Part 7.
TEXAS RESIDENTIAL CONSTRUCTION COMMISSION
Chapter 300.
ADMINISTRATION
10 TAC §300.5
The Texas Residential Construction Commission (the "commission")
adopts a new section at Title 10, Part 7, Chapter 300, §300.5 regarding
the establishment of statutorily mandated task forces pursuant to provisions
of the Property Code Chapters 430 and 436 and in accordance with Government
Code Chapter 2110, regarding advisory committees. The new section is adopted
without changes to the proposed text as published in the May 7, 2004, issue
of the
Texas Register
(29 TexReg 4365). The
new section is adopted to implement provisions of House Bill 730 (Act effective
Sept. 1, 2003, 78th Leg., R.S., ch. 458, §1.01) and specifically provisions
of Chapter 430, Property Code, and in accordance with Government Code Chapter
2110, regarding advisory committees.
Section 300.5, relating to Task Forces, provides for the commission's appointment
of members to three separate task forces for purposes of obtaining advice
in areas of mold reduction and remediation, rain harvesting and water recycling,
and residential arbitrators and arbitration. The section further provides
for the composition, responsibilities, meeting requirements and reporting
requirements for each task force.
No comments were received regarding the adoption of this section.
The purpose of the new section is to establish statutorily mandated task
forces to advise the commission in areas of mold reduction and remediation,
rain harvesting and water recycling, and residential arbitrators and arbitration.
The section further provides for the composition, responsibilities, meeting
requirements and reporting requirements for each task force.
The new section is adopted under Property Code §408.001,
which provides general authority for the commission to adopt rules necessary
for the implementation of Title 16; Property Code §430.003, which provides
for the establishment of a task force concerning mold reduction and remediation;
Property Code §430.004, which provides for the establishment of a task
force to develop design recommendations for rain harvesting and water recycling;
Property Code §436.004, which provides for the establishment of a task
force concerning residential arbitrators and arbitration; and Gov't Code Chapter
2110, which relates to agency advisory committees.
The statutory provisions affected by the adoption are set forth in the
Title 16, Property Code §§408.001, 430.003, 430.004, and 436.004
and Gov't Code Chapter 2110.
No other statutes, articles, or codes are affected by the adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 21, 2004.
TRD-200404038
Susan Durso
General Counsel
Texas Residential Construction Commission
Effective date: July 11, 2004
Proposal publication date: May 7, 2004
For further information, please call: (512) 463-9638
Subchapter A. DEFINITIONS
10 TAC §301.1
The Texas Residential Construction Commission (the "commission")
adopts a new section at Title 10, Part 7, Chapter 301, §301.1, concerning
definitions to be used in construing agency rules promulgated to implement
the Texas Residential Construction Commission Act, Title 16, Property Code.
The commission is adopting this section to assist those who use the commission’s
rules by providing terminology that will enable users to better understand
and use the sections adopted.
The new section is adopted with changes to the proposed text as published
in the January 9, 2004, issue of the
Texas Register
(29 TexReg 269).
Written comments were received regarding this adoption. All written comments
were due by February 9, 2004. Written comments were submitted by Jay Dyer
of the Texas Association of Builders ("TAB") and John Cobarruvias of Homeowners
Against Deficient Dwellings ("HADD"). No party requested a hearing pursuant
to the Administrative Procedure Act, Government Code §2001.029.
In a letter dated February 5, 2004, TAB submitted a number of proposed
changes to the proposed text in its written comments. TAB proposed that the
reference to the Texas Residential Construction Act ("the Act") in the "builder"
definition should be deleted to increase readability. The purpose of the definitions
section is to provide guidance to rule-users in reading the agency rules,
not to repeat statutory definitions. Offering the introductory statutory reference
to which TAB objects assists by directing rule-users to the full definition
if the user determines that would be of further help. However, because the
section definition is not as comprehensive as the statutory definition, TAB’s
comment raises a question as to whether the inclusion of the statutory reference
causes more confusion than it alleviates. For that reason, the commission
has deleted cross-references to statutory definitions throughout the section
when the inclusion of the reference creates more confusion than it alleviates.
