Bill Text: TX HB2608 | 2011-2012 | 82nd Legislature | Enrolled

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Bill Title: Relating to the continuation and functions of the Texas Department of Housing and Community Affairs.

Spectrum: Bipartisan Bill

Status: (Vetoed) 2011-06-17 - Vetoed by the Governor [HB2608 Detail]

Download: Texas-2011-HB2608-Enrolled.html

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H.B. No. 2608

AN ACT
relating to the continuation and functions of the Texas Department
of Housing and Community Affairs.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. GENERAL OPERATIONS AND ADMINISTRATION OF THE TEXAS
DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS
SECTION 1.01. Section 2306.022, Government Code, is amended
to read as follows:
Sec. 2306.022. APPLICATION OF SUNSET ACT. The Texas
Department of Housing and Community Affairs is subject to Chapter
325 (Texas Sunset Act). Unless continued in existence as provided
by that chapter, the department is abolished and this chapter
expires September 1, 2023 [2011].
SECTION 1.02. Section 2306.043(c), Government Code, is
amended to read as follows:
(c) The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a
hearing before the State Office of Administrative Hearings [board]
on the occurrence of the violation, the amount of the penalty, or
both.
SECTION 1.03. Section 2306.044(a), Government Code, is
amended to read as follows:
(a) Not later than the 20th day after the date the person
receives the notice, the person in writing may:
(1) accept the determination and recommended penalty
of the director; or
(2) make a request for a hearing before the State
Office of Administrative Hearings [board] on the occurrence of the
violation, the amount of the penalty, or both.
SECTION 1.04. Section 2306.045, Government Code, is amended
to read as follows:
Sec. 2306.045. HEARING. (a) If the person requests a
hearing before the State Office of Administrative Hearings [board]
or fails to respond in a timely manner to the notice, the director
shall set a hearing and give written notice of the hearing to the
person.
(b) The State Office of Administrative Hearings [board]
shall:
(1) hold the hearing;
(2) [and] make findings of fact and conclusions of law
about the occurrence of the violation and the amount of a proposed
penalty; and
(3) issue a proposal for decision regarding the
penalty and provide notice of the proposal to the board.
(c) Any administrative proceedings relating to the
imposition of a penalty under Section 2306.041 is a contested case
under Chapter 2001.
SECTION 1.05. Section 2306.046(a), Government Code, is
amended to read as follows:
(a) The board shall issue an order after receiving a
proposal for decision from the State Office of Administrative
Hearings under Section 2306.045. [Based on the findings of fact and
conclusions of law, the board by order may:
[(1) find that a violation occurred and impose a
penalty; or
[(2) find that a violation did not occur.]
SECTION 1.06. Section 2306.049(a), Government Code, is
amended to read as follows:
(a) Judicial review of a board order imposing an
administrative penalty is under the substantial evidence rule [by
trial de novo].
SECTION 1.07. Section 2306.072(c), Government Code, is
amended to read as follows:
(c) The report must include:
(1) a complete operating and financial statement of
the department;
(2) a comprehensive statement of the activities of the
department during the preceding year to address the needs
identified in the state low income housing plan prepared as
required by Section 2306.0721, including:
(A) a statistical and narrative analysis of the
department's performance in addressing the housing needs of
individuals and families of low and very low income;
(B) the ethnic and racial composition of
individuals and families applying for and receiving assistance from
each housing-related program operated by the department; [and]
(C) the department's progress in meeting the
goals established in the previous housing plan, including efforts
to address the populations described by Section 2306.0721(c)(1);
and
(D) recommendations on how to improve the
coordination of department services to the populations described by
Section 2306.0721(c)(1);
(3) an explanation of the efforts made by the
department to ensure the participation of individuals of low income
and their community-based institutions in department programs that
affect them;
(4) a statement of the evidence that the department
has made an affirmative effort to ensure the involvement of
individuals of low income and their community-based institutions in
the allocation of funds and the planning process;
(5) a statistical analysis, delineated according to
each ethnic and racial group served by the department, that
indicates the progress made by the department in implementing the
state low income housing plan in each of the uniform state service
regions;
(6) an analysis, based on information provided by the
fair housing sponsor reports required under Section 2306.0724 and
other available data, of fair housing opportunities in each housing
development that receives financial assistance from the department
that includes the following information for each housing
development that contains 20 or more living units:
(A) the street address and municipality or county
in which the property is located;
(B) the telephone number of the property
management or leasing agent;
(C) the total number of units, reported by
bedroom size;
(D) the total number of units, reported by
bedroom size, designed for individuals who are physically
challenged or who have special needs and the number of these
individuals served annually;
(E) the rent for each type of rental unit,
reported by bedroom size;
(F) the race or ethnic makeup of each project;
(G) the number of units occupied by individuals
receiving government-supported housing assistance and the type of
assistance received;
(H) the number of units occupied by individuals
and families of extremely low income, very low income, low income,
moderate income, and other levels of income;
(I) a statement as to whether the department has
been notified of a violation of the fair housing law that has been
filed with the United States Department of Housing and Urban
Development, the Commission on Human Rights, or the United States
Department of Justice; and
(J) a statement as to whether the development has
any instances of material noncompliance with bond indentures or
deed restrictions discovered through the normal monitoring
activities and procedures that include meeting occupancy
requirements or rent restrictions imposed by deed restriction or
financing agreements;
(7) a report on the geographic distribution of low
income housing tax credits, the amount of unused low income housing
tax credits, and the amount of low income housing tax credits
received from the federal pool of unused funds from other states;
and
(8) a statistical analysis, based on information
provided by the fair housing sponsor reports required by Section
2306.0724 and other available data, of average rents reported by
county.
