Part 7.
TEXAS RESIDENTIAL CONSTRUCTION COMMISSION
Chapter 301.
GENERAL PROVISIONS
10 TAC §301.1
The Texas Residential Construction Commission (the "commission")
proposes an amendment to §301.1, concerning definitions used in construing
agency rules promulgated to implement the Texas Residential Construction Commission
Act (the Act), Title 16, Property Code. The amendment is proposed to implement
legislation enacted during the 78th Legislative Session, Regular Session,
House Bill 730 (Act effective Sept. 1, 2003, 78th Leg., R.S., ch. 458, §1.01),
including Title 16, Property Code. Property Code §408.001 provides general
authority for the commission to adopt rules necessary for the implementation
of Title 16, Property Code.
Section 301.1, relating to definitions, defines words and terms that are
used in Part 7 of Title 10 of the Texas Administrative Code. Amendment to
the section is necessary to add definitions for the terms "construction activity"
and "structural failure" and to revise the definition of "statutory warranty".
Pursuant to §430.001 of the Act, the commission is required to adopt
warranty and building and performance standards in accordance with the International
Residential Code of 2000. The terms added to this section by this amendment
will be used in agency rules including the warranty and building and performance
standards sections adopted by the commission.
Stephen D. Thomas, Executive Director, has determined that for each year
of the first five-year period the proposed rule is in effect there will be
no fiscal implications for state or local government as a result of enforcing
or administering the proposed rule.
Mr. Thomas has also determined that for each year of the first five-year
period the proposed rule is in effect the public will benefit from the clarity
provided by the adoption of definitions that assist interested persons in
interpreting commission-promulgated rules.
Mr. Thomas has also determined that there will be no effect on individuals
or large, small and micro-businesses as a result of the adoption of the proposed
rule.
Mr. Thomas has also determined that for each year of the first five-year
period the proposed rule is in effect there should be no effect on a local
economy; therefore, no local employment impact statement is required under
Administrative Procedure Act. §2001.022.
Interested persons may submit written comments (12 copies) on the proposed
rule to Susan K. Durso, General Counsel, Texas Residential Construction Commission,
P.O. Box 13144, Austin, Texas 78711. Comments may be submitted electronically
to comments@trcc.state.tx.us. For comments submitted electronically, please
include "Proposed Definitions Amendment" in the subject line. The deadline
for submission of comments is thirty (30) days from the date of publication
of the proposed rules in the
Texas Register
.
Comments should be organized in a manner consistent with the organization
of the proposed rule.
The amendment is proposed to implement legislation enacted during
the 78th Legislative Session, Regular Session, House Bill 730 (Act effective
Sept. 1, 2003, 78th Leg., R.S., ch. 458, §1.01), including Title 16,
Property Code. Section 408.001 of the Property Code provides general authority
for the commission to adopt rules necessary for the implementation of Title
16, Property Code.
The statutory provisions affected by the proposal are those set forth in
the Title 16, Property Code and House Bill 730, 78th Legislature, R.S.
No other statutes, articles, or codes are affected by the proposal.
§301.1.Definitions.
The following words and terms, when used in rules promulgated by the
commission, shall have the following meanings unless the context of the rule
clearly indicates otherwise.
(1)
Accrual or accrued--when a homeowner first discovers a
condition in the home that is a potential construction defect.
(2)
Act--the Texas Residential Construction Commission Act,
Title 16, Property Code.
(3)
Affiliate--a person who directly or indirectly through
one or more Intermediaries controls, is controlled by or is under common control
with a specified person.
(4)
Builder--
(A)
any business entity or individual who, for a fixed price,
commission, fee, wage, or other compensation, constructs or supervises or
manages the construction of:
(i)
a new home;
(ii)
a material improvement to a home, other than an improvement
solely to replace or repair a roof of an existing home; or
(iii)
an improvement to the interior of an existing home when
the cost of the work exceeds $20,000.
(B)
When required by the context of the rule, the term may
include:
(i)
an owner, officer, director, shareholder, partner, affiliate
or employee of the builder;
(ii)
a risk retention group governed by §21.54, Insurance
Code, that insures all or any part of builder’s liability for the cost
to repair a residential construction defect; and
(iii)
a third-party warranty company and its administrator.
(5)
Building and performance standards--those standards that
apply to home construction built pursuant to a transaction governed by the
Act.
(6)
Commission--the Texas Residential Construction Commission.
(7)
Construction Activities--actions taken
by the builder or at the direction of the builder by an employee, agent, contractor
or subcontractor of the builder during the process of building the home or
the improvement to the home.
