By McCall                                       H.B. No. 3343

      75R2833 PB-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the preparation of certain design plans and

 1-3     specifications regarding the elimination of architectural barriers.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Section 2, Article 9102, Revised Statutes, is

 1-6     amended to read as follows:

 1-7           Sec. 2.  APPLICATION.  (a)  The standards adopted under this

 1-8     article apply to:

 1-9                 (1)  a building or facility used by the public that is

1-10     constructed, or substantially renovated, modified, or altered, in

1-11     whole or in part on or after January 1, 1970, through the use of

1-12     state, county, or municipal funds, or the funds of any political

1-13     subdivision of the state;

1-14                 (2)  the temporary or emergency construction of a

1-15     building or facility described by this subsection or Subsection (b)

1-16     of this section;

1-17                 (3)  a building leased or occupied in whole or in part

1-18     for use by the state under any lease or rental agreement entered

1-19     into on or after January 1, 1972;

1-20                 (4)  a privately funded building or facility defined as

1-21     a "public accommodation" by Section 301(7) of the Americans with

1-22     Disabilities Act of 1990 (42 U.S.C. Section 12181), that is

1-23     constructed or substantially renovated, modified, or altered on or

1-24     after January 1, 1992; and

 2-1                 (5)  a privately funded building or facility defined as

 2-2     a "commercial facility" by Section 301, Americans with Disabilities

 2-3     Act of 1990 (42 U.S.C. Section 12181), that is constructed or

 2-4     substantially renovated, modified, or altered on or after September

 2-5     1, 1993.

 2-6           (b)  To the extent there is no conflict with federal law and

 2-7     it is not beyond the state's power of regulation, the standards

 2-8     adopted under this article also apply to a building or facility

 2-9     constructed in this state, or a building or facility leased or

2-10     rented for use by the state, through the use of federal funds.

2-11           (c)  These standards and specifications shall be adhered to

2-12     in all buildings leased or rented in whole or in part for use by a

2-13     state agency under any lease or rental agreement entered into on or

2-14     after January 1, 1972.  To such extent as is not contraindicated by

2-15     federal law or beyond the power of the state's regulation, these

2-16     standards shall also apply to buildings or facilities leased or

2-17     rented for use by a state agency through partial or total use of

2-18     federal funds.  Facilities which are the subject of lease or rental

2-19     agreements on January 1, 1972, will not be required to meet

2-20     standards and specifications for the term of the existing lease or

2-21     rental agreement but must be brought into compliance before a lease

2-22     or rental agreement is renewed.  Where it is determined by the

2-23     governmental department, agency, or unit concerned that full

2-24     compliance with any particular standard is impractical, the reasons

2-25     for such determination shall be set forth in written form by those

2-26     making the determination and forwarded to the department.  If it is

2-27     determined that full compliance is not practical, there shall be

 3-1     substantial compliance as determined by the department with the

 3-2     standard or specification to the maximum extent practical, and the

 3-3     file system maintained by the department shall include the written

 3-4     record of the determination that it is impractical to comply fully

 3-5     with a particular standard or specification and shall also set

 3-6     forth the extent to which an attempt will be made to comply

 3-7     substantially with the standard or specification.  In this

 3-8     subsection, "state agency" has the meaning assigned by Section

 3-9     2151.002, Government Code [1.02, State Purchasing and General

3-10     Services Act (Article 601b, Vernon's Texas Civil Statutes)].

3-11           (d) [(c)]  The commissioner may waive or modify accessibility

3-12     standards adopted under this article when:

3-13                 (1)  the application of the standards is considered by

3-14     the commissioner to be irrelevant to the nature, use, or function

3-15     of a building or facility covered by this article; or

3-16                 (2)  the owner of a building or facility that is the

3-17     subject of a request for a waiver or modification of a standard

3-18     under this subsection, or the owner's designated agent, presents

3-19     proof to the commissioner that compliance with the particular

3-20     standard is impracticable.

3-21           (e) [(d)]  An owner of a building described by Subsection

3-22     (a)(3) of this section or of a building or facility leased or

3-23     rented for use by the state through the use of federal funds, or

3-24     the owner's designated agent, must present to the commissioner the

3-25     proof required by Subsection (d)(2) [(c)(2)] of this section before

3-26     the date the owner:

3-27                 (1)  submits a bid proposal in relation to the award of

 4-1     a contract for the lease or rental of the building or facility; or

 4-2                 (2)  is awarded the contract for the lease or rental of

 4-3     the building or facility if the state does not advertise for bids.

 4-4           (f) [(e)]  The commissioner may not waive or modify any

 4-5     standard or specification when:

 4-6                 (1)  waiving or modifying a standard or specification

 4-7     would result in a significant impairment of the acquisition of

 4-8     goods and services by persons with disabilities or substantially

 4-9     reduce the potential for employment of persons with disabilities;

4-10     or

4-11                 (2)  the proof presented to the commissioner under

4-12     Subsection (d)(2) [(c)(2)] of this section is not adequate.