SECTION 1.08. Section 2306.0721(c), Government Code, is
amended to read as follows:
(c) The plan must include:
(1) an estimate and analysis of the size and the
different housing needs of the following populations in each
uniform state service region:
(A) individuals and families of moderate, low,
very low, and extremely low income;
(B) individuals with special needs; [and]
(C) homeless individuals;
(D) veterans; and
(E) youth who are aging out of foster care;
(2) a proposal to use all available housing resources
to address the housing needs of the populations described by
Subdivision (1) by establishing funding levels for all
housing-related programs;
(3) an estimate of the number of federally assisted
housing units available for individuals and families of low and
very low income and individuals with special needs in each uniform
state service region;
(4) a description of state programs that govern the
use of all available housing resources;
(5) a resource allocation plan that targets all
available housing resources to individuals and families of low and
very low income and individuals with special needs in each uniform
state service region;
(6) a description of the department's efforts to
monitor and analyze the unused or underused federal resources of
other state agencies for housing-related services and services for
homeless individuals and the department's recommendations to
ensure the full use by the state of all available federal resources
for those services in each uniform state service region;
(7) strategies to provide housing for individuals and
families with special needs in each uniform state service region;
(8) a description of the department's efforts to
encourage in each uniform state service region the construction of
housing units that incorporate energy efficient construction and
appliances;
(9) an estimate and analysis of the housing supply in
each uniform state service region;
(10) an inventory of all publicly and, where possible,
privately funded housing resources, including public housing
authorities, housing finance corporations, community housing
development organizations, and community action agencies;
(11) strategies for meeting rural housing needs;
(12) a biennial action plan for colonias that:
(A) addresses current policy goals for colonia
programs, strategies to meet the policy goals, and the projected
outcomes with respect to the policy goals; and
(B) includes information on the demand for
contract-for-deed conversions, services from self-help centers,
consumer education, and other colonia resident services in counties
some part of which is within 150 miles of the international border
of this state;
(13) a summary of public comments received at a
hearing under this chapter or from another source that concern the
demand for colonia resident services described by Subdivision (12);
and
(14) any other housing-related information that the
state is required to include in the one-year action plan of the
consolidated plan submitted annually to the United States
Department of Housing and Urban Development.
SECTION 1.09. Section 2306.6721, Government Code, is
transferred to Subchapter B, Chapter 2306, Government Code,
redesignated as Section 2306.0504, Government Code, and amended to
read as follows:
Sec. 2306.0504 [2306.6721]. DEBARMENT FROM PROGRAM
PARTICIPATION. (a) The board by rule shall adopt a policy
providing for the debarment of a person from participation in
programs administered by the department [the low income housing tax
credit program as described by this section].
(b) The department may debar a person from participation in
a department [the] program on the basis of the person's past failure
to comply with any condition imposed by the department in the
administration of its programs [connection with the allocation of
housing tax credits].
(c) The department shall debar a person from participation
in a department [the] program if the person:
(1) materially or repeatedly violates any condition
imposed by the department in connection with the administration of
a department program, including a material or repeated violation of
a land use restriction agreement regarding a development supported
with a [allocation of] housing tax credit allocation [credits]; or
(2) is debarred from participation in federal housing
programs by the United States Department of Housing and Urban
Development[; or
[(3) is in material noncompliance with or has
repeatedly violated a land use restriction agreement regarding a
development supported with a housing tax credit allocation].
(d) A person debarred by the department from participation
in a department [the] program may appeal the person's debarment to
the board.
ARTICLE 2. DISASTER MANAGEMENT PLANNING
SECTION 2.01. Section 418.106, Government Code, is amended
by adding Subsection (b-1) to read as follows:
(b-1) The plan must identify:
(1) any requirements or procedures that local agencies
and officials must satisfy or implement to:
(A) qualify for long-term federal disaster
recovery funding; and
(B) prepare for long-term disaster recovery; and
(2) any appropriate state or local resources available
to assist the local agencies and officials in satisfying or
implementing those requirements or procedures.
SECTION 2.02. Chapter 2306, Government Code, is amended by
adding Subchapter X-1 to read as follows:
SUBCHAPTER X-1. LONG-TERM DISASTER RECOVERY PLAN
Sec. 2306.531. LONG-TERM DISASTER RECOVERY PLAN. (a) In
consultation with the office of the governor, the department or
another agency or office designated under Subsection (f) shall
develop a long-term disaster recovery plan to administer money
received for disaster recovery from the federal government or any
other source.
(b) The department and the Texas Department of Rural Affairs
each must be consulted in developing and administering the plan, if
those agencies are not designated under Subsection (f). The
following entities must also be consulted:
(1) existing disaster recovery entities established
by law or local, state, or federal agreements;
(2) local government officials, contractors,
community advocates, businesses, nonprofit organizations, and
other stakeholders; and
(3) the United States Department of Housing and Urban
Development to ensure that the plan complies with federal law.
