SRC-PNG S.B. 1174 76(R)   BILL ANALYSIS


Senate Research Center   S.B. 1174
76R7962 CAG-DBy: Wentworth
Intergovernmental Relations
3/30/1999
As Filed


DIGEST 

Currently, in Texas, certain areas, such as the Texas Hill Country, have
become popular for development, but have groundwater that cannot support
growth without causing damage to the aquifer.  Often because of the
popularity of the area, buyers purchase property from unscrupulous business
interests without the infrastructure necessary for responsible development.
This bill would provide to commissioners courts the authority to require
plans for water, wastewater, storm drainage, and other utilities, in areas
designated as priority groundwater management areas.   

PURPOSE

As proposed, S.B. 1174 provides to commissioners courts the authority to
require plans for water, wastewater, storm drainage, and other utilities,
in areas designated as priority groundwater management areas.  

RULEMAKING AUTHORITY

Rulemaking authority is granted to the commissioners courts in SECTION 1
(Section 232.098(f), and Sections 232.100(a) and (c),  Local Government
Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Chapter 232, Local Government Code, by adding Subchapter
D, as follows: 

SUBCHAPTER D.  ALTERNATE SUBDIVISION PLATTING REQUIREMENTS IN PRIORITY
GROUNDWATER MANAGEMENT AREAS 

Sec.  232.091.  DEFINITIONS.  Defines "common promotional plan,"
"floodplain," "lease," "lot," "minimum state standards," "plat," "priority
groundwater management area," "sell," "sewer," "sewer services," "sewer
facilities," "subdivide," "subdivider," "subdivision," and "utility." 

Sec.  232.092.  APPLICABILITY.  Provides that this subchapter applies only
to land that is subdivided into four or more lots intended primarily for
residential use in the jurisdiction of a county and that is located in a
priority groundwater management area.  Provides that this subchapter does
not apply if the subdivision is incident to or the result of the conveyance
of the land as a gift between persons related to each other within the
third degree by affinity or consanguinity, as determined under Chapter 573,
Government Code.  Sets forth the instances in which land is considered in
the jurisdiction of a county. 

Sec.  232.093.  PLAT REQUIRED.  Requires a subdivider of land located in
the jurisdiction of a county and located in a priority groundwater
management area to have a plat of the subdivision prepared.  Provides that
a subdivision of a tract under this section includes a subdivision of real
property by any method of conveyance, including a contract for deed, oral
contract, contract of sale, or other type of executory contract.  Sets
forth certain requirements for the required plat.  Authorizes a subdivider
to meet the requirements of Subsection (b)(12(B) by obtaining a certificate
issued by the appropriate county or state official having jurisdiction over
the approval of septic systems stating that lots in the subdivision can be
adequately and legally served by septic systems.  Requires the subdivider
of the tract to  acknowledge the plat by signing the plat and attached
documents and attest to the veracity and completeness of the matters
asserted in the attached documents and in the plat.  Requires the plat to
be filed and recorded with the county clerk of the county in which the
tract is located.  Provides that the plat is subject to the filing and
recording provisions of Section 12.002, Property Code.  

Sec.  232.094.  APPROVAL BY COUNTY REQUIRED.  Provides that a plat filed
under Section 232.093 is not valid unless the commissioners court of the
county in which the land is located approves the plat by an order entered
in the minutes of the court.  Requires the commissioners court to refuse to
approve the plat if it does not meet the requirements prescribed by or
under this subchapter or if any bond required under this subchapter is not
filed with the county clerk.  Prohibits the commissioners court from
approving the plat if any part of a plat applies to land intended for
residential housing and any part of that land lies in a floodplain, unless
the plat evidences a restrictive covenant as required by this section.
Requires the restrictive covenant to prohibit the construction of
residential housing in any area of the subdivision that is in a floodplain
unless the housing qualifies for insurance under the National Flood
Insurance Act of 1968 (42 U.S.C. Section 4001 et seq.).  Requires the
county clerk, on request, to provide the attorney general or the Texas
Water Development Board certain information.   

