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  80R3414 MSE-F
 
  By: Castro H.B. No. 1869
 
 
 
   
 
 
A BILL TO BE ENTITLED
AN ACT
relating to pool safety; providing a civil penalty.
       BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
       SECTION 1.  Subtitle A, Title 9, Health and Safety Code, is
amended by adding Chapter 761 to read as follows:
CHAPTER 761. POOL SAFETY AT SINGLE-FAMILY DWELLINGS
       Sec. 761.001.  SHORT TITLE.  This chapter may be cited as the
Drowning Prevention and Swimming Pool Safety Act.
       Sec. 761.002.  DEFINITIONS. In this chapter:
             (1)  "Manual safety cover" means a pool cover that is
not motor-powered and:
                   (A)  completely covers the water area of the pool;
and
                   (B)  conforms to the ASTM International Standard
F1346-91 "Standard Performance Specification for Safety Covers and
Labeling Requirements for All Covers for Swimming Pools, Spas and
Hot Tubs," as it existed on January 1, 2007.
             (2)  "Pool" means a temporary or permanent swimming
pool, wading or reflection pool, hot tub, or spa that contains water
more than 18 inches deep and that is located at ground level,
aboveground, belowground, or indoors.  The term does not include a
bay, lake, pond, bayou, river, creek, stream, spring, reservoir,
stock tank, culvert, drainage ditch, detention pond, or other flood
or drainage facility.
             (3)  "Pool yard" means an area that contains a pool.
             (4)  "Pool yard enclosure" or "enclosure" means a
fence, wall, or combination of fences, walls, or gates that
completely surround a pool.  A pool yard enclosure may enclose the
pool deck, landscaped areas, and other areas beyond the pool.
             (5)  "Power safety cover" means a motor-powered pool
cover that:
                   (A)  completely covers the water area of the pool;
and
                   (B)  conforms to the ASTM International Standard
F1346-91 "Standard Performance Specification for Safety Covers and
Labeling Requirements for All Covers for Swimming Pools, Spas and
Hot Tubs," as it existed on January 1, 2007.
             (6)  "Self-closing device" means a device that causes a
gate to automatically close without human or electrical power after
it has been opened.
             (7)  "Self-latching device" means a device that causes
a gate to automatically latch without human or electrical power
when the gate closes.
             (8)  "Seller" means a person who sells, builds, or
installs a pool that serves not more than one single-family
dwelling.  The term does not include a builder who constructs the
dwelling or any improvements on the property on which the pool is
located.
       Sec. 761.003.  REQUIRED SAFETY EQUIPMENT. (a)  In
accordance with rules adopted by the executive commissioner of the
Health and Human Services Commission, a seller shall provide, with
each pool sold, built, or installed for use at a single-family
dwelling, the following safety equipment:
             (1)  if the pool is a swimming pool:
                   (A)  a throwing rope that:
                         (i)  is one-fourth inch to three-eighths
inch in diameter;
                         (ii)  is at least as long as two-thirds the
maximum width of the pool; and
                         (iii)  is attached to a ring buoy approved as
a flotation device by the United States Coast Guard with an outside
diameter of 15 to 24 inches; and
                   (B)  a reaching pole that is:
                         (i)  light, strong, and non-telescoping;
                         (ii)  at least 12 feet long;
                         (iii)  constructed of fiberglass or another
material that does not conduct electricity; and
                         (iv)  attached at one end to a body hook or
shepherd's crook with blunted ends; and
             (2)  a pool yard enclosure and gate that comply with the
specifications described by Sections 761.005 and 761.006, a power
safety cover, or a manual safety cover.
       (b)  A seller required to comply with this chapter may charge
the cost of the required safety equipment to the person purchasing
the pool.
       (c)  A seller is not required to provide the safety equipment
required by Subsection (a) if the person purchasing the pool owns
safety equipment or has contracted with another person for the
purchase or installation of safety equipment that complies with
this chapter.  The person purchasing the pool must submit written
proof to the seller of the presence of the required safety equipment
or of a contract to purchase the equipment in accordance with rules
adopted by the executive commissioner of the Health and Human
Services Commission.
       Sec. 761.004.  DUTIES OF POOL OWNER.  (a)  A person who owns a
pool shall in accordance with rules adopted by the executive
commissioner:
             (1)  obtain and maintain the safety equipment required
under Section 761.003(a); and
             (2)  protect against body entrapment and hair
entanglement.
       (b)  This section does not apply to a pool built or installed
before January 1, 2008.  This subsection expires December 31, 2012.
