By Combs H.B. No. 2137
74R5647 KLL-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to pool and spa enclosures.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 757.001, Health and Safety Code, is
1-5 amended by amending Subdivisions (7), (8), and (10) to read as
1-6 follows:
1-7 (7) "Multiunit rental complex" means two or more
1-8 dwelling units in one or more buildings that are under common
1-9 ownership, managed by the same owner, managing agent, or management
1-10 company, and located on the same lot or tract of land or adjacent
1-11 lots or tracts of land. <The term includes a condominium project.>
1-12 The term does not include:
1-13 (A) a facility primarily renting rooms to
1-14 overnight guests; <or>
1-15 (B) a single-family home or adjacent
1-16 single-family homes;
1-17 (C) a duplex;
1-18 (D) a triplex or quadraplex in which the owner
1-19 is a resident; or
1-20 (E) a condominium, cooperative, or town home
1-21 project <that are not part of a condominium project>.
1-22 (8) "Pool" means a permanent swimming pool, permanent
1-23 wading or reflection pool, or permanent hot tub or spa over 24 <18>
1-24 inches deep, located at ground level, above ground, below ground,
2-1 or indoors.
2-2 (10) "Pool yard enclosure" or "enclosure" means a
2-3 fence, wall, natural barrier, or combination of fences, walls,
2-4 natural barriers, gates, windows, or doors that <completely>
2-5 surround a pool.
2-6 SECTION 2. Section 757.002, Health and Safety Code, is
2-7 amended to read as follows:
2-8 Sec. 757.002. Application. This chapter applies only to:
2-9 (1) a pool owned, controlled, or maintained by the
2-10 state, by a municipality, by a business offering the use of a pool
2-11 to the public for a fee, or by the owner of a multiunit rental
2-12 complex <or by a property owners association>; and
2-13 (2) doors and windows of rental dwellings opening into
2-14 the pool yard of a multiunit rental complex <or condominium,
2-15 cooperative, or town home project>.
2-16 SECTION 3. Section 757.003, Health and Safety Code, is
2-17 amended to read as follows:
2-18 Sec. 757.003. Enclosure for Pool Yard. (a) Except as
2-19 otherwise provided by Section 757.005, the owner of a pool covered
2-20 by Section 757.002 <multiunit rental complex with a pool or a
2-21 property owners association that owns, controls, or maintains a
2-22 pool> shall <completely> enclose the pool yard with a pool yard
2-23 enclosure so that the pool is not an attractive nuisance to
2-24 children two years of age or younger.
2-25 (b) The height of the pool yard enclosure must be at least
2-26 36 <48> inches as measured from the <ground on the> side of <away
2-27 from> the pool appropriate to achieve the purpose provided by
3-1 Subsection (a).
3-2 (c) Openings under the pool yard enclosure may not allow a
3-3 sphere five <four> inches in diameter to pass under the pool yard
3-4 enclosure.
3-5 (d) If the pool yard enclosure is constructed with
3-6 horizontal and vertical members <and the distance between the tops
3-7 of the horizontal members is at least 45 inches>, the openings may
3-8 not allow a sphere five <four> inches in diameter to pass through
3-9 the enclosure.
3-10 (e) <If the pool yard enclosure is constructed with
3-11 horizontal and vertical members and the distance between the tops
3-12 of the horizontal members is less than 45 inches, the openings may
3-13 not allow a sphere 1 3/4 inches in diameter to pass through the
3-14 enclosure.>
3-15 <(f) The use of chain link fencing materials is prohibited
3-16 entirely for a new pool yard enclosure that is constructed after
3-17 January 1, 1994. The use of diagonal fencing members that are
3-18 lower than 49 inches above the ground is prohibited for a new pool
3-19 yard enclosure that is constructed after January 1, 1994.>
3-20 <(g) Decorative designs or cutouts on or in the pool yard
3-21 enclosure may not contain any openings greater than 1 3/4 inches in
3-22 any direction.>
3-23 <(h) Indentations or protrusions in a solid pool yard
3-24 enclosure without any openings may not be greater than normal
3-25 construction tolerances and tooled masonry joints on the side away
3-26 from the pool.>
3-27 <(i) Permanent equipment or structures may not be
4-1 constructed or placed in a manner that makes them readily available
4-2 for climbing over the pool yard enclosure.>
4-3 <(j)> The wall of a building may be part of the pool yard
4-4 enclosure <only> if the doors and windows in the wall comply with
4-5 Sections 757.006 and 757.007.
