HBA-ALS C.S.H.B. 3194 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 3194
By: Moreno, Joe
Licensing & Administrative Procedures
4/19/1999
Committee Report (Substituted)


BACKGROUND AND PURPOSE 

For the past two years, the Coalition of Texans with Disabilities (CTD) has
been working with the Texas Society of Architects and the Texas Board of
Architectural Examiners to resolve the concerns of design professionals
while maintaining the strengths of the Texas Architectural Barriers program
administered by the Texas Department of Licensing and Regulation
(department). There is concern that the department often waives or modifies
standards, resulting in violations of the federal Americans with
Disabilities Act (ADA).   

C.S.H.B. 3194 amends the Texas Architectural Barriers Act to prevent the
Texas Commission of Licensing and Regulation (commission) from waiving or
modifying any standard or specification that would result in a violation of
ADA. This bill transfers all of the powers, duties, and rulemaking
authority of the commissioner of licensing and regulation to the
commission.  

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that the rulemaking
authority previously delegated to the commissioner of licensing and
regulation is transferred to the Texas Commission of Licensing and
Regulation (commission)in SECTION 6 (Section 5, Article 9102, V.T.C.S.) and
SECTION 8 (Section 7(d), Article 9102,  V.T.C.S.) of this bill.  

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 1, Article 9102, V.T.C.S., to provide that the
provisions  of this article are to further the policy of the state to
encourage and promote the rehabilitation of persons with disabilities and
to eliminate unnecessary barriers encountered by persons with disabilities,
whose ability to engage in gainful occupations or to achieve maximum
personal independence is needlessly restricted.  Deletes language providing
that the provisions of this article are to further the policy of the state
to encourage and promote the rehabilitation of persons with disabilities
and to eliminate unnecessary barriers encountered by persons with
disabilities, whose ability to engage in gainful occupations or to achieve
maximum personal independence is needlessly restricted when such persons
cannot readily use public buildings.  

SECTION 2.  Amends Sections 2(a), (d), (e), and (f), Article 9102,
V.T.C.S., as follows: 

(a)  Provides that the standards adopted under this article apply to a
building or facility, rather than a building or facility used by the
public, that is constructed, or renovated, modified, or altered, in whole
or in part on or after January 1, 1970, through the use of state, county,
or municipal funds, or the funds of any political subdivision of the state,
and to a privately funded building or facility defined as a "public
accommodation" by Section 301(7), 42 U.S.C. Section 12181 (federal
Americans with Disabilities Act of 1990) and its amendments, that is
constructed or renovated, modified, or altered on or after January 1, 1992,
and a privately funded building or facility defined as a "commercial
facility" by Section 301, 42 U.S.C.  Section 12181 (Americans with
Disabilities Act of 1990) as well as to its subsequent amendments, that is
constructed or renovated, modified, or altered on or after September 1,
1993, in addition to previously specified buildings and facilities.  Makes
conforming changes. 

(d)  Provides that an owner of a building leased or occupied in whole or in
part for use by the  state under an agreement entered into on or after
January 1, 1972, or of a building or facility leased or rented for use by
the state through the use of federal funds, or the owner's designated
agent, must present to the commission, rather than to the commissioner, the
proof required by Subsection (c) before a specified date. 

(e)  Prohibits the commission from waiving or modifying any standard or
specification when the commission knows that waiving or modifying a
standard or specification would result in a violation of the federal
Americans with Disabilities Act of 1990 and its amendments. Makes a
conforming change. Redesignates existing Subdivision (2) to new Subdivision
(3). 

(f)  Makes a conforming change.

SECTION 3.  Reenacts and amends Section 2(c), Article 9102, V.T.C.S., as
amended by Chapters 684 and 821, Acts of the 73rd Legislature, Regular
Session, 1993, to make confirming changes.     

SECTION 4.  Amends Section 3(b), Article 9102, V.T.C.S., to provide that
this article is intended to make all buildings and facilities covered by
this article accessible to, and functional for, persons with disabilities
to, through, and within their doors, without loss of function, space, or
facilities, rather than only where the general public is concerned. 

SECTION 5.  Amends Section 4, Article 9102, V.T.C.S., to define "interior
designer" and "landscape architect."  Makes nonsubstantive changes. 

SECTION 6.  Amends Section 5, Article 9102, V.T.C.S.,  as follows:

Sec. 5.  New title: DEPARTMENT RESPONSIBILITIES.  Deletes "for enforcement"
from existing title. (a) Makes conforming changes. 

(b) Created from existing text in Subsection (a).  

(c) Created from existing text in Subsection (a). Makes a conforming change.

(d)  Created from existing text in Subsection (a).  Makes conforming and
nonsubstantive changes. 

(e)  Created from existing text in Subsection (a).   
 
(f)  Created from existing text in Subsection (a).   

(g)  Redesignated from existing Subsection (b).  Makes a conforming change.