(c) The plan developed under this section must establish or
identify:
(1) a method of distribution of disaster relief
funding to local areas, subject to modification by the governor
based on the nature of the disaster;
(2) guidelines for outreach to program applicants and
for eligible housing and infrastructure activities;
(3) eligibility criteria for program applicants;
(4) housing quality and energy efficiency standards;
(5) priorities for serving local populations;
(6) procedures for establishing compliance with
federal requirements;
(7) procedures for coordination and communication
among federal, state, and local entities;
(8) pre-disaster and post-disaster training programs;
(9) a procedure for each appropriate state agency or
office to compile, update, and post on that agency's or office's
Internet website in advance of hurricane season all relevant forms
and information for program applicants;
(10) federal and state monitoring and reporting
requirements, including a list of the types of data that local
government officials may be required to collect, analyze, and
report;
(11) the state information technology systems and
processes that will be used to administer funds from the federal
government or any other source;
(12) a process for identifying elements of disaster
recovery where coordination between or among state agencies will be
required; and
(13) a process for implementing memoranda of
understanding in areas of disaster recovery where interagency
coordination will be required.
(d) In developing the plan under this section, the agency or
office designated under Subsection (f) shall seek from county
judges and mayors in areas impacted by large-scale natural
disasters input regarding the development of future methods of
distributing federal funding for long-term disaster recovery.
(e) The plan established under this section must be updated
biennially and approved by the governor.
(f) Biennially, the governor shall designate a state agency
or office to be the primary agency or office in charge of
coordinating the distribution of long-term disaster recovery
funding.
(g) This subchapter does not create a public or private
cause of action.
SECTION 2.03. Section 2306.542, Government Code, is amended
by amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) Using the natural disaster housing reconstruction plan
developed under this subchapter, the director and advisory
committee shall develop, for implementation under Subsections (b)
and (c), housing reconstruction demonstration pilot programs for
three areas, each of which was affected by one of the three most
recent federally declared natural disasters. Except as provided by
Subsection (d), the [The] pilot programs must provide for the
replacement of at least 20 houses in each area to test the
feasibility of implementing the plan in the large-scale production
of replacement housing for victims of federally declared natural
disasters.
(d) If the local requirements, regulations, or
environmental factors of an area require elevation of houses, the
department may deviate from the 20-house requirement under
Subsection (a) and determine the number of houses needed to test the
feasibility of implementing the plan.
ARTICLE 3. HOUSING TRUST FUND PROGRAM; LOW INCOME HOUSING TAX
CREDIT PROGRAM
SECTION 3.01. Sections 2306.111(d-1) and (d-2), Government
Code, are amended to read as follows:
(d-1) In allocating low income housing tax credit
commitments under Subchapter DD, the department shall, before
applying the regional allocation formula prescribed by Section
2306.1115, set aside for at-risk developments, as defined by
Section 2306.6702, not less than the minimum amount of housing tax
credits required under Section 2306.6714. Funds or credits are not
required to be allocated according to the regional allocation
formula under Subsection (d) if:
(1) the funds or credits are reserved for
contract-for-deed conversions or for set-asides mandated by state
or federal law and each contract-for-deed allocation or set-aside
allocation equals not more than 10 percent of the total allocation
of funds or credits for the applicable program;
(2) the funds or credits are allocated by the
department primarily to serve persons with disabilities; or
(3) the funds are housing trust funds administered by
the department under Sections 2306.201-2306.206 that are not
otherwise required to be set aside under state or federal law and do
not exceed $3 million for each programmed activity during each
application cycle.
(d-2) In allocating low income housing tax credit
commitments under Subchapter DD, the department shall allocate five
percent of the housing tax credits in each application cycle to
developments that receive federal financial assistance through the
Texas Rural Development Office of the United States Department of
Agriculture. Any funds allocated to developments under this
subsection that involve rehabilitation must come from the funds set
aside for at-risk developments under Section 2306.6714 and any
additional funds set aside for those developments under Subsection
(d-1). This subsection does not apply to a development financed
wholly or partly under Section 538 of the Housing Act of 1949 (42
U.S.C. Section 1490p-2) unless the development involves the
rehabilitation of an existing property that has received and will
continue to receive as part of the financing of the development
federal financial assistance provided under Section 515 of the
Housing Act of 1949 (42 U.S.C. Section 1485).
SECTION 3.02. Section 2306.6702(a)(5), Government Code, is
amended to read as follows:
(5) "At-risk development" means:
(A) a development that:
(i) [(A)] has received the benefit of a
subsidy in the form of a below-market interest rate loan, interest
rate reduction, rental subsidy, Section 8 housing assistance
payment, rental supplement payment, rental assistance payment, or
equity incentive under the following federal laws, as applicable:
(a) [(i)] Sections 221(d)(3) and (5),
National Housing Act (12 U.S.C. Section 1715l);
(b) [(ii)] Section 236, National
Housing Act (12 U.S.C. Section 1715z-1);
(c) [(iii)] Section 202, Housing Act
of 1959 (12 U.S.C. Section 1701q);
(d) [(iv)] Section 101, Housing and
Urban Development Act of 1965 (12 U.S.C. Section 1701s);
(e) [(v)] the Section 8 Additional
Assistance Program for housing developments with HUD-Insured and
HUD-Held Mortgages administered by the United States Department of
Housing and Urban Development;
(f) [(vi)] the Section 8 Housing
Assistance Program for the Disposition of HUD-Owned Projects
administered by the United States Department of Housing and Urban
Development;
(g) [(vii)] Sections 514, 515, and
516, Housing Act of 1949 (42 U.S.C. Sections 1484, 1485, and 1486);
or
(h) [(viii)] Section 42, Internal
Revenue Code of 1986 (26 U.S.C. Section 42); and
(ii) [(B)] is subject to the following
conditions:
(a) [(i)] the stipulation to maintain
affordability in the contract granting the subsidy is nearing
expiration; or
(b) [(ii)] the federally insured
mortgage on the development is eligible for prepayment or is
nearing the end of its term; or
(B) a development that proposes to rehabilitate
or reconstruct housing units that:
(i) are owned by a public housing authority
and receive assistance under Section 9 of the National Housing Act
(12 U.S.C. Section 1706d); or
(ii) received assistance under Section 9 of
the National Housing Act (12 U.S.C. Section 1706d) and:
(a) are proposed to be disposed of or
demolished by a public housing authority; or
(b) have been disposed of or
demolished by a public housing authority in the two-year period
preceding the application for housing tax credits.
