Part 7.
TEXAS RESIDENTIAL CONSTRUCTION COMMISSION
Chapter 300.
ADMINISTRATION
10 TAC §300.5
The Texas Residential Construction Commission (the "commission")
proposes a new rule 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.
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 rule further provides for
the composition, responsibilities, meeting requirements and reporting requirements
for each task force.
Stephen D. Thomas, Executive Director, has determined that for each year
of the first five-year period that the new rule is in effect there will be
no fiscal implications for local governments as a result of enforcing or administering
the new rule. There will be a minimal fiscal implication to the state due
to the reimbursement of travel expenses for task force members.
Mr. Thomas has also determined that for each year of the first five-year
period the new rule is in effect the public will benefit from the knowledge
that the commission gains through the work of each task force in their respective
areas of expertise. Such advice from the task forces will lead to actionable
recommendations for the commission's consideration with the aim toward the
reduction of mold exposure, water conservation, and cost-effective dispute
resolution.
Mr. Thomas has also determined that there will be no impact on large, small
and micro-businesses as a result of the adoption of this 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; and therefore, no local employment impact statement is required under
Administrative Procedure Act §2001.022.
Interested persons may submit written comments (16 copies) on the proposed
rule to Susan K. Durso, General Counsel, Texas Residential Construction Commission,
P.O. Box 13144, Austin, Texas 78711. 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 new rule is proposed 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 rule 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 proposal 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 proposal.
§300.5.Task Forces.
(a)
The commission shall appoint three separate task forces
to be referred to as the Mold Reduction and Remediation Task Force, the Rain
Harvesting and Water Recycling Task Force, and the Residential Arbitrators
and Arbitration Task Force.
(b)
Composition. The commission shall appoint a reasonable
number of task force members to each task force, not to exceed twenty-four
members on each task force. The commission may appoint one or more commissioners
to participate as a member of any task force. The membership of each task
force must reflect a balanced representation between the affected industry
and consumers and include any express statutory membership representations
as further described in this section. Each task force shall select a presiding
officer from among its members. Notwithstanding the above provisions of this
subsection, the Mold Reduction and Remediation Task Force must include representation
by public health officers of this state, health and medical experts, mold
abatement experts and representatives of affected consumers and industries.
(c)
Duration. The Rain Harvesting and Water Recycling Task
shall be abolished on the fourth anniversary of the date of creation, unless
the commission affirmatively votes to continue the task force in existence.
The Mold Reduction and Remediation Task Force shall be abolished on December
31, 2005. The Residential Arbitrators and Arbitration Task Force shall be
abolished on September 1, 2007, as prescribed by the Act.
(d)
Conditions of membership. The term of office for each member
shall be two years. A member whose term has expired shall continue to serve
until a qualified replacement is appointed by the commission. In the event
a member cannot complete his or her term, the commission shall appoint a qualified
replacement to serve the remainder of the term. Task force members shall serve
without compensation but shall be entitled to reimbursement at rates established
for state employees for travel and per diem incurred in the performance of
their official duties, provided such reimbursement is authorized by the Texas
Legislature in the General Appropriations Act.
(e)
Responsibilities. Each task force shall undertake the following
responsibilities as statutorily required:
(1)
the Mold Reduction and Remediation Task Force shall advise
the commission regarding the adoption of standards that are designed to reduce
the general population's exposure to mold and shall consider the feasibility
of adopting permissible limits for exposure to mold in indoor environments;
(2)
the Rain Harvesting and Water Recycling Task Force shall
advise the commission and assist in the development of design recommendations
for residential construction that encourages rain harvesting and water recycling;
and
(3)
the Residential Arbitrators and Arbitration Task Force
shall study and advise the commission regarding residential arbitrators and
arbitration.
(f)
Meetings. Task force meetings may be conducted by telephone
conference. Each task force shall be subject to meeting at the call of the
presiding member. A quorum shall consist of a majority of the task force membership.
(g)
Reports. After each task force meeting, the presiding member
shall prepare a report to the commission regarding its activities and recommendations.
(1)
The presiding member shall file with the commission, a
report containing:
(A)
the minutes of the meeting;
(B)
a memo summarizing the meeting; and
(C)
a list of its recommendations, if any.
(2)
Within 20 days after a report is filed, any commissioner
may request that one or more items described in the report be placed on an
agenda to be discussed during an open meeting of the commission. If no commissioner
requests that the list be placed on an agenda for an open meeting, the report
is deemed approved by the commission.
(h)
Evaluation of costs and effectiveness. The commission shall
evaluate each task force annually. Evaluation shall be conducted by an evaluation
team appointed by the Executive Director. The evaluation team will report
to the commission in open meeting each August of its findings regarding:
(1)
each task force's work;
(2)
each task force's usefulness; and
(3)
the costs related to each task force's existence, including
the cost of agency staff time spent in support of each task force's activities.
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 April 26, 2004.
TRD-200402744
Susan Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: June 6, 2004
For further information, please call: (512) 475-0595
10 TAC §302.2
The Texas Residential Construction Commission (the "commission")
proposes a new rule 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.
