By: Lucio S.B. No. 1363

(In the Senate - Filed March 9, 2011; March 22, 2011, read first time and referred to Committee on International Relations and Trade; April 6, 2011, reported adversely, with favorable Committee Substitute by the following vote: Yeas 4, Nays 0; April 6, 2011, sent to printer.)

COMMITTEE SUBSTITUTE FOR S.B. No. 1363 By: Lucio

A BILL TO BE ENTITLED

AN ACT

relating to county and municipal land development regulations; providing a penalty.

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

SECTION 1. Section 233.151, Local Government Code, is amended to read as follows:

Sec. 233.151. DEFINITIONS. (a) In this subchapter:

(1) "New[, "new] residential construction" includes:

(A) [(1) residential] construction of a residential dwelling [single-family house or duplex] on a vacant lot; and

(B) [(2)] construction of an addition to an existing residential dwelling or unit of a residential dwelling [single-family house or duplex], if the addition will increase the square footage or value of the existing residential dwelling or unit, as applicable, [building] by more than 50 percent.

(2) "Residential dwelling" means a building containing one to three individual units to be occupied for residential purposes by one or more individuals and includes a single-family dwelling, duplex, or triplex.

(b) The term "new residential construction" does not include a structure that is constructed in accordance with Chapter 1201, Occupations Code, or a modular home constructed in accordance with Chapter 1202, Occupations Code.

SECTION 2. Section 233.153, Local Government Code, is amended to read as follows:

Sec. 233.153. BUILDING CODE STANDARDS APPLICABLE. (a) The commissioners court of a county by order may require new [New] residential construction [of a single-family house or duplex] in the unincorporated area of the [a] county to [which this subchapter applies shall] conform to the version of the International Residential Code published as of May 1, 2008, or the version of the International Residential Code that is applicable in the county seat of that county.

(b) Standards required under this subchapter apply only to new residential construction that begins after the effective date of the commissioners court order [September 1, 2009].

(c) If a municipality located within a county to which this subchapter applies has adopted a building code in the municipality's extraterritorial jurisdiction, the building code adopted by the municipality controls and building code standards under this subchapter have no effect in the municipality's extraterritorial jurisdiction, provided that the municipality actively and diligently enforces the municipality's adopted building code within its extraterritorial jurisdiction.

(d) This subchapter may not be construed to:

(1) [require prior approval by the county before the beginning of new residential construction;

[(2)] authorize the commissioners court of a county to adopt or enforce zoning regulations; or

(2) [(3)] affect the application of the provisions of Subchapter B, Chapter 232, to land development.

(e) In the event of a conflict between this subchapter and Subchapter B, Chapter 232, the more stringent requirements [provisions of Subchapter B, Chapter 232,] control.

[(f) A county may not charge a fee to a person subject to standards under this subchapter to defray the costs of enforcing the standards.]

SECTION 3. Subchapter F, Chapter 233, Local Government Code, is amended by adding Section 233.1531 to read as follows:

Sec. 233.1531. BUILDING PERMITS. (a) The commissioners court of a county to which this subchapter applies may, by order, establish a building permit requirement to promote safe and uniform building, plumbing, and electrical standards and to enforce the building codes the county has adopted. If a commissioners court adopts an order to establish a building permit requirement, the county shall establish a mechanism by which the county issues a building permit if the person submitting the application for the permit:

(1) files information relating to the location of the residence;

(2) files the building plans for the residence; and

(3) complies with the applicable regulations relating to the issuance of the permit.

(b) A county may adopt rules it considers necessary to administer its duties under this section and charge a reasonable fee, not to exceed $500 per application, to defray the costs of administering its duties under this section.

(c) The county shall deposit fees collected under this section in an account in its general fund and dedicate the fees to the building permit program. The funds in the account may be used only for the purpose of administering the building permit program.

SECTION 4. Subsection (a), Section 233.154, Local Government Code, is amended to read as follows:

(a) A person who builds new residential construction [described by Section 233.153] shall have the construction inspected to ensure building code compliance in accordance with this section as follows:

(1) for new residential construction on a vacant lot, the following [a minimum of three] inspections must be performed during the construction project to ensure code compliance, as applicable, at the following stages of construction:

(A) the foundation stage, including [before] the placement of concrete;

(B) the framing, electrical, plumbing, and mechanical systems stage, before covering with drywall or other interior wall covering; and

(C) on completion of the new residential construction [of the residence];

(2) for new residential construction of an addition to an existing residential dwelling [residence] as described by Section 233.151(a)(1)(B) [233.151(a)(2)], the inspections under Subdivision (1) must be performed as necessary based on the scope of work of the construction project; and

(3) for new residential construction on a vacant lot and for construction of an addition to an existing residential dwelling [residence], the builder:

(A) is responsible for contracting to perform the inspections required by this subsection with an inspector certified by the International Code Council in the discipline[:

[(i) a licensed engineer;

[(ii) a registered architect;

[(iii) a professional inspector licensed by the Texas Real Estate Commission;

[(iv) a plumbing inspector employed by a municipality and licensed by the Texas State Board of Plumbing Examiners;

[(v) a building inspector employed by a political subdivision; or

[(vi) an individual certified as a residential combination inspector by the International Code Council]; and

(B) may use the same inspector for all the required inspections or a different inspector for each required inspection.

