2003S0435-1 TYPE ONLY


By:  Van de Putte                                                 S.B. No. 773

A BILL TO BE ENTITLED
AN ACT
relating to the registration of homebuilders. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. The Occupations Code, is amended by adding Chapter 1203 to read as follows:
CHAPTER 1203. HOMEBUILDERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1203.001. SHORT TITLE. This chapter may be cited as the Homebuilder Registration Act. Sec. 1203.002. DEFINITIONS. In this chapter: (1) "Commission" means the Texas Homebuilder Commission. (2) "Construction defect" has the meaning assigned to that term under Section 27.001, Property Code. (3) "Home" means: (A) the real property and improvements and appurtenances for a single-family house, townhome, patio home, zero-lot line home, duplex, triplex, or quadraplex; or (B) a unit in a multiunit residential structure in which title to the individual units is transferred to the owners. (4) "Homebuilder" means a person who constructs, contracts to construct, or offers to construct a new home or a new improvement to real property: (A) for another for a profit or compensation or in the expectation of receiving profit or compensation; or (B) that the homebuilder intends to sell, transfer, or convey to another for profit or compensation or in the expectation of receiving a profit or compensation. (5) "Homeowner" means a person who owns, contracts to own a home, or a subrogee or assignee of a person who owns or contracts to own a home. (6) "Trade association" means a cooperative and voluntarily joined association of business or professional competitors designed to assist its members and their industry or profession as a whole, in dealing with mutual business or professional problems, issues, and circumstances and in promoting the common interest of its members and their industry and profession as a whole. Sec. 1203.003. APPLICABILITY OF CHAPTER. This chapter does not apply to: (1) a person who renovates or repairs a home; (2) a governmental entity or public official engaged in official duties; or (3) a person acting under a court order. Sec. 1203.004. SUNSET PROVISION. The commission is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the commission is abolished and this chapter expires September 1, 2009.
[Sections 1203.005-1203.020 reserved for expansion]
SUBCHAPTER B. COMMISSION
Sec. 1203.021. TEXAS HOMEBUILDER COMMISSION; MEMBERSHIP. (a) The Texas Homebuilder Commission consists of nine members appointed by the governor with the advice and consent of the senate as follows: (1) two members must be homebuilders with active registrations under this Chapter; (2) two members must be representatives of the general public; (3) one member must be a licensed professional engineer; (4) one member must a licensed architect; (5) one member must be a licensed professional inspector under Chapter 1102; (6) one member must be a licensed real estate broker under Chapter 1101; and (7) one member must be certified real estate appraiser under Chapter 1103. (b) Appointments to the commission shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointees. Sec. 1203.022. TERMS. (a) Commission members serve staggered six-year terms with three members terms expiring January 31 of each odd-numbered year. The terms of the two representatives of the general public must expire in different years. The terms of the two homebuilders must expire in different years. (b) A member of the commission may not serve more than two complete terms. Sec. 1203.023. PRESIDING OFFICER. The governor shall designate a member of the commission as the presiding officer of the commission to serve in that capacity at the pleasure of the governor. At a regular meeting in February of each year, the Commission shall elect from its own membership a vice-chairperson and secretary. A quorum of the commission consists of five members. Sec. 1203.024. MEMBERSHIP AND EMPLOYEE RESTRICTIONS. (a) A person may not be a member of the commission and may not be a commission employee employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) and its subsequent amendments, if: (1) the person is an employee or paid consultant of a Texas trade association in the field of residential construction; or (2) the person spouse is a manager or paid consultant of a Texas trade association in the field of residential construction. (b) A person may not be a member of the commission or act as the general counsel to the commission if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person activities for compensation on behalf of a profession related to the operation of the commission. Sec. 1203.025. GROUNDS FOR REMOVAL. (a) It is a ground for removal from the commission that a member: (1) does not have at the time of taking office the qualifications required by Section 1203.021; (2) does not maintain during service on the commission the qualifications required by Section 1203.021; (3) is ineligible for membership under Section 1203.021; (4) cannot because of illness or disability discharge the member duties for a substantial part of the member term; or (5) is absent from more than half of the regularly scheduled commission meetings that the member is eligible to attend during a calendar year without an excuse approved by a majority vote of the commission. (b) The validity of an action of the commission is not affected by the fact that it is taken when a ground for removal of a commission member exists. (c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the potential ground. The presiding officer shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest ranking officer of the commission, who shall notify the governor and the attorney general that a potential ground for removal exists. Sec. 1203.026. TRAINING. (a) A person who is appointed to and qualifies for office as a member of the commission may not vote, deliberate, or be counted as a member in attendance at a meeting of the commission until the person completes a training program that complies with this section. (b) The training program must provide the person with information regarding: (1) the legislation that created the commission; (2) the programs operated by the commission; (3) the role and functions of the commission; (4) the rules of the commission, with an emphasis on the rules that relate to disciplinary and investigatory authority; (5) the current budget for the commission; (6) the results of the most recent formal audit of the commission; (7) the requirements of: (A) the open meetings law, Chapter 551, Government Code; (B) the open records law, Chapter 552, Government Code; (C) the administrative procedure law, Chapter 2001, Government Code; (D) the general arbitration law, Chapter 171, Civil Practice and Remedies Code; and (E) other laws relating to public officials, including conflict-of-interest laws; and (8) any applicable ethics policies adopted by the commission or the Texas Ethics Commission. (c) A person appointed to the commission is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office. Sec. 1203.027. MEETINGS. The commission shall meet at least quarterly and at other times at the call of the presiding officer.
