By Cuellar of Webb H.B. No. 1001
Substitute the following for H.B. No. 1001:
By Turner of Coleman C.S.H.B. No. 1001
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of subdivisions in economically
1-3 distressed areas and the delivery of water and sewer services to
1-4 economically distressed subdivisions; providing civil and criminal
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. LEGISLATIVE FINDINGS. The legislature finds
1-9 (1) economically distressed subdivisions commonly
1-10 called "colonias" are found throughout the affected counties;
1-11 (2) in recent years, the number of people living in
1-12 these economically distressed subdivisions in the affected counties
1-13 has increased;
1-14 (3) due to the implementation of the North American
1-15 Free Trade Agreement (NAFTA), the General Agreement on Tariffs and
1-16 Trade (GATT), other economic incentives, and the increasingly
1-17 robust economic development along the Texas-Mexico border, the
1-18 population in economically distressed subdivisions in the affected
1-19 counties will continue to increase;
1-20 (4) the residents of the economically distressed
1-21 subdivisions in the affected counties constitute an unusually
1-22 mobile population, moving to all parts of the state and beyond the
1-23 state to seek employment;
2-1 (5) these conditions allow unscrupulous individuals,
2-2 through the use of executory contracts, to take advantage of the
2-3 residents of economically distressed subdivisions by charging
2-4 usurious rates of interest as well as allowing unbridled discretion
2-5 to evict;
2-6 (6) the vast majority of housing units in these
2-7 economically distressed subdivisions lack an adequate potable water
2-8 supply and concomitant wastewater or sewer services;
2-9 (7) the lack of an adequate potable water supply and
2-10 concomitant wastewater or sewer services creates a serious and
2-11 unacceptable health hazard from third world illnesses for the
2-12 residents of the economically distressed subdivisions in the
2-13 affected counties;
2-14 (8) many of the housing units in these economically
2-15 distressed subdivisions are located in isolated rural segments in
2-16 the affected counties where the land is inexpensive, located in
2-17 floodplains, and subject to flooding after rains, leading to the
2-18 overflow of pit privies and thus to the spreading of bacteria onto
2-19 the land and into the water table;
2-20 (9) the location, proliferation, and conditions in
2-21 these economically distressed subdivisions pose a clear and
2-22 substantial threat to the environment of the border region, as well
2-23 as to all Texas;
2-24 (10) the lack of an adequate potable water supply and
2-25 concomitant wastewater or sewer services, coupled with the location
3-1 of these subdivisions, erodes the economic stability of the
3-2 affected counties, which are dependent upon a healthy public and a
3-3 safe environment;
3-4 (11) the lack of an adequate potable water supply and
3-5 concomitant wastewater or sewer services erodes the economic
3-6 stability of the affected counties, which is required for the
3-7 mutual development of trade, transportation, and commerce,
3-8 affecting not only the border region, but all regions of the state
3-9 where the trade, transportation, and commerce reach;
3-10 (12) the health risk created along the border in the
3-11 affected counties, the expected increase in population during the
3-12 next decade, and the mobility of the residents of these
3-13 economically distressed subdivisions, coupled with the fact that
3-14 the trade, transportation, and commerce along the border is the
3-15 most intense in the United States, create the very substantial risk
3-16 of third world epidemics spreading to the residents of this state
3-17 and beyond;
3-18 (13) unless adequate remedial steps are taken
3-19 immediately to alleviate the health risks to all Texans that are
3-20 caused by the lack of basic services in the affected counties, the
3-21 costs of containing an epidemic will be astronomical; and
3-22 (14) the need to address this public health and safety
3-23 hazard is a compelling crisis that must be addressed through this
3-25 SECTION 2. Sections 232.001 through 232.010, Local
4-1 Government Code, are designated as Subchapter A of Chapter 232,
4-2 Local Government Code, and Chapter 232 is amended by adding a
4-3 heading to Subchapter A to read as follows:
4-4 SUBCHAPTER A. SUBDIVISION PLATTING REQUIREMENTS IN GENERAL
4-5 SECTION 3. Section 232.0015, Local Government Code, is
4-6 amended to read as follows:
4-7 Sec. 232.0015. EXCEPTIONS <
EXCEPTION> TO PLAT REQUIREMENT < :
4-8 COUNTY DETERMINATION>. (a) To determine whether specific
4-9 divisions of land are required to be platted, a county may define
4-10 and classify the divisions. A county need not require platting for
4-11 every division of land otherwise within the scope of this
4-12 subchapter < chapter>.
4-13 (b) This subchapter does not apply to a subdivision of land
4-14 to which Subchapter B applies.
4-15 SECTION 4. Chapter 232, Local Government Code, is amended by
4-16 adding Subchapter B to read as follows:
4-17 SUBCHAPTER B. SUBDIVISION PLATTING REQUIREMENTS IN
4-18 ECONOMICALLY DISTRESSED COUNTIES
4-19 Sec. 232.021. DEFINITIONS. In this subchapter:
4-20 (1) "Affected county" means a county:
4-21 (A) that has a per capita income that averaged
4-22 25 percent below the state average for the most recent three
4-23 consecutive years for which statistics are available and an
4-24 unemployment rate that averaged 25 percent above the state average
4-25 for the most recent three consecutive years for which statistics
5-1 are available; and
5-2 (B) any part of which is within 50 miles of an
5-3 international border.
5-4 (2) "Board" means the Texas Water Development Board.
5-5 (3) "Common promotional plan" means any plan or scheme
5-6 of operation undertaken by a single subdivider or a group of
5-7 subdividers acting in concert, either personally or through an
5-8 agent, to offer for sale or lease lots when the land is:
5-9 (A) contiguous or part of the same area of land;
5-11 (B) known, designated, or advertised as a common
5-12 unit or by a common name.
5-13 (4) "Executive administrator" means the executive
5-14 administrator of the Texas Water Development Board.
5-15 (5) "Floodplain" means any area in the 100-year
5-16 floodplain that is susceptible to being inundated by water from any
5-17 source and that is identified by the Federal Emergency Management
5-18 Agency under the National Flood Insurance Act of 1968 (42 U.S.C.
5-19 Sections 4001 through 4127).
5-20 (6) "Lease" includes an offer to lease.
5-21 (7) "Lot" means a parcel into which land that is
5-22 intended for residential use is divided.