Sec.  232.095.  SUBDIVISION REQUIREMENTS.  Requires the commissioners court
to set forth certain requirements for each subdivision, by an order adopted
and entered in the minutes of the commissioners court, and after a notice
is published in a newspaper of general circulation in the county. 

Sec.  232.096.  WATER AND SEWER SERVICE EXTENSION.  Authorizes the
commissioners court to extend, beyond the date specified on the plat or on
the document attached to the plat, the date by which the water and sewer
facilities must be fully operable, if the commissioners court finds the
extension is reasonable and not contrary to the public interest.  Prohibits
the commissioners court from granting an extension under Subsection (a) if
it would allow an occupied residence to be without water or sewer services. 

Sec.  232.097.  BOND REQUIREMENTS.  Requires the commissioners court to
require the subdivider of the tract to execute and maintain in effect a
bond or, in the alternative, a person may make a cash deposit in an amount
the commissioners court determines will ensure compliance with this
subchapter, unless a person has completed the installation of all water and
sewer service facilities required by this subchapter by a certain date.
Prohibits a person from meeting the requirements of this subsection through
the use of a letter of credit unless the letter of credit is irrevocable
and issued by an institution guaranteed by the Federal Deposit Insurance
Corporation.  Requires the subdivider to comply with the requirement before
subdividing the tract.  Requires the bond to be conditioned on the
construction or installation of water and sewer service facilities that
will be in compliance with the model rules adopted under Section 16.343,
Water Code. 

Sec.  232.098.  CERTIFICATION REGARDING COMPLIANCE WITH PLAT REQUIREMENTS.
Requires the commissioner court, on the approval of a plat, to issue to the
person applying for the approval a certificate stating that the plat has
been reviewed and approved by the commissioners court.  Requires the
commissioners court to make certain determinations regarding the land in
which the entity or commissioners court is interested that is located
within the jurisdiction of the county, on the written request of a
subdivider, an owner or resident of a lot in a subdivision, or an entity
that provides a utility service. Requires the request made under Subsection
(b) to identify the land that is the subject of the request.  Requires the
commissioners court to issue the requesting party a written certification
of its determinations under that subsection whenever a request is made
under Subsection (b).  Requires the commissioners court to make its
determinations within 20 days after the date it receives the request under
Subsection (b) and requires the commissioners court to issue the
certificate by a certain date.  Authorizes the commissioners court to adopt
rules it considers necessary to administer its duties under this section. 

 Sec.  232.099.  CONNECTION OF UTILITIES.  Prohibits a utility from serving
or connecting any subdivided land with water or sewer services unless the
utility receives a certificate issued by the commissioners court under
Section 232.098(a) or receives a determination from the commissioners court
under Section 232.098(b)(1) that the plat has been reviewed and approved by
the commissioners court, except as provided by Subsection (c) or Section
232.107(c).  Prohibits a utility from serving or connecting any subdivided
land with electricity or gas unless the entity receives a determination
from the county commissioners court under Section 232.098(b)(2) that
adequate water and sewer services have been installed to service the
subdivision, except as provided by Subsection (c) or Section 232.107(c).
Authorizes an electric, gas, water, or sewer service utility to serve or
connect subdivided land with water, sewer, electricity, gas, or other
utility service regardless of whether the utility receives a certificate
issued by the commissioners court under Section 232.098(a) or receives a
determination from the commissioners court under Section 232.098(b) if the
utility is provided with a certificate issued by the commissioners court
that makes certain determinations.  Authorizes a utility to provide utility
service to subdivided land described by Subsection (c) only if the person
requesting service meets certain qualifications.  Authorizes a person
requesting service to obtain a certificate under Subsection (c) only if the
person provides to the commissioners court certain information. Requires
the commissioners court, on request, to provide to the attorney general and
any appropriate local, county, or state law enforcement official a copy of
any document on which the commissioners court relied in determining the
legality of providing service.  Prohibits this section from being construed
to abrogate any civil or criminal proceeding or prosecution or to waive any
penalty against a subdivider for a violation of a state or local law.
Provides that the prohibition established by this section shall not
prohibit an electric or gas utility from providing electric or gas utility
connection or service to a lot being sold, conveyed, or purchased through a
contract for deed or executory contract or other device by a subdivider
before September 1, 1999, that is located within a subdivision where the
utility has previously established service and was subdivided by a plat
approved before September 1, 1999.  Defines "foundation." 