[Sections 1203.028-1203.060 reserved for expansion]
SUBCHAPTER C. EXECUTIVE DIRECTOR AND OTHER AGENCY PERSONNEL
Sec. 1203.061. EXECUTIVE DIRECTOR. The commission shall employ an executive director as the executive head of the agency. Sec. 1203.062. OTHER PERSONNEL. The commission may employ other personnel as necessary for the administration of this chapter. Sec. 1203.063. DIVISION OF RESPONSIBILITIES. The commission shall develop and implement policies that clearly separate the policymaking responsibilities of the commission and the management responsibilities of the executive director and the staff of the commission. Sec. 1203.064. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. The executive director or the executive director designee shall provide to members of the commission and to commission employees, as often as necessary, information regarding the requirements for office or employment under this chapter, including information regarding a person responsibilities under applicable laws relating to standards of conduct for state officers or employees. Sec. 1203.065. CAREER LADDER PROGRAM; PERFORMANCE EVALUATION. (a) The executive director or the executive director designee shall develop an intra-agency career ladder program that addresses opportunities for mobility and advancement for employees within the commission. The program must require intra-agency posting of all nonentry level positions concurrently with any public posting. (b) The executive director or the executive director designee shall develop a system of annual performance evaluations based on measurable job tasks. All merit pay for commission employees must be based on the system established under this subsection. Sec. 1203.066. EQUAL EMPLOYMENT OPPORTUNITY POLICY; ANNUAL REPORT. (a) The executive director or the executive director designee shall prepare and maintain a written policy statement that implements a program of equal employment opportunity to ensure that all personnel decisions are made without regard to race, color, disability, sex, religion, age, or national origin. (b) The policy statement must include: (1) personnel policies, including policies relating to recruitment, evaluation, selection, training, and promotion of personnel, that show the intent of the commission to avoid the unlawful employment practices described by Chapter 21, Labor Code; and (2) an analysis of the extent to which the composition of the commission personnel is in accordance with state and federal law and a description of reasonable methods to achieve compliance with state and federal law. (c) The policy statement must: (1) be updated annually; (2) be reviewed by the state Commission on Human Rights for compliance with Subsection (b)(1); and (3) be filed with the governor office. (d) The governor office shall deliver a biennial report to the legislature based on the information received under Subsection (c)(3). The report may be made separately or as a part of other biennial reports made to the legislature. Sec. 1203.067. INFORMATION AND TRAINING ON STATE EMPLOYEE INCENTIVE PROGRAM. The executive director or the executive director designee shall provide to commission employees information and training on the benefits and methods of participation in the state employee incentive program.
[Sections 1203.068-1203.080 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES
Sec. 1203.081. GENERAL POWERS AND DUTIES. The commission shall: (1) administer this chapter; (2) maintain a registry of registrants; (3) adopt and enforce rules and establish buildings standards as required by this chapter to fulfill the purposes of this chapter; (4) authorize specific employees to conduct hearings and issue final decisions in contested cases under Sections 1203.127 and 1203.182 and in dispute resolution hearings under Section 1203.246; and (5) adopt procedural rules to make final decisions rendered by specific employees, as hearings officers, under Sections 1203.127 and 1203.182 are appealable to the commission. Sec. 1203.082. FEES. The commission shall adopt fees as required by this title in amounts that are reasonable and necessary to provide sufficient revenue to cover the costs of administering this chapter. The commission shall charge and collect the following fees: (1) for filing an original application for a homebuilder registration, not more $500; (2) for annual renewal of homebuilder registration, not more than $500; (3) for filing a request for a change of place of business or change of name, not more than $100; (4) for filing a request to replace a lost or destroyed registration certificate, not more than $100; (5) for preparing a registration history, not more than $50; (6) for filing a request to resolve a dispute under Subchapter L, not more than $100; and (7) for filing a request for moral character determination under Section 1203.123, not more than $100. Sec. 1203.083. ACCESSIBILITY. (a) The commission shall comply with federal and state laws related to program and facility accessibility. (b) The executive director shall prepare and maintain a written plan that describes how a person who does not speak English can obtain reasonable access to the commission programs and services. Sec. 1203.084. ANNUAL REPORT. (a) The commission shall file annually with the governor and the presiding officer of each house of the legislature a complete and detailed written report accounting for all funds received and disbursed by the commission during the preceding fiscal year. (b) The report must be in the form and reported in the time provided by the General Appropriations Act. Sec. 1203.085. RULES RESTRICTING ADVERTISING OR COMPETITIVE BIDDING. (a) The commission may not adopt a rule restricting advertising or competitive bidding by a homebuilder except to prohibit a false, misleading, or deceptive practice by the homebuilder. (b) The commission may not include in rules to prohibit false, misleading, or deceptive practices by a homebuilder a rule that: (1) restricts the use of any advertising medium; (2) restricts the homebuilder personal appearance or use of the homebuilder voice in an advertisement; (3) relates to the size or duration of an advertisement used by the homebuilder; or (4) restricts the homebuilder advertisement under a trade name. Sec. 1203.086. SUBPOENA AUTHORITY. (a) The commission may request and, if necessary, compel by subpoena: (1) the attendance of witnesses for examination under oath; and (2) the production for inspection and copying of records, documents, and other evidence relevant to an investigation or other proceeding authorized under this chapter. (b) A subpoena may be issued throughout the state and may be served by any person designated by the commission. (c) If a person fails to comply with a subpoena issued under this section, the commission, acting through the attorney general, may file suit to enforce the subpoena in a district court in Travis County or in the county in which a hearing conducted by the commission may be held. (d) The court shall order compliance with the subpoena if the court finds that good cause exists to issue the subpoena.
