1-1 By: Barrientos S.B. No. 959
1-2 (In the Senate - Filed March 5, 1999; March 8, 1999, read
1-3 first time and referred to Committee on State Affairs;
1-4 April 22, 1999, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 0; April 22, 1999,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 959 By: Cain
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the law relating to architectural barriers.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Section 1, Article 9102, Revised Statutes, is
1-13 amended to read as follows:
1-14 Sec. 1. POLICY. The provisions of this article are to
1-15 further the policy of the State of Texas to encourage and promote
1-16 the rehabilitation of persons with disabilities and to eliminate,
1-17 insofar as possible, unnecessary barriers encountered by persons
1-18 with disabilities, whose ability to engage in gainful occupations
1-19 or to achieve maximum personal independence is needlessly
1-20 restricted [when such persons cannot readily use public buildings].
1-21 SECTION 2. Subsections (a), (d), (e), and (f), Section 2,
1-22 Article 9102, Revised Statutes, are amended to read as follows:
1-23 (a) The standards adopted under this article apply to:
1-24 (1) a building or facility used by the public that is
1-25 constructed, or [substantially] renovated, modified, or altered, in
1-26 whole or in part on or after January 1, 1970, through the use of
1-27 state, county, or municipal funds, or the funds of any political
1-28 subdivision of the state;
1-29 (2) the temporary or emergency construction of a
1-30 building or facility described by this subsection or Subsection (b)
1-31 of this section;
1-32 (3) a building leased or occupied in whole or in part
1-33 for use by the state under any lease or rental agreement entered
1-34 into on or after January 1, 1972;
1-35 (4) a privately funded building or facility defined as
1-36 a "public accommodation" by Section 301(7) of the Americans with
1-37 Disabilities Act of 1990 (42 U.S.C. Section 12181), and its
1-38 subsequent amendments, that is constructed or [substantially]
1-39 renovated, modified, or altered on or after January 1, 1992; and
1-40 (5) a privately funded building or facility defined as
1-41 a "commercial facility" by Section 301, Americans with Disabilities
1-42 Act of 1990 (42 U.S.C. Section 12181), and its subsequent
1-43 amendments, that is constructed or [substantially] renovated,
1-44 modified, or altered on or after September 1, 1993.
1-45 (d) An owner of a building described by Subsection (a)(3) of
1-46 this section or of a building or facility leased or rented for use
1-47 by the state through the use of federal funds, or the owner's
1-48 designated agent, must present to the commission [commissioner] the
1-49 proof required by Subsection (c)(2) of this section before the date
1-50 the owner:
1-51 (1) submits a bid proposal in relation to the award of
1-52 a contract for the lease or rental of the building or facility; or
1-53 (2) is awarded the contract for the lease or rental of
1-54 the building or facility if the state does not advertise for bids.
1-55 (e) The commission [commissioner] may not waive or modify
1-56 any standard or specification when:
1-57 (1) waiving or modifying a standard or specification
1-58 would result in a significant impairment of the acquisition of
1-59 goods and services by persons with disabilities or substantially
1-60 reduce the potential for employment of persons with disabilities;
1-61 [or]
1-62 (2) the commission knows that waiving or modifying a
1-63 standard or specification would result in a violation of the
1-64 Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et
2-1 seq.), and its subsequent amendments; or
2-2 (3) the proof presented to the commission
2-3 [commissioner] under Subsection (c)(2) of this section is not
2-4 adequate.
2-5 (f) All evidence supporting waiver or modification
2-6 determinations made by the commission [commissioner] shall be made
2-7 a matter of record and become part of the file system maintained by
2-8 the department.
2-9 SECTION 3. Subsection (c), Section 2, Article 9102, Revised
2-10 Statutes, as amended by Chapters 684 and 821, Acts of the 73rd
2-11 Legislature, Regular Session, 1993, is reenacted and amended to
2-12 read as follows:
2-13 (c) The commission [commissioner] may waive or modify
2-14 accessibility standards adopted under this article when:
2-15 (1) the application of the standards is considered by
2-16 the commission [commissioner] to be irrelevant to the nature, use,
2-17 or function of a building or facility covered by this article; or
2-18 (2) the owner of a building or facility that is the
2-19 subject of a request for a waiver or modification of a standard
2-20 under this subsection, or the owner's designated agent, presents
2-21 proof to the commission [commissioner] that compliance with the
2-22 particular standard is impracticable.