TAB also suggested that the "builder" definition should be further modified
to delete the phrase "when required by the context" because it believes that
the rule should track the language of the statute. For the reasons stated
above, the commission has rephrased the "builder" definition to read "when
required by the context of the rule" to make clear that the definitions in
the rule are for the purposes of utilizing the agency’s rules. TAB also
suggested that the builder definition should include statutory exclusion found
in §401.003(c) of the Act. The commission does not agree that the statutory
exclusionary language is necessary to understand the commission’s rules
and therefore declines to add the suggested language. The exclusionary language
regarding licensed tradesmen in the statutory definition of "builder" is a
matter for public education but is not required to understand the commission’s
rules.
TAB commented that definitions for the terms "building and performance
standards" and "construction defect," should not provide references to the
respective provisions of the Act, but instead should quote the exact language
of the statute. For the reason stated above, the commission does not agree
to quote the statutory definition of either term. Therefore, the commission
declines to adopt the definition suggested by TAB. Similarly, "construction
defect" is a term defined by statute; the rule is not adopted to repeat verbatim
terms defined elsewhere, but to offer direction to rule-users. However, in
reviewing the proposed definition of "building and performance standards,"
it became apparent that the proposed definition was too limited. Currently,
"building and performance standards" include not only those to be adopted
by the commission but also those that are applicable to residential construction
prior to the commission’s adoption of standards. For that reason, the
commission revised the definition to encompass all home building standards
that may apply to a house or duplex subject to the state-sponsored inspection
and dispute resolution process.
TAB commented that the definition of the term "home" should be revised
to replace the term "residential dwelling" with "house." The International
Residential Code (IRC) refers to "one and two family dwellings" and refers
to "dwelling units." House Bill 730 requires the commission to adopt standards
equivalent to the IRC for residential construction. Accordingly, the commission
believes that the definition of home should include the IRC terminology "dwelling
unit" and has revised the definition, accordingly.
TAB commented that the definition "improvement to the interior of an existing
home when the cost of the work exceeds $20,000" should be modified to change
the plural "modifications" to the singular "modification." TBA suggested that
the term "alteration" should be added to demonstrate that a fixture need not
be added for the Act to apply. TBA further suggested that the phrase "to the
builder" should be added to the second sentence. The commission agrees that
these suggestions help clarify the definition and has revised the definition
to encompass those suggestions, although without accepting them verbatim.
TAB commented that the definition of the term "living space" at should
be revised to add the term "residential" and delete the phrases "embodying
walls, floor and ceilings that are similar to the rest of the home." The commission
accepts the suggestion that the term "enclosed area" is sufficient to encompass
the elements of the enclosure. For the sake of brevity, the commission has
revised the definition consistent with TAB’s suggestions.
TAB commented that the reference to the Act found in the definition of
the term "statutory warranty" should be replaced with the Act’s specific
provisions. The definition would then be supplemented with a separate definition
for "statutory warranty of habitability." The statute actually refers to the
legal requirement that home construction comply with the building and performance
standards applicable to the construction. Therefore, the commission has revised
the definition to delete the reference to the statute, but also to more accurately
reflect the use of the term in the rules. The commission does not intend to
address the warranty of habitability in this rule at this time.
TAB commented that the definition of the term "state inspector" should
be supplemented with a definition for the "state-sponsored inspection and
dispute resolution process." The commission declines the suggestion to include
this supplemental definition because the term is self-explanatory and an entire
chapter of rules is dedicated to the discussion of the process described by
the term.
TAB commented that the definition of the term "third-party inspector" should
be revised to delineate the services that a third-party inspector would perform.
The commission modified the definition of "third-party inspector" to capture
TAB’s comment.
Finally, TAB commented that the term "an improvement to the interior of
the home when the cost paid for the work exceeds $20,000" should be rephrased
to read "an improvement to the interior of an existing home when the cost
of the work exceeds $20,000." The suggestion is well-taken and the phrase
has been modified accordingly.
