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


Office of House Bill AnalysisH.B. 3194
By: Moreno, Joe
Licensing & Administrative Procedures
4/13/1999
Introduced


BACKGROUND AND PURPOSE 

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

H.B. 3194 amends the Texas Architectural Barriers Act to prevent the Texas
Commission of Licensing and Regulation (commission) from waiving or
modifying any standard or specification that would result in a violation of
ADA.  This bill also prohibits the commission from delegating to the
commissioner of licensing and regulation (commissioner) any authority to
exercise its duties and functions relating to the elimination of
architectural barriers encountered by persons with disabilities, and thus
transfers all of the powers, duties, and rulemaking authority of the
commissioner to the commission.  

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that the rulemaking
authority previously delegated to the commissioner of licensing and
regulation in SECTION 7 (Section 5, Article 9102, V.T.C.S.) and SECTION 9
(Section 7(d), Article 9102,  V.T.C.S.) of this bill are transferred to the
Texas Commission of Licensing and Regulation (commission).  It is the
opinion of the Office of House Bill Analysis that the rulemaking authority
previously delegated to the commission is modified in SECTION 7 (Section 5,
Article 9102, V.T.C.S.)  and SECTION 9 (Section 7(d), Article 9102,
V.T.C.S.) of this bill. 

SECTION BY SECTION ANALYSIS

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

SECTION 2.  Amends Section 1, Article 9102, V.T.C.S., to provide that the
provisions  of this article are to further the policy of the state to
encourage and promote the rehabilitation of persons with disabilities and
to eliminate unnecessary barriers encountered by persons with disabilities,
whose ability to engage in gainful occupations or to achieve maximum
personal independence is needlessly restricted.  Deletes language providing
that the provisions of this article are to further the policy of the state
to encourage and promote the rehabilitation of persons with disabilities
and to eliminate unnecessary barriers encountered by persons with
disabilities, whose ability to engage in gainful occupations or to achieve
maximum personal independence is needlessly restricted when such persons
cannot readily use public buildings.  

SECTION 3. Amends Sections 2(a), (d), (e), and (f), Article 9102, V.T.C.S.,
as follows: 

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

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

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

(f)  Makes a conforming change.

SECTION 4.  Amends Section 2(c), Article 9102, V.T.C.S., as amended by
Chapter 821, Acts of the 73rd Legislature, Regular Session, 1993, to make
confirming changes.     

SECTION 5.  Amends Section 3(b), Article 9102, V.T.C.S., to provide that
this article is intended to make all buildings and facilities covered by
this article accessible to, and functional for, persons with disabilities
to, through, and within their doors, without loss of function, space, or
facilities, rather than only where the general public is concerned. 

SECTION 6.  Amends Section 4, Article 9102, V.T.C.S., to define "interior
designer" and "landscape architect."  Makes nonsubstantive changes. 

SECTION 7.  Amends Section 5, Article 9102, V.T.C.S.,  as follows:

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

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

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

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

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

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

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

(i)  Requires the standards and specifications adopted by the commission
under this article to be equivalent to or more stringent than those adopted
under federal law, rather than consistent in effect to those adopted by the
American National Standards Institute, Inc.. Deletes language requiring the
Texas Department of Licensing and Regulation  (department) to publish the
standards and specifications for the use of interested parties. Deletes
language requiring the standards and  specifications, and other rules to be
adopted by the commissioner, to be consistent with those adopted under
federal law. Redesignated from existing Subsection (c). 

(j)  Requires all plans and specifications for construction or for the
substantial renovation, modification, or alteration of a building or
facility that has an estimated construction cost of $50,000 or more and
that is subject to the provisions of this article to be submitted to the
department for review and approval not later than the 30th day after the
date on which, rather than prior to the time,  that construction,
renovation, modification, or alteration on the building or facility begins.
Redesignated from existing Subsection (d). Makes conforming changes. 

(k)  Requires plans and specifications related to the building or facility
to be submitted to the department by the landscape architect, in addition
to the architect, interior designer, or engineer, who has overall
responsibility for the design of the constructed or reconstructed building
or facility.  Makes a conforming change. 

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

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

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

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

SECTION 8.  Amends Section 6, Article 9102, V.T.C.S., to require the
commission to set and charge fees for performing its functions under this
article in accordance with Article 9100, V.T.C.S., rather than Section 12. 

SECTION 9. Amends Section 7(d), Article 9102, V.T.C.S., to make a
conforming change. 

SECTION 10. Amends Section 681.009(b), Transportation Code, to make
conforming changes. 

SECTION 11. Provides that on the effective date of this Act, a rule
previously adopted by the commissioner of licensing and regulation under
Article 9102, V.T.C.S., as that article existed before amendment by this
Act, and that is in effect immediately before the effective date of this
Act, becomes a rule of the commission and remains in effect until repealed
or superseded by a rule adopted by the commission.  

SECTION 12.Makes application of this Act prospective.

SECTION 13.This Act takes effect September 1, 1999. 

SECTION 14. Emergency clause.