4-6 (f) <(k)> The owner of a <multiunit rental complex with a
4-7 pool or a property owners association that owns, controls, or
4-8 maintains a> pool is not required to:
4-9 (1) build a pool yard enclosure at specified locations
4-10 or distances from the pool other than distances for minimum
4-11 walkways around the pool; or
4-12 (2) conform secondary pool yard enclosures, located
4-13 inside or outside the primary pool yard enclosure, to the
4-14 requirements of this chapter.
4-15 SECTION 4. Section 757.004, Health and Safety Code, is
4-16 amended to read as follows:
4-17 Sec. 757.004. Gates. (a) Except as otherwise provided by
4-18 Section 757.005, a gate in a fence or wall enclosing a pool yard as
4-19 required by Section 757.003 must:
4-20 (1) have a self-closing and self-latching device; and
4-21 (2) <have hardware enabling it to be locked, at the
4-22 option of whoever controls the gate, by a padlock or a built-in
4-23 lock operated by key, card, or combination; and>
4-24 <(3)> open outward away from the pool yard.
4-25 (b) Except as otherwise provided by Subsection (c) and
4-26 Section 757.005, a gate latch must be installed so that it is at
4-27 least approximately 36 <60> inches above the ground, except that it
5-1 may be installed lower if:
5-2 (1) the latch is installed on the pool yard side of
5-3 the gate only and is at least three inches below the top of the
5-4 gate; and
5-5 (2) the gate or enclosure has no opening greater than
5-6 one-half inch in any direction within 18 inches from the latch,
5-7 including the space between the gate and the gate post to which the
5-8 gate latches.
5-9 (c) A gate latch may be located anywhere on the gate <42
5-10 inches or higher above the ground> if the gate cannot be opened
5-11 except by key, card, or combination <on both sides of the gate>.
5-12 SECTION 5. Section 757.005, Health and Safety Code, is
5-13 amended to read as follows:
5-14 Sec. 757.005. Existing Pool Yard Enclosures. <(a) If a
5-15 pool yard enclosure is constructed or modified before January 1,
5-16 1994, and no municipal ordinance containing standards for pool yard
5-17 enclosures were applicable at the time of construction or
5-18 modification, the enclosure must comply with the requirements of
5-19 Sections 757.003 and 757.004, except that:>
5-20 <(1) if the enclosure is constructed with chain link
5-21 metal fencing material, the openings in the enclosure may not allow
5-22 a sphere 2 1/4 inches in diameter to pass through the enclosure; or>
5-23 <(2) if the enclosure is constructed with horizontal
5-24 and vertical members and the distance between the tops of the
5-25 horizontal members is at least 36 inches, the openings in the
5-26 enclosure may not allow a sphere four inches in diameter to pass
5-27 through the enclosure.>
6-1 <(b)> If a pool yard enclosure is constructed or modified
6-2 before January 1, 1994, <and if the enclosure is in compliance with
6-3 applicable municipal ordinances existing on January 1, 1994, and
6-4 containing standards for pool yard enclosures,> Sections 757.003,
6-5 757.004(a)(2) <757.004(a)(3)>, and 757.004(b) do not apply to the
6-6 enclosure.