5-23 (8) "Minimum state standards" means the minimum
5-24 standards set out for:
5-25 (A) adequate drinking water by or under Section
6-1 16.343(b)(1), Water Code;
6-2 (B) adequate sewer facilities by or under
6-3 Section 16.343(c)(1), Water Code; or
6-4 (C) the treatment of solid waste by or under
6-5 Chapters 361 and 364, Health and Safety Code.
6-6 (9) "Plat" means a map, chart, survey, plan, or replat
6-7 containing a description of the subdivided land with ties to
6-8 permanent landmarks or monuments.
6-9 (10) "Sell" includes an offer to sell.
6-10 (11) "Subdivide" means to divide the surface area of
6-11 land into lots intended primarily for residential use.
6-12 (12) "Subdivider" means an individual, firm,
6-13 corporation, or other legal entity, that owns any interest in land
6-14 and that directly or indirectly subdivides land as part of a
6-15 common promotional plan in the ordinary course of business.
6-16 (13) "Subdivision" means an area of land that has been
6-17 subdivided for sale or lease.
6-18 (14) "Utility" includes:
6-19 (A) an electric utility, as defined by Section
6-20 3(c)(1), Public Utility Regulatory Act (Article 1446c, Vernon's
6-21 Texas Civil Statutes);
6-22 (B) a gas utility, as defined by Section 1.03,
6-23 Gas Utility Regulatory Act (Article 1446e, Vernon's Texas Civil
6-24 Statutes); and
6-25 (C) a water and sewer utility, as defined by
7-1 Section 13.002, Water Code.
7-2 Sec. 232.022. APPLICABILITY. (a) This subchapter applies
7-3 only to land in the jurisdiction of an affected county that is
7-4 subdivided into four or more lots that are intended primarily for
7-5 residential use. A lot is presumed to be intended for residential
7-6 use if the lot is five acres or less. This subchapter does not
7-7 apply if the subdivision is incident to the conveyance of the land
7-8 as a gift.
7-9 (b) For purposes of this section, land is considered to be
7-10 in the jurisdiction of a county if the land is located in the
7-11 county, outside the corporate limits of municipalities, and outside
7-12 the extraterritorial jurisdiction of municipalities, as determined
7-13 under Chapter 42.
7-14 Sec. 232.023. PLAT REQUIRED. (a) A subdivider of land in
7-15 an affected county must have a plat of the subdivision prepared. A
7-16 subdivision of a tract under this subsection includes a subdivision
7-17 of real property by any method of conveyance, including a contract
7-18 for deed, oral contract, contract of sale, or other type of
7-19 executory contract, regardless of whether the subdivision is made
7-20 by using a metes and bounds description.
7-21 (b) A plat required under this section must:
7-22 (1) be certified by an engineer registered to practice
7-23 in this state;
7-24 (2) define the subdivision and all roads by metes and
8-1 (3) locate the subdivision with respect to an original
8-2 corner of the original survey of which it is a part;
8-3 (4) describe each lot, number each lot in progression,
8-4 and give the dimensions of each lot;
8-5 (5) state the dimensions of each lot, street, alley,
8-6 square, park, or other part of the tract intended to be dedicated
8-7 to public use or for the use of purchasers or owners of lots
8-8 fronting on or adjacent to the street, alley, square, park, or
8-9 other part;
8-10 (6) include or have attached a document containing a
8-11 description in English and Spanish of the water and sewer
8-12 facilities and roadways and easements dedicated for the provision
8-13 of water and sewer facilities that will be constructed or installed
8-14 to service the subdivision and a statement specifying the date by
8-15 which the facilities will be fully operable;
8-16 (7) have attached a document prepared by an engineer
8-17 registered to practice in this state certifying that the water and
8-18 sewer service facilities proposed under Subdivision (6) are in
8-19 compliance with the model rules adopted under Section 16.343, Water
8-20 Code, and a certified estimate of the cost to install water and
8-21 sewer service facilities;
8-22 (8) provide for drainage in the subdivision to:
8-23 (A) avoid concentration of storm drainage water
8-24 from each lot to adjacent lots;
8-25 (B) provide positive drainage away from all
9-1 buildings; and
9-2 (C) coordinate individual lot drainage with the
9-3 general storm drainage pattern for the area;
9-4 (9) include a description of the drainage requirements
9-5 as provided in Subdivision (8);
9-6 (10) identify the topography of the area;
9-7 (11) include a certification by an engineer registered
9-8 to practice in this state describing any area of the subdivision
9-9 that is in a floodplain or stating that no area is in a floodplain;
9-11 (12) include certification that:
9-12 (A) the water quality and connections to the
9-13 lots meet, or will meet, the minimum state standards;
9-14 (B) sewer connections to the lots or septic
9-15 tanks meet, or will meet, the requirements of state standards;
9-16 (C) electrical connections to the lot meet, or
9-17 will meet, the minimum state standards; and
9-18 (D) gas connections to the lot meet, or will
9-19 meet, the minimum requirements under state law.
9-20 (c) The subdivider of the tract must acknowledge the plat by
9-21 signing the plat and attached documents and attest to the veracity
9-22 and completeness of the matters asserted in the attached documents
9-23 and in the plat.
9-24 (d) The plat must be filed and recorded with the county
9-25 clerk of the county in which the tract is located. The plat is
10-1 subject to the filing and recording provisions of Section 12.002,
10-2 Property Code.
10-3 (e) The board shall develop the form of a plat required by
10-4 this section in consultation with the attorney general. The board
10-5 shall provide each county clerk of an affected county with the
10-7 Sec. 232.024. APPROVAL BY COUNTY REQUIRED. (a) A plat
10-8 filed under Section 232.023 is not valid unless the commissioners
10-9 court of the county in which the land is located approves the plat
10-10 by an order entered in the minutes of the court. The commissioners
10-11 court shall refuse to approve a plat if it does not meet the
10-12 requirements prescribed by or under this subchapter or if any bond
10-13 required under this subchapter is not filed with the county clerk.
10-14 (b) The commissioners court shall not approve a plat that is
10-15 intended for residential housing and that lies in a floodplain
10-17 (1) the plat evidences a restrictive covenant
10-18 prohibiting construction of housing in any area of the subdivision
10-19 that is in a floodplain; or
10-20 (2) the housing qualifies for insurance from the
10-21 Federal Emergency Management Agency.