[Sections 1203.087-1203.100 reserved for expansion]
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND
COMPLAINT PROCEDURES
Sec. 1203.101. PUBLIC INTEREST INFORMATION. (a) The commission shall prepare information of public interest describing the functions of the commission and the procedures by which complaints or requests to resolve disputes are filed with and resolved by the commission. (b) The commission shall make the information available to the public and appropriate state agencies. Sec. 1203.102. COMPLAINTS AND REQUESTS FOR DISPUTE RESOLUTION. (a) The commission by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the commission for the purpose of directing a complaint or submitting a dispute for resolution to the commission. The commission may provide for that notice: (1) on each application for a certificate of registration or written contract for services of a registrant under this chapter; (2) on a sign prominently displayed in the place of business of each person registered under this chapter; (3) in a bill for services provided by a registrant under this chapter; or (4) in conjunction with any notice registrants may be required to provide to consumers or service recipients under this chapter or the rules of the commission. (b) The commission shall provide to a person who files with the commission a complaint relating to a registrant or a request for dispute resolution under Subchapter L and to the registrant against whom the complaint or request is filed: (1) an explanation of the remedies that are available to the person under this chapter; and (2) information about appropriate state or local agencies or officials with whom the person may file a complaint. Sec. 1203.103. COMPLAINT INFORMATION AND INFORMATION IN REQUESTS FOR DISPUTE RESOLUTION. (a) The commission shall maintain an information file about each complaint and request for dispute resolution filed with the commission that the commission has authority to resolve. (b) If a written complaint or a request for dispute resolution is filed with the commission that the commission has authority to resolve, the commission, at least quarterly and until the matter is resolved, shall notify the parties to the complaint or dispute of the status of the complaint or dispute. Sec. 1203.104. COMPLAINT INVESTIGATION AND DISPOSITION. (a) The commission shall investigate the actions and pertinent records of a registrant if: (1) a consumer or service recipient submits a signed, written complaint; and (2) the complaint and any evidence presented with the complaint provide reasonable cause for an investigation. (b) The commission shall promptly provide a written notice to a person registered under this chapter who is the subject of an investigation. (c) An investigation or other action against a person licensed under this chapter may not be initiated on the basis of an anonymous complaint. (d) The commission may authorize a commission employee to file a signed, written complaint against a registrant under this chapter and to conduct an investigation if: (1) the registrant is convicted of a criminal offense that may constitute grounds for the suspension or revocation of the person's registration; or (2) the registrant fails to honor a check issued to the commission. Sec. 1203.105. COMPLAINT INVESTIGATION. The commission shall investigate a signed complaint received by the commission that relates to an act of a person required to hold a certificate of registration under this chapter. Sec. 1203.106. PUBLIC PARTICIPATION. (a) The commission shall develop and implement policies that provide the public with a reasonable opportunity to appear before the commission and to speak on any issue under the commission's jurisdiction. (b) The commission shall prepare and maintain a written plan that describes how a person who does not speak English or who has a physical, mental, or developmental disability may be provided reasonable access to the commission's programs.