6-7 SECTION 6. Section 757.006, Health and Safety Code, is
6-8 amended to read as follows:
6-9 Sec. 757.006. Door. (a) <A door, sliding glass door, or
6-10 French door may not open directly into a pool yard if the date of
6-11 electrical service for initial construction of the building or pool
6-12 is on or after January 1, 1994.>
6-13 <(b) A door, sliding glass door, or French door may open
6-14 directly into a pool yard if the date of electrical service for
6-15 initial construction of the building or pool is before January 1,
6-16 1994, and the pool yard enclosure complies with Subsection (c),
6-17 (d), or (e), as applicable.>
6-18 <(c)> If a door of a building, other than a sliding glass
6-19 door or screen door, opens into the pool yard, the door must have
6-20 a:
6-21 (1) latch that automatically engages when the door is
6-22 closed;
6-23 (2) spring-loaded door-hinge pin, automatic door
6-24 closer, or similar device to cause the door to close automatically;
6-25 and
6-26 (3) keyless bolting device that is installed not less
6-27 than 36 inches <or more than 48 inches> above the interior floor.
7-1 (b) <(d)> If French doors of a building open to the pool
7-2 yard, one of the French doors must comply with Subsection (a)(1)
7-3 <(c)(1)> and the other door must have:
7-4 (1) a keyed dead bolt or keyless bolting device
7-5 capable of insertion into the doorjamb above the door, and a
7-6 keyless bolting device capable of insertion into the floor or
7-7 threshold; or
7-8 (2) a bolt with at least a 3/4-inch throw installed
7-9 inside the door and operated from the edge of the door that is
7-10 capable of insertion into the doorjamb above the door and another
7-11 bolt with at least a 3/4-inch throw installed inside the door and
7-12 operated from the edge of the door that is capable of insertion
7-13 into the floor or threshold.
7-14 (c) <(e)> If a sliding glass door of a building opens into
7-15 the pool yard, the sliding glass door must have:
7-16 (1) a sliding door handle latch or sliding door
7-17 security bar that is installed not more than 48 inches above the
7-18 interior floor; or <and>
7-19 (2) a sliding door pin lock that is installed not more
7-20 than 48 inches above the interior floor.
7-21 (d) <(f)> A door, sliding glass door, or French door that
7-22 opens into a pool yard from an area of a building that is not used
7-23 by residents and that has no access to an area outside the pool
7-24 yard is not required to have a lock, latch, dead bolt, or keyless
7-25 bolting device.
7-26 (e) <(g)> A keyed dead bolt, keyless bolting device, sliding
7-27 door pin lock, or sliding door security bar installed before
8-1 September 1, 1993, may be installed not more than 54 inches from
8-2 the floor.
8-3 (f) <(h)> A keyed dead bolt or keyless dead bolt, as
8-4 described by Section 757.001(6)(A)(i), installed in a dwelling on
8-5 or after September 1, 1993, must have a bolt with a throw of not
8-6 less than one inch.
8-7 SECTION 7. Section 757.007, Health and Safety Code, is
8-8 amended to read as follows:
8-9 Sec. 757.007. Window and Window Screens. A wall of a
8-10 building constructed after <before> January 1, 1994, may not be
8-11 used as part of a pool yard enclosure unless each window in the
8-12 wall has a latch and unless each window screen on a window in the
8-13 wall is affixed by a window screen latch, screws, or similar means.
8-14 This section does not require the installation of window screens.
8-15 <A wall of a building constructed on or after January 1, 1994, may
8-16 not be used as part of a pool yard enclosure unless each ground
8-17 floor window in the wall is permanently closed and unable to be
8-18 opened.>
8-19 SECTION 8. Section 757.009, Health and Safety Code, is
8-20 amended to read as follows:
8-21 Sec. 757.009. Inspection, Repair, and Maintenance. (a) An
8-22 owner of a multiunit rental complex <or a rental dwelling in a
8-23 condominium, cooperative, or town home project> with a pool <or a
8-24 property owners association that owns, controls, or maintains a
8-25 pool> shall exercise ordinary and reasonable care to inspect,
8-26 maintain, repair, and keep in good working order the pool yard
8-27 enclosures, gates, and self-closing and self-latching devices
9-1 required by this chapter and within the control of the owner <or
9-2 property owners association>.