10-22 Sec. 232.025. SUBDIVISION REQUIREMENTS. By an order adopted
10-23 and entered in the minutes of the commissioners court, and after a
10-24 notice is published in English and Spanish in a newspaper of
10-25 general circulation in the county, the commissioners court shall
11-1 for each subdivision:
11-2 (1) require a right-of-way on a street or road that
11-3 functions as a main artery in a subdivision, of a width of not less
11-4 than 50 feet or more than 100 feet;
11-5 (2) require a right-of-way on any other street or road
11-6 in a subdivision of not less than 40 feet or more than 70 feet;
11-7 (3) require that the shoulder-to-shoulder width on
11-8 collectors or main arteries within the right-of-way be not less
11-9 than 32 feet or more than 56 feet, and that the
11-10 shoulder-to-shoulder width on any other street or road be not less
11-11 than 25 feet or more than 35 feet;
11-12 (4) adopt, based on the amount and kind of travel over
11-13 each street or road in a subdivision, reasonable specifications
11-14 relating to the construction of each street or road;
11-15 (5) adopt reasonable specifications to provide
11-16 adequate drainage for each street or road in a subdivision in
11-17 accordance with standard engineering practices;
11-18 (6) require that each purchase contract made between a
11-19 subdivider and a purchaser of land in the subdivision contain a
11-20 statement describing how and when water, sewer, electricity, and
11-21 gas services will be made available to the subdivision; and
11-22 (7) require that the subdivider of the tract execute a
11-23 bond in the manner provided by Section 232.027.
11-24 Sec. 232.026. WATER AND SEWER SERVICE EXTENSION. (a) The
11-25 commissioners court may extend, beyond the date specified on the
12-1 plat or on the document attached to the plat, the date by which the
12-2 water and sewer service facilities must be fully operable if the
12-3 commissioners court finds the extension is reasonable and not
12-4 contrary to the public interest.
12-5 (b) The commissioners court may not grant an extension under
12-6 Subsection (a) if it would allow an occupied residence to be
12-7 without water or sewer services.
12-8 (c) If the commissioners court provides an extension, the
12-9 commissioners court shall notify the attorney general of the
12-10 extension and the reason for the extension. The attorney general
12-11 shall notify all other state agencies having enforcement power over
12-12 subdivisions in affected counties of the extension.
12-13 Sec. 232.027. BOND REQUIREMENTS. Unless a person has
12-14 completed the installation of all water and sewer service
12-15 facilities required by this subchapter on the date that person
12-16 applies for approval of a plat under Section 232.024, the
12-17 commissioners court shall require the subdivider of the tract to
12-18 execute a bond or, in the alternative, make a cash deposit in an
12-19 amount the county judge determines will ensure compliance with this
12-20 subchapter. The subdivider must comply with the requirement before
12-21 subdividing the tract. The bond must:
12-22 (1) be payable to the county judge of the county;
12-23 (2) be in an amount the county judge determines is
12-24 adequate to ensure the proper construction or installation of the
12-25 water and sewer service facilities to service the subdivision but
13-1 not to exceed the estimated cost of the construction or
13-2 installation of the facilities;
13-3 (3) be executed with sureties as may be approved by
13-4 the court;
13-5 (4) be executed by a company authorized to do business
13-6 as a surety in this state if the commissioners court requires a
13-7 surety bond executed by a corporate surety; and
13-8 (5) be conditioned that the water and sewer service
13-9 facilities will be constructed or installed:
13-10 (A) in compliance with the model rules adopted
13-11 under Section 16.343, Water Code; and
13-12 (B) within the time stated on the plat or on the
13-13 document attached to the plat for the subdivision or within any
13-14 extension of that time.
13-15 Sec. 232.028. CERTIFICATION REGARDING COMPLIANCE WITH PLAT
13-16 REQUIREMENTS. (a) On the approval of a plat by the commissioners
13-17 court, the commissioners court shall issue to the person applying
13-18 for the approval a certificate stating that the plat has been
13-19 reviewed and approved by the commissioners court.
13-20 (b) On the written request of a subdivider, an owner of a
13-21 lot in a subdivision, or an entity that provides a utility service,
13-22 the commissioners court shall make the following determinations
13-23 regarding the land in which the entity or commissioners court is
13-24 interested that is located within the jurisdiction of the county:
13-25 (1) whether a plat has been prepared and whether it
14-1 has been reviewed and approved by the commissioners court;
14-2 (2) whether water and sewer service facilities have
14-3 been constructed or installed to service the subdivision under
14-4 Section 232.023; and
14-5 (3) whether electrical and gas facilities have been
14-6 constructed or installed to service the subdivision under Section
14-8 (c) The request made under Subsection (b) must identify by
14-9 metes and bounds the land that is the subject of the request.
14-10 (d) Whenever a request is made under Subsection (b), the
14-11 commissioners court shall issue the requesting party a written
14-12 certification of its determinations under that subsection.
14-13 (e) The commissioners court shall make its determinations
14-14 within 20 days after the date it receives the request under
14-15 Subsection (b) and shall issue the certificate, if appropriate,
14-16 within 10 days after the date the determinations are made.
14-17 (f) The commissioners court may adopt rules it considers
14-18 necessary to administer its duties under this section.
14-19 Sec. 232.029. CONNECTION OF UTILITIES. (a) Except as
14-20 provided by Section 232.037(c), an entity may not serve or connect
14-21 any subdivided land with water or sewer services unless the entity
14-22 receives a certificate issued by the commissioners court under
14-23 Section 232.028(a) or receives a determination from the
14-24 commissioners court under Section 232.028(b)(1) that the plat has
14-25 been reviewed and approved by the commissioners court.
15-1 (b) Except as provided by Section 232.037(c), an entity may
15-2 not serve or connect any subdivided land with electricity, gas, or
15-3 other utility services unless the entity receives a determination
15-4 from the county commissioners court under Section 232.028(b)(2)
15-5 that adequate water and sewer services have been installed to
15-6 service the subdivision.
15-7 Sec. 232.030. SUBDIVISION REGULATION; COUNTY AUTHORITY. (a)
15-8 The commissioners court for each county shall adopt and enforce the
15-9 model rules developed under Section 16.343, Water Code.
