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A BILL TO BE ENTITLED
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AN ACT
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relating to pool safety; providing a civil penalty. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle A, Title 9, Health and Safety Code, is |
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amended by adding Chapter 761 to read as follows: |
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CHAPTER 761. POOL SAFETY AT SINGLE-FAMILY DWELLINGS |
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Sec. 761.001. SHORT TITLE. This chapter may be cited as the |
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Drowning Prevention and Swimming Pool Safety Act. |
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Sec. 761.002. DEFINITIONS. In this chapter: |
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(1) "Manual safety cover" means a pool cover that is |
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not motor-powered and: |
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(A) completely covers the water area of the pool; |
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and |
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(B) conforms to the ASTM International Standard |
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F1346-91 "Standard Performance Specification for Safety Covers and |
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Labeling Requirements for All Covers for Swimming Pools, Spas and |
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Hot Tubs," as it existed on January 1, 2007. |
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(2) "Pool" means a temporary or permanent swimming |
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pool, wading or reflection pool, hot tub, or spa that contains water |
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more than 18 inches deep and that is located at ground level, |
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aboveground, belowground, or indoors. The term does not include a |
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bay, lake, pond, bayou, river, creek, stream, spring, reservoir, |
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stock tank, culvert, drainage ditch, detention pond, or other flood |
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or drainage facility. |
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(3) "Pool yard" means an area that contains a pool. |
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(4) "Pool yard enclosure" or "enclosure" means a |
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fence, wall, or combination of fences, walls, or gates that |
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completely surround a pool. A pool yard enclosure may enclose the |
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pool deck, landscaped areas, and other areas beyond the pool. |
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(5) "Power safety cover" means a motor-powered pool |
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cover that: |
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(A) completely covers the water area of the pool; |
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and |
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(B) conforms to the ASTM International Standard |
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F1346-91 "Standard Performance Specification for Safety Covers and |
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Labeling Requirements for All Covers for Swimming Pools, Spas and |
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Hot Tubs," as it existed on January 1, 2007. |
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(6) "Self-closing device" means a device that causes a |
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gate to automatically close without human or electrical power after |
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it has been opened. |
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(7) "Self-latching device" means a device that causes |
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a gate to automatically latch without human or electrical power |
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when the gate closes. |
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(8) "Seller" means a person who sells, builds, or |
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installs a pool that serves not more than one single-family |
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dwelling. The term does not include a builder who constructs the |
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dwelling or any improvements on the property on which the pool is |
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located. |
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Sec. 761.003. REQUIRED SAFETY EQUIPMENT. (a) In |
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accordance with rules adopted by the executive commissioner of the |
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Health and Human Services Commission, a seller shall provide, with |
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each pool sold, built, or installed for use at a single-family |
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dwelling, the following safety equipment: |
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(1) if the pool is a swimming pool: |
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(A) a throwing rope that: |
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(i) is one-fourth inch to three-eighths |
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inch in diameter; |
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(ii) is at least as long as two-thirds the |
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maximum width of the pool; and |
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(iii) is attached to a ring buoy approved as |
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a flotation device by the United States Coast Guard with an outside |
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diameter of 15 to 24 inches; and |
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(B) a reaching pole that is: |
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(i) light, strong, and non-telescoping; |
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(ii) at least 12 feet long; |
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(iii) constructed of fiberglass or another |
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material that does not conduct electricity; and |
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(iv) attached at one end to a body hook or |
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shepherd's crook with blunted ends; and |
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(2) a pool yard enclosure and gate that comply with the |
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specifications described by Sections 761.005 and 761.006, a power |
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safety cover, or a manual safety cover. |
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(b) A seller required to comply with this chapter may charge |
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the cost of the required safety equipment to the person purchasing |
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the pool. |
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(c) A seller is not required to provide the safety equipment |
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required by Subsection (a) if the person purchasing the pool owns |
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safety equipment or has contracted with another person for the |
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purchase or installation of safety equipment that complies with |
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this chapter. The person purchasing the pool must submit written |
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proof to the seller of the presence of the required safety equipment |
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or of a contract to purchase the equipment in accordance with rules |
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adopted by the executive commissioner of the Health and Human |
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Services Commission. |
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Sec. 761.004. DUTIES OF POOL OWNER. (a) A person who owns a |
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pool shall in accordance with rules adopted by the executive |
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commissioner: |
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(1) obtain and maintain the safety equipment required |
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under Section 761.003(a); and |
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(2) protect against body entrapment and hair |
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entanglement. |
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(b) This section does not apply to a pool built or installed |
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before January 1, 2008. This subsection expires December 31, 2012. |
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Sec. 761.005. ENCLOSURE FOR POOL YARD. (a) The height of |
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the pool yard enclosure must be at least 48 inches as measured from |
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the ground on the side away from the pool. |
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(b) Openings under the pool yard enclosure may not allow a |