4-13           (g) [(f)]  All evidence supporting waiver or modification

4-14     determinations made by the commissioner shall be made a matter of

4-15     record and become part of the file system maintained by the

4-16     department.

4-17           (h) [(g)]  The standards adopted under this article do not

4-18     apply to a place used primarily for religious rituals within either

4-19     a building or facility of a religious organization.

4-20           SECTION 2.   Section 4, Article 9102, Revised Statutes, is

4-21     amended to read as follows:

4-22           Sec. 4.  DEFINITIONS.  In [For the purpose of] this article

4-23     [the following terms have the  meanings as herein set forth]:

4-24                 (1)  "Architect" means a person registered as an

4-25     architect under Chapter 478, Acts of the 45th Legislature, Regular

4-26     Session, 1937 (Article 249a, Vernon's Texas Civil Statutes).

4-27     ["Disability" means with respect to an individual a physical or

 5-1     mental impairment that substantially limits one or more of the

 5-2     major life activities of such individual.]

 5-3                 (2)  "Commission" means the Texas Commission of

 5-4     Licensing and Regulation.

 5-5                 (3)  "Commissioner" means the commissioner of licensing

 5-6     and regulation.

 5-7                 (4)  "Department" means the Texas Department of

 5-8     Licensing and Regulation.

 5-9                 (5)  "Design professional" means:

5-10                       (A)  an architect;

5-11                       (B)  an engineer; or

5-12                       (C)  an interior designer.  ["Architect" means a

5-13     person registered as an architect under Chapter 478, Acts of the

5-14     45th Legislature, Regular Session, 1937 (Article 249a, Vernon's

5-15     Texas Civil Statutes).]

5-16                 (6)  "Disability" means, with respect to an individual,

5-17     a physical or mental impairment that substantially limits one or

5-18     more of the major life activities of that individual.

5-19                 (7)  "Engineer" means a person registered as an

5-20     engineer under The Texas Engineering Practice Act (Article 3271a,

5-21     Vernon's Texas Civil Statutes).

5-22                 (8)  "Interior designer" means a person registered as

5-23     an interior designer under Article 249e, Revised Statutes.

5-24           SECTION 3.   Section 5, Article 9102, Revised Statutes, is

5-25     amended to read as follows:

5-26           Sec. 5.  RESPONSIBILITIES FOR ENFORCEMENT.  (a)  In the

5-27     administration and enforcement of this  article, the commissioner

 6-1     shall have the assistance of appropriate state rehabilitation

 6-2     agencies and of the Governor's Committee on People with

 6-3     Disabilities in carrying out commissioner responsibilities.  State

 6-4     agencies involved in extending direct services to persons with

 6-5     disabilities are authorized to enter into interagency contracts

 6-6     with the department to provide such additional funding as might be

 6-7     required to insure that service objectives and responsibilities of

 6-8     such agencies are achieved through the administration of this

 6-9     article.  In enforcing this article the commissioner shall also

6-10     receive the assistance of all appropriate elective or appointive

6-11     state officials.  The commissioner may contract with other state

6-12     agencies, political subdivisions, nonprofit organizations, and

6-13     private independent contractors to perform the commissioner's

6-14     review and inspection functions for privately financed buildings

6-15     that are not leased by the state or a political subdivision and may

6-16     terminate those contracts for cause.  The department shall from

6-17     time to time inform professional organizations and others,

6-18     including persons with disabilities, design professionals

6-19     [architects, engineers], and other building professionals, of this

6-20     law and its application.  Information disseminated by the

6-21     department about the program shall include the types of buildings

6-22     and leases covered by this article, the procedures for submitting

6-23     plans and specifications for review, complaint procedures, and the

6-24     address and phone number of the department's program.  The

6-25     department may enter into cooperative agreements to integrate

6-26     information about the program with information produced or

6-27     distributed by other public entities or by private entities.

 7-1           (b)  The commissioner has all necessary powers to require

 7-2     compliance with the department's rules and regulations and

 7-3     modifications thereof and substitutions therefor.  The commission

 7-4     may also impose an administrative penalty under Section 17, Article

 7-5     9100, Revised Statutes, on a building owner for a violation of this

 7-6     article or a rule adopted under this article.  Each day that the

 7-7     violation is not corrected constitutes a separate violation.  The

 7-8     commissioner when the commission considers imposing an

 7-9     administrative penalty under this section, shall first notify a

7-10     person responsible for the building and allow that person 90 days

7-11     to bring the building into compliance.  The commissioner shall have

7-12     the authority to extend the 90-day period when circumstances

7-13     justify such extension.

7-14           (c)  The standards and specifications to be adopted by the

7-15     commissioner under this article shall be consistent in effect to

7-16     those adopted by the American National Standards Institute, Inc.