       Sec. 761.005.  ENCLOSURE FOR POOL YARD.  (a)  The height of
the pool yard enclosure must be at least 48 inches as measured from
the ground on the side away from the pool.
       (b)  Openings under the pool yard enclosure may not allow a
sphere four inches in diameter to pass under the pool yard
enclosure.
       (c)  If the pool yard enclosure is constructed with
horizontal and vertical members and the distance between the tops
of the horizontal members is at least 45 inches, the openings may
not allow a sphere four inches in diameter to pass through or around
the enclosure.
       (d)  If the pool yard enclosure is constructed with
horizontal and vertical members and the distance between the tops
of the horizontal members is less than 45 inches, the openings may
not allow a sphere 1-3/4 inches in diameter to pass through or
around the enclosure.
       (e)  A pool yard enclosure may not contain:
             (1)  chain link fencing materials if the enclosure is
built on or after January 1, 2008; or
             (2)  diagonal fencing members that are lower than 49
inches above the ground.
       (f)  Decorative designs or cutouts on or in the pool yard
enclosure may not contain any openings greater than 1-3/4 inches in
any direction.
       (g)  Indentations or protrusions in a solid pool yard
enclosure without any openings may not be greater than normal
construction tolerances and tooled masonry joints on the side away
from the pool.
       (h)  Permanent equipment or structures may not be
constructed or placed in a manner that makes them readily available
for climbing from the outside to the inside of the pool yard
enclosure.
       (i)  If a dwelling has a door that opens into the pool yard
without another intervening enclosure, the door must be equipped
with:
             (1)  a self-closing device, a self-latching device, and
a keyless deadbolt or similar mechanism that is operated only from
the door's interior and is installed at least 60 inches above the
floor; or
             (2)  a door alarm that:
                   (A)  sounds continuously for at least 30 seconds
immediately after the door is opened;
                   (B)  provides a sound pressure of at least 85
decibels when measured indoors at 10 feet;
                   (C)  automatically resets; and
                   (D)  may be temporarily deactivated for a single
opening, provided the deactivation lasts not longer than 15 seconds
and the deactivation switch is at least 60 inches above the floor.
       (j)  If a dwelling has a sliding glass door that opens into
the pool yard without another intervening enclosure, the door must
be equipped with a pinlock or comparable mechanism that is operated
only from the door's interior and is at least 60 inches above the
floor.
       (k)  If a dwelling has a window that opens into the pool yard
without another intervening enclosure, and the bottom of the window
is less than 48 inches above the floor, the window must be equipped
with:
             (1)  a spring-loaded window latch or pinlock; or
             (2)  a window latch and screen with a spring-loaded
latch or pinlock on the screen.
       (l)  If a pool is built on a slope, a pool yard enclosure is
not required in those areas around the pool where:
             (1)  the deck of the pool is at least four feet above
grade level;
             (2)  there are no indentations, handholds, or footholds
in the structural walls or supports below the pool or pool deck that
could be readily used by a small child to climb to the pool or pool
deck; and
             (3)  any openings under the pool or pool deck that could
give access to the pool do not allow a sphere four inches in
diameter to pass through for a height of four feet above ground
level.
       (m)  If a pool is an aboveground temporary pool and the pool
is accessed by ladder, steps, or ramp, the owner shall:
             (1)  ensure that all ladders, steps, or ramps may be
locked, barricaded, or removed;
             (2)  enclose the pool yard in the same manner required
for an underground pool; and
             (3)  install a manual safety cover for the pool.
       (n)  A person who owns a pool shall reasonably maintain the
pool yard enclosure and safety devices required under this chapter
and shall ensure needed repairs are performed as soon as reasonably
possible.
       Sec. 761.006.  GATES.  (a)  A gate in a pool yard enclosure as
required by Section 761.003 must:
             (1)  have a self-closing device;
             (2)  have a self-latching device;
             (3)  have hardware enabling the gate to be locked, at
the option of whoever controls the gate, by a built-in lock operated
by key, card, or combination or a padlock; and
             (4)  open outward away from the pool yard.
       (a-1)  Subsection (a)(4) does not apply to a gate in a pool
yard enclosure that is built or installed before January 1, 2008.  
This subsection expires December 31, 2012.
       (b)  Except as provided by Subsection (c), a gate latch must
be installed so that it is at least 60 inches above the ground,
except that it may be installed lower if:
             (1)  the latch is installed on the pool yard side of the
gate only and is at least three inches below the top of the gate; and
             (2)  the gate or enclosure has no opening greater than
one-half inch in any direction within 18 inches from the latch,
including the space between the gate and the gate post to which the
gate latches.
