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.