 Sec. 757.012. ENFORCEMENT. (a) A tenant of an owner of a
5-58 multiunit rental complex, a member of a property owners
5-59 association, a governmental entity, or any other person or the
5-60 person's representative may maintain an action against the owner or
5-61 property owners association for failure to comply with the
5-62 requirements of this chapter. In that action, the person may
5-63 obtain:
5-64 (1) a court order directing the owner or property
5-65 owners association to comply with this chapter;
5-66 (2) a judgment against the owner or property owners
5-67 association for actual damages resulting from the failure to comply
5-68 with the requirements of this chapter;
5-69 (3) a judgment against the owner or property owners
5-70 association for punitive damages resulting from the failure to
6-1 comply with the requirements of this chapter if actual damages to
6-2 the person were caused by the owner's or property owners
6-3 association's intentional, malicious, or grossly negligent actions;
6-4 (4) a judgment against the owner or property owners
6-5 association for actual damages, and if appropriate, punitive
6-6 damages, if the owner or association was in compliance with this
6-7 chapter at the time of the pool-related damaging event but was
6-8 consciously indifferent to access being repeatedly gained to the
6-9 pool yard by unauthorized persons; or
6-10 (5) a judgment against the owner or property owners
6-11 association for a civil penalty of not more than $5,000 if the
6-12 owner or property owners association fails to comply with this
6-13 chapter within a reasonable time after written notice by a tenant
6-14 of the multiunit rental complex or a member of the property owners
6-15 association.
6-16 (b) A court may award reasonable attorney fees and costs to
6-17 the prevailing party in an action brought under Subsection (a)(5).
6-18 Sec. 757.013. TENANT'S REQUEST FOR REPAIRS. A tenant in a
6-19 multiunit rental complex with a pool may verbally request repair of
6-20 a keyed dead bolt, keyless bolting device, sliding door latch,
6-21 sliding door pin lock, sliding door security bar, window latch, or
6-22 window screen latch unless a provision of a written lease executed
6-23 by the tenant requires that the request be made in writing and the
6-24 provision is in capital letters and underlined or in 10-point
6-25 boldfaced print. A request for repair may be given to the owner or
6-26 the owner's managing agent.
6-27 Sec. 757.014. APPLICATION TO OTHER BODIES OF WATER AND
6-28 RELATED FACILITIES. The owner of a multiunit rental complex or a
6-29 property owners association is not required to enclose a body of
6-30 water or construct barriers between the owner's or property owners
6-31 association's property and a body of water such as an ocean, bay,
6-32 lake, pond, bayou, river, creek, stream, spring, reservoir, stock
6-33 tank, culvert, drainage ditch, detention pond, or other flood or
6-34 drainage facility.
6-35 Sec. 757.015. EFFECT ON OTHER LAWS. (a) The duties
6-36 established by this chapter for an owner of a multiunit dwelling
6-37 project, an owner of a dwelling in a condominium, cooperative, or
6-38 town home project, and a property owners association supersede
6-39 those established by common law, the Property Code, the Health and
6-40 Safety Code, the Local Government Code, and local ordinances
6-41 relating to duties to inspect, install, repair, or maintain:
6-42 (1) pool yard enclosures;
6-43 (2) pool yard enclosure gates and gate latches,
6-44 including self-closing and self-latching devices;
6-45 (3) keyed dead bolts, keyless bolting devices, sliding
6-46 door handle latches, sliding door security bars, self-latching and
6-47 self-closing devices, and sliding door pin locks on doors that open
6-48 into a pool yard area and that are owned and controlled by the
6-49 owner or property owners association; and
6-50 (4) latches on windows that open into a pool yard area
6-51 and that are owned and controlled by the owner or property owners
6-52 association.
6-53 (b) This chapter does not affect any duties of a rental
6-54 dwelling owner, lessor, sublessor, management company, or managing
6-55 agent under Subchapter D, Chapter 92, Property Code.
6-56 Sec. 757.016. NONEXCLUSIVE REMEDIES. The remedies contained
6-57 in this chapter are not exclusive and are not intended to affect
6-58 existing remedies allowed by law or other procedure.
6-59 Sec. 757.017. INTERPRETATION AND APPLICATION. The
6-60 provisions of this chapter shall be liberally construed to promote
6-61 its underlying purpose which is to prevent swimming pool deaths and
6-62 injuries in this state.
6-63 SECTION 2. This Act takes effect January 1, 1994.
6-64 SECTION 3. The importance of this legislation and the
6-65 crowded condition of the calendars in both houses create an
6-66 emergency and an imperative public necessity that the
6-67 constitutional rule requiring bills to be read on three several
6-68 days in each house be suspended, and this rule is hereby suspended.
6-69 * * * * *
6-70 Austin,
7-1 Texas
7-2 May 7, 1993
7-3 Hon. Bob Bullock
7-4 President of the Senate
7-5 Sir:
7-6 We, your Committee on State Affairs to which was referred S.B. No.
7-7 941, have had the same under consideration, and I am instructed to
7-8 report it back to the Senate with the recommendation that it do not
7-9 pass, but that the Committee Substitute adopted in lieu thereof do
7-10 pass and be printed.
7-11 Harris of
7-12 Dallas, Chairman
7-13 * * * * *
7-14 WITNESSES
7-15 FOR AGAINST ON
7-16 ___________________________________________________________________
7-17 Name: Jim Pecora x
7-18 Representing: Texas Trial Lawyers Assn
7-19 City: Austin
7-20 -------------------------------------------------------------------
7-21 Name: Larry Niemann x
7-22 Representing: TX Apartment Assn
7-23 City: Austin
7-24 -------------------------------------------------------------------
7-25 Name: Jim Hepfner x
7-26 Representing: TX Apartment Assn
7-27 City: Austin
7-28 -------------------------------------------------------------------
7-29 Name: Marilyn Shildress x
7-30 Representing: Community Assns Institute
7-31 City: Austin
7-32 -------------------------------------------------------------------
7-33 Name: Walter Fisher x
7-34 Representing: TX Municipal League
7-35 City: Austin
7-36 -------------------------------------------------------------------
7-37 Name: Rusty Signor x
7-38 Representing: Natl Spa & Pool Inst
7-39 City: Austin
7-40 -------------------------------------------------------------------
7-41 Name: Mike Davis x
7-42 Representing: Texas Trial Lawyers Assn
7-43 City: Austin
7-44 -------------------------------------------------------------------
7-45 Name: Bruce Long x
7-46 Representing: Community Assns Institute
7-47 City: Austin
7-48 -------------------------------------------------------------------