Bill Text: TX HB1604 | 2011-2012 | 82nd Legislature | Engrossed

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Bill Title: Relating to the regulation of land development, including county building code standards for new residential construction, and sales in certain counties and municipalities; providing penalties.

Spectrum: Slight Partisan Bill (Democrat 2-1)

Status: (Engrossed - Dead) 2011-05-21 - Committee report printed and distributed [HB1604 Detail]

Download: Texas-2011-HB1604-Engrossed.html

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By: Guillen, Raymond H.B. No. 1604

A BILL TO BE ENTITLED
AN ACT
relating to the regulation of subdivisions in counties, including
certain border and economically distressed counties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 232.0031, Local Government Code, is
amended to read as follows:
Sec. 232.0031. STANDARD FOR ROADS IN SUBDIVISION. A county
may not impose under Section 232.003 a higher standard for streets
or roads in a subdivision than the county imposes on itself for the
construction of new streets or roads with a similar type and amount
of traffic.
SECTION 2. Section 232.022(d), Local Government Code, is
amended to read as follows:
(d) This subchapter does not apply if all [each] of the lots
of the subdivision are more than [is] 10 [or more] acres.
SECTION 3. Section 232.023, Local Government Code, is
amended by amending Subsection (a) and adding Subsection (a-1) to
read as follows:
(a) A subdivider of land must have a plat of the subdivision
prepared if at least one of the lots of the subdivision is five
acres or less. A commissioners court by order may require each
subdivider of land to prepare a plat if at least one of the lots of a
subdivision is more than five acres but not more than 10 acres.
(a-1) A subdivision of a tract under this section
[subsection] includes a subdivision of real property by any method
of conveyance, including a contract for deed, oral contract,
contract of sale, or other type of executory contract, regardless
of whether the subdivision is made by using a metes and bounds
description.
SECTION 4. Section 232.033, Local Government Code, is
amended by amending Subsections (a) and (h) and adding Subsections
(a-1), (a-2), (a-3), (a-4), and (a-5) to read as follows:
(a) Brochures, publications, [and] advertising of any form,
and earnest money contracts relating to [subdivided] land required
to be platted under this subchapter:
(1) may not contain any misrepresentation; [and]
(2) except for a for-sale sign posted on the property
that is no larger than three feet by three feet, must accurately
describe the availability of water and sewer service facilities and
electric and gas utilities; and
(3) if a plat for the land has not been finally
approved and recorded, must include a notice that:
(A) subject to Subsection (a-1), a contract for
the sale of any portion of the land may not be entered into until the
land receives final plat approval under Section 232.024; and
(B) the land may not be possessed or occupied
until:
(i) the land receives final plat approval
under Section 232.024; and
(ii) all water and sewer service facilities
for the lot are connected or installed in compliance with the model
rules adopted under Section 16.343, Water Code.
(a-1) This subsection applies in addition to other
applicable law and prevails to the extent of a conflict with that
other law. This subsection applies only to a person who is a seller
or subdivider and who is a licensed, registered, or otherwise
credentialed residential mortgage loan originator under applicable
state law, federal law, and the Nationwide Mortgage Licensing
System and Registry. A person may, before a plat has been finally
approved and recorded for the land:
(1) enter into an earnest money contract with a
potential purchaser and accept payment under the contract in an
amount of $250 or less; and
(2) advertise in accordance with this section.
(a-2) An earnest money contract entered into under
Subsection (a-1) is void if the plat for the land has not been
finally approved and recorded before the 91st day after the date the
earnest money contract is signed by the potential purchaser, unless
the potential purchaser agrees in writing to extend the period for
plat approval and recording for an additional 90-day period. Only
one extension may be granted under this subsection.
(a-3) If an earnest money contract is void under Subsection
(a-2), the seller shall refund all earnest money paid to the
potential purchaser not later than the 30th day after the date the
earnest money contract becomes void under Subsection (a-2). If the
seller fails to refund the earnest money to the potential purchaser
in violation of this subsection, the potential purchaser, in a suit
to recover the earnest money, may recover an amount equal to three