       (c)  A gate latch may be located 42 inches or higher above the
ground if the gate cannot be opened except by key, card, or
combination on both sides of the gate.
       (d)  A gate is not required to have a self-closing device if:
             (1)  the dwelling where the pool is located is occupied
on a regular basis by a person who is permanently disabled and the
person's disability prevents or significantly inhibits the person
from opening a gate with a self-closing device;
             (2)  the gate has a self-latching device when it is
manually closed; and
             (3)  the self-latching device complies with Subsection
(b) or (c).
       (e)  A gate in a pool yard enclosure that allows the entry of
a vehicle must comply with the height and design requirements of
Subsections (a)-(c) but may open either toward or away from the pool
yard, does not have to have hardware enabling the gate to be locked,
and is considered to have a self-closing device if the gate closes
automatically with electronic power after a vehicle is driven
through the gate. The gate is considered to have a self-latching
device if the gate is held closed by a device that does not permit
the gate to be opened without electronic activation and any
electronic activation switch or manual override switch or mechanism
is:
             (1)  located at least 60 inches above the ground; or
             (2)  located at least 42 inches above the ground if the
switch or mechanism cannot be operated without a key, card, or
combination.
       Sec. 761.007.  ENFORCEMENT BY POLITICAL SUBDIVISION.  A
municipality, by ordinance in accordance with Section 214.101,
Local Government Code, or county, by order, may enforce this
chapter by imposing requirements for permits or inspections, or
imposing fines for violations.  A fee for a permit issued or
inspection conducted under this section may not exceed the
reasonable cost of the permit or inspection.
       Sec. 761.008.  INJUNCTION; CIVIL PENALTY.  (a)  The attorney
general, a county, or a municipality may institute an action for
injunctive relief to restrain a violation by a person that is
violating or threatening to violate a provision of this chapter or
to impose a civil penalty under this section.
       (b)  A person who violates this chapter is subject to a civil
penalty not to exceed $1,000 for each violation.
       (c)  In determining the amount of the civil penalty, the
court shall consider:
             (1)  the person's previous violations;
             (2)  the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
             (3)  whether the health and safety of the public was
threatened by the violation;
             (4)  the demonstrated good faith of the person; and
             (5)  the amount necessary to deter future violations.
       (d)  The attorney general or the appropriate district,
county, or municipal attorney, in the name of the state, may bring
an action under this section in a district court of Travis County or
of a county in which any part of the violation occurs.
       (e)  A penalty collected under this section by the attorney
general shall be deposited in the state treasury to the credit of
the general revenue fund. A penalty collected under this section on
behalf of a political subdivision shall be deposited to the credit
of the general fund of the political subdivision.
       Sec. 761.009.  STATEWIDE UNIFORMITY; LIABILITY. (a)  To
ensure uniform and equitable implementation and enforcement
throughout this state, this chapter constitutes the whole field of
regulation regarding pool safety at single-family dwellings.
       (b)  Except as specifically provided by Section 761.007,
this chapter preempts and supersedes a local ordinance, order,
rule, or regulation adopted by a political subdivision of this
state pertaining to pool safety at single-family dwellings.
       (c)  This chapter does not limit a person's liability for
actual damages resulting from a violation of the person's duties
under this chapter or other law.
       SECTION 2.  The heading to Chapter 757, Health and Safety
Code, is amended to read as follows:
CHAPTER 757.  POOL YARD ENCLOSURES AT CERTAIN DWELLINGS
       SECTION 3.  The heading to Section 214.101, Local Government
Code, is amended to read as follows:
       Sec. 214.101.  AUTHORITY REGARDING [SWIMMING] POOL
ENCLOSURES.
       SECTION 4.  Section 214.101(a), Local Government Code, is
amended to read as follows:
       (a)  A municipality may by ordinance establish minimum
standards for swimming pool fences and enclosures and may adopt
other ordinances as necessary to carry out this subchapter. A
municipal ordinance containing standards for a pool yard enclosure
as defined by Chapters [Chapter] 757 and 761, Health and Safety
Code, [as added by Section 2, Chapter 517, Acts of the 73rd
Legislature, 1993,] must contain the same standards for that
enclosure as are required or permitted by those chapters [that
chapter] of the Health and Safety Code.
       SECTION 5.  This Act takes effect January 1, 2008.