10 TAC §301.1
The Texas Residential Construction Commission (the "commission")
proposes an amendment at Title 10, Part 7, Chapter 301, §301.1, concerning
definitions used in construing agency rules promulgated to implement the Texas
Residential Construction Commission Act (the Act), 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 "cosmetic deficiency",
"dwelling unit", "remodeler", "single-family residential dwelling" and "townhouse."
These terms will be used in implementing warranties and performance standards
and during the inspection process of the state-sponsored inspection and dispute
resolution process. These new terms are defined to be in accord with similar
terms defined and used in the International Residential Code (IRC) of 2000.
Pursuant to §430.001 of the Act, the commission is required to adopt
warranty and building and performance standards in accordance with the IRC
of 2000.
Stephen D. Thomas, Executive Director, has determined that for each year
of the first five-year period the amendment 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 amendment 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 amendment.
Mr. Thomas has also determined that for each year of the first five-year
period the amendment 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 amendment
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 Amendments" 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.
(a)
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 defect--
(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.
(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)
[
(8)
] 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)
[
(9)
] Home--the real property,
improvements and appurtenances thereto for a single-family residential dwelling
unit or duplex.
(12)
[
(10)
] 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)
[
(11)
] 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)
[
(12)
] Living space--the enclosed
area in a home that is suitable for year-round residential use.
(15)
[
(13)
] 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)
[
(14)
] 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)
[
(15)
] 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)
[
(16)
] State inspector--a person
employed by the commission whose duties include serving as a member of an
appellate panel to:
(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.
(21)
[
(17)
] 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:
(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.
(22)
[
(18)
] 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)
[
(19)
] Transaction governed by the
Act--an agreement between a homeowner and a builder:
(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 June 21, 2004.
TRD-200404041
Susan Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: August 1, 2004
For further information, please call: (512) 463-9638