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.
Stephen D. Thomas, Executive Director, has determined that for each year
of the first five-year period that the new rule is in effect there will be
no fiscal implications for state or local governments as a result of enforcing
or administering the new rule.
Mr. Thomas has also determined that for each year of the first five-year
period the new rule is in effect, the public will benefit from the agency's
consistent application of the rules related to fees for copies of public information
adopted by the Texas Building and Procurement Commission.
Mr. Thomas has also determined that there will be no impact on large, small
and micro-businesses as a result of the adoption of this 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; and therefore no local employment impact statement is required under
Administrative Procedure Act §2001.022.
Interested persons may submit written comments (16 copies) on the proposed
rule to Susan K. Durso, General Counsel, Texas Residential Construction Commission,
P.O. Box 13144, Austin, Texas 78711. 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 new rule is proposed 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 proposal 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 proposal.
§302.2.Fees for Public Information.
The commission's fees for providing public information will be determined
in accordance with the rules promulgated by the Texas Building and Procurement
Commission under Title 1, Texas Administrative Code, §§111.61 -
111.70 (Cost of Public Information).
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 April 26, 2004.
TRD-200402742
Susan Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: June 6, 2004
For further information, please call: (512) 475-0595
Subchapter C. REGISTRATION OF THIRD-PARTY INSPECTORS
10 TAC §§303.200 - 303.210
The Texas Residential Construction Commission (the "commission")
proposes for comment new rules at Title 10, Part 7, Chapter 303, Subchapter
C, §§303.200, 303.201, 303.202, 303.203, 303.204, 303.205, 303.206,
303.207, 303.208, 303.209 and 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.
The rules are proposed to comply with new legislation, House Bill 730 (Act
effective Sept. 1, 2003, 78th Leg., R.S., ch. 458, §1.01). The new rules
are proposed under new 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 accompanied by 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 applicant's background check to determine if
an applicant is fit to carry out the duties of serving as an inspector under
the Act. It further lists certain factors that the commission will review
in determining the fitness of applicants who have a criminal history to serve
as third-party inspectors.
Section 303.204 provides that after an applicant has been approved to serve
as a third-party inspector, the commission will promptly notify the applicant
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 of crimes involving moral turpitude.
Section 303.209 addresses the renewal of third-party inspector registration.
Section 303.210 provides that the commission may revoke a registration
approved under this subchapter if the commission determines that the registrant
is no longer qualified or fit to serve or 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.
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 governments 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 registration
of inspectors who will participate in the state-sponsored inspection and dispute
resolution process as a neutral third-party to assist homeowners and builders
in resolving disputes related to alleged construction defects.
Mr. Thomas has also determined that there will be no effect on 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 (16 copies) on the proposed
rule to Susan K. Durso, General Counsel, Texas Residential Construction Commission,
P.O. Box 13144, Austin, Texas 78711. The deadline for submission of comments
is twenty-one (21) 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.
Comments received after that date will not be considered.
The commission is particularly interested in receiving comments on the
proposed text of §303.202(c)(3) and (d)(3) in so far as the statute expresses
an intent to preclude from registration those inspectors who earn their living
by providing expert witness services to such a degree that more than ten (10)
percent of their gross income is derived from providing such services. The
commission is seeking input on the language that would best solicit the appropriate
information from all applicants regardless of the method by which they are
compensated, including those inspectors who are salaried employees, those
who are in partnerships and those who are sole proprietors.
The new rule is proposed 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 proposed rule 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 adoption.
§303.200.Inspector Registration.
(a)
The commission shall accept applications for two types
of third-party inspectors to participate in the state-sponsored inspection
and dispute resolution process.
(b)
The commission shall accept applications for:
(1)
individuals who qualify under this subchapter to serve
as inspectors on issues involving workmanship and materials; and
(2)
individuals who qualify under this subchapter to serve
as inspectors on issues involving a structural matter.
§303.201.Criminal Background Check.
In addition to reviewing other qualifications for individuals seeking
to register as a third-party inspector under this subchapter, the commission
shall conduct a criminal background check on each applicant.
§303.202.Application.
(a)
An individual seeking to register with the commission as
a third-party inspector to participate in the state-sponsored inspection and
dispute resolution process must submit a completed application on a commission-prescribed
form accompanied by the appropriate fee.
(b)
An individual may submit an application to register with
the commission to serve as both a workmanship and materials inspector and
a structural inspector. The individual seeking to serve as both a workmanship
and materials inspector and a structural inspector must qualify to serve as
both.
(c)
An individual who seeks to register as a third-party inspector
for issues related to workmanship and materials shall:
(1)
provide evidence that the individual has acquired a minimum
of five (5) years of experience working in the field of residential construction;
(2)
provide evidence that the individual holds a current ICC
certification as a residential combination inspector;
(3)
attest that the individual has not received more than ten
(10) percent of the individual’s gross income, as reported on the last
federal income tax return filed by that individual, from providing expert
witness services, including any retainer fee accepted for the purpose of providing
testimony, evidence, or consultation in connection with a pending or threatened
legal action. 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
when calculating the percentage of gross income received from providing expert
witness services under this subsection; and
(4)
provide other information requested by the commission that
the commission has determined is necessary to assess the applicant's qualifications
and fitness to serve as a third-party inspector under the Act.