15-10 (b) Except as provided by Section 16.350(d), Water Code, or
15-11 Section 232.042, the commissioners court may not grant a variance
15-12 or adopt regulations that waive any requirements of this
15-14 (c) The commissioners court shall adopt regulations setting
15-15 forth requirements for:
15-16 (1) potable water sufficient in quality and quantity
15-17 to meet minimum state standards;
15-18 (2) solid waste disposal meeting minimum state
15-19 standards and rules adopted by the county under Chapter 364, Health
15-20 and Safety Code;
15-21 (3) sufficient and adequate roads that satisfy the
15-22 standards adopted by the county;
15-23 (4) sewer facilities meeting minimum state standards;
15-24 (5) electric service and gas service; and
15-25 (6) standards for flood management meeting the minimum
16-1 standards set forth by the Federal Emergency Management Agency
16-2 under the National Flood Insurance Act of 1968 (42 U.S.C. Sections
16-3 4001 through 4127).
16-4 Sec. 232.031. REQUIREMENTS PRIOR TO SALE OR LEASE. (a) A
16-5 subdivider may not sell or lease land in a subdivision unless the
16-6 subdivision plat is approved by the commissioners court in
16-7 accordance with Section 232.024.
16-8 (b) A subdivider may not sell or lease land in a subdivision
16-9 unless the subdivider has furnished the commissioners court and
16-10 filed with the county clerk a copy of the sales contracts, leases,
16-11 and any other document that will convey an interest in the
16-12 subdivided land.
16-13 (c) A document filed under Subsection (b) is a public
16-15 Sec. 232.032. SERVICES PROVIDED BY SUBDIVIDER. A subdivider
16-16 having an approved plat for a subdivision shall furnish:
16-17 (1) water sufficient in quality and quantity to meet
16-18 the minimum state standards required by Section 16.343, Water Code;
16-19 (2) sewage treatment facilities that meet minimum
16-20 state standards to fulfill the solid waste requirements of the
16-22 (3) roads satisfying minimum standards as adopted by
16-23 the county;
16-24 (4) adequate drainage meeting standard engineering
16-25 practices; and
17-1 (5) electric utility service and gas utility service.
17-2 Sec. 232.033. ADVERTISING STANDARDS; OFFENSE. (a)
17-3 Brochures, publications, and advertising of any form relating to
17-4 subdivided land:
17-5 (1) may not contain any misrepresentations; and
17-6 (2) must accurately describe the availability of water
17-7 and sewer service facilities and electric and gas utilities.
17-8 (b) A person commits an offense if the person knowingly
17-9 authorizes or assists in the publication, advertising,
17-10 distribution, or circulation of any statement or representation
17-11 that the person knows is false concerning any subdivided land
17-12 offered for sale or lease. An offense under this section is a
17-13 Class A misdemeanor.
17-14 Sec. 232.034. CONFLICT OF INTEREST; PENALTY. (a) In this
17-15 section, "subdivided tract" means a tract of land, as a whole, that
17-16 is subdivided into tracts or lots. The term does not mean an
17-17 individual lot in a subdivided tract of land.
17-18 (b) A person has a conflict of interest in a subdivided
17-19 tract if the person:
17-20 (1) has an equitable or legal ownership interest in
17-21 the tract;
17-22 (2) acts as a developer of the tract;
17-23 (3) owns voting stock or shares of a business entity
17-25 (A) has an equitable or legal ownership interest
18-1 in the tract; or
18-2 (B) acts as a developer of the tract; or
18-3 (4) receives in a calendar year money or any thing of
18-4 value from a business entity described by Subdivision (3).
18-5 (c) A person also is considered to have a conflict of
18-6 interest in a subdivided tract if the person is related in the
18-7 first degree by consanguinity or affinity, as determined under
18-8 Chapter 573, Government Code, to a person who, under Subsection
18-9 (b), has a conflict of interest in the tract.
18-10 (d) If a member of the commissioners court has a conflict of
18-11 interest in a subdivided tract, the member shall file, before a
18-12 vote or decision regarding the approval of a plat for the tract, an
18-13 affidavit with the county clerk stating the nature and extent of
18-14 the interest and shall abstain from further participation in the
18-15 matter. The affidavit must be filed with the county clerk.
18-16 (e) A member of the commissioners court of a county commits
18-17 an offense if the member violates Subsection (d). An offense under
18-18 this subsection is a Class A misdemeanor.
18-19 (f) The finding by a court of a violation of this section
18-20 does not render voidable an action of the commissioners court
18-21 unless the measure would not have passed the commissioners court
18-22 but for the vote of the member who violated this section.
18-23 (g) A conviction under Subsection (e) constitutes official
18-24 misconduct by the member and is grounds for removal from office.
18-25 Sec. 232.035. CIVIL PENALTIES. (a) A subdivider or an
19-1 agent of a subdivider may not cause, suffer, allow, or permit a lot
19-2 to be sold in a subdivision if the subdivision has not been platted
19-3 as required by this subchapter or if the lot is without water,
19-4 sewer, gas, or electrical services.
19-5 (b) A subdivider or an agent of a subdivider may not cause,
19-6 suffer, allow, or permit a subdivision or any part of a subdivision
19-7 in an affected county to become a public health nuisance as defined
19-8 by Section 341.011, Health and Safety Code.
19-9 (c) A subdivider who fails to provide, in the time and
19-10 manner described in the plat, for the construction or installation
19-11 of water or sewer service facilities described on the plat or on
19-12 the document attached to the plat or who otherwise violates this
19-13 subchapter or a rule or requirement adopted by the commissioners
19-14 court under this subchapter is subject to a civil penalty of not
19-15 less than $500 or more than $1,000 for each violation and for each
19-16 day of a continuing violation but not to exceed $5,000 each day and
19-17 shall also pay court costs, investigative costs, and attorney's
19-18 fees for the governmental entity bringing the suit.
19-19 (d) A person who violates Subsection (a) or (b) of this
19-20 section is subject to a civil penalty of not less than $10,000 or
19-21 more than $15,000 for each lot conveyed or each subdivision that
19-22 becomes a nuisance. The person must also pay court costs,
19-23 investigative costs, and attorney's fees for the governmental
19-24 entity bringing the suit.
19-25 (e) Venue for an action under this section is in a district
20-1 court of Travis County, a district court in the county in which the
20-2 defendant resides, or a district court in the county in which the
20-3 violation or threat of violation occurs.