[Sections 1203.107-1203.120 reserved for expansion]
SUBCHAPTER F. REGISTRATION REQUIREMENTS
Sec. 1203.121. REGISTRATION REQUIRED. (a) Unless a person holds a certificate of registration issued under this chapter, the person may not act as a homebuilder. (b) An applicant for a homebuilder registration may not act as a homebuilder until the person receives the certificate of registration evidencing that authority. Sec. 1203.122. APPLICATION FOR REGISTRATION. (a) Each applicant for a homebuilder registration must submit an application on a form prescribed by the commission. (b) Each applicant for a homebuilder registration must disclose in the application whether the applicant has: (1) entered a plea of guilty or nolo contendere to a felony; or (2) been convicted of a felony and the time for appeal has elapsed or the judgment or conviction has been affirmed on appeal. (c) The disclosure under Subsection (b) must be provided even if an order has granted community supervision suspending the imposition of the sentence. (d) The commission may, upon receipt of an application, conduct a criminal background check of the applicant or any person responsible for the application. The commission may obtain criminal history record information maintained by the Department of Public Safety, the Federal Bureau of Investigation, any court, or any other local, state, or national governmental agency. Unless the information is a public record at the time the commission obtains the information under this subsection, the information is confidential and the commission may not release or disclose the information to any person except under order from a court or with the permission of applicant. Sec. 1203.123. MORAL CHARACTER DETERMINATION. (a) If before applying for a registration under this chapter a person requests that the commission determine whether the person's moral character complies with the commission's moral character requirements for registration under this chapter and pays the fee prescribed by Section 1203.082, the commission shall make its determination of the person's moral character. (b) Not later than the 30th day after the date the commission makes its determination, the commission shall notify the person of the determination. (c) A person may appeal the commission determination under this section by following the procedure under Section 1203.127 for the denial of an application for registration. An appeal hearing concerning a moral character determination is governed by Section 1203.127. (d) If a person applies for a registration after receiving notice of a determination, the commission may conduct a supplemental moral character determination of the person. The supplemental determination may cover only the period after the date the person requests a moral character determination under this section. Sec. 1203.124. GENERAL ELIGIBILITY REQUIREMENTS. To be eligible to receive a registration under this chapter, a person must: (1) at the time of application: (A) be at least 18 years of age; and (B) be a citizen of the United States or a lawfully admitted alien; and (2) satisfy the commission as to the applicant's honesty, trustworthiness, and integrity. Sec. 1203.125. ADDITIONAL GENERAL ELIGIBILITY REQUIREMENTS FOR BUSINESS ENTITIES. (a) To be eligible to register under this chapter: (1) a corporation must designate one of its officers as its agent for purposes of this chapter; (2) a limited liability company must designate one of its managers as its agent for purposes of this chapter; and (3) a partnership, limited partnership, or limited liability partnership must designate one of its managing partners as its agent for purposes of this chapter. (b) A corporation, limited liability company, partnership, limited partnership, or limited liability partnership is not eligible to be registered under this chapter and may not act as a homebuilder unless the entity's designated agent, according to the commission's records, is individually registered as a homebuilder. (c) Except as provided by Subsection (d), a corporation, limited liability company, partnership, limited partnership, or limited liability partnership is not eligible to be registered under this chapter and may not act as a homebuilder if any of its officers, managers, or partners was or is the subject of an order from the commission revoking: (1) the individual officer , manager , or partner registration under this chapter; or (2) the registration of a business entity for whom the officer, manager, or partner was an officer, manager, or partner during the time the acts causing the revocation were committed. (d) The commission may waive the application of Subsection (c) if it is satisfied as to the officer , manager , or partner honesty, integrity, and trustworthiness. Sec. 1203.126. ISSUANCE OF A CERTIFICATE OF REGISTRATION. (a) The commission shall issue a certificate of registration to an applicant who meets the requirements for a registration under this chapter. (b) A certificate of registration remains in effect for the period prescribed by the commission if the certificate holder complies with this chapter and pays the appropriate renewal fees. Sec. 1203.127. DENIAL OF REGISTRATION. (a) The commission shall immediately give written notice to the applicant of the commission's denial of a registration. (b) Before the applicant may appeal a denial of an application, a denial of an application to renew a certificate of registration, or a moral character determination, the applicant must file, not later than the 10th day after the date the applicant receives the notice, an appeal requesting a time and place for a hearing before the commission. If the applicant fails to request a hearing as provided by this subsection, the commission's decision becomes final and is not subject to judicial review. (c) The commission shall: (1) set a time and place for the hearing not later than the 30th day after the date the commission receives the appeal; and (2) give notice of the hearing to the applicant before the 10th day preceding the date of the hearing. (d) The hearing may be continued from time to time with the consent of the applicant. (e) The hearing shall be before a hearings officer appointed by the commission. After the hearing, the hearings officer shall enter an appropriate order, which shall be a final decision. (f) The commission shall adopt procedural rules under which all decisions rendered by a hearings officer are appealable to the commission. (g) A hearing under this section is governed by Chapter 2001, Government Code.
[Sections 1203.128-1203.140 reserved for expansion]
SUBCHAPTER G. RENEWAL OF REGISTRATION CERTIFICATES
Sec. 1203.141. EXPIRATION OF CERTIFICATE OF REGISTRATION. (a) The commission may issue or renew a certificate of registration for a period not to exceed 24 months. (b) The commission by rule may adopt a system under which certificates of registration expire on various dates during the year. The commission shall adjust the date for payment of the renewal fees accordingly. (c) For a year in which the certificate of registration expiration date is changed, renewal fees payable shall be prorated on a monthly basis so that each certificate holder pays only that portion of the fee that is allocable to the number of months during which the certificate of registration is valid. On renewal of the certificate of registration on the new expiration date, the total renewal fee is payable. Sec. 1203.142. INFORMATION REQUIRED FOR RENEWAL. (a) Each applicant for the renewal of a certificate of registration must disclose in the renewal application whether the applicant has: (1) entered a plea of guilty or nolo contendere to a felony; or (2) been convicted of a felony and the time for appeal has elapsed or the judgment or conviction has been affirmed on appeal. (b) The disclosure under Subsection (a) must be provided even if an order has granted community supervision suspending the imposition of the sentence. Sec. 1203.143. ADDITIONAL RENEWAL REQUIREMENTS FOR BUSINESS ENTITIES. (a) To renew a certificate of registration under this chapter: (1) a corporation must designate one of its officers as its agent for purposes of this chapter; (2) a limited liability company must designate one of its managers as its agent for purposes of this chapter; and (3) a partnership, limited partnership, or limited liability partnership must designate one of its managing partners as its agent for purposes of this chapter. (b) A corporation, limited liability company, partnership, limited partnership, or limited liability partnership may not act as a homebuilder unless the entity's designated agent, according to the commission's records, is individually registered as a homebuilder under this chapter. (c) Except as provided by Subsection (d), a corporation, limited liability company, partnership, limited partnership, or limited liability partnership may not act as a homebuilder if any of the officers, managers, or partners was or is the subject of an order from the commission revoking: (1) the individual officer , manager , or partner registration under this chapter; or (2) the registration of a business entity for which the officer, manager, or partner was an officer, manager, or partner during the time the acts causing the revocation were committed. (d) The commission may waive the application of Subsection (c) if it is satisfied as to the officer , manager , or partner honesty, integrity, and trustworthiness. Sec. 1203.144. DENIAL OF RENEWAL. (a) If the commission denies the renewal of an applicant for renewal, the commission shall immediately give written notice to the applicant of the denial. (b) The applicant may appeal the denial by following the procedures under Section 1203.127. (c) An appeal hearing under this section is governed by Sec. 1203.127.