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sphere four inches in diameter to pass under the pool yard |
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enclosure. |
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(c) If the pool yard enclosure is constructed with |
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horizontal and vertical members and the distance between the tops |
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of the horizontal members is at least 45 inches, the openings may |
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not allow a sphere four inches in diameter to pass through or around |
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the enclosure. |
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(d) If the pool yard enclosure is constructed with |
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horizontal and vertical members and the distance between the tops |
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of the horizontal members is less than 45 inches, the openings may |
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not allow a sphere 1-3/4 inches in diameter to pass through or |
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around the enclosure. |
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(e) A pool yard enclosure may not contain: |
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(1) chain link fencing materials if the enclosure is |
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built on or after January 1, 2008; or |
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(2) diagonal fencing members that are lower than 49 |
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inches above the ground. |
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(f) Decorative designs or cutouts on or in the pool yard |
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enclosure may not contain any openings greater than 1-3/4 inches in |
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any direction. |
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(g) Indentations or protrusions in a solid pool yard |
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enclosure without any openings may not be greater than normal |
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construction tolerances and tooled masonry joints on the side away |
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from the pool. |
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(h) Permanent equipment or structures may not be |
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constructed or placed in a manner that makes them readily available |
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for climbing from the outside to the inside of the pool yard |
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enclosure. |
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(i) If a dwelling has a door that opens into the pool yard |
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without another intervening enclosure, the door must be equipped |
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with: |
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(1) a self-closing device, a self-latching device, and |
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a keyless deadbolt or similar mechanism that is operated only from |
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the door's interior and is installed at least 60 inches above the |
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floor; or |
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(2) a door alarm that: |
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(A) sounds continuously for at least 30 seconds |
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immediately after the door is opened; |
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(B) provides a sound pressure of at least 85 |
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decibels when measured indoors at 10 feet; |
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(C) automatically resets; and |
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(D) may be temporarily deactivated for a single |
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opening, provided the deactivation lasts not longer than 15 seconds |
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and the deactivation switch is at least 60 inches above the floor. |
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(j) If a dwelling has a sliding glass door that opens into |
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the pool yard without another intervening enclosure, the door must |
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be equipped with a pinlock or comparable mechanism that is operated |
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only from the door's interior and is at least 60 inches above the |
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floor. |
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(k) If a dwelling has a window that opens into the pool yard |
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without another intervening enclosure, and the bottom of the window |
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is less than 48 inches above the floor, the window must be equipped |
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with: |
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(1) a spring-loaded window latch or pinlock; or |
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(2) a window latch and screen with a spring-loaded |
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latch or pinlock on the screen. |
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(l) If a pool is built on a slope, a pool yard enclosure is |
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not required in those areas around the pool where: |
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(1) the deck of the pool is at least four feet above |
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grade level; |
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(2) there are no indentations, handholds, or footholds |
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in the structural walls or supports below the pool or pool deck that |
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could be readily used by a small child to climb to the pool or pool |
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deck; and |
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(3) any openings under the pool or pool deck that could |
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give access to the pool do not allow a sphere four inches in |
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diameter to pass through for a height of four feet above ground |
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level. |
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(m) If a pool is an aboveground temporary pool and the pool |
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is accessed by ladder, steps, or ramp, the owner shall: |
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(1) ensure that all ladders, steps, or ramps may be |
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locked, barricaded, or removed; |
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(2) enclose the pool yard in the same manner required |
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for an underground pool; and |
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(3) install a manual safety cover for the pool. |
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(n) A person who owns a pool shall reasonably maintain the |
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pool yard enclosure and safety devices required under this chapter |
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and shall ensure needed repairs are performed as soon as reasonably |
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possible. |
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Sec. 761.006. GATES. (a) A gate in a pool yard enclosure as |
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required by Section 761.003 must: |
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(1) have a self-closing device; |
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(2) have a self-latching device; |
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(3) have hardware enabling the gate to be locked, at |
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the option of whoever controls the gate, by a built-in lock operated |
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by key, card, or combination or a padlock; and |
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(4) open outward away from the pool yard. |
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(a-1) Subsection (a)(4) does not apply to a gate in a pool |
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yard enclosure that is built or installed before January 1, 2008. |
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This subsection expires December 31, 2012. |
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(b) Except as provided by Subsection (c), a gate latch must |
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be installed so that it is at least 60 inches above the ground, |
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except that it may be installed lower if: |
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(1) the latch is installed on the pool yard side of the |
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gate only and is at least three inches below the top of the gate; and |
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(2) the gate or enclosure has no opening greater than |