Sec.  232.100.  SUBDIVISION REGULATION; COUNTY AUTHORITY.  Requires the
commissioners court for each county to adopt and enforce the model rules
developed under Sections 16.343 and 35.019, Water Code.  Prohibits the
commissioners court from granting a variance or adopting regulations that
waive any requirements of this subchapter, except as provided by Section
232.112 or by Section 16.350(d) or 35.019, Water Code.  Requires the
commissioners court to adopt regulations setting forth certain requirements
regarding potable water, solid waste disposal, roads, sewer facilities,
electric and gas service, and flood management standards.  Authorizes the
commissioners court to allow one or more commercial providers to provide
solid waste disposal services as an alternative to having the service
provided by the county, in adopting regulations under Subsection (c)(2).   

Sec.  232.101.  REQUIREMENTS PRIOR TO SALE OR LEASE.  Prohibits a
subdivider from selling or leasing land in a subdivision first platted or
replatted after September 1, 1999, unless the subdivision plat is approved
by the commissioner court in accordance with Section 232.094.  Requires a
subdivider to record with the county clerk all sales contracts, leases, and
any other documents that convey an interest in the subdivided land, by a
certain date. Provides that a document filed under Subsection (b) is a
public record. 

Sec.  232.102.  SERVICES PROVIDED BY SUBDIVIDER.  Requires a subdivider
having an approved platt for a subdivision to perform certain actions.   

Sec.  232.103.  ADVERTISING STANDARDS AND OTHER REQUIREMENTS BEFORE SALE;
OFFENSE.  Sets forth standards for brochures, publications, and advertising
of any form relating to subdivided land.  Requires the subdivider to
provide the purchaser with a written notice, which must be attached to the
executory contract, informing the purchaser of the condition of the
property that must, at a minimum, be executed by the subdivider and
purchaser, and be acknowledged; sets forth a form for the notice to be
substantially followed. Requires the subdivider to provide any purchaser
who is sold a lot under an executory contract with an annual statement in
January of each year for the term of the executory  contract.  Requires the
statement to be postmarked not later than January 31, if the subdivider
mails the statement to the purchaser.  Requires certain information to be
included in the statement under Subsection (c).  Authorizes the purchaser
to take certain actions if the subdivider fails to comply with Subsections
(c) and (d).  Provides that a purchaser who makes a deduction under
Subsection (e) is not required to reimburse the subdivider for the amount
deducted.  Provides that a person who is a seller of lots in a subdivision,
or a subdivider or an agent of a seller or subdivider, commits an offense
if the person knowingly authorizes or assists in the publication,
advertising, distribution, or circulation of any statement or
representation that the person knows is false concerning subdivided land
offered for sale or lease.  Provides that an offense under this section is
a Class A misdemeanor. 

Sec.  232.104.  CONFLICT OF INTEREST; PENALTY.  Defines "subdivided tract."
Sets forth the requirements for a person to have an interest in a
subdivided tract.  Provides that a person is also considered to have an
interest in a subdivided tract if the person is related in the second
degree by consanguinity or affinity, as determined under Chapter 573,
Government Code, to a person who, under Subsection (b), has an interest in
the tract. Requires a member of the commissioners court who has an interest
in a subdivided tract to file, before a vote or decision regarding the
approval of a plat for the tract, an affidavit with the county clerk
stating the nature and extent of the interest and requires the member to
abstain from further participation in the matter.  Requires the affidavit
to be filed with the county clerk.  Provides that a member of the
commissioners court of a county commits an offense if the member violates
Subsection (d).  Provides that an offense under this subsection is a Class
A misdemeanor.  Provides that the finding by a court of a violation of this
section does not render voidable an action of the commissioners court
unless the measure would not have passed the commissioners court but for
the vote of the member who violated this section.  Provides that a
conviction under Subsection (e) constitutes official misconduct by the
member and is grounds for removal from office.   