[Sections 1203.145-1203.160 reserved for expansion]
SUBCHAPTER H. PRACTICES BY CERTIFICATE HOLDERS
Sec. 1203.161. FIXED OFFICE REQUIRED; CHANGE OF ADDRESS; OFFICE LOCATIONS. (a) A homebuilder shall maintain a fixed office in this state. The address of the principal place of business for the homebuilder shall be designated on the certificate of registration. (b) Not later than the 10th day after the date a homebuilder moves from the address designated on the certificate of registration, the homebuilder shall submit an application, accompanied by the appropriate fee, for a certificate of registration that designates the new location of the homebuilder principal place of business. The commission shall issue a certificate of registration that designates the new location if the new location complies with the requirements of this section. (c) A homebuilder who maintains more than one place of business in this state shall notify the commission in writing of each additional office location maintained by the homebuilder not later than the 10th day after the homebuilder opens the additional location. Sec. 1203.162. REQUIRED NOTICES AND PROVISIONS IN A HOMEBUILDER CONTRACT. (a) When homebuilder enters into a contract to sell to a homeowner real estate on which the homebuilder constructed a new home, the homebuilder shall include in the written contract: (1) a written notice that the homeowner should: (A) have the abstract covering the real estate that is the subject of the contract examined by an attorney chosen by the homeowner; or (B) be provided with or obtain a title insurance policy; (2) the written notice required by Section 27.007, Property Code; and (3) a provision that entitles the homeowner, at the homeowner election, to submit a dispute related to a construction defect to the commission for resolution under Subchapter L before the dispute is submitted to litigation or arbitration as the contract may require. (b) When a homebuilder enters into a contract or agreement with a homeowner to construct a new home or new improvements to an existing home on the homeowner real estate, the homebuilder shall include in the written contract the notice described under Subsection (a)(2) and the provision described under Subsection (a)(3).
[Sections 1203.163-1203.180 reserved for expansion]
SUBCHAPTER I. PROHIBITED PRACTICES AND DISCIPLINARY PROCEEDINGS
Sec. 1203.181. GROUNDS FOR SUSPENSION OR REVOCATION OF CERTIFICATE OF REGISTRATION. (a) The commission may suspend or revoke a certificate of registration issued under this chapter if the certificate holder: (1) enters a plea of guilty or nolo contendere to or is convicted of a felony, and the time for appeal has elapsed or the judgment or conviction has been affirmed on appeal, without regard to an order granting community supervision that suspends the imposition of the sentence; (2) procures or attempts to procure a certificate of registration under this chapter for the certificate holder or another by fraud, misrepresentation, or deceit or by making a material misstatement of fact in an application for a certificate of registration; (3) engages in an intentional misrepresentation or fraud when selling, buying, trading, or leasing real property; (4) fails to honor, within a reasonable time, a check issued to the commission after the commission has sent by certified mail a request for payment to the certificate holder's last known business address according to commission records; (5) fails to provide, within a reasonable time, information requested by the commission that relates to a formal or informal complaint to the commission that would indicate a violation of this chapter; (6) fails to surrender to the owner, without just cause, a document or instrument to a dispute that is requested by the owner and that is in the certificate holder's possession; (7) fails to pay or otherwise comply with a final award issued against the homebuilder under Subchapter L; or (8) disregards or violates this chapter. (b) The commission may suspend or revoke a certificate of registration issued under this chapter if the certificate holder, while acting as a homebuilder: (1) makes a material misrepresentation to a homeowner concerning a significant defect, including a latent structural defect, known to the homebuilder that would be a significant factor to a reasonable and prudent homeowner in making a decision to purchase the home or accept construction by the homebuilder as substantially complete; (2) fails to disclose to a homeowner a defect described by Subdivision (1) that is known to the homebuilder; (3) makes a false promise that is likely to influence a person to enter into an agreement when the homebuilder is unable or does not intend to keep the promise; (4) pursues a continued and flagrant course of misrepresentation or makes false promises through advertising, or otherwise; (5) fails within a reasonable time to properly account for or remit money that is received by the homebuilder and that belongs to another person; (6) commingles money that belongs to another person with the homebuilder own money; (7) solicits, sells, or offers for sale a home by means of a lottery; (8) solicits, sells, or offers for sale a home by means of a deceptive