SECTION 5. Subchapter F, Chapter 233, Local Government Code, is amended by adding Section 233.1541 to read as follows:

Sec. 233.1541. OCCUPANCY OF RESIDENCE; CONNECTION OF UTILITIES. (a) A utility may not serve or connect a residential dwelling or unit of a residential dwelling with water, sewer, electricity, or gas service unless the entity receives a determination from the commissioners court that the residential dwelling or unit:

(1) has been inspected in accordance with this subchapter;

(2) has passed all inspections required by this subchapter; and

(3) complies with applicable on-site sewage regulations.

(b) The commissioners court shall:

(1) make the determination under Subsection (a) not later than the 20th regular business day after the date it receives a request for a determination; and

(2) issue the certificate of determination of inspection, if appropriate, not later than the 10th day after the date the determination is made.

SECTION 6. Section 233.155, Local Government Code, is amended to read as follows:

Sec. 233.155. ENFORCEMENT OF STANDARDS. (a) If proper notice is not submitted in accordance with Sections 233.154(b) and (c), the county may take any or all of the following actions:

(1) refer the inspector to the appropriate regulatory authority for discipline;

(2) in a suit brought by the appropriate attorney representing the county in the district court, obtain appropriate injunctive relief to prevent a violation or threatened violation of a standard or notice required under this subchapter from continuing or occurring; or

(3) refer the builder for prosecution under Section 233.157.

(b) The attorney general or the district attorney, criminal district attorney, county attorney with felony responsibility, or county attorney of the county may take any action necessary on behalf of the state or on behalf of residents, as applicable, to:

(1) enjoin the violation or threatened violation of a requirement of this subchapter or an order, rule, or standard adopted by a commissioners court under this subchapter;

(2) recover civil or criminal penalties, attorney's fees, litigation costs, and investigative costs;

(3) require correction of the noncomplying conditions; and

(4) recover actual expenses incurred by the owner of the residential dwelling as a result of the failure to build in accordance with the adopted standards or take corrective actions.

(c) The attorney general, at the request of the district or county attorney with jurisdiction, may conduct a criminal prosecution under Section 233.157.

(d) During the pendency of any enforcement action brought, any resident of an affected residential dwelling, or the attorney general, district attorney, or county attorney on behalf of the resident, may file a motion against the provider of utilities to halt termination of preexisting utility services. The services may not be terminated if the court makes an affirmative finding after hearing the motion that termination poses a threat to the health, safety, or welfare of the resident.

SECTION 7. Section 233.157, Local Government Code, is amended to read as follows:

Sec. 233.157. OFFENSES; PENALTY; EXCEPTION. (a) A person commits an offense if the person fails to provide proper notice in accordance with Section 233.154 [Sections 233.154(b) and (c)].

(b) A person commits an offense if the person violates a rule or order adopted under this subchapter.

(c) A person commits an offense if the person constructs new residential construction that does not comply with a standard adopted under this subchapter.

(d) Except as provided by Subsection (e), an [An] offense under this section is a Class C misdemeanor.

(e) If it is shown at trial of an offense that the defendant has previously been convicted of an offense three or more times under this subchapter, the offense is a Class B misdemeanor.

(f) Venue for prosecution for a violation of this section is in the county in which any element of the violation is alleged to have occurred or in Travis County.

(g) It is an exception to the application of this section:

(1) that the residential dwelling or unit of a residential dwelling was constructed before the effective date of the commissioners court order under Section 233.153(a); or

(2) that:

(A) the person is an owner-occupant of a residential dwelling or unit of a residential dwelling that is classified by the Texas Department of Housing and Community Affairs as a low-income household;

(B) the violation related to a building standard or building code for that dwelling or unit; and

(C) the county:

(i) did not make available to the person a grant or loan in an amount sufficient to cure the violation; or

(ii) made available to the person a loan that was sufficient to cure the violation but that caused the housing expenses of the person to exceed 30 percent of the person's net income

[(c) An individual who fails to provide proper notice in accordance with Sections 233.154(b) and (c) is not subject to a penalty under this subsection if:

[(1) the new residential construction is built by the individual or the individual acts as the individual's own contractor; and

[(2) the individual intends to use the residence as the individual's primary residence].