SECTION 3.03. Section 2306.67022, Government Code, is
amended to read as follows:
Sec. 2306.67022. QUALIFIED ALLOCATION PLAN; MANUAL. At
least biennially, the [The] board [annually] shall adopt a
qualified allocation plan and a corresponding manual to provide
information regarding the administration of and eligibility for the
low income housing tax credit program. The board may adopt the plan
and manual annually, as considered appropriate by the board.
SECTION 3.04. Sections 2306.6710(b) and (f), Government
Code, are amended to read as follows:
(b) If an application satisfies the threshold criteria, the
department shall score and rank the application using a point
system that:
(1) prioritizes in descending order criteria
regarding:
(A) financial feasibility of the development
based on the supporting financial data required in the application
that will include a project underwriting pro forma from the
permanent or construction lender;
(B) quantifiable community participation with
respect to the development, evaluated on the basis of a resolution
concerning the development that is voted on and adopted by the
governing body of a municipality [written statements from any
neighborhood organizations on record with the state or county in
which the development is to be located and] whose boundaries
contain the proposed development site or by the commissioners court
of a county whose boundaries contain the proposed development site;
(C) the income levels of tenants of the
development;
(D) the size and quality of the units;
(E) the commitment of development funding by
local political subdivisions;
(F) the level of community support for the
application, evaluated on the basis of a written statement
[statements] from the state representative [or the state senator]
that represents the district containing the proposed development
site;
(G) the rent levels of the units;
(H) the cost of the development by square foot;
(I) the services to be provided to tenants of the
development; and
(J) whether, at the time the complete application
is submitted or at any time within the two-year period preceding the
date of submission, the proposed development site is located in an
area declared to be a disaster under Section 418.014;
(2) uses criteria imposing penalties on applicants or
affiliates who have requested extensions of department deadlines
relating to developments supported by housing tax credit
allocations made in the application round preceding the current
round or a developer or principal of the applicant that has been
removed by the lender, equity provider, or limited partners for its
failure to perform its obligations under the loan documents or
limited partnership agreement; and
(3) encourages applicants to provide free notary
public service to the residents of the developments for which the
allocation of housing tax credits is requested.
(f) In evaluating the level of community support for an
application under Subsection (b)(1)(F), the department shall
award:
(1) positive points for a positive written statement
[statements] received;
(2) negative points for a negative written statement
[statements] received; and
(3) zero points for a neutral statement [statements]
received.
SECTION 3.05. Sections 2306.6711(b) and (f), Government
Code, are amended to read as follows:
(b) Not later than the deadline specified in the qualified
allocation plan, the board shall issue commitments for available
housing tax credits based on the application evaluation process
provided by Section 2306.6710. The board may not allocate to an
applicant housing tax credits in any unnecessary amount, as
determined by the department's underwriting policy and by federal
law, and in any event may not allocate to the applicant housing tax
credits in an amount greater than $3 [$2] million in a single
application round or to an individual development more than $2
million in a single application round.
(f) The board may allocate housing tax credits to more than
one development in a single community, as defined by department
rule, in the same calendar year only if the developments are or will
be located more than two [one] linear miles [mile] apart. This
subsection applies only to communities contained within counties
with populations exceeding one million.
SECTION 3.06. Section 2306.6718(b), Government Code, is
amended to read as follows:
(b) The department shall provide the elected officials with
an opportunity to comment on the application during the application
evaluation process [provided by Section 2306.6710] and shall
consider those comments in evaluating applications [under that
section].
SECTION 3.07. Sections 2306.6724(a), (b), and (c),
Government Code, are amended to read as follows:
(a) Regardless of whether the board will adopt the plan
annually or biennially [Not later than September 30 of each year],
the department, not later than September 30 of the year preceding
the year in which the new plan is proposed for use, shall prepare
and submit to the board for adoption any proposed [the] qualified
allocation plan required by federal law for use by the department in
setting criteria and priorities for the allocation of tax credits
under the low income housing tax credit program.
(b) Regardless of whether the board has adopted the plan
annually or biennially, the [The] board shall [adopt and] submit to
the governor any proposed [the] qualified allocation plan not later
than November 15 of the year preceding the year in which the new
plan is proposed for use.
[(c)] The governor shall approve, reject, or modify and
approve the proposed qualified allocation plan not later than
December 1.