practice; (9) guarantees or authorizes or permits a person to guarantee that future profits will result from a resale of a home; (10) negotiates or attempts to negotiate the sale, exchange, or lease of real property with an owner, landlord, buyer, or tenant with knowledge that that person is a exclusively represented by an attorney or broker in connection with the transaction; (11) publishes or causes to be published any advertisement that is false or misleads or is likely to deceive the public; (12) withholds from or inserts into a statement of account or invoice a statement that the homebuilder knows makes the statement of account or invoice inaccurate in a material way; (13) publishes or circulates an unjustified or unwarranted threat of a legal proceeding or other action; (14) aids, abets, or conspires with another person to circumvent this chapter; (15) fails or refuses to provide, on request, a copy of a document relating to a transaction to a person who signed the document; (16) fails to include in a contract for the sale of a home to a homeowner or a contract for construction of a new home or new improvements the notices required under Section 1203.162; (17) fails to deposit, within a reasonable time, money the certificate holder receives as earnest money: (A) in trust with a title company authorized to do business in this state; or (B) in a custodial, trust, or escrow account maintained for that purpose in a banking institution authorized to do business in this state; (18) conditions the sale of a home on the homeowner using a title company that the homebuilder selects if the homeowner pays for the title policy; (19) conditions the sale of a home on the buyer using a lender that the homebuilder selects; (20) discriminates against a homeowner or prospective homeowner on the basis of race, color, religion, sex, national origin, or ancestry, including directing a homeowner or prospective homeowner interested in equivalent properties to a different area based on the race, color, religion, sex, national origin, or ancestry of the homeowner or prospective homeowner; or (21) disregards or violates this chapter. Sec. 1203.182. ADDITIONAL DISCIPLINARY AUTHORITY OF COMMISSION. (a) If a certificate holder violates this chapter or a commission rule, the commission may, in addition to any other authority under this chapter: (1) suspend or revoke a certificate of registration; (2) place on probation a person whose certificate of registration has been suspended; (3) reprimand a certificate holder; or (4) assess an administrative penalty that complies with Subchapter J against a certificate holder, alone or in addition to a suspension, probation, or reprimand. (b) The commission may probate a suspension, revocation, or cancellation of a certificate of registration under reasonable terms determined by the commission. Sec. 1203.183. HEARING. (a) If the commission proposes to take any disciplinary action described in Section 1203.182 against a certificate holder, the certificate holder is entitled to a hearing before the a hearings officer appointed by the commission. (b) The commission shall adopt procedural rules by which all decisions to take disciplinary action against certificate holder are appealable to the commission. (c) The commission shall prescribe the time and place of the hearing. (d) A hearing under this section is governed by the contested case procedures under Chapter 2001, Government Code. Sec. 1203.184. APPEAL. (a) A person aggrieved by a ruling, order, or decision of the commission is entitled to appeal to a district court in the county in which the administrative hearing was held. (b) An appeal is governed by the procedures under Chapter 2001, Government Code.
[Sections 1203.185-1203.200 reserved for expansion]
SUBCHAPTER J. ADMINISTRATIVE PENALTY
Sec. 1203.201. IMPOSITION OF ADMINISTRATIVE PENALTY. In contested cases involving disciplinary action, the commission, as part of the order, may impose an administrative penalty on a certificate holder who violates this chapter or a rule adopted or order issued by the commission under this chapter. Sec. 1203.202. AMOUNT OF PENALTY. (a) The amount of an administrative penalty may not exceed $5,000 for each violation. (b) In determining the amount of the penalty, the hearings officer or commission shall consider: (1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the prohibited acts; (2) the history of previous violations; (3) the amount necessary to deter a future violation; (4) efforts to correct the violation; and (5) any other matter that justice may require. Sec. 1203.203. PAYMENT OF ADMINISTRATIVE PENALTY. Not later than the time specified in the commission's order, which may not be sooner than 30 days after the order becomes final, the person shall pay the administrative penalty. Sec. 1203.204. COLLECTION OF PENALTY. If the person does not pay the administrative penalty and the enforcement of the penalty is not stayed, the commission may: (1) refer the matter to the attorney general for collection of the penalty; or (2) enforce any part of the order that specifies disciplinary action to be taken against the certificate holder if the certificate holder fails to pay the administrative penalty within the time required.