20-4 Sec. 232.036. CRIMINAL PENALTIES. (a) A subdivider commits
20-5 an offense if the subdivider knowingly fails to file a plat
20-6 required by this subchapter. An offense under this subsection is a
20-7 Class A misdemeanor.
20-8 (b) A subdivider who owns a subdivision commits an offense
20-9 if the subdivider knowingly fails to timely provide for the
20-10 construction or installation of a water, sewer, electrical, or gas
20-11 service described on the plat or on a document attached to the plat
20-12 as required by Section 232.023. An offense under this subsection
20-13 is a Class A misdemeanor.
20-14 (c) If it is shown at the trial of an offense under
20-15 Subsection (a) that the defendant caused five or more residences in
20-16 the subdivision to be inhabited, the offense is a state jail
20-18 (d) A subdivider commits an offense if the subdivider allows
20-19 the conveyance of a lot in the subdivision without the appropriate
20-20 water, sewer, electric, and gas utilities as required by Section
20-21 232.032. An offense under this section is a Class A misdemeanor.
20-22 Each lot conveyed constitutes a separate offense.
20-23 (e) Venue for prosecution for a violation under this section
20-24 is in the county in which any element of the violation is alleged
20-25 to have occurred or in Travis County.
21-1 Sec. 232.037. ENFORCEMENT. (a) The attorney general, or
21-2 the district attorney, criminal district attorney, county attorney
21-3 with felony responsibilities, or county attorney of an affected
21-4 county, at the request of the attorney general, may take any action
21-5 necessary in a court of competent jurisdiction on behalf of the
21-6 state or on behalf of residents to:
21-7 (1) enjoin the violation or threatened violation of
21-8 the model rules adopted under Section 16.343, Water Code;
21-9 (2) enjoin the violation or threatened violation of a
21-10 requirement of this subchapter or a rule adopted by the
21-11 commissioners court under this subchapter;
21-12 (3) assess and recover civil or criminal penalties,
21-13 attorney's fees, litigation costs, and investigation costs; and
21-14 (4) require replatting under Section 232.041.
21-15 (b) The attorney general, at the request of the district or
21-16 county attorney with jurisdiction, may conduct a criminal
21-17 prosecution under Section 232.033(b) or 232.036.
21-18 (c) During the pendency of any enforcement action brought,
21-19 any resident of the affected subdivision may file a motion against
21-20 the provider of utilities to halt termination of pre-existing
21-21 utility services. The services may not be terminated if the court
21-22 makes an affirmative finding after hearing the motion that
21-23 termination poses a threat to public health, safety, or welfare of
21-24 the residents.
21-25 Sec. 232.038. WAIVER OF GOVERNMENTAL IMMUNITY; PERMISSION TO
22-1 SUE. (a) Sovereign immunity to suit is waived and abolished to
22-2 the extent of liability created by this subchapter.
22-3 (b) Any person may commence a civil action on the person's
22-4 own behalf against any other person, including a county
22-5 commissioner, who is alleged to be in violation of this subchapter.
22-6 (c) A cause of action authorized by this section may not be
22-8 (1) if the attorney general has brought a civil or
22-9 criminal action against the subdivider of the land to require
22-10 compliance with this subchapter; or
22-11 (2) until after the 90th day after the date the
22-12 plaintiff provides notice of an alleged violation to:
22-13 (A) the attorney general;
22-14 (B) the commissioners court of the county in
22-15 which the alleged violation occurred; and
22-16 (C) the subdivider of the land in which the
22-17 alleged violation occurred.
22-18 (d) The attorney general may intervene as a matter of right
22-19 in any action authorized by this section.
22-20 (e) A court may award reasonable attorney's fees to the
22-21 party prevailing in an action authorized by this section.
22-22 Sec. 232.039. SUIT BY PRIVATE PERSON IN ECONOMICALLY
22-23 DISTRESSED AREA. (a) A person who is purchasing a residence in a
22-24 subdivision that is located in an economically distressed area, as
22-25 defined by Section 17.921, Water Code, through a contract for deed
23-1 or similar conveyance, may bring suit in the district court in
23-2 which the property is located to:
23-3 (1) declare the sale of the property void and require
23-4 the seller to return the purchase price of the property; or
23-5 (2) recover from the seller:
23-6 (A) the value of any permanent improvements the
23-7 person placed on the property;
23-8 (B) costs in transporting water to the property;
23-9 (C) costs of medical care or other costs
23-10 incurred as a direct result of unsanitary conditions caused by the
23-11 failure to provide adequate water and sewer facilities; or
23-12 (D) any other damages, including exemplary
23-13 damages, resulting from the failure to provide adequate water and
23-14 sewer services and facilities.
23-15 (b) The court may award a plaintiff prevailing in an action
23-16 under Subsection (a) court costs and reasonable attorney's fees.
23-17 Sec. 232.040. CANCELLATION OF SUBDIVISION. (a) A
23-18 subdivider of land in an affected county may apply to the
23-19 commissioners court to cancel all or part of the subdivision in the
23-20 manner provided by Section 232.008.
23-21 (b) A resident of a subdivision for which the subdivider has
23-22 applied for cancellation under Subsection (a) has the same rights
23-23 as a purchaser of land under Section 232.008.
23-24 Sec. 232.041. REPLATTING. (a) A subdivision plat must
23-25 accurately reflect the subdivision as it develops. Any change,
24-1 either by the intentional act of the subdivider or by the forces of
24-2 nature, including changes in the size or dimension of lots or the
24-3 direction or condition of the roads, must be recorded in a new plat
24-4 in accordance with Section 232.023.
24-5 (b) If a subdivision does not have water and sewer services
24-6 and other utilities as required by this subchapter, the subdivision
24-7 must be replatted in accordance with this subchapter.
24-8 (c) The subdivision of property that has never been platted
24-9 must be platted in accordance with this subchapter.
24-10 (d) A plat that has not been fully developed must be
24-11 replatted under this subchapter. A plat is considered to be not
24-12 fully developed if:
24-13 (1) there are one or more lots available for sale and
24-14 the plat was recorded with the county clerk before 1989; or
24-15 (2) all of the lots have been sold, but a transfer of
24-16 title to the lots has not taken place.