times the amount of the earnest money required to be refunded, plus
reasonable attorney's fees.
(a-4) Before entering into an earnest money contract with a
potential purchaser and before a plat has been finally approved and
recorded for the land as permitted under Subsection (a-1), a person
must provide written notice to the attorney general and to the local
government responsible for approving the plat. The notice must
include:
(1) a statement of intent to enter into an earnest
money contract under Subsection (a-1);
(2) a legal description of the land to be included in
the subdivision;
(3) each county in which all or part of the subdivision
is located; and
(4) the number of proposed individual lots to be
included in the subdivision.
(a-5) The attorney general may adopt rules regarding the
notice to be provided under Subsection (a-4).
(h) A person who is a seller of lots for which a plat is
required under this subchapter [in a subdivision], or a subdivider
or an agent of a seller or subdivider, commits an offense if the
person knowingly authorizes or assists in the publication,
advertising, distribution, or circulation of any statement or
representation that the person knows is false concerning any
[subdivided] land offered for sale or lease. An offense under this
section is a Class A misdemeanor.
SECTION 5. Subchapter B, Chapter 232, Local Government
Code, is amended by adding Section 232.0375 to read as follows:
Sec. 232.0375. NOTICE AND OPPORTUNITY TO CURE REQUIRED
BEFORE FILING ENFORCEMENT ACTION. (a) Before a civil enforcement
action may be filed against a subdivider under this subchapter, the
subdivider must be notified in writing about the general nature of
the alleged violation and given 90 days from the notification date
to cure the violation. After the 90th day after the date of the
notification, the enforcement action may proceed.
(b) This section does not apply to a civil enforcement
action if the attorney general, district attorney, or county
attorney asserts that:
(1) an alleged violation or threatened violation poses
a threat to a consumer or to the health and safety of any person; or
(2) a delay in bringing an enforcement action may
result in financial loss or increased costs to any person,
including the county.
(c) This section does not apply if an enforcement action has
previously been filed against the subdivider for the same or
another alleged violation.
(d) This section does not apply to an action filed by a
private individual.
SECTION 6. Subchapter B, Chapter 232, Local Government
Code, is amended by adding Section 232.045 to read as follows:
Sec. 232.045. EARNEST MONEY CONTRACTS. (a) An earnest
money contract entered into under Section 232.033(a-1) must contain
the following statement:
"NOTICE: THIS IS AN EARNEST MONEY CONTRACT ONLY. THE MAXIMUM
AMOUNT THAT THE SELLER MAY COLLECT UNDER THIS CONTRACT IS $250. THE
SELLER MAY NOT DEMAND ANY ADDITIONAL PAYMENT UNTIL A PLAT OF THE
SUBDIVISION HAS BEEN APPROVED."
(b) An earnest money contract entered into under Section
232.033(a-1) must contain the notice required by Section 232.033.
SECTION 7. Section 232.072, Local Government Code, is
amended by amending Subsection (a) and adding Subsection (a-1) to
read as follows:
(a) The owner of a tract of land that divides the tract in
any manner that creates lots of five acres or less intended for
residential purposes must have a plat of the subdivision prepared.
A commissioners court by order may require each subdivider of land
to prepare a plat if at least one of the lots of a subdivision is
more than five acres but not more than 10 acres.
(a-1) A subdivision of a tract under this section includes a
subdivision of real property by any method of conveyance, including
a contract for deed, oral contract, contract of sale, or other type
of executory contract, regardless of whether the subdivision is
made by using a metes and bounds description.
SECTION 8. Subchapter C, Chapter 232, Local Government
Code, is amended by adding Sections 232.0805 and 232.0806 to read as
follows:
Sec. 232.0805. NOTICE AND OPPORTUNITY TO CURE REQUIRED
BEFORE FILING ENFORCEMENT ACTION. (a) In this section,
"subdivider" has the meaning assigned by Section 232.021.
(b) Before a civil enforcement action may be filed against a
subdivider under this subchapter, the subdivider must be notified
in writing about the general nature of the alleged violation and
given 90 days from the notification date to cure the violation.
After the 90th day after the date of the notification, the
enforcement action may proceed.
(c) This section does not apply to a civil enforcement
action if the attorney general, district attorney, or county
attorney asserts that:
(1) an alleged violation or threatened violation poses
a threat to a consumer or to the health and safety of any person; or