[Sections 1203.205-1203.220 reserved for expansion]
SUBCHAPTER K. OTHER PENALTIES AND ENFORCEMENT PROVISIONS
Sec. 1203.221. INJUNCTIVE ACTION BROUGHT BY COMMISSION. (a) In addition to any other action authorized by law, the commission may bring an action in its name to enjoin a violation of this chapter or a commission rule. (b) To obtain an injunction under this section, the commission is not required to allege or prove that: (1) an adequate remedy at law does not exist; or (2) substantial or irreparable damage would result from the continued violation. Sec. 1203.222. ADDITIONAL INJUNCTIVE AUTHORITY. (a) In addition to any other action authorized by law, the commission, acting through the attorney general, may bring an action to abate a violation or enjoin a violation or potential violation of this chapter or a commission rule if the commission determines that a person has violated or is about to violate this chapter. (b) The action shall be brought in the name of the state in the district court in the county in which: (1) the violation occurred or is about to occur; or (2) the defendant resides. (c) An injunctive action may be brought to abate or temporarily or permanently enjoin an act or to enforce this chapter. (d) The commission is not required to give a bond in an action under Subsection (a), and court costs may not be recovered from the commission. (e) If the commission determines that a person has violated or is about to violate this chapter, the attorney general or the county attorney or district attorney in the county in which the violation has occurred or is about to occur or in the county of the defendant's residence may bring an action in the name of the state in the district court of the county to abate or temporarily or permanently enjoin the violation or to enforce this chapter. The plaintiff in an action under this subsection is not required to give a bond, and court costs may not be recovered from the plaintiff. Sec. 1203.223. CIVIL PENALTY FOR CERTAIN VIOLATIONS BY A CERTIFICATE HOLDER. (a) In addition to injunctive relief under Sections 1203.221 and 1203.222, a person who receives a profit or other consideration as a result of acting as a homebuilder without holding a certificate of registration under this chapter is liable to the state for a civil penalty of not less than the amount of money received or more than three times the amount of money received. (b) The commission may recover the civil penalty, court costs, and reasonable attorney's fees on behalf of the state. (c) The commission is not required to give a bond in an action under this section, and court costs may not be recovered from the commission. Sec. 1203.224. PRIVATE CAUSE OF ACTION FOR CERTAIN VIOLATIONS BY CERTIFICATE HOLDER. (a) A person who receives a profit or other consideration as a result of acting as a homebuilder without holding a certificate of registration under this chapter is liable to an aggrieved person for a penalty of not less than the amount of money received or more than three times the amount of money received. (b) The aggrieved person may file suit to recover a penalty under this section. Sec. 1203.225. APPEAL BOND EXEMPTION. The commission is not required to give an appeal bond in an action to enforce this chapter. Sec. 1203.226. GENERAL CRIMINAL PENALTY. (a) A person commits an offense if the person willfully violates or fails to comply with this chapter or a commission order. (b) An offense under this section is a Class A misdemeanor. Sec. 1203.227. CRIMINAL PENALTY FOR CERTAIN VIOLATIONS BY CERTIFICATE HOLDER. (a) A person commits an offense if the person engages in an activity for which a certificate of registration is required under this chapter without holding a certificate. (b) Except as provided by Subsection (c), (d), or (e), an offense under this section is a misdemeanor punishable by: (1) a fine of not less than $100 or more than $500; (2) confinement in the county jail for not more than one year; or (3) both the fine and confinement. (c) An offense under this section by a person other than an individual is punishable by a fine of not less than $1,000 or more than $2,000. (d) A second or subsequent offense under this section by an individual is punishable by: (1) a fine of not less than $500 or more than $1,000; (2) confinement for not more than two years; or (3) both the fine and confinement. (e) A second or subsequent offense under this section by a person other than an individual is punishable by a fine of not less than $2,000 or more than $5,000.
[Sections 1203.228-1203.240 reserved for expansion]
SUBCHAPTER L. VOLUNTARY INSPECTION AND DISPUTE
RESOLUTION PROCESS
Sec. 1203.241. APPLICABILITY OF SUBCHAPTER. (a) This subchapter applies only to disputes between homebuilders and homeowners to which Chapter 27, Property Code, applies if the homeowner files a written request with the commission to resolve the dispute under this subchapter. (b) Notwithstanding any provision in a contract or agreement between a homebuilder and a homeowner to the contrary, a homeowner may submit a dispute, to which this subchapter applies, to the commission for resolution under this subchapter. (c) This subchapter applies only to the part of a dispute and only to causes of action that seek reimbursement of actual damages caused by a construction defect. (d) This subchapter does not apply to construction defects that are not brought within two years after the homeowner knew or should have reasonably known of the construction defect and that are not brought within 10 years after the home or improvement was constructed. Sec. 1203.242. EFFECT OF COMMISSION FINAL RESOLUTION AND DETERMINATIONS. The commission resolution of the dispute and determination of the existence of construction defect under this subchapter is binding and dispositive and is, for all purposes, an enforceable arbitration award under Chapter 171, Civil Practice and Remedies Code. Sec. 1203.243. PREREQUISITE TO FILING REQUEST. Before filing a request under this subchapter, the homeowner must: (1) not later than 30 days before filing the request have notified the homebuilder in writing of the alleged construction defect; and (2) offered the homebuilder and the homebuilder experts reasonable opportunity and access to inspect the alleged construction defect. Sec. 1203.244. INFORMATION REQUIRED TO BE SUBMITTED WITH WRITTEN REQUEST. A homeowner who submits a request to the commission for dispute resolution under this subchapter must pay the commission the fee authorized under Section 1203.082(6) and in the request must: (1) specify in reasonable detail each alleged construction defect that is a subject of the request; (2) state the amount of any known out-of-pocket expenses and fees for experts, inspectors, consultants, and attorneys incurred, as of the date of filing, by the homeowner in connection with each alleged construction defect; (3) include any evidence that depicts the nature and cause of each alleged construction defect and the nature and