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79R6528 UM-D
By: Castro H.B. No. 3455
A BILL TO BE ENTITLED
AN ACT
relating to swimming pool safety.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle A, Title 9, Health and Safety Code, is
amended by adding Chapter 761 to read as follows:
CHAPTER 761. POOL SAFETY AT SINGLE-FAMILY HOMES
Sec. 761.001. DEFINITIONS. In this chapter:
(1) "Manufacturer" includes a contractor that
constructs a pool at a single-family home.
(2) "Pool" means a permanent swimming pool, permanent
wading or reflection pool, or permanent hot tub or spa over 18
inches deep, located at ground level, above ground, below ground,
or indoors.
(3) "Pool yard" means an area that contains a pool.
(4) "Pool yard enclosure" or "enclosure" means a
fence, wall, or combination of fences, walls, or gates that
completely surround a pool.
(5) "Power safety cover" means a motor-powered barrier
that:
(A) completely covers the water area of the pool;
and
(B) conforms to the ASTM International Standard
F1346-91 "Standard Performance Specification for Safety Covers and
Labeling Requirements for All Covers for Swimming Pools, Spas and
Hot Tubs" as it existed on January 1, 2005.
(6) "Self-closing and self-latching device" means a
device that causes a gate to automatically close without human or
electrical power after it has been opened and to automatically
latch without human or electrical power when the gate closes.
Sec. 761.002. REQUIRED SAFETY EQUIPMENT. (a) In
accordance with rules adopted by the executive commissioner of the
Health and Human Services Commission, a person who sells or
manufactures a pool shall provide, with each pool sold or
manufactured for use at a single-family home, the following safety
equipment:
(1) a flotation device designed to be thrown to a
person in the pool;
(2) a pole designed to retrieve a person from the pool;
and
(3) a pool yard enclosure and gate that comply with the
specifications described by Sections 761.003 and 761.004 or a power
safety cover.
(b) A seller or manufacturer required to comply with this
chapter may charge the cost of the required safety equipment to the
person purchasing the pool.
(c) A seller or manufacturer is not required to provide the
safety equipment required by Subsection (a) if the person
purchasing the pool owns safety equipment that complies with this
chapter. The person purchasing the pool must submit proof to the
seller or manufacturer of the presence of the required safety
equipment in accordance with rules adopted by the executive
commissioner of the Health and Human Services Commission.
Sec. 761.003. ENCLOSURE FOR POOL YARD. (a) The height of
the pool yard enclosure must be at least 48 inches as measured from
the ground on the side away from the pool.
(b) Openings under the pool yard enclosure may not allow a
sphere four inches in diameter to pass under the pool yard
enclosure.
(c) If the pool yard enclosure is constructed with
horizontal and vertical members and the distance between the tops
of the horizontal members is at least 45 inches, the openings may
not allow a sphere four inches in diameter to pass through the
enclosure.
(d) If the pool yard enclosure is constructed with
horizontal and vertical members and the distance between the tops
of the horizontal members is less than 45 inches, the openings may
not allow a sphere 1-3/4 inches in diameter to pass through the
enclosure.
(e) A pool yard enclosure may not contain:
(1) chain link fencing materials; or
(2) diagonal fencing members that are lower than 49
inches above the ground.
(f) Decorative designs or cutouts on or in the pool yard
enclosure may not contain any openings greater than 1-3/4 inches in
any direction.
(g) Indentations or protrusions in a solid pool yard
enclosure without any openings may not be greater than normal
construction tolerances and tooled masonry joints on the side away
from the pool.
(h) Permanent equipment or structures may not be
constructed or placed in a manner that makes them readily available
for climbing over the pool yard enclosure.
Sec. 761.004. GATES. (a) A gate in a fence or wall
enclosing a pool yard as required by Section 761.003 must:
(1) have a self-closing and self-latching device;
(2) have hardware enabling the gate to be locked, at
the option of whoever controls the gate, by a padlock or a built-in
lock operated by key, card, or combination; and
(3) open outward away from the pool yard.
(b) Except as otherwise provided by Subsection (c), a gate
latch must be installed so that it is at least 60 inches above the
ground, except that it may be installed lower if:
(1) the latch is installed on the pool yard side of the
gate only and is at least three inches below the top of the gate; and
(2) the gate or enclosure has no opening greater than
one-half inch in any direction within 18 inches from the latch,
including the space between the gate and the gate post to which the
gate latches.
(c) A gate latch may be located 42 inches or higher above the
ground if the gate cannot be opened except by key, card, or
combination on both sides of the gate.
Sec. 761.005. ENFORCEMENT. (a) A person who purchases a
pool from a seller or manufacturer required to comply with this
chapter, a governmental entity, or the person's representative may
maintain an action against the seller or manufacturer of the pool
for failure to comply with the requirements of this chapter. In
that action, the person may obtain:
(1) a court order directing the seller or manufacturer
to comply with this chapter; and
(2) a judgment against the seller or manufacturer for
actual damages resulting from the failure to comply with the
requirements of this chapter.
(b) A seller and manufacturer are jointly and severally
liable for damages under this section. Chapter 33, Civil Practice
and Remedies Code, does not apply to an action maintained under this
section.
SECTION 2. The heading to Chapter 757, Health and Safety
Code, is amended to read as follows:
CHAPTER 757. POOL YARD ENCLOSURES AT CERTAIN DWELLINGS
SECTION 3. The change in law made by this Act applies only
to a pool sold on or after the effective date of this Act. A pool
sold before the effective date of this Act is covered by the law in
effect when the pool was sold, and the former law is continued in
effect for that purpose.
SECTION 4. This Act takes effect September 1, 2005.