24-17 (e) A subdivision is not required to be replatted under this
24-18 section if:
24-19 (1) a plat conforming to all applicable state and
24-20 local standards effective at the time the plat was filed was
24-21 approved by the commissioners court; and
24-22 (2) the subdivision has water and sewer services that
24-23 comply with current minimum state standards.
24-24 (f) Existing utility services to a subdivision that must be
24-25 platted or replatted under this section may not be terminated under
25-1 Section 232.029.
25-2 Sec. 232.042. VARIANCES. (a) On request of a subdivider or
25-3 resident purchaser, the commissioners court may grant a delay from
25-4 compliance with Section 232.041 as provided by this section.
25-5 (b) The commissioners court may grant a delay of two years
25-6 if the reason for the delay is to install utilities. A person may
25-7 apply for one renewal of a delay under this subsection.
25-8 (c) The commissioners court may grant a delay for a reason
25-9 other than a reason described by Subsection (b) if it is shown that
25-10 compliance would be impractical. The commissioners court must
25-11 issue written findings stating the reasons why compliance is
25-13 (d) A delay granted by the commissioners court is valid only
25-14 if the commissioners court notifies the attorney general of the
25-15 delay and the reasons for the delay not later than the 30th day
25-16 after the date the commissioners court grants the delay.
25-17 (e) Until approved water and sewer services are made
25-18 available to the subdivision, the subdivider of land for which a
25-19 delay is granted under this section must provide at no cost to
25-21 (1) five gallons of potable water a day for each
25-22 resident; and
25-23 (2) portable sanitary wastewater disposal facilities.
25-24 SECTION 5. Subchapter B, Chapter 412, Local Government Code,
25-25 is amended by adding Section 412.015 to read as follows:
26-1 Sec. 412.015. COUNTY WATER AND SEWER UTILITY. An affected
26-2 county, as defined by Section 16.341, Water Code, may operate a
26-3 water or sewer utility in the same manner as a municipality under
26-4 Chapter 402.
26-5 SECTION 6. Section 13.002, Water Code, is amended by
26-6 amending Subdivision (23) and adding Subdivision (26) to read as
26-8 (23) "Water and sewer utility," "public utility," or
26-9 "utility" means any person, corporation, cooperative corporation,
26-10 affected county, or any combination of these persons or entities,
26-11 other than a municipal corporation, water supply or sewer service
26-12 corporation, or a political subdivision of the state, except an
26-13 affected county, or their lessees, trustees, and receivers, owning
26-14 or operating for compensation in this state equipment or facilities
26-15 for the transmission, storage, distribution, sale, or provision of
26-16 potable water to the public or for the resale of potable water to
26-17 the public for any use or for the collection, transportation,
26-18 treatment, or disposal of sewage or other operation of a sewage
26-19 disposal service for the public, other than equipment or facilities
26-20 owned and operated for either purpose by a municipality or other
26-21 political subdivision of this state or a water supply or sewer
26-22 service corporation, but does not include any person or corporation
26-23 not otherwise a public utility that furnishes the services or
26-24 commodity only to itself or its employees or tenants as an incident
26-25 of that employee service or tenancy when that service or commodity
27-1 is not resold to or used by others.
27-2 (26) "Affected county" has the meaning assigned by
27-3 Section 232.021, Local Government Code.
27-4 SECTION 7. Section 13.043, Water Code, is amended by
27-5 amending Subsections (b), (c), (f), and (g) and adding Subsection
27-6 (k) to read as follows:
27-7 (b) Ratepayers of the following entities may appeal the
27-8 decision of the governing body of the entity affecting their water,
27-9 drainage, or sewer rates to the commission:
27-10 (1) a nonprofit water supply or sewer service
27-11 corporation created and operating under Chapter 76, Acts of the
27-12 43rd Legislature, 1st Called Session, 1933 (Article 1434a, Vernon's
27-13 Texas Civil Statutes);
27-14 (2) a utility under the jurisdiction of a municipality
27-15 inside the corporate limits of the municipality;
27-16 (3) a municipally owned utility, if the ratepayers
27-17 reside outside the corporate limits of the municipality; < and>
27-18 (4) a district or authority created under Article III,
27-19 Section 52, or Article XVI, Section 59, of the Texas Constitution
27-20 that provides water or sewer service to household users; and
27-21 (5) a utility owned by an affected county, if the
27-22 ratepayer's rates are actually adversely affected. For the
27-23 purposes of this section ratepayers who reside outside the
27-24 boundaries of the district or authority shall be considered a
27-25 separate class from ratepayers who reside inside those boundaries.
28-1 (c) An appeal under Subsection (b) of this section must be
28-2 initiated by filing a petition for review with the commission and
28-3 the entity providing service within 90 days after the effective day
28-4 of the rate change or, if appealing under Subdivision (b)(2) or (5)
28-5 of this section, within 90 days after the date on which the
28-6 governing body of the municipality or affected county makes a final
28-7 decision. The petition must be signed by the lesser of 10,000 or 10
28-8 percent of those ratepayers whose rates have been changed and who
28-9 are eligible to appeal under Subsection (b) of this section.
28-10 (f) A retail public utility that receives water or sewer
28-11 service from another retail public utility or political subdivision
28-12 of the state, including an affected county, may appeal to the
28-13 commission a decision of the provider of water or sewer service
28-14 affecting the amount paid for water or sewer service. An appeal
28-15 under this subsection must be initiated within 90 days after the
28-16 date of notice of the decision is received from the provider of
28-17 water or sewer service by the filing of a petition by the retail
28-18 public utility.
28-19 (g) An applicant for service from an affected county or a
28-20 water supply or sewer service corporation may appeal to the
28-21 commission a decision of the county or water supply or sewer
28-22 service corporation affecting the amount to be paid to obtain
28-23 service in addition to the regular membership or tap fees. If the
28-24 commission finds the amount charged to be unreasonable, it shall
28-25 establish the fee to be paid for that applicant. An appeal under
29-1 this subsection must be initiated within 90 days after the date
29-2 written notice is provided to the applicant or member of the
29-3 decision of an affected county or water supply or sewer service
29-4 corporation < corporation's decision> relating to the applicant's
29-5 initial request for that service.