2-23 SECTION 4. Subsection (b), Section 3, Article 9102, Revised
2-24 Statutes, is amended to read as follows:
2-25 (b) It is intended to make all buildings and facilities
2-26 covered by this article accessible to, and functional for, persons
2-27 with disabilities to, through, and within their doors, without loss
2-28 of function, space, or facilities [where the general public is
2-29 concerned].
2-30 SECTION 5. Section 4, Article 9102, Revised Statutes, is
2-31 amended to read as follows:
2-32 Sec. 4. DEFINITIONS. In [For the purpose of] this article
2-33 [the following terms have the meanings as herein set forth]:
2-34 (1) "Architect" means a person registered as an
2-35 architect under Chapter 478, Acts of the 45th Legislature, Regular
2-36 Session, 1937 (Article 249a, Vernon's Texas Civil Statutes)
2-37 ["Disability" means with respect to an individual a physical or
2-38 mental impairment that substantially limits one or more of the
2-39 major life activities of such individual].
2-40 (2) "Commission" means the Texas Commission of
2-41 Licensing and Regulation.
2-42 (3) "Commissioner" means the commissioner of licensing
2-43 and regulation.
2-44 (4) "Department" means the Texas Department of
2-45 Licensing and Regulation.
2-46 (5) "Disability" means with respect to an individual a
2-47 physical or mental impairment that substantially limits one or more
2-48 of the major life activities of such individual ["Architect" means
2-49 a person registered as an architect under Chapter 478, Acts of the
2-50 45th Legislature, Regular Session, 1937 (Article 249a, Vernon's
2-51 Texas Civil Statutes)].
2-52 (6) "Engineer" means a person registered as an
2-53 engineer under The Texas Engineering Practice Act (Article 3271a,
2-54 Vernon's Texas Civil Statutes).
2-55 (7) "Interior designer" means a person registered as
2-56 an interior designer under Article 249e, Revised Statutes.
2-57 (8) "Landscape architect" means a person registered as
2-58 a landscape architect under Chapter 457, Acts of the 61st
2-59 Legislature, Regular Session, 1969 (Article 249c, Vernon's Texas
2-60 Civil Statutes).
2-61 SECTION 6. Section 5, Article 9102, Revised Statutes, is
2-62 amended to read as follows:
2-63 Sec. 5. DEPARTMENT RESPONSIBILITIES [FOR ENFORCEMENT].
2-64 (a) In the administration and enforcement of this article, the
2-65 commission [commissioner] shall have the assistance of appropriate
2-66 state rehabilitation agencies and of the Governor's Committee on
2-67 People with Disabilities in carrying out commission [commissioner]
2-68 responsibilities.
2-69 (b) State agencies involved in extending direct services to
3-1 persons with disabilities are authorized to enter into interagency
3-2 contracts with the department to provide such additional funding as
3-3 might be required to insure that service objectives and
3-4 responsibilities of such agencies are achieved through the
3-5 administration of this article.
3-6 (c) In enforcing this article the commission [commissioner]
3-7 shall also receive the assistance of all appropriate elective or
3-8 appointive state officials.
3-9 (d) The commission [commissioner] may contract with other
3-10 state agencies, political subdivisions, nonprofit organizations,
3-11 and private independent contractors to perform the commission's
3-12 [commissioner's] review and inspection functions for facilities
3-13 [privately financed buildings] that are not leased by the state or
3-14 a political subdivision and may terminate those contracts for
3-15 cause.
3-16 (e) The department shall from time to time inform
3-17 professional organizations and others, including persons with
3-18 disabilities, architects, engineers, and other building
3-19 professionals, of this law and its application. Information
3-20 disseminated by the department about the program shall include the
3-21 types of buildings and leases covered by this article, the
3-22 procedures for submitting plans and specifications for review,
3-23 complaint procedures, and the address and phone number of the
3-24 department's program.
3-25 (f) The department may enter into cooperative agreements to
3-26 integrate information about the program with information produced
3-27 or distributed by other public entities or by private entities.
3-28 (g) [(b)] The commission [commissioner] has all necessary
3-29 powers to require compliance with the department's rules and
3-30 regulations and modifications thereof and substitutions therefor.
3-31 (h) The commission may also impose an administrative penalty
3-32 under [Section 17,] Article 9100, Revised Statutes, on a building
3-33 owner for a violation of this article or a rule adopted under this
3-34 article. Each day that the violation is not corrected constitutes
3-35 a separate violation. When [The commissioner when] the commission
3-36 considers imposing an administrative penalty under this section,
3-37 the commission shall first notify a person responsible for the
3-38 building and allow that person 90 days to bring the building into
3-39 compliance. The commission [commissioner] shall have the authority
3-40 to extend the 90-day period when circumstances justify such
3-41 extension.