Sec.  232.105.  CIVIL PENALTIES.  Prohibits a subdivider or an agent of a
subdivider from causing, allowing, or permitting a lot to be sold in a
subdivision if the subdivision has not been platted as required by this
subchapter.  Prohibits a subdivider or an agent of a subdivider from
causing, allowing, or permitting any part of a subdivision in an affected
county over which the subdivider or an agent of the subdivider has control,
or a right of ingress and egress, to become a public health nuisance as
defined by Section 341.011, Health and Safety Code, notwithstanding any
other remedy at law or equity.  Provides that a subdivider who fails to
provide, in the time and manner described in the plat, for the construction
or installation of water or sewer service facilities described on the plat
or on the document attached to the plat or who otherwise violates this
subchapter or a rule or requirement adopted by the commissioners court
under this subchapter is subject to a civil penalty of not less than $500
or more than $1,000 for each violation and for each day of a continuing
violation but not to exceed $5,000 each day and shall also pay court costs,
investigative costs, and attorney's fees for the governmental entity
bringing the suit. Provides that a person who violates Subsection (a) or
(b) is subject to a civil penalty of not less than $10,000 or more than
$15,000 for each lot conveyed or each subdivision that becomes a nuisance.
Requires the person to also pay court costs, investigative costs, and
attorney's fees for the governmental entity bringing the suit, except as
provided by Subsection (e).  Provides that a person who violates Subsection
(b) is not subject to a fine under Subsection (d) if the person corrects
the nuisance by a certain date.  Provides that venue for an action under
this section is in a district court of Travis County, a district court in
the county in which the defendant resides, or a district court in the
county in which the violation or threat of violation occurs. 

Sec.  232.106.  CRIMINAL PENALTIES.  Provides that subdivider commits an
offense if the subdivider knowingly fails to file a plat required by this
subchapter.  Provides that an offense under this subsection is a Class A
misdemeanor.  Provides that if it is shown at the trial of an offense under
Subsection (a) that the defendant caused five or more residences in the
subdivision to be inhabited, the offense is a state jail felony.  Provides
that a subdivider who owns a subdivision commits an offense if the
subdivider knowingly fails to timely provide for the construction or
installation of water or sewer service as required by Section  232.102 or
fails to make a reasonable effort to have electric utility service and gas
utility service installed by a utility as required by Section 232.102.
Provides that an offense under this subsection is a Class A misdemeanor.
Provides that a subdivider commits an offense if the subdivider allows the
conveyance of a lot in the subdivision without the appropriate water and
sewer utilities as required by Section 232.102 or fails to make a
reasonable effort to have electric utility service and gas utility service
installed by a utility as required by Section 232.102.  Provides that an
offense under this subsection is a Class A misdemeanor. Provides that each
lot conveyed constitutes a separate offense.  Provides that venue for
prosecution for a violation under this section is in the county in which
any element of the violation is alleged to have occurred or in Travis
County.   

Sec.  232.107.  ENFORCEMENT.  Authorizes the attorney general or the
district attorney, criminal district attorney, county attorney with felony
responsibilities, or county attorney of an affected county to take any
action necessary in a court of competent jurisdiction  on behalf of the
state or on behalf of residents, to enjoin violations, recover penalties,
or require platting.  Authorizes the attorney general, at the request of
the district or county attorney with jurisdiction, to conduct a criminal
prosecution under Section 232.103(g) or 232.106. Authorizes any resident of
the affected subdivision, or the attorney general, district attorney, or
county attorney on behalf of the resident, to file a motion against the
provider of utilities to halt termination of pre-existing utility services,
during the pendency of any enforcement action brought.  Prohibits the
services from being terminated if the court makes an affirmative finding
after hearing the motion that termination poses a threat to public health,
safety, or welfare of the residents.  Authorizes any resident of the
affected subdivision, or the attorney general, district attorney, or county
attorney on behalf of the resident, to file a motion against the provider
of utilities to halt termination of pre-existing utility services, during
the pendency of any enforcement action brought.  Prohibits the services
from being terminated if the court makes an affirmative finding after
hearing the motion that termination poses a threat to public health,
safety, or welfare of the residents.   Provides that this subsection does
not prohibit a provider of utilities from terminating services under other
law to a resident who has failed to timely pay for services.  

