81R1405 UM-D

By: Leibowitz H.B. No. 311

A BILL TO BE ENTITLED

AN ACT

relating to certain fees authorized by the Texas Residential Construction Commission Act.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 408.002, Property Code, is amended by amending Subsections (c) and (d) to read as follows:

(c) The commission may charge a reasonable fee for:

(1) [a homeowner to submit a request for state-sponsored inspection under Subtitle D;

[(2)] providing public information requested under Chapter 552, Government Code, excluding information requested from the commission under Section 409.001; or

(2) [(3)] producing, mailing, and distributing special printed materials and publications generated in bulk by the commission for use and distribution by builders.

(d) The commission may not charge [waive or reduce the fee for an inspection under Subtitle D for] a homeowner a [who demonstrates an inability to pay the] fee in connection with a complaint, request, or other proceeding under Chapter 409 or Subtitle D.

SECTION 2. Section 418.001, Property Code, is amended to read as follows:

Sec. 418.001. GROUNDS FOR DISCIPLINARY ACTION. A person, including a builder or a person who is designated as a builder's agent under Section 416.006, or a person who owns or controls a majority ownership interest in the builder is subject to disciplinary action under this chapter for:

(1) fraud or deceit in obtaining a registration or certification under this subtitle;

(2) misappropriation or misapplication of trust funds in the practice of residential construction, including a violation of Chapter 32, Penal Code, or Chapter 162, if found by a final nonappealable court judgment;

(3) naming false consideration in a contract to sell a new home or in a construction contract;

(4) discriminating on the basis of race, color, religion, sex, national origin, or ancestry;

(5) publishing a false or misleading advertisement;

(6) failure to honor, within a reasonable time, a check issued to the commission, or any other instrument of payment, including a credit or debit card or electronic funds transfer, after the commission has sent by certified mail a request for payment to the person's last known business address, according to commission records;

(7) failure to pay an administrative penalty assessed by the commission under Chapter 419 or a fee due under Chapter 426;

(8) failure to pay a final nonappealable court judgment arising from a construction defect or other transaction between the person and a homeowner;

(9) failure to register a home as required by Section 426.003;

(10) failure to remit the fee for registration of a home under Section 426.003;

(11) [failure to reimburse a homeowner the amount ordered by the commission as provided by Section 428.004(d);

[(12)] engaging in statutory or common-law fraud or misappropriation of funds, as determined by the commission after a hearing under Section 418.003;

(12) [(13)] a repeated failure to participate in the state-sponsored inspection and dispute resolution process if required by this title;

(13) [(14)] failure to register as a builder as required under Chapter 416;

(14) [(15)] using or attempting to use a certificate of registration that has expired or that has been revoked;

(15) [(16)] falsely representing that the person holds a certificate of registration issued under Chapter 416;

(16) [(17)] acting as a builder using a name other than the name or names disclosed to the commission;

(17) [(18)] aiding, abetting, or conspiring with a person who does not hold a certificate of registration to evade the provisions of this title or rules adopted under this title, if found by a final nonappealable court judgment;

(18) [(19)] allowing the person's certificate of registration to be used by another person;

(19) [(20)] acting as an agent, partner, or associate of a person who does not hold a certificate of registration with the intent to evade the provisions of this title or rules adopted under this title;

(20) [(21)] a failure to reasonably perform on an accepted offer to repair or a repeated failure to make an offer to repair based on:

(A) the recommendation of a third-party inspector under Section 428.004; or

(B) the final holding of an appeal under Chapter 429;

(21) [(22)] a repeated failure to respond to a commission request for information;

(22) [(23)] a failure to obtain a building permit required by a political subdivision before constructing a new home or an improvement to an existing home;

(23) [(24)] abandoning, without justification, any home improvement contract or new home construction project engaged in or undertaken by the person, if found to have done so by a final, nonappealable court judgment;

(24) [(25)] a repeated failure to comply with the requirements of Subtitle F; or

(25) [(26)] otherwise violating this title or a commission rule adopted under this title.

SECTION 3. The heading to Section 426.004, Property Code, is amended to read as follows:

Sec. 426.004. EXPENSES [FEES].

SECTION 4. Section 426.004(a), Property Code, is amended to read as follows:

(a) A builder [party] who is involved in a dispute for which a request is submitted [submits a request] under this subtitle shall pay any amount required by the commission to cover the expense of the third-party inspector.

SECTION 5. Section 428.001(b), Property Code, is amended to read as follows:

(b) 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 engineering or consulting fees incurred 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 necessary to remedy the construction defect, including, if available, expert reports, photographs, and videotapes, if that evidence would be discoverable under Rule 192, Texas Rules of Civil Procedure;

(4) be accompanied by the fees required under Section 426.004, if applicable; and

(5) state the name of any person who has, on behalf of the requestor, inspected the home in connection with an alleged construction defect.

SECTION 6. (a) Sections 426.004(b) and (c), Property Code, are repealed.

(b) Sections 428.004(d) and (e), Property Code, are repealed.

SECTION 7. (a) This Act applies only to a request for state-sponsored inspection and dispute resolution filed on or after the effective date of this Act.

(b) A request for state-sponsored inspection and dispute resolution that was filed before the effective date of this Act is governed by the law as it existed immediately before the effective date of this Act, and that law is continued in effect for that purpose.

SECTION 8. This Act takes effect September 1, 2009.