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.