29-6 (k) Not later than the 30th day after the date of a final
29-7 decision on a rate change, the commissioners court of an affected
29-8 county shall provide written notice to each ratepayer eligible to
29-9 appeal. The notice must include the effective date of the new
29-10 rates, the new rates, and the location where additional information
29-11 on rates may be obtained.
29-12 SECTION 8. The heading to Subchapter D, Chapter 13, Water
29-13 Code, is amended to read as follows:
29-14 SUBCHAPTER D. MUNICIPALITIES AND COUNTIES
29-15 SECTION 9. Section 13.084, Water Code, is amended to read as
29-17 Sec. 13.084. AUTHORITY OF GOVERNING BODY; COST
29-18 REIMBURSEMENT. The governing body of any municipality or the
29-19 commissioners court of an affected county shall have the right to
29-20 select and engage rate consultants, accountants, auditors,
29-21 attorneys, engineers, or any combination of these experts to
29-22 conduct investigations, present evidence, advise and represent the
29-23 governing body, and assist with litigation on water and sewer
29-24 utility ratemaking proceedings. The water and sewer utility
29-25 engaged in those proceedings shall be required to reimburse the
30-1 governing body or the commissioners court for the reasonable costs
30-2 of those services and shall be allowed to recover those expenses
30-3 through its rates with interest during the period of recovery.
30-4 SECTION 10. Section 13.085, Water Code, is amended to read
30-5 as follows:
30-6 Sec. 13.085. ASSISTANCE BY COMMISSION. On request, the
30-7 commission may advise and assist municipalities and affected
30-8 counties in connection with questions and proceedings arising under
30-9 this chapter. This assistance may include aid to municipalities or
30-10 an affected county in connection with matters pending before the
30-11 commission, the courts, < or> the governing body of any
30-12 municipality, or the commissioners court of an affected county,
30-13 including making members of the staff available to them as
30-14 witnesses and otherwise providing evidence.
30-15 SECTION 11. Section 13.139(a), Water Code, is amended to
30-16 read as follows:
30-17 (a) Every retail public utility that possesses or is
30-18 required to possess a certificate of public convenience and
30-19 necessity and every district and affected county that furnishes
30-20 retail water or sewer utility service, shall furnish the service,
30-21 instrumentalities, and facilities as are safe, adequate, efficient,
30-22 and reasonable.
30-23 SECTION 12. Section 13.141, Water Code, is amended to read
30-24 as follows:
30-25 Sec. 13.141. BILLING FOR SERVICE TO STATE. A utility,
31-1 utility owned by an affected county, or municipally owned utility
31-2 may not bill or otherwise require the state or a state agency or
31-3 institution to pay for service before the service is rendered.
31-4 SECTION 13. Section 13.181, Water Code, is amended to read
31-5 as follows:
31-6 Sec. 13.181. POWER TO ENSURE COMPLIANCE; RATE REGULATION.
31-7 Subject to this chapter, the commission has all authority and power
31-8 of the state to ensure compliance with the obligations of utilities
31-9 under this chapter. For this purpose the regulatory authority may
31-10 fix and regulate rates of utilities, including rules and
31-11 regulations for determining the classification of customers and
31-12 services and for determining the applicability of rates. A rule or
31-13 order of the regulatory authority may not conflict with the rulings
31-14 of any federal regulatory body. Except Section 13.192, this
31-15 subchapter shall apply only to a utility and shall not be applied
31-16 to municipalities, counties, districts, or water supply or sewer
31-17 service corporations. The commission may adopt rules which
31-18 authorize a utility which is permitted under Section 13.242(c) to
31-19 provide service without a certificate of public convenience and
31-20 necessity to request or implement a rate increase and operate
31-21 according to rules, regulations, and standards of service other
31-22 than those otherwise required under this chapter provided that
31-23 rates are just and reasonable for customers and the utility and
31-24 that service is safe, adequate, efficient, and reasonable.
31-25 SECTION 14. Section 13.242(a), Water Code, is amended to
32-1 read as follows:
32-2 (a) Unless otherwise specified, a utility, a utility
32-3 operated by an affected county, or a water supply or sewer service
32-4 corporation may not in any way render retail water or sewer utility
32-5 service directly or indirectly to the public without first having
32-6 obtained from the commission a certificate that the present or
32-7 future public convenience and necessity will require that
32-8 installation, operation, or extension, and except as otherwise
32-9 provided by this subchapter, a retail public utility may not
32-10 furnish, make available, render, or extend retail water or sewer
32-11 utility service to any area to which retail water or sewer utility
32-12 service is being lawfully furnished by another retail public
32-13 utility without first having obtained a certificate of public
32-14 convenience and necessity that includes the area in which the
32-15 consuming facility is located.
32-16 SECTION 15. Section 15.407, Water Code, is amended by adding
32-17 Subsection (g) to read as follows:
32-18 (g) If after making an application under this section a
32-19 county no longer meets the criteria for an affected county, as
32-20 defined by Section 16.341, the county remains eligible to receive
32-21 funds under this section.
32-22 SECTION 16. Section 16.342(a), Water Code, is amended to
32-23 read as follows:
32-24 (a) In consultation with the attorney general, the < The>
32-25 board shall adopt rules that are necessary to carry out the program
33-1 provided by Subchapter K, Chapter 17, of this code and rules:
33-2 (1) incorporating existing minimum state standards and
33-3 rules for water supply and sewer services established by the Texas
33-4 Department of Health and the Texas Natural Resource Conservation
33-5 < Water> Commission; and
33-6 (2) requiring compliance with existing rules of any
33-7 state agency relating to septic tanks and other waste disposal
33-9 SECTION 17. Section 16.343(g), Water Code, is amended to
33-10 read as follows:
33-11 (g) Before filing an application for funds for facility
33-12 engineering under Section 15.407 of this code or financial
33-13 assistance under Subchapter K, Chapter 17, of this code, a
33-14 political subdivision must adopt the model rules pursuant to this
33-15 section or, in the case of a district or nonprofit water supply
33-16 corporation, must be located in a city or county that has adopted
33-17 such rules. An affected county may not receive funds under either
33-18 Section 15.407 of this code or Subchapter K, Chapter 17, of this
33-19 code unless the county adopts and enforces the model rules.
33-20 SECTION 18. Section 16.344, Water Code, is amended by adding
33-21 Subsection (d) to read as follows:
33-22 (d) Once every three months, the board shall prepare and
33-23 file with the governor, the lieutenant governor, the speaker of the
33-24 house of representatives, the attorney general, and the state
33-25 auditor, a detailed written report describing the activities of the
34-1 board under this section.