9-3 (b) An owner of a multiunit rental complex <or a rental
9-4 dwelling in a condominium, cooperative, or town home project> with
9-5 a pool <or a property owners association that owns, controls, or
9-6 maintains a pool> shall exercise ordinary and reasonable care to
9-7 maintain, repair, and keep in good working order the window
9-8 latches, sliding door handle latches, sliding door pin locks, and
9-9 sliding door security bars required by this chapter and within the
9-10 control of the owner <or property owners association> after request
9-11 or notice from the tenant that those devices are malfunctioning or
9-12 in need of repair or replacement. A request or notice under this
9-13 subsection may be given orally unless a written lease applicable to
9-14 the tenant <or written rules governing the property owners
9-15 association> require the request or notice to be in writing. The
9-16 requirement in the lease <or rules> must be in capital letters and
9-17 underlined or in 10-point boldfaced print.
9-18 (c) An owner of a multiunit rental complex <or a rental
9-19 dwelling in a condominium, cooperative, or town home project> with
9-20 a pool <or a property owners association that owns, controls, or
9-21 maintains a pool> shall inspect the pool yard enclosures, gates,
9-22 and self-closing and self-latching devices on gates no less than
9-23 once every 31 days.
9-24 (d) An owner's <or property owners association's> duty of
9-25 inspection, repair, and maintenance under this section may not be
9-26 waived under any circumstances and may not be enlarged except by
9-27 written agreement with a tenant or occupant of a multiunit rental
10-1 complex <or a member of a property owners association> or as may be
10-2 otherwise allowed by this chapter.
10-3 SECTION 9. Section 757.010, Health and Safety Code, is
10-4 amended to read as follows:
10-5 Sec. 757.010. Compliance With Chapter. (a) Except as
10-6 provided by Subsection (b) and Section 757.011, a person who
10-7 constructs or modifies a pool yard enclosure to conform with this
10-8 chapter may not be required to construct the enclosure differently
10-9 by a local governmental entity<, common law,> or any other law.
10-10 (b) An owner of a multiunit rental complex <or a rental
10-11 dwelling in a condominium, cooperative, or town home project> with
10-12 a pool <or a property owners association that owns, controls, or
10-13 maintains a pool> may, at the person's option, exceed the standards
10-14 of this chapter or those adopted by the Texas Board of Health under
10-15 Section 757.011. A tenant or occupant in a multiunit rental
10-16 complex <and a member of a property owners association> may, by
10-17 express written agreement, require the owner of the complex <or the
10-18 association> to exceed those standards.
10-19 (c) A municipality may <continue to> require greater
10-20 <overall height> requirements for pool yard enclosures if the pool
10-21 is owned and operated solely by the municipality <requirements
10-22 exist under the municipality's ordinances on January 1, 1994>.
10-23 SECTION 10. Section 757.011, Health and Safety Code, is
10-24 amended to read as follows:
10-25 Sec. 757.011. Authority of Texas Board of Health; VARIANCES.
10-26 (a) In extenuating circumstances, the <The> Texas Board of Health
10-27 may adopt rules requiring standards for design and construction of
11-1 pool yard enclosures that exceed the requirements of this chapter
11-2 and that apply to all pools and pool yards subject to this chapter.
11-3 An owner of a multiunit rental complex <or a rental dwelling in a
11-4 condominium, cooperative, or town home project> with a pool <or a
11-5 property owners association that owns, controls, or maintains a
11-6 pool> shall comply with and shall be liable for failure to comply
11-7 with those rules to the same extent as if they were part of this
11-8 chapter.
11-9 (b) The Texas Department of Health may grant a variance to
11-10 the requirements of this chapter in unusual or extenuating
11-11 circumstances if the variance does not allow the pool to be an
11-12 attractive nuisance.