Sec.  232.109.  CANCELLATION OF SUBDIVISION.  Authorizes a subdivider of
land in an affected county to apply to the commissioners court to cancel
all or part of the subdivision in the manner provided by Section 232.008
after notice and hearing as provided by this section.  Provides that a
resident of a subdivision for which the subdivider has applied for
cancellation under Subsection (a) has the same rights as a purchaser of
land under Section 232.008.  Requires the county chief appraiser to provide
notice containing the information described by Section 232.008(c) to
certain people by regular and certified mail by a certain date.  Authorizes
the commissioners court to require a subdivider to provide the court with
the name and last known address of each person with an interest in the
property.  Provides that for purposes of this subsection, a person residing
on a lot purchased through an executory contract has an interest in the
property.  Provides that a person who fails to provide information
requested under Subsection (d) before the 31st day after the date the
request is made is liable to the state for a penalty of $500 for each week
the person fails to provide the information.  Authorizes the commissioners
court to cancel a subdivision only after a public hearing.  Requires the
commissioners court, at the hearing, to permit any interested person to be
heard.  Requires the commissioners court, at the conclusion of the hearing,
to adopt an order on whether to cancel the subdivision.   

Sec.  232.110.  REPLATTING.  Requires a subdivision plat to accurately
reflect the subdivision as it develops.  Requires a plat to be revised in
accordance with Section 232.111, if there is any change.  Prohibits a lot
in a subdivision from being sold if the lot lacks water and sewer services
as required by this subchapter, unless the lot is platted or replatted as
required by this subchapter, except as provided by Subsection (c).
Prohibits a subdivider or agent of a subdivider from transferring a lot
through an executory contract or other similar conveyance to evade the
requirements of this subchapter.  Provides that the prohibition in this
subsection includes the sale of certain lots.  Sets forth conditions under
which Subsection (b) does not apply.  Authorizes the attorney general or a
district or county attorney with jurisdiction to bring a proceeding under
Subsection (b).  Prohibits existing utility services to  a subdivision that
must be platted or replatted under this subsection from being terminated
under Section 232.099.   

Sec.  232.111.  REVISION OF PLAT.  Authorizes a person who has subdivided
land that is subject to the subdivision controls of the county in which the
land is located to apply in writing to the commissioners court of the
county for permission to revise the subdivision plat filed for record with
the county clerk.  Requires the commissioners court, after the application
is filed, to publish a notice of the application in a newspaper of general
circulation in the county.  Requires notices to be sent to adjacent
landowners or homeowners association by certified mail.  Requires the
notice to include a statement of the time and place at which the court will
meet to consider the application and to hear protests to the revision of
the plat.  Requires the notice to be published at least three times during
a certain period. Requires the court, if all or part of the subdivided
tract has been sold to nondeveloper owners, to give notice to each of those
owners by certified or registered mail, return receipt requested, at the
owner's address in the subdivided tract.  Requires the commissioners court,
during a regular term of the court, to adopt an order to permit the
revision of the subdivision plat if it is shown to the court certain
conditions exist.  Authorizes a person, whom the commissioners court
permits to revise a subdivision plat, to make the revision by filing for
record with the county clerk a revised plat or part of a plat that
indicates the changes made to the original plat.   

Sec.  232.112.  VARIANCES.  Authorizes the commissioners court, on request
of a subdivider or resident purchaser, to grant a delay or a variance from
compliance with Section 232.110 as provided by this section.  Authorizes
the commissioners court to grant a delay of two years if the reason for the
delay is to install utilities.  Authorizes a person to apply for one
renewal of a delay under this subsection.  Requires the subdivider to
perform certain actions in order to obtain an initial delay under this
subsection.  Authorizes the commissioners court to grant a delay or a
variance for a reason other than a reason described by Subsection (b) if it
is shown that compliance would be impractical or would be contrary to the
health and safety of residents of the subdivision.  Requires the
commissioners court to issue written findings stating the reasons why
compliance is impractical.   

SECTION 2. Makes application of this Act prospective to September 1, 1999.
  Effective date: 90 days after adjournment.