(h)  Created from existing text in Subsection (b).  Makes conforming and
nonsubstantive changes. 

(i) Redesignated from existing Subsection (c). Makes conforming changes.

(j) Redesignated from existing Subsection (d). Makes conforming and
nonsubstantive changes. 

(k) Requires the submission of plans and specifications to the department
by the landscape architect, in addition to the architect, interior
designer, or engineer, who has overall responsibility for the design of the
constructed or reconstructed building or facility. Requires an architect to
submit the plans and specifications to the department no later than the
fifth day after the date on which the architect places the architect's seal
on the plans and specifications.  Requires an owner, on application to a
local government entity for a building construction permit related to the
plans and specifications,  to submit to the entity proof of the submission
of such items to the department.  Makes a conforming change 

 (l)   Deletes language providing that the plans and specifications that
are not approved or disapproved by the department within 30 days from the
receipt of the plans and specifications are automatically approved.  Makes
a nonsubstantive change. 

(m)  Requires the commission, if an architect, interior designer, landscape
architect, or engineer required to submit or resubmit plans and
specifications to the department fails to do so in a timely manner, to
report the fact to the Texas Board of Architectural Examiners, the State
Board of Registration for Professional Engineers, or a licensing authority
that regulates the individual, as appropriate.  

(n) Redesignated from existing Subsection (e).  Makes a conforming change.

(o)  Deletes language redesignated from existing Subsection (f), which
related to the requirement that the commissioner contract with a
municipality to perform the commissioner's review and inspection functions
for privately financed buildings not leased by the state or a political
subdivision and to require municipal personnel who perform such duties to
comply with qualification or certification requirements adopted or approved
by the commissioner.  Redesignated from existing  Subsection (g).  Makes
conforming changes. 
   
(p) Redesignated from existing Subsection (h).  Makes conforming changes.

SECTION 7.  Amends Section 6, Article 9102, V.T.C.S., to require the
commission to set and charge fees for performing its functions under this
article in accordance with Article 9100, V.T.C.S., rather than Section 12. 

SECTION 8.  Amends Section 7(d), Article 9102, V.T.C.S., to make a
conforming change. 

SECTION 9.  Amends Section 681.009(b), Transportation Code, to make
conforming changes. 
 
SECTION 10.  Provides that on the effective date of this Act, a rule
previously adopted by the commissioner of licensing and regulation under
Article 9102, V.T.C.S., as that article existed before amendment by this
Act, and that is in effect immediately before the effective date of this
Act, becomes a rule of the commission and remains in effect until repealed
or superseded by a rule adopted by the commission.  

SECTION 11.  Makes application of this Act prospective.

SECTION 12.This Act takes effect September 1, 1999. 

SECTION 13.Emergency clause. 

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute redesignates SECTIONS 2-14 of the original to SECTIONS 1-13
of the substitute. 

The substitute modifies the original by deleting  SECTION 1 of the original
which amended Section 13(a), Article 9100, V.T.C.S., to prohibit the Texas
Commission of Licensing and Regulation (commission) from delegating to the
commissioner of licensing and regulation (commissioner) the authority to
exercise all or part of the commission's duties and functions under Article
9102, V.T.C.S. (Architectural Barriers). 

The substitute modifies the original in SECTION 3 to reenact and amend,
rather than merely amend, Section 2(c), Article 9102, V.T.C.S., as amended
by Chapter 684, in addition to Chapter 821, Acts of the 73rd Legislature,
Regular Session, 1993. 

The substitute modifies the original in SECTION 6 (Section 5, Article 9102,
V.T.C.S.) in proposed Subsection (i) to delete proposed language requiring
the standards and specifications adopted by the commission under this
article to be equivalent to or more stringent than those adopted under
federal  law, rather than consistent in effect to those adopted by the
American National Standards Institute, Inc..  Reinstates existing of
language requiring the Texas Department of Licensing and Regulation
(department) to publish the standards and specifications for the use of
interested parties, and requiring standards and  specifications, and other
rules to be adopted by the commissioner, to be consistent with those
adopted under federal law.   

The substitute modifies the original in SECTION 6 (Section 5, Article 9102,
V.T.C.S.) in proposed Subsection (j) to reinstate original language
requiring that plans and specifications for construction or for the
substantial renovation, modification, or alteration of a building or
facility that is estimated to cost $50,000 or more and that is subject to
the provisions of this article to be submitted to the department for review
and approval prior to the time construction begins, and to delete proposed
language requiring the submission of the plans and specifications to the
department no later than the 30th day after the date construction begins.   

The substitute modifies the original in SECTION 6 (Section 5, Article 9102,
V.T.C.S.) in proposed Subsection (k) to require that an architect submit
plan and specifications to the department no later than the fifth day after
the date on which the architect places the architect's seal on the plans
and specifications.  Requires an owner, on application to a local
government entity for a building construction permit related to the plans
and specifications,  to submit to the entity proof  of the submission of
such items to the department.