In an electronic message dated January 19, 2004, HADD commented that the
definitions of "builder", "material improvement" and "transaction governed
by the Act" should include the specific exclusion "foundation repair or any
repair of an existing structure such as siding replacement." The commission
does not find that the addition will improve the definitions and declines
to adopt the language suggested.
HADD commented that the last clause "an appurtenance to a home to meet
the applicable warranty and building and performance standards during the
applicable warranty period" should be deleted. Since the clause tracks the
language found in §401.004 of the Act, the commission will not modify
the definition as a result of HADD’s comment.
Finally, HADD commented that a definition is needed for the term "structural
defect." The commission declines to adopt a definition for that term at this
time; however, the commission will consider the issue raised by HADD’s
comment when adopting building and performance standards.
In addition to written public comments received concerning definitions,
the commission held informal public meetings around the state between January
and March of 2004 and received comments on a variety of issues pending before
the commission, including rule comments. During those informal meetings, Roy
Hickman of Aiken Construction commented that a definition for the term "foundation
failure" was needed. The commission declines to create a definition for this
term at this time; however, the commission will consider the issue raised
by Mr. Aiken’s comment when adopting building and performance standards.
All comments regarding this section, including any not specifically referenced
herein, were fully considered by the commission. The commission has made other
minor modifications to the proposed rule text for the purpose of clarifying
its intent and improving style and readability.
The new section is adopted to implement new 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 newly adopted section was previously adopted and published as an emergency
section in the January 9, 2004 issue in the Emergency Rules section of the
The statutory provisions affected by the adoption of this section are those
set forth in Property Code Chapter 408 and House Bill 730, 78th Legislature,
R.S., ch. 458 §101.
§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 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)
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.
(9)
Home--the real property, improvements and appurtenances
thereto for a single-family residential dwelling unit or duplex.
(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.
(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.
(12)
Living space--the enclosed area in a home that is suitable
for year-round residential use.
(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.
(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.
(15)
Person--an individual, partnership, company, corporation,
association, or any other legal entity, however organized.
(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.
(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.
(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.
(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
of the work exceeds $20,000.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of
the Secretary of State on June 18, 2004.
TRD-200404005
Susan Durso
General Counsel
Texas Residential Construction Commission
Effective date: July 8, 2004
Proposal publication date: January 9, 2004
For further information, please call: (512) 463-9638
10 TAC §302.2
The Texas Residential Construction Commission (the "commission")
adopts a new section at Title 10, Part 7, Chapter 302, §302.2 regarding
fees for providing copies of public information pursuant to provisions of
the Texas Government Code Chapter 552. The new section is adopted without
changes to the proposed text as published in the May 7, 2004 issue of the
Section 302.2, relating to Fees for Public Information, provides that the
commission will determine the fees for providing copies of public information
in accordance with the rules adopted by the Texas Building and Procurement
Commission.
No comments were received regarding the adoption of this rule.
The new rule is adopted to notify the public that the agency will charge
fees for copies of public information consistent with the rules adopted by
the Texas Building and Procurement Commission on the subject.
The new section is adopted under Property Code §408.001,
which provides general authority for the commission to adopt rules necessary
for the implementation of Title 16, Property Code and Government Code §552.262,
which requires that governmental bodies use the rules adopted by the Texas
Building and Procurement Commission to determine charges for making copies
of public information.
The statutory provisions affected by the adoption are set forth in the
Title 16, Property Code, §408.001 and Government Code §552.262.
No other statutes, articles, or codes are affected by the adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 18, 2004.
TRD-200404004
Susan Durso
General Counsel
Texas Residential Construction Commission
Effective date: July 8, 2004
Proposal publication date: May 7, 2004
For further information, please call: (512) 463-9638
Subchapter C. REGISTRATION OF THIRD-PARTY INSPECTORS
10 TAC §§303.200 - 303.210
The Texas Residential Construction Commission (the "commission")
adopts new sections at Title 10, Part 7, Chapter 303, Subchapter C, §§303.202
- 303.210, regarding the registration and qualification of third-party inspectors
who take part in the state-sponsored inspection and dispute resolution process
described in Title 16, Property Code, with changes to the proposed text as
published in the May 7, 2004, issue of the
Texas
Register
(29 TexReg 4367) and adopts §§303.200 and 303.201
without changes to the proposed text. Sections 303.202 - 303.210 are republished
with changes to the proposed text. Sections 303.200 and 303.201 will not be
republished.