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one-half inch in any direction within 18 inches from the latch, |
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including the space between the gate and the gate post to which the |
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gate latches. |
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(c) A gate latch may be located 42 inches or higher above the |
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ground if the gate cannot be opened except by key, card, or |
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combination on both sides of the gate. |
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(d) A gate is not required to have a self-closing device if: |
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(1) the dwelling where the pool is located is occupied |
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on a regular basis by a person who is permanently disabled and the |
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person's disability prevents or significantly inhibits the person |
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from opening a gate with a self-closing device; |
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(2) the gate has a self-latching device when it is |
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manually closed; and |
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(3) the self-latching device complies with Subsection |
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(b) or (c). |
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(e) A gate in a pool yard enclosure that allows the entry of |
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a vehicle must comply with the height and design requirements of |
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Subsections (a)-(c) but may open either toward or away from the pool |
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yard, does not have to have hardware enabling the gate to be locked, |
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and is considered to have a self-closing device if the gate closes |
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automatically with electronic power after a vehicle is driven |
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through the gate. The gate is considered to have a self-latching |
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device if the gate is held closed by a device that does not permit |
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the gate to be opened without electronic activation and any |
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electronic activation switch or manual override switch or mechanism |
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is: |
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(1) located at least 60 inches above the ground; or |
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(2) located at least 42 inches above the ground if the |
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switch or mechanism cannot be operated without a key, card, or |
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combination. |
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Sec. 761.007. ENFORCEMENT BY POLITICAL SUBDIVISION. A |
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municipality, by ordinance in accordance with Section 214.101, |
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Local Government Code, or county, by order, may enforce this |
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chapter by imposing requirements for permits or inspections, or |
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imposing fines for violations. A fee for a permit issued or |
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inspection conducted under this section may not exceed the |
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reasonable cost of the permit or inspection. |
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Sec. 761.008. INJUNCTION; CIVIL PENALTY. (a) The attorney |
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general, a county, or a municipality may institute an action for |
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injunctive relief to restrain a violation by a person that is |
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violating or threatening to violate a provision of this chapter or |
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to impose a civil penalty under this section. |
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(b) A person who violates this chapter is subject to a civil |
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penalty not to exceed $1,000 for each violation. |
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(c) In determining the amount of the civil penalty, the |
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court shall consider: |
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(1) the person's previous violations; |
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(2) the seriousness of the violation, including the |
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nature, circumstances, extent, and gravity of the violation; |
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(3) whether the health and safety of the public was |
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threatened by the violation; |
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(4) the demonstrated good faith of the person; and |
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(5) the amount necessary to deter future violations. |
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(d) The attorney general or the appropriate district, |
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county, or municipal attorney, in the name of the state, may bring |
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an action under this section in a district court of Travis County or |
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of a county in which any part of the violation occurs. |
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(e) A penalty collected under this section by the attorney |
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general shall be deposited in the state treasury to the credit of |
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the general revenue fund. A penalty collected under this section on |
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behalf of a political subdivision shall be deposited to the credit |
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of the general fund of the political subdivision. |
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Sec. 761.009. STATEWIDE UNIFORMITY; LIABILITY. (a) To |
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ensure uniform and equitable implementation and enforcement |
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throughout this state, this chapter constitutes the whole field of |
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regulation regarding pool safety at single-family dwellings. |
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(b) Except as specifically provided by Section 761.007, |
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this chapter preempts and supersedes a local ordinance, order, |
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rule, or regulation adopted by a political subdivision of this |
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state pertaining to pool safety at single-family dwellings. |
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(c) This chapter does not limit a person's liability for |
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actual damages resulting from a violation of the person's duties |
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under this chapter or other law. |
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SECTION 2. The heading to Chapter 757, Health and Safety |
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Code, is amended to read as follows: |
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CHAPTER 757. POOL YARD ENCLOSURES AT CERTAIN DWELLINGS |
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SECTION 3. The heading to Section 214.101, Local Government |
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Code, is amended to read as follows: |
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Sec. 214.101. AUTHORITY REGARDING [SWIMMING] POOL |
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ENCLOSURES. |
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SECTION 4. Section 214.101(a), Local Government Code, is |
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amended to read as follows: |
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(a) A municipality may by ordinance establish minimum |
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standards for swimming pool fences and enclosures and may adopt |
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other ordinances as necessary to carry out this subchapter. A |
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municipal ordinance containing standards for a pool yard enclosure |
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as defined by Chapters [Chapter] 757 and 761, Health and Safety |
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Code, [as added by Section 2, Chapter 517, Acts of the 73rd
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Legislature, 1993,] must contain the same standards for that |
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enclosure as are required or permitted by those chapters [that
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chapter] of the Health and Safety Code. |
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SECTION 5. This Act takes effect January 1, 2008. |