SECTION 3.08. Subchapter DD, Chapter 2306, Government Code,
is amended by adding Section 2306.6739 to read as follows:
Sec. 2306.6739. HOUSING TAX CREDITS FINANCED USING FEDERAL
EMERGENCY FUNDS. (a) To the extent the department receives federal
emergency funds that must be awarded by the department in the same
manner as and that are subject to the same limitations as awards of
housing tax credits, any reference in this chapter to the
administration of the housing tax credit program applies equally to
the administration of the federal funds, subject to Subsection (b).
(b) Notwithstanding any other law, the department may
establish a separate application procedure for the federal
emergency funds that does not follow the uniform application cycle
required by Section 2306.1111 or the deadlines established by
Section 2306.6724, and any reference in this chapter to an
application period occurring in relation to those federal emergency
funds refers to the period beginning on the date the department
begins accepting applications for the federal funds and continuing
until all of the available federal funds are awarded.
ARTICLE 4. MANUFACTURED HOUSING
SECTION 4.01. Section 2306.6022, Government Code, is
amended by adding Subsections (e) and (f) to read as follows:
(e) The division director may allow an authorized employee
of the division to dismiss a complaint if an investigation
demonstrates that:
(1) a violation did not occur; or
(2) the subject of the complaint is outside the
division's jurisdiction under this subchapter.
(f) An employee who dismisses a complaint under Subsection
(e) shall report the dismissal to the division director and the
board. The report must include a sufficient explanation of the
reason the complaint was dismissed.
SECTION 4.02. Subchapter AA, Chapter 2306, Government Code,
is amended by adding Section 2306.6023 to read as follows:
Sec. 2306.6023. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION. (a) The division shall develop and implement a
policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008 for the adoption of division rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009 to assist in the resolution of
internal and external disputes under the division's jurisdiction.
(b) The division's procedures relating to alternative
dispute resolution must conform, to the extent possible, to any
model guidelines issued by the State Office of Administrative
Hearings for the use of alternative dispute resolution by state
agencies.
(c) The division shall:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) provide training as needed to implement the
procedures for negotiated rulemaking or alternative dispute
resolution; and
(3) collect data concerning the effectiveness of those
procedures.
SECTION 4.03. Section 1201.003, Occupations Code, is
amended by amending Subdivision (17) and adding Subdivision (17-a)
to read as follows:
(17) "License holder" or "licensee" means a person who
holds a department-issued license as a manufacturer, retailer,
broker, [rebuilder,] salesperson, or installer.
(17-a) "Management official" means an individual with
authority over employees involved in the sale of manufactured homes
at a retail location.
SECTION 4.04. Sections 1201.055(a) and (b), Occupations
Code, are amended to read as follows:
(a) With guidance from the federal Housing and Community
Development Act of 1974 (42 U.S.C. Section 5301 et seq.) and from
the rules and regulations adopted under the National Manufactured
Housing Construction and Safety Standards Act of 1974 (42 U.S.C.
Section 5401 et seq.), the board shall establish fees as follows:
(1) if the department acts as a design approval
primary inspection agency, a schedule of fees for the review of
HUD-code manufactured home blueprints and supporting information,
to be paid by the manufacturer seeking approval of the blueprints
and supporting information;
(2) except as provided by Subsection (e), a fee for the
inspection of each HUD-code manufactured home manufactured or
assembled in this state, to be paid by the manufacturer of the home;
(3) a fee for the inspection of an alteration made to
the structure or plumbing, heating, or electrical system of a
HUD-code manufactured home, to be charged on an hourly basis and to
be paid by the person making the alteration;
(4) a fee for the inspection of the rebuilding of a
salvaged manufactured home, to be paid by the retailer [rebuilder];
(5) a fee for the inspection of a used manufactured
home to determine whether the home is habitable for the issuance of
a new statement of ownership and location; and
(6) a fee for the issuance of a seal for a used mobile
or HUD-code manufactured home.
(b) In addition to the fees imposed under Subsections
(a)(2), (3), and (4), a manufacturer or [,] a person making an
alteration, [or a rebuilder,] as appropriate, shall be charged for
the actual cost of travel of a department representative to and
from:
(1) the manufacturing facility, for an inspection
described by Subsection (a)(2); or
(2) the place of inspection, for an inspection
described by Subsection (a)(3) or (4).
SECTION 4.05. Section 1201.056, Occupations Code, is
amended to read as follows:
Sec. 1201.056. LICENSE FEES. (a) The board shall establish
fees for the issuance and renewal of licenses for:
(1) manufacturers;
(2) retailers;
(3) brokers;
(4) salespersons; and
(5) [rebuilders; and
[(6)] installers.
(b) The board by rule may establish a fee for reprinting a
license issued under this chapter.
SECTION 4.06. Sections 1201.101(e) and (f-1), Occupations
Code, are amended to read as follows:
(e) A person may not repair, rebuild, or otherwise alter a
salvaged manufactured home unless the person holds a [rebuilder's
or] retailer's license.
(f-1) A retailer may not be licensed to operate more than
[at a principal location and] one location [or more branch
locations] under a single license[; provided, however, that a
separate application must be made for each branch, and each branch
must be separately bonded].