The sections are adopted to comply with new legislation, House Bill 730
(Act effective Sept. 1, 2003, 78th Leg., R.S., ch. 458, §1.01), hereinafter
referred to as the "Act." The new sections are adopted under Chapter 427,
Property Code (Act effective Sept. 1, 2003, 78th Leg., R.S., ch. 458, §1.01),
which provides, in part, that third-party inspectors who take part in the
state-sponsored inspection and dispute resolution process must be registered
with the state and must meet certain statutory qualifications to serve in
that capacity.
Section 303.200 states the commission will register two types of inspectors
to serve as neutral third parties in the state-sponsored inspection and dispute
resolution process.
Section 303.201 provides that the commission will conduct background checks
on individuals who apply under this subchapter to serve as third-party inspectors.
Section 303.202 provides that individuals seeking to register as third-party
inspectors must submit a completed application on a commission-prescribed
form and the appropriate fee and must meet the qualifications required under
the Act for the type of inspections they wish to perform and provide evidence
of their qualifications.
Section 303.203 states that the commission shall utilize information gleaned
from the application and the individual's background check to determine if
an individual is fit to carry out the duties of serving as a third-party inspector
under the Act. It further lists certain factors that the commission will
review in determining the fitness of individuals applying to serve as third-party
inspectors who have a criminal history.
Section 303.204 provides that after an individual has been approved to
serve as a third-party inspector, the commission will promptly notify the
individual and provide a certificate of registration, which shall be effective
for one year from the date on the certificate.
Section 303.205 addresses the procedure and requirements for denying an
application for registration.
Section 303.206 provides the process and requirements for appealing the
denial of an application under §303.205.
Section 303.207 addresses the statutorily-required commission-developed
training program for third-party inspectors and the requirement that registered
third-party inspectors complete the commission-developed training prior to
participation in the state-sponsored inspection and dispute resolution process.
Section 303.208 provides that registered third-party inspectors notify
the commission in writing of material changes in the information provided
as a part of the application within thirty (30) days of the change. It further
provides that a material change includes, but is not limited to, a change
of address or a change in criminal history as a result of a previously unadjudicated
or undisclosed criminal charge other than traffic tickets or Class C misdemeanors
that are not crimes involving moral turpitude.
Section 303.209 addresses the renewal of third-party inspector registration.
Section 303.210 provides that the commission shall revoke a registration
approved under this subchapter if the commission determines that the registrant
is no longer qualified or fit to serve. Further, the commission may revoke
a registration if the registrant fails to timely disclose to the commission
a relationship that could reasonably be considered to create a conflict of
interest or impair the inspector's neutrality in serving as a third-party
inspector under the Act.
Written comments were received via electronic transmission from John Cobarruvias
of Homeowners Against Deficient Dwellings ("HADD") on May 28, 2004. HADD commented
that §303.202(c)(1) should be revised to require that a third-party inspector
possess five or more years experience as an inspector in residential construction
instead of five or more years of experience working in the field of residential
construction. The stated minimum requirements are set forth in §427.001
of the Act. Therefore, the commission declines to accept the suggested change.
HADD further commented that §§303.202(c)(3) and 303.202(d)(3) should
be modified to require that third-party inspectors must also attest that they
did not receive more than 10% of their gross income from providing inspection
services for home builders or from working for a builder or the building industry,
instead of receipt of no more than 10% of income from fees for expert witness
services. Again, the rule’s language duplicates §427.001 of the
Act. Accordingly, the commission declines to accept the suggested modification
to the rule.