(8)
[
(A)
the failure of the design, construction or repair of a
home, an alteration of or a repair, addition or improvement to an existing
home, or an appurtenance to a home to meet the applicable warranty and building
and performance standards during the applicable warranty period; and
(B)
any physical damage to the home, an appurtenance to the
home, or real property on which the home or appurtenance is affixed that is
proximately caused by that failure.
(9)
[
(10)
[
(11)
[
(12)
[
(13)
[
(14)
[
(15)
[
(16)
[
(17)
[
(18)
[
(19)
[
(20)
[
(21)
[
(A)
review the recommendations of third-party inspectors;
(B)
provide consultation to third-party inspectors; and
(C)
administer the state-sponsored inspection and dispute resolution
process.
(22)
[
(A)
one year for workmanship and materials;
(B)
two years for plumbing, electrical, heating, and air conditioning
delivery systems; and
(C)
ten years for major structural components of the home;
and
(D)
ten years for the warranty of habitability.
(23)
Structural failure--non-compliance with
the commission-adopted performance standards for major structural components.
(24)
[
(25)
[
(26)
[
(A)
for the construction of a new home; or
(B)
for construction on an existing home that is:
(i)
a material improvement to the home other than an improvement
solely to replace or repair the roof; or
(ii)
an improvement to the interior of the home when the cost
paid for the work exceeds $20,000.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State on January 14, 2005.
TRD-200500185
Susan Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: February 27, 2005
For further information, please call: (512) 475-5095
Subchapter D. THIRD-PARTY WARRANTY COMPANIES
(7)
] Construction defect--
(8)
] Cosmetic deficiency--any marred,
scuffed, scratched or smudged painted surface or countertop; chipped or stained
porcelain, tile, grout, or fiberglass; chipped surfaces of appliances or plumbing
fixtures; torn or defective window or door screens; marred, smudged, scratched
or stained cabinet surfaces or finishes; or, broken, chipped or scratched
glass, window or mirror.
(9)
] Dwelling unit--a single unit
providing complete independent living facilities for one or more persons,
including permanent provisions for living, sleeping, eating, cooking and sanitation.
(10)
] Executive Director--the individual
employed by the commission as the chief executive for the agency or any person
to whom the Executive Director has delegated the authority to act on behalf
of the Executive Director.
(11)
] Home--the real property,
improvements and appurtenances thereto for a single-family residential dwelling
unit or duplex.
(12)
] ICC--the International Code
Council, Inc., currently located at 5203 Leesburg Pike, Suite 600, Falls Church,
Virginia, 22041-3401, or at a subsequent address, and any successor organization
that performs substantially the same functions that the ICC performs as of
December 1, 2003.
(13)
] Improvement to the interior
of an existing home when the cost of the work exceeds $20,000--any modification
to the interior living space of a home, which includes the addition or installation
of permanent fixtures inside the home, pursuant to an agreement for work for
total consideration in excess of $20,000 to be paid by a homeowner to a single
builder.
(14)
] Living space--the enclosed
area in a home that is suitable for year-round residential use.
(15)
] Local building official--the
agency or department of a municipality, county or other local political subdivision
with authority to make inspections and to enforce the laws, ordinances, and
regulations applicable to the construction, alteration, or repair of homes
in that locality.
(16)
] Material improvement--a modification
to an existing home that either increases or decreases the home’s total
square footage of living space that also modifies the home’s foundation,
perimeter walls or roof. A material improvement does not include modifications
to an existing home if the modifications are designed primarily to repair
or replace the home’s component parts.
(17)
] Person--an individual, partnership,
company, corporation, association, or any other legal entity, however organized.
(18)
] Remodeler--any business entity
or individual who, for a fixed price, commission, fee, wage, or other compensation,
constructs or supervises or manages the construction of a material improvement
to an existing home or an improvement to the interior of an existing home
when the cost of the work exceeds $20,000.
(19)
] Single-family residential
dwelling--a building that contains one or two dwelling units, including a
townhouse, complete with independent living facilities for one or more persons
suitable for one household, including permanent provisions for living, sleeping,
eating, cooking and sanitation.
(20)
] State inspector--a person
employed by the commission whose duties include serving as a member of an
appellate panel to:
(21)
] Statutory warranty--the legal
requirement that the component parts of a home perform to the building and
performance standards applicable to the construction for the number of years
as set in statute, to wit:
(22)
] Third-party inspector--a
person approved by the commission to conduct an objective home inspection
and prepare a report of that inspection as part of the state-sponsored inspection
and dispute resolution process.
(23)
] Townhouse--a single-family
dwelling unit constructed in a group of three or more attached dwelling units
in which each unit extends from foundation to roof and with open space on
at least two sides not more than three stories in height with a separate means
of ingress and egress.
(24)
] Transaction governed by the
Act--an agreement between a homeowner and a builder:
Chapter 303.
REGISTRATION