11-13 SECTION 11. Section 757.012, Health and Safety Code, is
11-14 amended to read as follows:
11-15 Sec. 757.012. Enforcement. (a) A tenant of an owner of a
11-16 multiunit rental complex, <a member of a property owners
11-17 association,> a governmental entity, or any other person or the
11-18 person's representative may maintain an action against the owner
11-19 <or property owners association> for failure to comply with the
11-20 requirements of this chapter. In that action, the person may
11-21 obtain:
11-22 (1) a court order directing the owner <or property
11-23 owners association> to comply with this chapter;
11-24 (2) a judgment against the owner <or property owners
11-25 association> for actual damages resulting from the failure to
11-26 comply with the requirements of this chapter;
11-27 (3) a judgment against the owner <or property owners
12-1 association> for punitive damages resulting from the failure to
12-2 comply with the requirements of this chapter if the actual damages
12-3 to the person were caused by the owner's <or property owners
12-4 association's> intentional, malicious, or grossly negligent
12-5 actions;
12-6 (4) a judgment against the owner <or property owners
12-7 association> for actual damages, and if appropriate, punitive
12-8 damages, where the owner <or association> was in compliance with
12-9 this chapter at the time of the pool-related damaging event but was
12-10 consciously indifferent to access being repeatedly gained to the
12-11 pool yard by unauthorized persons; or
12-12 (5) a judgment against the owner <or property owners
12-13 association> for a civil penalty of not more than $5,000 if the
12-14 owner <or property owners association> fails to comply with this
12-15 chapter within a reasonable time after written notice by a tenant
12-16 of the multiunit rental complex <or a member of the property owners
12-17 association>.
12-18 (b) A court may award reasonable attorney fees and costs to
12-19 the prevailing party in an action brought under Subsection (a)(5).
12-20 (c) The attorney general, a local health department, a
12-21 municipality, or a county having jurisdiction may enforce this
12-22 chapter by any lawful means, including inspections, permits, fees,
12-23 civil fines, criminal prosecutions, and injunctions<, and, after
12-24 required notice, governmental construction or repair of pool yard
12-25 enclosures that do not exist or that do not comply with this
12-26 chapter>.
12-27 SECTION 12. Section 757.014, Health and Safety Code, is
13-1 amended to read as follows:
13-2 Sec. 757.014. Application to Other Bodies of Water and
13-3 Related Facilities. The owner of a multiunit rental complex <or a
13-4 property owners association> is not required to enclose a body of
13-5 water or construct barriers between the owner's <or property owners
13-6 association's> property and a body of water such as an ocean, bay,
13-7 lake, pond, bayou, river, creek, stream, spring, reservoir, stock
13-8 tank, culvert, drainage ditch, detention pond, or other flood or
13-9 drainage facility.
13-10 SECTION 13. Section 757.015, Health and Safety Code, is
13-11 amended to read as follows:
13-12 Sec. 757.015. Effect on Other Laws. (a) The duties
13-13 established by this chapter for an owner of a multiunit dwelling
13-14 project coincide with<, an owner of a dwelling in a condominium,
13-15 cooperative, or town home project, and a property owners
13-16 association supersede> those established by common law, and
13-17 supersede those established by the Property Code, the Health and
13-18 Safety Code, the Local Government Code <other than Section
13-19 214.101>, and local ordinances relating to duties to inspect,
13-20 install, repair, or maintain:
13-21 (1) pool yard enclosures;
13-22 (2) pool yard enclosure gates and gate latches,
13-23 including self-closing and self-latching devices;
13-24 (3) keyed dead bolts, keyless bolting devices, sliding
13-25 door handle latches, sliding door security bars, self-latching and
13-26 self-closing devices, and sliding door pin locks on doors that open
13-27 into a pool yard area and that are owned and controlled by the
14-1 owner <or property owners association>; and
14-2 (4) latches on windows that open into a pool yard area
14-3 and that are owned and controlled by the owner <or property owners
14-4 association>.
14-5 (b) This chapter does not affect any duties of a rental
14-6 dwelling owner, lessor, sublessor, management company, or managing
14-7 agent under Subchapter D, Chapter 92, Property Code.
14-8 SECTION 14. Section 757.001(11), Health and Safety Code, and
14-9 Section 214.101, Local Government Code, are repealed.
14-10 SECTION 15. The importance of this legislation and the
14-11 crowded condition of the calendars in both houses create an
14-12 emergency and an imperative public necessity that the
14-13 constitutional rule requiring bills to be read on three several
14-14 days in each house be suspended, and this rule is hereby suspended,
14-15 and that this Act take effect and be in force from and after its
14-16 passage, and it is so enacted.