34-2 SECTION 19. Section 16.349, Water Code, is amended by
34-3 amending Subsection (b) and adding Subsection (c) to read as
34-5 (b) Except as provided by Subsection (c), the < The> amount
34-6 charged under Subsection (a) of this section may be equal to or
34-7 less than the rates paid for water supply and sewer services by
34-8 residents of the political subdivision < and without regard to
34-9 whether the economically distressed area is located in the
34-10 boundaries of the political subdivision>.
34-11 (c) A political subdivision holding a certificate of
34-12 convenience and necessity described by Section 13.242, that extends
34-13 service to an economically distressed area outside the boundaries
34-14 of the political subdivision, may not charge the residents of the
34-15 area rates that exceed:
34-16 (1) the cost of providing service to the area; or
34-17 (2) the rates charged other residents of the political
34-18 subdivision plus 15 percent.
34-19 SECTION 20. Section 16.352, Water Code, is amended to read
34-20 as follows:
34-21 Sec. 16.352. ENFORCEMENT OF RULES. (a) A person who
34-22 violates a rule adopted by a county or municipality pursuant to
34-23 Section 16.343 of this code is subject to a civil penalty of not
34-24 less than $1,000 < $50> nor more than $10,000 < $1,000> for each
34-25 violation and for each day of a continuing violation but not in
35-1 excess of $50,000 < $5,000> per day.
35-2 (b) A person commits an offense if the person knowingly or
35-3 intentionally violates a rule adopted under this subchapter
35-4 < pursuant to Section 16.343 of this code by a county or a
35-6 (c) An offense under Subsection (b) of this section is a
35-7 Class A < B> misdemeanor.
35-8 (d) Venue for prosecution of an offense under Subsection (b)
35-9 is in a county in which any element of the offense is alleged to
35-10 have occurred or in Travis County.
35-11 SECTION 21. Section 16.353, Water Code, is amended to read
35-12 as follows:
35-13 Sec. 16.353. INJUNCTION. In addition to other remedies, the
35-14 attorney general or < ,> the county or district attorney of the
35-15 county in which the violation occurred is < , or other local
35-16 officials are> authorized to apply to the district court for and
35-17 the court in its discretion may grant the state or political
35-18 subdivision, without bond or other undertaking, any injunction that
35-19 the facts may warrant including temporary restraining orders,
35-20 temporary injunctions after notice and hearing, and permanent
35-21 injunctions enjoining a violation of the rules.
35-22 SECTION 22. Section 16.354, Water Code, is amended to read
35-23 as follows:
35-24 Sec. 16.354. ENFORCEMENT BY ATTORNEY GENERAL. In addition
35-25 to enforcement by a political subdivision, the attorney general may
36-1 bring suit to enforce a rule adopted under Section 16.350 of this
36-2 code, to assess and recover the penalty provided by Section 16.352
36-3 of this code, to obtain injunctive relief to prevent the violation
36-4 or continued violation of a political subdivision's rules, or to
36-5 enforce the rules, recover the criminal penalty, and obtain
36-6 injunctive relief.
36-7 SECTION 23. Subchapter J, Chapter 16, Water Code, is amended
36-8 by adding Section 16.356 to read as follows:
36-9 Sec. 16.356. VENUE. A suit under this subchapter for
36-10 injunctive relief or for the recovery of a civil penalty may be
36-11 brought in a district court in:
36-12 (1) the county in which the defendant resides;
36-13 (2) the county in which the alleged violation or
36-14 threat of violation occurs; or
36-15 (3) Travis County.
36-16 SECTION 24. Section 26.001, Water Code, is amended by adding
36-17 Subdivision (26) to read as follows:
36-18 (26) "Affected county" has the meaning assigned by
36-19 Section 232.021, Local Government Code.
36-20 SECTION 25. Section 26.123, Water Code, is amended by adding
36-21 Subsection (j) to read as follows:
36-22 (j) If the attorney general determines that a subdivider, as
36-23 defined by Section 232.021, Local Government Code, of land in an
36-24 affected county has violated or is threatening to violate a
36-25 provision of this chapter, or a rule adopted by the commission
37-1 under this chapter, the executive director on the request of the
37-2 attorney general shall conduct an investigation of the alleged
37-3 violation. The executive director shall consult with the attorney
37-4 general during the investigation to determine appropriate remedial
37-6 SECTION 26. Section 26.124, Water Code, is amended by adding
37-7 Subsection (c) to read as follows:
37-8 (c) If the attorney general determines that a violation of
37-9 Section 26.121 or a rule adopted under that section has occurred or
37-10 is about to occur in an affected county, the attorney general may
37-11 institute a civil suit in district court for injunctive relief or
37-12 civil penalties against the person who has or is about to commit a
37-14 SECTION 27. The following sections of the Local Government
37-15 Code are repealed: Sections 232.001(f), 232.0035, 232.0036,
37-16 232.0046, 232.0047, and 232.0049.
37-17 SECTION 28. (a) The changes in law made in Sections 4 and
37-18 20 of this Act relating to criminal offenses apply only to an
37-19 offense committed on or after the effective date of this Act. For
37-20 purposes of this subsection, an offense is committed before the
37-21 effective date of this Act if any element of the offense occurs
37-22 before that date. An offense committed before the effective date
37-23 of this Act is governed by the law in effect when the offense was
37-24 committed, and the former law is continued in effect for this
38-1 (b) The changes in law made in Sections 4 and 20 of this Act
38-2 relating to civil penalties apply only to a violation that occurs
38-3 on or after the effective date of this Act. For purposes of this
38-4 subsection, a violation is committed before the effective date of
38-5 this Act if any element of the violation occurs before that date.
38-6 A violation committed before the effective date of this Act is
38-7 governed by the law in effect when the violation occurred, and the
38-8 former law is continued in effect for this purpose.
38-9 SECTION 29. This Act takes effect September 1, 1995.
38-10 SECTION 30. The importance of this legislation and the
38-11 crowded condition of the calendars in both houses create an
38-12 emergency and an imperative public necessity that the
38-13 constitutional rule requiring bills to be read on three several
38-14 days in each house be suspended, and this rule is hereby suspended.