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A BILL TO BE ENTITLED
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AN ACT
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relating to swimming 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 barrier that is not |
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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 permanent swimming pool, permanent |
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wading or reflection pool, or permanent hot tub or spa over 18 |
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inches deep, located at ground level, aboveground, belowground, or |
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indoors. The term does not include a bay, lake, pond, bayou, river, |
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creek, stream, spring, reservoir, stock tank, culvert, drainage |
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ditch, detention pond, or other flood 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 also enclose |
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the pool deck, landscaped areas, and other areas beyond the pool. |
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(5) "Power safety cover" means a motor-powered barrier |
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that: |
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(A) completely covers the water area of the pool; |
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or |
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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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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 person who sells or |
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installs a pool at a single-family dwelling shall provide, with |
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each pool sold or installed for use at a single-family dwelling, the |
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following safety equipment: |
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(1) a throwing rope that: |
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(A) is one-fourth inch to three-eighths inch in |
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diameter; |
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(B) is at least as long as two-thirds the maximum |
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width of the pool; and |
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(C) is attached to a ring buoy approved as a |
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flotation device by the United States Coast Guard with an outside |
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diameter of 15 to 24 inches; |
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(2) a reaching pole that is: |
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(A) light, strong, and non-telescoping; |
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(B) at least 12 feet long; |
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(C) constructed of fiberglass or another |
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material that does not conduct electricity; and |
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(D) attached at one end to a body hook or |
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shepherd's crook with blunted ends; |
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(3) a pool yard enclosure and gate that comply with the |
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specifications described by Sections 761.006 and 761.007, a power |
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safety cover, or a manual safety cover; and |
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(4) either: |
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(A) more than one drain; |
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(B) one or more unblockable drains; or |
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(C) no main drain. |
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(b) If the pool has a main drain, other than an unblockable |
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drain, the main drain must: |
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(1) be equipped with a drain cover that conforms to the |
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ASME/ANSI Standard A112.19.8M "Suction Fittings for Use in Swimming |
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Pools, Wading Pools, Spas, Hot Tubs, and Whirlpool Bathtub |
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Appliances," as it existed on January 1, 2007; and |
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(2) have at least one of the following anti-entrapment |
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devices: |
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(A) a safety vacuum release system, tested by an |
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independent third party, that ceases operation of a pump, reverses |
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the circulation flow, or otherwise provides a vacuum release at a |
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blocked suction outlet and that conforms to: |
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(i) the ASME/ANSI Standard A112.19.8M |
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"Suction Fittings for Use in Swimming Pools, Wading Pools, Spas, |
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Hot Tubs, and Whirlpool Bathtub Appliances," as it existed on |
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January 1, 2007; or |
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(ii) the ASTM International Standard F2387 |
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"Standard Specification for Manufactured Safety Vacuum Release |
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Systems for Swimming Pools, Spas and Hot Tubs," as it existed on |
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January 1, 2007; |
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(B) a suction-limiting vent system with a |
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tamper-resistant atmospheric opening; |
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(C) a gravity drainage system that uses a |
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collector tank; |
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(D) an automatic pump shut-off system; |
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(E) a device or system that disables the drain; |
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or |
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(F) another system that the executive |
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commissioner determines is effective at preventing the risk of |
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injury or death for children associated with pool drainage systems. |
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(c) A seller or installer required to comply with this |
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chapter may charge the cost of the required safety equipment to the |
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person purchasing the pool. |
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(d) A seller or installer is not required to provide the |
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safety equipment required by Subsection (a) if the person |
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purchasing the pool owns safety equipment that complies with this |
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chapter. The person purchasing the pool must submit proof to the |
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seller or installer of the presence of the required safety |
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equipment in accordance with rules adopted by the executive |
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commissioner of the Health and Human Services Commission. |
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Sec. 761.004. DRAINS. (a) A pool that has a main drain that |
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is not an unblockable drain must be equipped with a drain cover that |
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meets a national safety standard approved by the executive |
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commissioner of the Health and Human Services Commission. |
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(b) A pool must have one of the following: |
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(1) more than one drain; |
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(2) one or more unblockable drains; or |
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(3) no main drain. |
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Sec. 761.005. DUTIES OF POOL OWNER. A person who owns a |
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pool shall obtain and maintain the safety equipment required under |
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Section 761.003(a) in accordance with rules adopted by the |
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executive commissioner. |
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Sec. 761.006. 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 the |
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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 the |
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enclosure. |
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(e) A pool yard enclosure may not contain: |
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(1) chain link fencing materials; 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 or window that allows access to |
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the pool without another intervening enclosure, the door or window |
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must be equipped with exit alarms that make audible, continuous |
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alarm sounds when the door or window is opened or left ajar. |
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(j) 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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(k) A person who owns a pool with a pool yard enclosure shall |
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reasonably maintain the pool yard enclosure in compliance with this |
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section and shall ensure needed repairs are performed as soon as |
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reasonably possible. |
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Sec. 761.007. GATES. (a) A gate in a pool yard enclosure as |
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required by Section 761.006 must: |
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(1) have a self-closing and self-latching device; |
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(2) 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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(3) open outward away from the pool yard. |
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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) through (c) but may open either toward or away from |
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the pool yard, does not have to have hardware enabling the gate to |
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be locked, and is considered to have a self-closing device if the |
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gate closes automatically with electronic power after a vehicle is |
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driven through the gate. The gate is considered to have a |
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self-latching device if the gate is held closed by a device that |
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does not permit the gate to be opened without electronic activation |
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and any electronic activation switch or manual override switch 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 cannot be operated without a key, card, or combination. |
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(f) A door or other opening from the dwelling's interior to |
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a pool yard is not subject to the requirements of this section. |
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Sec. 761.008. ENFORCEMENT. (a) A person who purchases a |
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pool on or after September 1, 2007, from a seller or installer |
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required to comply with this chapter, a governmental entity, or the |
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person's representative may maintain an action against the seller |
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or installer of the pool for knowingly failing to comply with the |
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requirements of this chapter. In that action, the person may |
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obtain: |
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(1) a court order directing the seller or installer to |
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comply with this chapter; and |
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(2) a judgment against the seller or installer for |
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actual damages resulting from the failure to comply with the |
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requirements of this chapter. |
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(b) A seller and installer are jointly and severally liable |
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for damages under this section. Chapter 33, Civil Practice and |
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Remedies Code, does not apply to an action maintained under this |
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section. |
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Sec. 761.009. CIVIL PENALTY. (a) A person who knowingly |
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violates this chapter is subject to a civil penalty of not less than |
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$2,000 and not more than $5,000 for each violation. |
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(b) 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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(c) The attorney general or the appropriate district or |
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county attorney, in the name of the state, may bring an action under |
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this section in a district court of Travis County or of a county in |
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which any part of the violation occurs. |
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(d) 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 by |
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a district or county attorney shall be deposited to the credit of |
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the general fund of the county in which the suit was heard. |
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Sec. 761.010. STATEWIDE UNIFORMITY. (a) To ensure uniform |
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and equitable implementation and enforcement throughout this |
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state, this chapter constitutes the whole field of regulation |
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regarding pool safety at single-family dwellings. |
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(b) This chapter preempts and supersedes a local ordinance, |
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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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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. (a) Except as provided by Subsection (b) of this |
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section, this Act takes effect January 1, 2008. |
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(b) Section 761.004, Health and Safety Code, as added by |
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this Act, takes effect January 1, 2009. |
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(c) Section 761.005, Health and Safety Code, as added by |
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this Act, takes effect January 1, 2012. |