HADD commented that §303.202(d)(2) should be revised to require that
a third-party inspector appointed to structural matters must possess at least
ten (10) years experience as an engineer in residential construction. This
rule is in accordance with §427.001 of the Act, which provides that in
structural matters the third party inspector will be an engineer or an architect
with a minimum of ten (10) years experience in residential construction. Since
the current rule is similar to the suggested revision, the commission finds
that further modification is unnecessary.
Written comments were received from the Texas Association of Builders ("TAB")
on May 27, 2004, regarding the adoption of these rules. TAB commented that §§303.202(c)(3)
and 303.202(d)(3) should be revised so that the language would be identical.
The commission agrees that for purposes of consistency §303.202(c)(3)
should be revised. Accordingly, the text was modified. TAB also commented
that in subsections in which the term "registered inspectors" appears, the
rules should be revised to replace the term with "third-party inspectors."
The commission agrees and the replacements were made to §§303.203,
303.204 and 303.208.
TAB commented that §303.207 should be modified so that it is clear
that the commission-developed training would only apply to structural third-party
inspectors. The commission has decided to require training for all registered
third-party inspectors, not just structural inspectors. Therefore, the commission
declines to accept the modification.
In addition to the written comments received regarding the proposed rule
text, the commission received comments on the emergency third-party inspector
rules published in the January 23, 2004, issue of
Texas Register
(29 TexReg 573). HADD commented that §303.202(d)(2)
should be revised to require that a third-party inspector who may be appointed
by the commission to a dispute involving a structural matter should possess
ten years experience as a "licensed" engineer in residential construction.
Glen Davis of Eagle Inspection also provided written comment regarding the
qualifications of a structural third-party inspector. Mr. Davis suggested
that the rule be revised to require that a third-party inspector who is appointed
by the commission to inspect a home on a structural matter should be a structural
engineer currently licensed by the Texas Board of Professional Engineers.
Mr. Davis further suggested that architects be excluded because most architects
do not have the same knowledge to make a forensic determination of a structural
defect that structural engineers possess. The language in §303.202(d)(2)
tracks the language of §427.001 of the Act, which also includes the use
of architects. Therefore, the commission declines to accept either of the
suggested revisions.
Mike Cothran of MLC Real Estate Inspectors commented that he had reservations
about the emergency third-party inspector rules with regard to the time required
of each inspector in the state-sponsored inspection and dispute resolution
process, the reporting requirements, the evidence-gathering process, liability
issues for the inspector, the geographical area limits of service, recusal
requirements, and the fee schedule. Although Mr. Cothran’s comments
were broad in scope, the commission has considered the comments thoroughly
and has made revisions to ensure clarity in its rules. Some of Mr. Cothran’s
other concerns have been addressed during the development of the commission’s
third-party inspector training course.
TAB also provided written comments concerning the emergency third-party
inspector rules. TAB commented that §303.202(c)(3) and (d)(3) should
be revised for readability and to include exclusionary language concerning
the ten percent (10%) of gross income derived from witness services. TAB also
commented on §303.205, pertaining to denial of registration, and suggested
revisions for purposes of readability. The commission agreed with these comments
and made the revisions as found in the proposed text published in the May
7, 2004 issue of the
Texas Register
in an
effort to improve the readability of the rule text.
TAB also commented that §303.209 should be revised to replace the
term "shall" with "may" because renewal is not a mandatory requirement. The
commission agreed that to the extent a person chooses not to continue to act
as a third-party inspector that person is not required to renew a certificate
of registration. The proposed rule was revised accordingly.
Additionally, the commission held several informal public meetings around
the state between January and March of 2004 and gathered comments on a variety
of issues pending before the commission, including rule comments concerning
third-party inspector rules that were adopted under emergency rulemaking action.
All comments regarding the emergency rules and the proposed rules, including
any not specifically referenced herein, were fully considered by the commission.
The commission has also made other minor modifications to the proposed rule
text for the purposes of clarifying its intent, correcting typographical errors
and improving style and readability.
The new sections are adopted to implement new 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 Chapter 427 provides for the registration and qualification
of persons who will participate in the state-sponsored inspection and dispute
resolution process as third-party inspectors.