3-42 (i) [(c)] The standards and specifications to be adopted by
3-43 the commission [commissioner] under this article shall be
3-44 consistent in effect to those adopted by the American National
3-45 Standards Institute, Inc. (or its federally recognized successor in
3-46 function), and the department shall publish the standards and
3-47 specifications in a readily accessible form for the use of
3-48 interested parties. The standards, specifications, and other rules
3-49 to be adopted by the commission [commissioner] under this article
3-50 shall also be consistent with those adopted under federal law.
3-51 (j) [(d)] All plans and specifications for construction or
3-52 for the substantial renovation, modification, or alteration of a
3-53 building or facility that has an estimated construction cost of
3-54 $50,000 or more and that is subject to the provisions of this
3-55 article shall be submitted to the department for review and
3-56 approval [prior to the time that construction or that substantial
3-57 renovation, modification, or alteration on the building or facility
3-58 begins in accordance with rules and regulations adopted by the
3-59 commissioner].
3-60 (k) Plans and specifications related to the building or
3-61 facility shall be submitted to the department by the architect,
3-62 interior designer, landscape architect, or engineer who has overall
3-63 responsibility for the design of the constructed or reconstructed
3-64 building or facility. The architect, interior designer, landscape
3-65 architect, or engineer shall submit the plans and specifications to
3-66 the department not later than the fifth day after the date on which
3-67 the architect, interior designer, landscape architect, or engineer,
3-68 as appropriate, places the applicable professional seal on the
3-69 plans and specifications. If [The owner shall submit the plans and
4-1 specifications to the department if] there is no architect,
4-2 interior designer, landscape architect, or engineer with that
4-3 responsibility, the owner shall submit the plans and specifications
4-4 to the department at least 30 days before the date the construction
4-5 or renovation, modification, or alteration on the building or
4-6 facility begins. On application to a local governmental entity for
4-7 a building construction permit related to the plans and
4-8 specifications, the owner shall submit to the entity proof that the
4-9 plans and specifications have been submitted to the department
4-10 under this article.
4-11 (l) Any [Likewise, any] substantial modification of approved
4-12 plans shall be resubmitted to the department for review and
4-13 approval.
4-14 (m) [The plans and specifications that are not approved or
4-15 disapproved by the department within 30 days from the receipt of
4-16 the plans and specifications are automatically approved.] If an
4-17 architect, interior designer, landscape architect, or engineer
4-18 required to submit or resubmit plans and specifications to the
4-19 department fails to do so in a timely manner, the commission
4-20 [commissioner] shall report the fact to the Texas Board of
4-21 Architectural Examiners, [or] the State Board of Registration for
4-22 Professional Engineers, or a licensing authority that regulates the
4-23 individual, as appropriate.
4-24 (n) [(e)] The commission [commissioner] may review plans and
4-25 specifications, make inspections, and issue certifications that
4-26 structures not otherwise covered by this article are free of
4-27 architectural barriers and in compliance with the provisions of
4-28 this article. The department shall inspect each building and
4-29 facility that has an estimated construction cost of $50,000 or more
4-30 and that is subject to this article not later than the first
4-31 anniversary of the date that construction or substantial
4-32 renovation, modification, or alteration of the building or facility
4-33 is completed.
4-34 (o) [(f)(1) The commissioner shall contract with a
4-35 municipality to perform the commissioner's review and inspection
4-36 functions for privately financed buildings that are not leased by
4-37 the state or a political subdivision if:]
4-38 [(A) the municipality requests permission to
4-39 perform such duties;]
4-40 [(B) the municipality is staffed with a
4-41 sufficient number of qualified personnel to perform such duties in
4-42 the judgment of the commissioner; and]
4-43 [(C) the municipality agrees to contract terms
4-44 required by the commissioner.]
4-45 [(2) The commissioner shall require municipal
4-46 personnel who perform such duties to comply with qualification or
4-47 certification requirements adopted or approved by the commissioner.
4-48 The commissioner, not later than April 1, 1994, shall adopt
4-49 qualification requirements or implement certification programs
4-50 under this subsection and shall commence entering into contracts
4-51 with municipalities qualifying under this subsection.]