SECTION 4.07. Sections 1201.103(a) and (b), Occupations
Code, are amended to read as follows:
(a) An applicant for a license as a manufacturer, retailer,
broker, [rebuilder,] or installer must file with the director a
license application containing:
(1) the legal name, address, and telephone number of
the applicant and each person who will be a related person at the
time the requested license is issued;
(2) all trade names, and the names of all other
business organizations, under which the applicant does business
subject to this chapter, the name of each such business
organization registered with the secretary of state, and the
address of such business organization;
(3) the dates on which the applicant became the owner
and operator of the business; and
(4) the location to which the license will apply.
(b) A license application must be accompanied by:
(1) proof of the security required by this subchapter;
[and]
(2) payment of the fee required for issuance of the
license; and
(3) the information and the cost required under
Section 1201.1031.
SECTION 4.08. Subchapter C, Chapter 1201, Occupations Code,
is amended by adding Section 1201.1031 to read as follows:
Sec. 1201.1031. CRIMINAL HISTORY RECORD INFORMATION
REQUIREMENT FOR LICENSE. (a) The department shall require that an
applicant for a license or renewal of an unexpired license submit a
complete and legible set of fingerprints, on a form prescribed by
the board, to the department or to the Department of Public Safety
for the purpose of obtaining criminal history record information
from the Department of Public Safety and the Federal Bureau of
Investigation. The applicant is required to submit a set of
fingerprints only once under this section unless a replacement set
is otherwise needed to complete the criminal history check required
by this section.
(b) The department shall refuse to issue a license to or
renew the license of a person who does not comply with the
requirement of Subsection (a).
(c) The department shall conduct a criminal history check of
each applicant for a license or renewal of a license using
information:
(1) provided by the individual under this section; and
(2) made available to the department by the Department
of Public Safety, the Federal Bureau of Investigation, and any
other criminal justice agency under Chapter 411, Government Code.
(d) The department may enter into an agreement with the
Department of Public Safety to administer a criminal history check
required under this section.
(e) The applicant shall pay the cost of a criminal history
check under this section.
SECTION 4.09. Section 1201.104, Occupations Code, is
amended by amending Subsections (a), (g), and (h) and adding
Subsections (a-1), (a-2), (a-3), and (a-4) to read as follows:
(a) Except as provided by Subsection (g) [(e)], as a
requirement for a manufacturer's, retailer's, broker's,
installer's, [salvage rebuilder's,] or salesperson's license, a
person who was not licensed or registered with the department or a
predecessor agency on September 1, 1987, must, not more than 12
months before applying for the person's first license under this
chapter, attend and successfully complete eight [20] hours of
instruction in the law, including instruction in consumer
protection regulations.
(a-1) If the applicant is not an individual, the applicant
must have at least one related person who satisfies the
requirements of Subsection (a) [meets this requirement]. If that
applicant is applying for a retailer's license, the related person
must be a management official who satisfies the requirements of
Subsections (a) and (a-2) at each retail location operated by the
applicant.
(a-2) An applicant for a retailer's license must complete
four hours of specialized instruction relevant to the sale,
exchange, and lease-purchase of manufactured homes. The
instruction under this subsection is in addition to the instruction
required under Subsection (a).
(a-3) An applicant for an installer's license must complete
four hours of specialized instruction relevant to the installation
of manufactured homes. The instruction under this subsection is in
addition to the instruction required under Subsection (a).
(a-4) An applicant for a joint installer-retailer license
must comply with Subsections (a-2) and (a-3), for a total of eight
hours of specialized instruction. The instruction under this
subsection is in addition to the instruction required under
Subsection (a).
(g) Subsections [Subsection] (a), (a-2), (a-3), and (a-4)
do [does] not apply to a license holder who applies:
(1) for a license for an additional business location;
or
(2) to renew or reinstate a license.
(h) An examination must be a requirement of successful
completion of any initial required course of instruction under this
section. The period needed to complete an examination under this
subsection may not be used to satisfy the minimum education
requirements under Subsection (a), (a-2), (a-3), or (a-4).
SECTION 4.10. Section 1201.106(a), Occupations Code, is
amended to read as follows:
(a) An applicant for a license or a license holder shall
file a bond or other security under Section 1201.105 for the
issuance or renewal of a license in the following amount:
(1) $100,000 for a manufacturer;
(2) $50,000 for a retailer [retailer's principal
location];
(3) [$50,000 for each retailer's branch location;
[(4) $50,000 for a rebuilder;
[(5)] $50,000 for a broker; or
(4) [(6)] $25,000 for an installer.
SECTION 4.11. Section 1201.110, Occupations Code, is
amended to read as follows:
Sec. 1201.110. SECURITY: DURATION. The department shall
maintain on file a security other than a bond canceled as provided
by Section 1201.109(a) until the later of:
(1) the second anniversary of the date the
manufacturer, retailer, broker, or installer[, or rebuilder]
ceases doing business; or
(2) the date the director determines that a claim does
not exist against the security.
SECTION 4.12. Section 1201.116(a), Occupations Code, is
amended to read as follows:
(a) The department shall renew a license if, before the
expiration date of the license, the department receives the renewal
application and payment of the required fee as well as the cost
required under Section 1201.1031 [before the expiration date of the
license].
SECTION 4.13. Section 1201.303, Occupations Code, is
amended by amending Subsection (b) and adding Subsections (c), (d),
(e), (f), and (g) to read as follows:
(b) The department shall establish an installation
inspection program in which at least 75 [25] percent of installed
manufactured homes are inspected on a sample basis for compliance
with the standards and rules adopted and orders issued by the
director. The program must place priority on inspecting
multisection homes and homes installed in Wind Zone II counties.