The statutory provisions affected by the adopted sections are those set
forth in Title 16, Property Code, specifically Section 408.001 and Chapter
427 and in House Bill 730, 78th Legislature, R.S., ch. 458, §1.01.
No other statutes, articles or codes are affected by the adoption.
§303.202.Application.
(a)
An individual applying for registration to serve as a third-party
inspector for appointment in the state-sponsored inspection and dispute resolution
process must submit a completed application on a commission-prescribed form
and the appropriate fee.
(b)
An individual may submit an application for registration
with the commission to serve as both a workmanship and materials inspector
and a structural inspector. An individual seeking to serve as both a workmanship
and materials inspector and a structural inspector must meet the qualifications
of each position.
(c)
An individual applying for registration as a third-party
inspector for issues related to workmanship and materials shall:
(1)
provide credible documentation that the individual has
acquired a minimum of five years of experience working in the field of residential
construction;
(2)
provide documentation that the individual has a current
ICC certification as a residential combination inspector;
(3)
attest that the individual has not received more than ten
percent of the individual’s gross income from providing expert witness
services, including retainer fees accepted for the purpose of providing testimony,
evidence or consultation in connection with a pending or threatened legal
action. For purposes of calculating ten percent of the individual’s
gross income, the individual should multiply the amount of gross income reported
on the last federal income tax return filed by that individual by ten percent.
Fees for expert witness services, including providing testimony or evidence
in a legal action, received by the individual as a result of having served
in the capacity of a registered third-party inspector may be excluded from
the amount of gross income when calculating the percentage of gross income
received from providing expert witness services under this subsection; and
(4)
provide any other information that the commission has deemed
necessary to assess the individual's qualifications and fitness to serve as
a third-party inspector.
(d)
An individual applying for registration as a third-party
inspector for issues involving a structural matter shall:
(1)
provide documentation that the individual is a state-licensed
professional engineer or a state-licensed architect;
(2)
provide documentation that the individual has acquired
a minimum of ten (10) years of experience working in the field of residential
construction;
(3)
attest that the individual has not received more than ten
percent of the individual’s gross income from providing expert witness
services, including retainer fees accepted for the purpose of providing testimony,
evidence or consultation in connection with a pending or threatened legal
action. For purposes of calculating ten percent of the individual’s
gross income, the individual should multiply the amount of gross income reported
on the last federal income tax return filed by that individual by ten percent.
Fees for expert witness services, including providing testimony or evidence
in a legal action, received by the individual as a result of having served
in the capacity of a registered third-party inspector may be excluded from
the amount of gross income when calculating the percentage of gross income
received for providing expert witness services under this subsection; and
(4)
provide any other information that the commission has deemed
necessary to assess the individual's qualifications and fitness to serve as
a third-party inspector.
§303.203.Determination of Qualifications and Fitness.
(a)
The commission shall review each application to determine
if the individual is qualified to serve as the type of third-party inspector
for which the individual has submitted an application and shall utilize all
the information received as a result of the application to determine whether
the individual is fit to perform the duties of a third-party inspector, including
the results of the criminal background check.
(b)
In reviewing an application to determine if an individual
is fit to carry out the duties of a third-party inspector under this subchapter,
the commission shall consider, among other things, whether the individual
has a criminal history and if so:
(1)
the nature and seriousness of any crimes for which the
individual has a prior conviction or convictions, including whether a prior
conviction is for a crime involving moral turpitude;
(2)
the extent to which service as a registered third-party
inspector might offer the individual an opportunity to engage in further criminal
activity of a same or similar nature as that for which the individual has
a prior conviction;
(3)
the extent and nature of the individual's past criminal
activity;
(4)
the age of the individual when any criminal activity occurred;
(5)
the remoteness in time between the submission of the application
and the date of the individual's last criminal conviction;
(6)
the individual's overall work history in relation to the
dates of any criminal convictions;
(7)
documentation of the individual's successful rehabilitation
efforts while incarcerated or after release, including but not limited to,
restitution to the victim, completion of probationary requirements and completion
of community service; and
(8)
other documentation of the individual's fitness to serve
as a third-party inspector, as requested by the commission.