SECTION 8. Subchapter F, Chapter 233, Local Government Code, is amended by adding Section 233.158 to read as follows:

Sec. 233.158. PROHIBITION ON USE OF STATE MONEY TO REMEDIATE OR SUBSIDIZE SUBSTANDARD HOUSING. A county may not apply for or receive state money to remediate or mitigate deficiencies in substandard housing that are associated with new residential construction commenced on or after September 1, 2011, unless the county has adopted a resolution under Section 233.153(a) and is enforcing the provisions of this subchapter.

SECTION 9. Chapter 242, Local Government Code, is amended by adding Subchapter B to read as follows:

SUBCHAPTER B. DEVELOPMENT REGULATIONS IN CERTAIN COUNTIES AND

MUNICIPALITIES

Sec. 242.051. APPLICABILITY. This subchapter applies only to:

(1) a county that includes territory located within 50 miles of an international border; or

(2) a municipality located in that county if:

(A) the county does not exercise in the municipality's extraterritorial jurisdiction the authority described by this subchapter; and

(B) the county by resolution authorizes the municipality to exercise in the municipality's extraterritorial jurisdiction the authority described by this subchapter.

Sec. 242.052. REGULATORY AUTHORITY. (a) The commissioners court of a county to which this subchapter applies may, by order, regulate residential land development in the unincorporated area of the county. The governing body of a municipality to which this subchapter applies may, by ordinance, regulate residential land development in the municipality's extraterritorial jurisdiction. By this authority, the commissioners court or governing body may prevent the proliferation of colonias by:

(1) adopting regulations relating to:

(A) maximum densities, including the size of lots;

(B) the height, number of stories, size, or number of buildings or other structures that may be located on a lot or tract;

(C) the location of buildings and other structures on a lot or tract; and

(D) the preparation of a plan for utility development, environmental effect and adaptation, utility extension, and capacity planning and providing financial analysis of said plan; and

(2) adopting and enforcing building codes as authorized for counties under Subchapter F, Chapter 233, to promote safe and uniform building, plumbing, and electrical standards.

(b) If a tract of land is appraised as agricultural or open-space land by the appraisal district, the commissioners court or governing body may not regulate land development on that tract under the authority granted by Subsection (a)(1)(B), (a)(1)(C), or (a)(2).

(c) The authority granted under this section does not authorize the commissioners court or governing body to adopt an order regulating commercial property that is uninhabitable.

(d) The authority granted under this section does not authorize the commissioners court or governing body to adopt an order that limits or otherwise impairs the rights of individuals or entities in the exploration, development, or production of oil, gas, or other minerals.

Sec. 242.053. MUNICIPAL ORDINANCE PREVAILS OVER COUNTY ORDER. If an order adopted by the county under this subchapter conflicts with an ordinance of a municipality, the municipal ordinance prevails within the municipality's jurisdiction to the extent of the conflict.

Sec. 242.054. EXISTING AUTHORITY UNAFFECTED. The authority granted by this subchapter does not affect the authority of the commissioners court or governing body to adopt an order or ordinance under other law.

Sec. 242.055. INJUNCTION. The county or municipality, in a suit brought by the appropriate attorney representing the county or municipality in the district court, is entitled to appropriate injunctive relief to prevent the violation or threatened violation of the entity's order or ordinance adopted under this subchapter from continuing or occurring.

Sec. 242.056. PENALTY. A person commits an offense if the person violates a restriction or prohibition imposed by an order or ordinance adopted under this subchapter. An offense under this section is a Class C misdemeanor.

SECTION 10. The heading to Chapter 242, Local Government Code, is amended to read as follows:

CHAPTER 242. AUTHORITY OF MUNICIPALITY AND COUNTY TO REGULATE

SUBDIVISIONS AND PROPERTY DEVELOPMENT [IN AND OUTSIDE

MUNICIPALITY'S EXTRATERRITORIAL JURISDICTION]

SECTION 11. Chapter 242, Local Government Code, is amended by designating Sections 242.001, 242.0015, and 242.002 as Subchapter A and adding a heading for Subchapter A to read as follows:

SUBCHAPTER A. AUTHORITY TO REGULATE SUBDIVISIONS IN AND OUTSIDE

MUNICIPALITY'S EXTRATERRITORIAL JURISDICTION

SECTION 12. A county is not required to adopt a resolution to be eligible for state money as required by Section 233.158, Local Government Code, as added by this Act, until September 1, 2012.

SECTION 13. This Act takes effect September 1, 2011.

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