(c) On or after January 1, 2015, the director by rule shall
establish a third-party installation inspection program to
supplement the inspections of the department if the department is
not able to inspect at least 75 percent of manufactured homes
installed in each of the calendar years 2012, 2013, and 2014.
(d) The third-party installation inspection program
established under Subsection (c) must:
(1) establish qualifications for third-party
inspectors to participate in the program;
(2) require third-party inspectors to register with
the department before participating in the program;
(3) establish a biennial registration and renewal
process for third-party inspectors;
(4) require the list of registered third-party
inspectors to be posted on the department's Internet website;
(5) establish clear processes governing inspection
fees and payment to third-party inspectors;
(6) establish the maximum inspection fee that may be
charged to a consumer;
(7) require a third-party inspection to occur not
later than the 14th day after the date of installation of the
manufactured home;
(8) establish a process for a retailer or broker to
contract, as part of the sale of a new or used manufactured home,
with an independent third-party inspector to inspect the
installation of the home;
(9) establish a process for an installer to schedule
an inspection for each consumer-to-consumer sale where a home is
reinstalled;
(10) if a violation is noted in an inspection, require
the installer to:
(A) remedy the violations noted;
(B) have the home reinspected at the installer's
expense; and
(C) certify to the department that all violations
have been corrected;
(11) require an inspector to report inspection results
to the retailer, installer, and the department;
(12) require all persons receiving inspection results
under Subdivision (11) to maintain a record of the results at least
until the end of the installation warranty period;
(13) authorize the department to charge a filing fee
and an inspection fee for third-party inspections;
(14) authorize the department to continue to conduct
no-charge complaint inspections under Section 1201.355 on request,
but only after an initial installation inspection is completed;
(15) establish procedures to revoke the registration
of inspectors who fail to comply with rules adopted under this
section; and
(16) require the department to notify the relevant
state agency if the department revokes an inspector registration
based on a violation that is relevant to a license issued to the
applicable person by another state agency.
(e) Not later than January 1, 2015, the department shall
submit to the Legislative Budget Board, the Governor's Office of
Budget, Planning, and Policy, and the standing committee of each
house of the legislature having primary jurisdiction over housing a
report concerning whether the department inspected at least 75
percent of manufactured homes installed in each of the calendar
years 2012, 2013, and 2014.
(f) Not later than December 1, 2015, the director shall
adopt rules as necessary to implement Subsections (c) and (d) if the
department did not inspect at least 75 percent of manufactured
homes installed in each of the calendar years 2012, 2013, and 2014.
Not later than January 1, 2016, the department shall begin
registering third-party inspectors under Subsections (c) and (d) if
the department inspections did not occur as described by this
subsection.
(g) If the department is not required to establish a
third-party installation inspection program as provided by
Subsection (c), Subsections (c), (d), (e), and (f) and this
subsection expire September 1, 2016.
SECTION 4.14. Section 1201.357, Occupations Code, is
amended by adding Subsection (b-1) to read as follows:
(b-1) As authorized by Section 1201.6041, the director may
order a manufacturer, retailer, or installer, as applicable, to pay
a refund directly to a consumer as part of an agreed order described
by Subsection (b) instead of or in addition to instituting an
administrative action under this chapter.
SECTION 4.15. Section 1201.461(d), Occupations Code, is
amended to read as follows:
(d) A person may not sell, convey, or otherwise transfer to
a consumer in this state a manufactured home that is salvaged. A
salvaged manufactured home may be sold only to a licensed retailer
[or licensed rebuilder].
SECTION 4.16. Subchapter M, Chapter 1201, Occupations Code,
is amended by adding Section 1201.6041 to read as follows:
Sec. 1201.6041. DIRECT CONSUMER COMPENSATION. (a) Instead
of requiring a consumer to apply for compensation from the trust
fund under Subchapter I, the director may order a manufacturer,
retailer, broker, or installer, as applicable, to pay a refund
directly to a consumer who sustains actual damages resulting from
an unsatisfied claim against a licensed manufacturer, retailer,
broker, or installer if the unsatisfied claim results from a
violation of:
(1) this chapter;
(2) a rule adopted by the director;
(3) the National Manufactured Housing Construction
and Safety Standards Act of 1974 (42 U.S.C. Section 5401 et seq.);
(4) a rule or regulation of the United States
Department of Housing and Urban Development; or
(5) Subchapter E, Chapter 17, Business & Commerce
Code.
(b) For purposes of this section, the refund of a consumer's
actual damages is determined according to Section 1201.405.
(c) The director shall prepare information for notifying
consumers of the director's option to order a direct refund under
this section, shall post the information on the department's
Internet website, and shall make printed copies available on
request.
SECTION 4.17. Sections 1201.610(a), (b), and (f),
Occupations Code, are amended to read as follows:
(a) The [If the director has reasonable cause to believe
that a person licensed under this chapter has violated or is about
to violate any provision of this chapter or rules adopted by the
department under this chapter, the] director may issue without
notice and hearing an order to cease and desist from continuing a
particular action or an order to take affirmative action, or both,
to enforce compliance with this chapter if the director has
reasonable cause to believe that a person has violated or is about
to violate any provision of this chapter or a rule adopted under
this chapter.