(c)
An individual applying for registration must provide the
commission with any information deemed necessary to determine whether the
individual is qualified and fit to serve as a third-party inspector in a timely
manner in order to complete the application process. Failure to comply with
a commission request for information will result in a denial of the application.
§303.204.Notice of Approved Registration.
(a)
The commission shall notify individuals of any approved
registration under this subchapter no later than fifteen days of receipt of
a completed application and the appropriate fee.
(b)
The commission shall provide registered third-party inspectors
with a certificate of registration, which shall remain effective for at least
one year from the effective date shown on the certificate, unless otherwise
revoked or suspended.
§303.205.Denial of Registration.
(a)
The commission shall deny a certificate of registration
or a renewal of registration if the commission determines that the individual
is unqualified or unfit to perform the duties of a third-party inspector.
(b)
If the commission denies a certificate of registration
or a renewal of registration, the commission shall provide written notice
to the individual via certified mail, return receipt requested, not later
than the 15th day after the commission receives the completed application
for registration or renewal and the appropriate fee.
(c)
The commission shall state the reason(s) for denial of
a certificate of registration in its written notice to the individual and
provide notice of the opportunity for appeal.
§303.206.Appeal of Denial.
(a)
An individual who receives a notice of denial under §303.205
may appeal the decision to the Executive Director by submitting a written
request for reconsideration not later than thirty (30) days from receipt of
the notice of denial.
(b)
The decision of the Executive Director is a final agency
decision not subject to further administrative appeal.
§303.207.Training.
(a)
The commission shall develop an initial training program
for all registered third-party inspectors.
(b)
Registered third-party inspectors must complete the commission-developed
training prior to participation in the state-sponsored inspection and dispute
resolution process.
§303.208.Material Change in Information.
(a)
A registered third-party inspector shall report to the
commission in writing, using a commission-prescribed form, any material change
in the information provided to the commission in the application for certificate
of registration within thirty days of the change.
(b)
A material change includes, but is not limited to, a change
of address or contact information, revocation of a professional certificate
or license or a criminal charge, including any Class C misdemeanor charge
for a crime involving moral turpitude, made or adjudicated against a registered
third-party inspector, since the date of that inspector’s last application
on file with the commission.
§303.209.Renewal.
(a)
A registered third-party inspector may apply annually to
renew the third-party inspector's registration.
(b)
A registered third-party inspector who seeks to renew a
previously granted certificate of registration shall file an application for
renewal on a commission-prescribed application and submit the appropriate
fee.
(c)
Applications for renewal shall be reviewed as provided
under §303.203 of this subchapter to determine whether the individual
continues to be qualified and fit to serve as a third-party inspector.
§303.210.Revocation of Registration.
(a)
After notice and opportunity to be heard, the commission
shall revoke the certificate of registration of any registered third-party
inspector who is determined to be unqualified or unfit to continue serving
as a third-party inspector.
(b)
The commission may revoke a certificate of registration
approved under this subchapter if:
(1)
the commission determines that a third-party inspector
knowingly failed to timely disclose to the commission a financial or personal
relationship with a party to a dispute to which the third-party inspector
has been appointed under the state-sponsored inspection and dispute resolution
process; and
(2)
that the relationship could reasonably be considered by
the other party to the dispute to create an incurable conflict of interest
for the third-party inspector or otherwise substantially impair the third-party
inspector's ability to serve as a neutral third-party inspector in the dispute.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on June 18, 2004.
TRD-200404002
Susan Durso
General Counsel
Texas Residential Construction Commission
Effective date: July 8, 2004
Proposal publication date: May 7, 2004
For further information, please call: (512) 463-9638
Chapter 301.
GENERAL PROVISIONS
Chapter 302.
FEES
Chapter 303.
REGISTRATION
Chapter 313.
STATE-SPONSORED INSPECTION AND DISPUTE RESOLUTION PROCESS (SIRP)