4-52 [(g)] The standards and specifications adopted by the
4-53 commission [commissioner] under this article that apply
4-54 specifically to a building or facility occupied by a state agency
4-55 involved in extending direct services to persons with mobility
4-56 impairments also apply to a building or facility that is occupied
4-57 by the Texas Rehabilitation Commission.
4-58 (p) [(h)] Notwithstanding other provisions of this article,
4-59 the commission [commissioner] shall require complete compliance
4-60 with the standards and specifications prescribed or referenced by
4-61 Subsection (o) [(g)] of this section. The department and the
4-62 General Services Commission shall ensure that all buildings and
4-63 facilities leased or built by or for the state to which those
4-64 standards apply comply with those standards. Notwithstanding other
4-65 provisions of this article, the department shall perform an on-site
4-66 inspection of all buildings and facilities to be leased by the
4-67 state before the building or facility is occupied by the state for
4-68 compliance with all accessibility standards and specifications
4-69 adopted under this article. The leasing agency or the General
5-1 Services Commission, as applicable, shall cancel the lease unless
5-2 the lessor brings into compliance any condition that the inspection
5-3 finds not to be in compliance with all applicable standards and
5-4 specifications not later than:
5-5 (1) the 60th day after the date the department
5-6 delivers the results of the inspection to the lessor or the
5-7 lessor's agent; or
5-8 (2) a later date established by the commission
5-9 [commissioner] if circumstances justify a later date.
5-10 SECTION 7. Section 6, Article 9102, Revised Statutes, is
5-11 amended to read as follows:
5-12 Sec. 6. FEES. The commission shall set and charge, in
5-13 accordance with [Section 12,] Article 9100, Revised Statutes, fees
5-14 for performing its functions under this article. The fees shall be
5-15 paid by the owner of a building when the department performs a
5-16 function related to the building under this article. The fees must
5-17 include a fee for:
5-18 (1) reviewing the plans or specifications of a
5-19 building;
5-20 (2) inspecting a building; and
5-21 (3) processing a request to waive or modify
5-22 accessibility standards for a building.
5-23 SECTION 8. Subsection (d), Section 7, Article 9102, Revised
5-24 Statutes, is amended to read as follows:
5-25 (d) The committee periodically shall review the rules
5-26 relating to the architectural barriers program and recommend
5-27 changes in the rules to the commission and the commissioner. The
5-28 commission [commissioner] shall submit all proposed changes to
5-29 rules and procedures that relate to the architectural barriers
5-30 program to the committee for review and comment before adoption or
5-31 implementation of the new or amended rule or procedure.
5-32 SECTION 9. Subsection (b), Section 681.009, Transportation
5-33 Code, is amended to read as follows:
5-34 (b) A political subdivision must designate a parking space
5-35 or area by conforming to the standards and specifications adopted
5-36 by the Texas Commission [commissioner] of Licensing and Regulation
5-37 [licensing and regulation] under Section 5(i) [5(c)], Article 9102,
5-38 Revised Statutes, relating to the identification and dimensions of
5-39 parking spaces for persons with disabilities. A person who owns or
5-40 controls private property used for parking may designate a parking
5-41 space or area without conforming to those standards and
5-42 specifications, unless required to conform by law.
5-43 SECTION 10. On the effective date of this Act, a rule that
5-44 was previously adopted by the commissioner of licensing and
5-45 regulation under Article 9102, Revised Statutes, as that article
5-46 existed before amendment by this Act, and that is in effect
5-47 immediately before the effective date of this Act, becomes a rule
5-48 of the Texas Commission of Licensing and Regulation and remains in
5-49 effect until repealed or superseded by a rule adopted by the
5-50 commission.
5-51 SECTION 11. The changes in law made by this Act to Section
5-52 5, Article 9102, Revised Statutes, apply only to a plan or
5-53 specification for the elimination of architectural barriers that is
5-54 originally submitted to the Texas Department of Licensing and
5-55 Regulation or after the effective date of this Act. A plan or
5-56 specification submitted before the effective date of this Act is
5-57 governed by the law in effect on the date that the plan or
5-58 specification was submitted, and the former law is continued in
5-59 effect for that purpose.
5-60 SECTION 12. This Act takes effect September 1, 1999.
5-61 SECTION 13. The importance of this legislation and the
5-62 crowded condition of the calendars in both houses create an
5-63 emergency and an imperative public necessity that the
5-64 constitutional rule requiring bills to be read on three several
5-65 days in each house be suspended, and this rule is hereby suspended.
5-66 * * * * *