Statute Grants Counties Authority, Options to Continue Program
Without the requirements for safe construction, there is a risk of “fly-by-night” builders, said Rep. Marisa Marquez, D-El Paso.
“I filed House Bill 2833 with the goal of achieving what had not been achieved in decades of attempts,” said Marquez in reference to the 81st Legislative Session. “That is, to pass a law that allows border counties to help ensure the safety of homes in colonias.” Previously, the unincorporated areas of border counties were excluded from statewide regulations, which caused substandard housing conditions in these areas, Marquez continued.
HB2833, effective Sept. 1, 2009, enacted Subchapter F, Chapter 233, Texas Local Government Code. This new subchapter provides authority for all counties, except Loving County, to continue the Residential Construction Inspection Program that was previously administered by the now-abolished Texas Residential Construction Commission (TRCC), said Jim Allison, general counsel to the County Judges and Commissioners Association of Texas (CJCAT). The program is voluntary.
“If adopted by the commissioners court, this program will ensure that new residential construction in the unincorporated area continues to meet minimum standards for structural, electrical and plumbing codes,” Allison said. The cost of the inspections remains the responsibility of the contractor, not the county. Without county action, the program is terminated.
As filed originally, HB2833 impacted only El Paso County. However, the language was modified at the end of the session to encompass all counties after the expiration of the TRCC, which had been subject to Sunset Review.
“We saw that the TRCC was being dissolved, and suddenly all counties needed to have the powers that were supposed to fill in a gap originally,” Marquez maintained. “Working with the builders and consumer advocates, we made sure that the counties could retain authority if they chose to,” she continued. “In the end, it is important to make sure that no matter where someone builds in Texas, they are protected from unsafe dwellings.”
A Win-Win Situation
“This legislation puts a better reflection on our industry, said Kay Vinzant, executive director of the Heart of Texas Builders Association. “There’s not a bad thing about it.
“I would like to think everyone would do the right thing and build to code,” she continued. “This puts everybody on the same playing field and helps standardize home construction.”
Upon passage of the legislation Vinzant went to each McLennan County commissioner and the county judge and asked them to adopt a resolution accordingly. The court responded in October 2009 with the “Order of the McLennan County Commissioners Court Requiring Application of Subchapter F, Chapter 233, Texas Local Government Code, To Certain Residential Construction In Unincorporated Areas Of McLennan County.”
“We want standards out in the county just like they have in town,” said McLennan County Commissioner Ray Meadows, president of the CJCAT. “We don’t want substandard housing out in the county.”
On Sept. 15, 2009, the Hays County Commissioners Court approved a resolution adopting provisions of Subchapter F of the Local Government Code, said Hays County Commissioner Debbie Gonzales Ingalsbe, second vice president of the CJCAT.
“By adopting these provisions, Hays County wants to ensure that adequate building code standards continue to be applied to new construction of residential property in the unincorporated areas of our county to benefit the health, safety and welfare of our citizens, both current and future,” Ingalsbe said.
Nuts and Bolts
Jefferson County also adopted a resolution pursuant to HB2833 and provided the following information on its Web site to educate the community:
A county may adopt a resolution or order requiring all new residential construction and certain home additions begun after Sept. 1, 2009, to be built to either:
• the version of the International Residential Code (IRC) published as of May 1, 2008; or
• the version of the IRC that is applicable in the county seat of that county.
Upon adoption of this requirement, a minimum of three inspections must be performed, as applicable, to ensure building code compliance for:
• single-family house or duplex construction on a vacant lot; and
• construction of an addition to an existing single-family house or duplex if the addition
will increase the square footage or value of the existing residential building by more than
The three required inspections during the construction project, as applicable, must be
performed at the following stages:
• the foundation stage, before the placement of concrete;
• the framing and mechanical systems stage, before covering with drywall or other interior wall covering; and
• completion of construction of the residence.
For remodeling construction to an existing residence in which the structure’s square footage or value will increase by more than 50 percent, the inspection requirements apply and must be performed as necessary based on the scope of work of the construction project.
The builder is responsible for contracting to perform the required inspections with:
• a licensed engineer;
• a registered architect;
• a professional inspector licensed by the Texas Real Estate Commission;
• a plumbing inspector employed by a municipality and licensed by the Texas State Board
of Plumbing Examiners;
• a building inspector employed by a political subdivision; or
• an individual certified as a residential combination inspector by the International Code Council.
A builder may use the same inspector for all the required inspections or a different inspector for each required inspection. Upon the adoption of a resolution or order by the county to have Subchapter F, Chapter 233, Texas Local Government Code apply in the county, that county may require a builder to provide notice of a construction project prior to beginning the project on a form prescribed by the county. The notice must include:
• the location of the new residential construction;
• the approximate date by which the new residential construction will be commenced; and
• the version of the IRC that will be used by the builder to construct the new residential
Upon the adoption of a resolution or order by the county to have Subchapter F, Chapter
233, Texas Local Government Code apply in the county, that county may require a builder to provide notice of building inspections. The builder shall submit the required notice on a form required by the county not later than the 10th day after the date of the final inspection, stating whether or not the project is in compliance with the building code. The form must be submitted to:
• the county employee, department, or agency designated by the commissioners court of
the county to receive the information; and
• the person for whom the new residential construction is being built, if different from the
If a builder is in violation of the notice provisions, the county may take any or all of the
• refer the inspector to the appropriate regulatory authority for discipline;
• in a suit brought by the appropriate attorney representing the county in the district court, obtain appropriate injunctive relief to prevent a violation or threatened violation of a standard or notice required under this subchapter from continuing or occurring; or
• refer the builder for prosecution under a Class C misdemeanor.
Implementing the provisions of Subchapter F, Chapter 233, Texas Local Government Code to the county, with the permissible notice requirements, will allow a county to more easily track increases in the property tax base.
An individual is exempted from the Class C misdemeanor referral for failure to provide
• the new residential construction is built by the individual or the individual acts as the
individual’s own contractor; and
• the individual intends to use the residence as the individual’s primary residence.
HB 2833 specifically states that Subchapter F, Chapter 233, Texas Local Government Code cannot be construed to:
• require prior approval by the county before the beginning of new residential construction;
• authorize the commissioners court of a county to adopt or enforce zoning regulations; or
• affect the application of the provisions of Subchapter B, Chapter 232, Texas Local
Government Code to land development.
HB 2833 further prohibits a county from charging a fee to a person to defray the costs of enforcing these standards.
The McLennan County order mandates that home builders must notify the county engineer’s office of new home construction and declare whether they will follow the 2009 city of Waco building code or the 2008 International Building Code.
Bastrop County passed a HB2833 resolution in September 2009 adopting the building code standards required by the city of Bastrop but chose not to require that homebuilders notify the county when a home is being built or inspections take place, said Ronnie Moore, Bastrop County engineer.
“This option was what made the best sense for our county,” said Moore, who met with the city of Bastrop building inspector before selecting an option. The statute prohibits a county from charging a fee to defray the costs of enforcing these standards, and Bastrop County does not have the personnel to monitor filing notices, he said.
Hays County, which requires builders to file notices with the county’s records division, selected their option with the input of their area’s homebuilder’s association. The court worked with the county’s planning director to create a process to defray costs including the use of online forms and combined record-keeping with the county’s development and permit forms.
Regardless of the option selected, the primary benefit of the legislation is that it provides a benchmark or a main standard from which homes should be built, Moore said. The program also puts the homeowner in a position to litigate if builders do not meet the standards.
“Without the standards, it’s a matter of ‘he said, she said,’ ” Moore maintained. “Something is better than nothing.”
By Julie Anderson