(d)
An individual who seeks to register as a third-party inspector
for issues involving a structural matter shall:
(1)
provide evidence that the individual is a state-licensed
professional engineer or a state-licensed architect;
(2)
provide evidence 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
(10) percent of the individual’s gross income, as reported on the last
federal income tax return filed by that individual, 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. 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
when calculating the percentage of gross income received for providing expert
witness services under this subsection; and
(4)
provide other information requested by the commission that
the commission has determined is necessary to assess the applicant's qualifications
and fitness to serve as a third-party inspector under the Act.
§303.203.Determination of Qualifications and Fitness.
(a)
The commission shall review each application to determine
if the applicant is qualified to serve as the type of inspector for which
the individual has submitted an application and shall utilize all the information
received as a result of the application, including the results of a criminal
background check, to determine whether the applicant is fit to carry out the
duties of a third-party inspector under the Act.
(b)
In reviewing an application to determine if an applicant
is fit to carry out the duties of serving as an inspector under this subchapter,
the commission shall consider, among other things, whether the applicant
has a criminal history and if so:
(1)
the nature and seriousness of any crimes for which the
applicant 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 inspector might
offer the applicant an opportunity to engage in further criminal activity
of a same or similar nature as that for which the applicant has a prior conviction;
(3)
the extent and nature of the applicant's past criminal
activity;
(4)
the age of the applicant when any criminal activity discovered
occurred;
(5)
the remoteness in time between the submission of the application
and the date of the applicant's last criminal conviction;
(6)
the applicant's overall work history in relation to the
dates of any criminal convictions;
(7)
evidence of the applicant'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 evidence of the applicant's fitness to serve as a
third-party inspector, as requested by the commission.
(c)
An applicant must respond to a commission request for information
on whether the applicant is qualified and fit to serve as a third-party inspector
in order to complete the application process.
§303.204.Notice of Approved Registration.
(a)
The commission shall notify individuals of its approval
of their applications after the commission has made its determination under
this subchapter no later than fifteen (15) days of receipt of a completed
application accompanied by the appropriate fee.
(b)
The commission shall provide registered inspectors with
evidence of registration, which shall remain effective for at least one year
from the effective date shown on the certificate of registration as determined
by the commission, unless otherwise revoked or suspended.
§303.205.Denial of Registration.
(a)
The commission shall deny an application for registration
or for renewal of a registration if the commission is not satisfied that the
applicant is qualified or fit to carry out the duties of serving as a third-party
inspector under the Act.
(b)
If the commission denies an application for a registration
or a renewal, the commission shall provide written notice detailing its reason(s)
for denial to the applicant not later than the 15th day after the date the
commission receives the completed application and fee.
§303.206.Appeal of Denial.
(a)
A person who receives a notice of denial under §303.205
may appeal the decision to the Executive Director by submitting a written
request for appeal not later than thirty (30) days after 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 third-party inspectors who conduct inspections under the Act.
(b)
Individuals registered as 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)
Each individual who is registered as a third-party inspector
under this subchapter shall report to the commission in writing any material
change in the information provided to the commission pursuant to this subchapter
within thirty (30) days of the change.
(b)
A material change includes but is not limited to a change
of address or contact information or a criminal charge made or adjudicated
against the registered inspector since the date of the last application made
to the commission other than a traffic ticket or a Class C misdemeanor charge
that is not for a crime involving moral turpitude.
§303.209.Renewal.
(a)
A registered third-party inspector may apply annually to
renew the inspector's registration.
(b)
A registered third-party inspector who seeks to renew a
previously granted registration shall file an application for renewal on a
commission-prescribed application accompanied by the appropriate fee as adopted
by the commission.
(c)
Applications for renewal shall be reviewed to determine
whether the applicant continues to be qualified and fit to serve as a third-party
inspector under the Act.
§303.210.Revocation of Registration.
(a)
After notice and opportunity to be heard, the commission
shall revoke the registration certificate of any person registered under this
subchapter who is determined to be unfit or unqualified to continue serving
as a third-party inspector under this subchapter.
(b)
The commission may revoke a registration certificate approved
under this subchapter if 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 inspector has been appointed
under the state-sponsored inspection and dispute resolution process if that
relationship could reasonably be considered by the another party to the dispute
to create an incurable conflict of interest for the inspector or otherwise
substantially impair the inspector's ability to serve as a neutral third-party
in the dispute.
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 April 26, 2004.
TRD-200402740
Susan Durso
General Counsel
Texas Residential Construction Commission
Earliest possible date of adoption: June 6, 2004
For further information, please call: (512) 475-0595
Chapter 302.
FEES
Chapter 303.
REGISTRATION
Chapter 313.
STATE-SPONSORED INSPECTION AND DISPUTE RESOLUTION PROCESS (SIRP)