(2) a delay in bringing an enforcement action may
result in financial loss or increased costs to any person,
including the county.
(d) This section does not apply if an enforcement action has
previously been filed against the subdivider for the same or
another alleged violation.
(e) This section does not apply to an action filed by a
private individual.
Sec. 232.0806. SUIT BY PRIVATE PERSON IN ECONOMICALLY
DISTRESSED AREA. A person who has purchased or is purchasing a lot
in a subdivision for residential purposes that does not have water
and sewer services as required by this subchapter and is located in
an economically distressed area, as defined by Section 17.921,
Water Code, from a subdivider may bring suit in the district court
in which the property is located or in a district court in Travis
County to:
(1) declare the sale of the property void, require the
subdivider to return the purchase price of the property, and
recover from the subdivider:
(A) the market value of any permanent
improvements the person placed on the property;
(B) actual expenses incurred as a direct result
of the failure to provide adequate water and sewer facilities;
(C) court costs; and
(D) reasonable attorney's fees; or
(2) enjoin a violation or threatened violation of
Section 232.072, require the subdivider to plat or amend an
existing plat under Sections 232.011 and 232.081, and recover from
the subdivider:
(A) actual expenses incurred as a direct result
of the failure to provide adequate water and sewer facilities;
(B) court costs; and
(C) reasonable attorney's fees.
SECTION 9. Section 16.343(g), Water Code, is amended to
read as follows:
(g) Before an application for funds under Section 15.407 or
Subchapter P, Chapter 15, or Subchapter K, Chapter 17, may be
considered by the board, if the area for which the funds are
proposed to be used is located:
(1) in a municipality, the municipality must adopt the
model rules pursuant to this section;
(2) in the extraterritorial jurisdiction of a
municipality, the applicant must demonstrate that the model rules
have been adopted and are enforced in the extraterritorial
jurisdiction by either the municipality or the county; or
(3) outside the extraterritorial jurisdiction of a
municipality, the county must adopt the model rules pursuant to
this section [a political subdivision must adopt the model rules
pursuant to this section. If the applicant is a district, nonprofit
water supply corporation, or colonia, the applicant must be located
in a city or county that has adopted such rules. Applicants for
funds under Section 15.407 or Subchapter P, Chapter 15, or
Subchapter K, Chapter 17, may not receive funds under those
provisions unless the applicable political subdivision adopts and
enforces the model rules].
SECTION 10. Subchapter J, Chapter 16, Water Code, is
amended by adding Section 16.3541 to read as follows:
Sec. 16.3541. NOTICE AND OPPORTUNITY TO CURE REQUIRED
BEFORE FILING ENFORCEMENT ACTION. (a) In this section,
"subdivider" has the meaning assigned by Section 232.021, Local
Government Code.
(b) Before a civil enforcement action may be filed against a
subdivider under this subchapter, the subdivider must be notified
in writing about the general nature of the alleged violation and
given 90 days from the notification date to cure the violation.
After the 90th day after the date of the notification, the
enforcement action may proceed.
(c) This section does not apply to a civil enforcement
action if the attorney general, district attorney, or county
attorney asserts that:
(1) an alleged violation or threatened violation poses
a threat to a consumer or to the health and safety of any person; or
(2) a delay in bringing an enforcement action may
result in financial loss or increased costs to any person,
including the county.
(d) This section does not apply if an enforcement action has
previously been filed against the subdivider for the same or
another alleged violation.
SECTION 11. Section 232.021(9), Local Government Code, is
repealed.
SECTION 12. The changes in law made by this Act to Sections
232.022, 232.023, 232.033, 232.041, and 232.072, Local Government
Code, apply only to a subdivision plat application submitted for
approval on or after the effective date of this Act. A subdivision
plat application submitted for approval before the effective date
of this Act is governed by the law in effect when the application
was submitted, and the former law is continued in effect for that
purpose.
SECTION 13. This Act applies only to an enforcement action
filed on or after the effective date of this Act. An enforcement
action filed before the effective date of this Act is governed by
the law as it existed when the action was filed, and the former law
is continued in effect for that purpose.
SECTION 14. This Act takes effect September 1, 2011.