extent of repairs that the homeowner believes is reasonably necessary to remedy the construction defect, including inspection reports, photographs, videotapes, and other relevant information; (4) disclose the name, address, and phone number of any person who has, on behalf of the requestor, inspected the home in connection with the construction defect alleged in the request; (5) include a copy of the written notice required under Section 1203.243 and the homebuilder response, if any; and (6) state the amount that the homeowner seeks to recover from the homebuilder as of the date of filing. Sec. 1203.245. NOTICE TO REQUESTOR AND TO HOMEBUILDER. (a) Not later than the 15th day after the commission receives the request under Section 1203.244, the commission shall provide the person who filed the request with a copy of the commission procedures relating to the investigation and resolution of the dispute. (b) Not later than the 15th day after the commission receives a request under Section 1203.244, the commission shall send to the homebuilder: (1) a copy of the request; (2) a copy of all the information submitted with the request; and (3) a copy of the commission procedures relating to the investigation and resolution of the dispute. Sec. 1203.246. STATE INSPECTORS. (a) The commission shall employ or contract with state inspectors to inspect the alleged construction defect in the request. (b) The commission shall employ or contract with only trained and qualified inspectors and, by rule, shall set criteria that state inspectors must satisfy to be employed by the commission and to remain employed by the commission as a state inspector. (c) After receiving the request, the commission shall send a state inspector to inspect the home and interview the homebuilder and homeowner. (d) The state inspector shall complete a written report and written recommendations concerning any necessary repairs to the alleged construction defect. The state inspector shall, upon completion, provide a copy the report to the homeowner and homebuilder. Sec. 1203.247. DISPUTE RESOLUTION HEARING. (a) If after the 30th day after the state inspector has sent a copy of the report to the homeowner and homebuilder as required by Section 1203.246(d) the parties to the dispute have not otherwise resolved the dispute, the commission shall set an arbitration hearing and give notice of the hearing to the parties to the dispute. (b) A hearings officer designated by the commission shall conduct the hearing. The state inspector that inspected the alleged construction defect shall, at the request of either the homeowner or homebuilder, be present to testify at the hearing. The state inspector report shall be admissible as evidence regardless of whether the state inspector is called to testify at the hearing. The hearings officer shall make findings of fact and conclusions and issue an award. (c) A proceeding under this section is an arbitration hearing governed by Chapter 171, Civil Practice and Remedies Code and by the rules the commission adopts under Section 1203.249. (d) The commission shall prescribe the time and place of the hearing. Sec. 1203.248. THE AWARD. (a) The hearings officer may award only: (1) reimbursement of actual damages caused by the construction defect; (2) reimbursement of reasonable out-of-pocket expenses; (3) interest on the out-of-pocket expenses awarded at the rate of 10 percent per annum from the date the homeowner incurred the expense; and (4) reasonable attorney fees. (b) Actual damages under Subdivision (1) of Subsection (a) are to be measured by one of the following methods: (1) the cost to repair the construction defect; (2) the decrease in the market value of the home caused by the construction defect; or (3) both methods under Subdivisions (1) and (2) if a decrease in market value is evident after the construction defect is repaired. (c) Out-of-pocket expenses under Subdivision (2) of Subsection (a) include, but are not limited to: (1) fees paid to experts, inspectors, and consultants reasonably necessary to evaluate the construction defect; (2) reasonable attorney's fees paid by the homeowner; and (3) other reasonable expenses or repairs necessary to mitigate damage caused by the construction defect. Sec. 1203.249. RULES OF ARBITRATION. The commission shall adopt rules of procedure that are: (1) necessary for the implementation of the intent and purposes of this subchapter; and (2) consistent with Chapter 171, Civil Practice and Remedies Code. Sec. 1203.250. EFFECT OF AWARD ON OTHER CAUSES OF ACTION. An award under this subchapter is dispositive of all claims for the types of damages the commission is authorized to award under this chapter and is binding on the homeowner and homebuilder as an arbitration award. Neither the award nor this subchapter dispose of claim or cause for damage that is not awardable under this subchapter.
[Sections 1203.251-1203.260 reserved for expansion]
SUBCHAPTER M. BUILDING STANDARDS
Sec. 1203.261. BUILDING STANDARDS. (a) For the purposes of evaluating evidence and resolving disputes under Subchapter L, the commission by rule shall adopt building standards for residential construction that comply with this section. (b) The building standards must substantially comply with the standards contained in the version of the International Residential code for One- and Two-Family Dwelling published by the International Code Council that is applicable under Subsection (c). (c) The International Residential Code for One- and Two-Family Dwellings that applies to residential construction for the purposes of the building standards under this section is: (1) for residential construction located in a municipality, the version of the International Residential Code applicable to residential construction in the municipality under Section 214.212, Local Government Code; and (2) for residential construction located in an unincorporated area, the version of the International Residential Code applicable to residential construction in the municipality that is the county seat of the county in which the construction is located. SECTION 2. (a) This Act takes effect September 1, 2003. (b) A person is not required to be registered under this Act, before March 1, 2004. SECTION 3. For the purposes of implementing new Chapter 1203, the governor may appoint two persons who are regularly engaged in the homebuilding industry in Texas to fill the two positions on the Texas Homebuilder Commission under new Section 1203.021(1) and the appointees may continue to serve after March 1, 2004, provided that the appointees are registered under this Act not later than May 1, 2004. New Section 1203.025(1)-(3) shall not apply to the two commissioners who are required to be registered under this Act until May 1, 2004. SECTION 4. The governor may assign to the persons the governor appoints as commissioners under this Act the length of the appointees initial terms, which will expire at staggered times as required by new Section 1203.022.