7-17     (or its federally recognized successor in function), and the

7-18     department shall publish the standards and specifications in a

7-19     readily accessible form for the use of interested parties.  The

7-20     standards, specifications, and other rules to be adopted by the

7-21     commissioner under this article shall also be consistent with those

7-22     adopted under federal law.

7-23           (d)  This subsection applies to all [All] plans and

7-24     specifications for the initial construction or [for] the

7-25     substantial renovation, modification, or alteration of a building

7-26     or facility that has an estimated construction project cost of

7-27     $50,000  or more and that is subject to the provisions of this

 8-1     article.   Plans and specifications subject to this subsection must

 8-2     [shall] be submitted to the department for review and approval

 8-3     [prior to the time that construction or that substantial

 8-4     renovation, modification, or alteration on the building or facility

 8-5     begins] in accordance with rules and regulations adopted by the

 8-6     commissioner before work on the project begins.  The plans [Plans]

 8-7     and specifications must be prepared by a design professional and,

 8-8     except as provided by Subsection (e) of this section, [related to

 8-9     the building or facility] shall be submitted to the department by

8-10     the design professional [architect, interior designer, or engineer]

8-11     who has overall responsibility for the design of the constructed or

8-12     reconstructed building or facility.  [The owner shall submit the

8-13     plans and specifications to the department if there is no

8-14     architect, interior designer, or engineer with that

8-15     responsibility.] Likewise, any substantial modification of approved

8-16     plans shall be resubmitted to the department for review and

8-17     approval.  The plans and specifications that are not approved or

8-18     disapproved by the department within 30 days from the receipt of

8-19     the plans and specifications are automatically approved.  If a

8-20     design professional [an architect, interior designer, or engineer]

8-21     required to submit or resubmit plans and specifications to the

8-22     department fails to do so in a timely manner, the commissioner

8-23     shall report the fact to the Texas Board of Architectural Examiners

8-24     or the State Board of Registration for Professional Engineers, as

8-25     appropriate.

8-26           (e)  Notwithstanding Subsection (d) of this section, an owner

8-27     of a building subject to this article, a contractor for a project

 9-1     subject to this article, or another person determined to be

 9-2     acceptable by the commissioner may submit the applicable plans and

 9-3     specifications to the department for review and approval if:

 9-4                 (1)  the plans or specifications are the professional

 9-5     work product of a design professional; and

 9-6                 (2)  the plans or specifications are clearly marked

 9-7     with the seal of that design professional.

 9-8           (f)  The commissioner may review plans and specifications,

 9-9     make inspections, and issue certifications that structures not

9-10     otherwise covered by this article are free of architectural

9-11     barriers and in compliance with the provisions of this article.

9-12     The department shall inspect each building and facility that has an

9-13     estimated construction project cost of $50,000 or more and that is

9-14     subject to this article not later than the first anniversary of the

9-15     date that construction or substantial renovation, modification, or

9-16     alteration of the building or facility is completed.  The

9-17     department shall inspect each building that is subject to this

9-18     article because of a lease to the state during the first year of

9-19     the lease.

9-20           (g) [(f)(1)]  The commissioner shall contract with a

9-21     municipality to perform the commissioner's review and inspection

9-22     functions for privately financed buildings that are not leased by

9-23     the state or a political subdivision if:

9-24                 (1) [(A)]  the municipality requests permission to

9-25     perform such duties;

9-26                 (2) [(B)]  the municipality is staffed with a

9-27     sufficient number of qualified personnel to perform such duties in

 10-1    the judgment of the commissioner; and

 10-2                (3) [(C)]  the municipality agrees to contract terms

 10-3    required by the commissioner.

 10-4          (h) [(2)]  The commissioner shall require municipal personnel

 10-5    who perform [such] duties under Subsection (g) of this section to

 10-6    comply with qualification or certification requirements adopted or

 10-7    approved by the commissioner.  [The commissioner, not later than

 10-8    April 1, 1994, shall adopt qualification requirements or implement

 10-9    certification programs under this subsection and shall commence

10-10    entering into contracts with municipalities qualifying under this

10-11    subsection.]

10-12          SECTION 4.  This Act takes effect September 1, 1997, and

10-13    applies only to a plan or specification for the elimination of

10-14    architectural barriers that is originally submitted to the

10-15    commissioner of licensing and regulation on or after that date.  A

10-16    plan or specification submitted before that date is governed by the

10-17    law in effect on the date that the plan or specification was

10-18    submitted, and the former law is continued in effect for that

10-19    purpose.

10-20          SECTION 5.  The importance of this legislation and the

10-21    crowded condition of the calendars in both houses create an

10-22    emergency and an imperative public necessity that the

10-23    constitutional rule requiring bills to be read on three several

10-24    days in each house be suspended, and this rule is hereby suspended.