(b) The director may issue an order to any person [licensee]
to cease and desist from violating any law, rule, or written
agreement or to take corrective action with respect to any such
violations if the violations in any way are related to the sale,
financing, or installation of a manufactured home or the providing
of goods or services in connection with the sale, financing, or
installation of a manufactured home unless the matter that is the
basis of such violation is expressly subject to inspection and
regulation by another state agency; provided, however, that if any
matter involves a law that is subject to any other administration or
interpretation by another agency, the director shall consult with
the person in charge of the day-to-day administration of that
agency before issuing an order.
(f) If a person licensed under this chapter fails to pay an
administrative penalty that has become final or fails to comply
with an order of the director that has become final, in addition to
any other remedy provided by law, the director, after not less than
10 days' notice to the person, may without a prior hearing suspend
the person's license. The suspension shall continue until the
person has complied with the cease and desist order or paid the
administrative penalty. During the period of suspension, the
person may not perform any act requiring a license under this
chapter, and all compensation received by the person during the
period of suspension is subject to forfeiture to the person from
whom it was received.
SECTION 4.18. Section 1302.061, Occupations Code, is
amended to read as follows:
Sec. 1302.061. MANUFACTURED HOMES. This chapter does not
apply to a person or entity licensed as a manufacturer, retailer,
[rebuilder,] or installer under Chapter 1201 and engaged
exclusively in air conditioning and refrigeration contracting for
manufactured homes if the installation of air conditioning
components at the site where the home will be occupied is performed
by a person licensed under this chapter.
ARTICLE 5. TRANSITION PROVISIONS
SECTION 5.01. (a) Not later than October 1, 2011, the
governor shall designate a state agency or office to be the primary
agency or office in charge of coordinating the distribution of
long-term disaster recovery funding as required under Section
2306.531, Government Code, as added by this Act.
(b) Not later than March 1, 2012, the designated agency or
office shall develop the plan required under Section 2306.531,
Government Code, as added by this Act.
(c) Not later than May 1, 2012, the designated agency or
office shall obtain the governor's approval of the plan developed
under Section 2306.531, Government Code, as added by this Act.
SECTION 5.02. The change in law made by this Act to Sections
2306.043, 2306.044, 2306.045, 2306.046, and 2306.049, Government
Code, applies only to a violation committed on or after the
effective date of this Act. A violation committed before the
effective date of this Act is governed by the law in effect when the
violation was committed, and the former law is continued in effect
for that purpose.
SECTION 5.03. The change in law made by this Act to Section
2306.6022, Government Code, applies only to a complaint filed on or
after the effective date of this Act. A complaint filed before the
effective date of this Act is governed by the law in effect at the
time the complaint was filed, and the former law is continued in
effect for that purpose.
SECTION 5.04. The changes in law made by this Act to
Sections 2306.6702, 2306.6710, 2306.6711, and 2306.6718,
Government Code, apply only to an application for low income
housing tax credits that is submitted to the Texas Department of
Housing and Community Affairs during an application cycle that
begins on or after the effective date of this Act. An application
that is submitted during an application cycle that began before the
effective date of this Act is governed by the law in effect at the
time the application cycle began, and the former law is continued in
effect for that purpose.
SECTION 5.05. Notwithstanding Sections 1201.101(f-1) and
1201.106(a), Occupations Code, as amended by this Act, a retailer
licensed to operate one or more branch locations on or before the
effective date of this Act is not required to comply with the
changes in law made by those sections until March 1, 2012.
SECTION 5.06. (a) The change in law made by this Act in
amending Sections 1201.103 and 1201.104, Occupations Code, applies
only to an application for a license filed with the executive
director of the manufactured housing division of the Texas
Department of Housing and Community Affairs on or after the
effective date of this Act. An application for a license filed
before that date is governed by the law in effect on the date the
application was filed, and the former law is continued in effect for
that purpose.
(b) The change in law made by this Act in adding Section
1201.1031, Occupations Code, applies only to an application for a
license or license renewal filed with the executive director of the
manufactured housing division of the Texas Department of Housing
and Community Affairs on or after the effective date of this Act.
An application for a license or license renewal filed before that
date is governed by the law in effect on the date the application
was filed, and the former law is continued in effect for that
purpose.
(c) The change in law made by this Act in amending Section
1201.116, Occupations Code, applies only to an application for a
license renewal filed with the executive director of the
manufactured housing division of the Texas Department of Housing
and Community Affairs on or after the effective date of this Act.
An application for a license renewal filed before that date is
governed by the law in effect on the date the application was filed,
and the former law is continued in effect for that purpose.
ARTICLE 6. EFFECTIVE DATE
SECTION 6.01. This Act takes effect September 1, 2011.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2608 was passed by the House on May 3,
2011, by the following vote: Yeas 144, Nays 5, 1 present, not
voting; that the House refused to concur in Senate amendments to
H.B. No. 2608 on May 25, 2011, and requested the appointment of a
conference committee to consider the differences between the two
houses; and that the House adopted the conference committee report
on H.B. No. 2608 on May 29, 2011, by the following vote: Yeas 144,
Nays 3, 1 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2608 was passed by the Senate, with
amendments, on May 23, 2011, by the following vote: Yeas 30, Nays
0; at the request of the House, the Senate appointed a conference
committee to consider the differences between the two houses; and
that the Senate adopted the conference committee report on H.B. No.
2608 on May 29, 2011, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor