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November / December 2009
Volume 21, Number 6

Outside City Limits
By Maria Sprow

County commissioners courts around the state are taking advantage of a new law that gives them options on how to impose building codes and require inspections for new housing in unincorporated areas, though not all are choosing the same option.

House Bill 2833, passed during the 81st Legislative Session, gave 253 counties the option to adopt an order that requires builders to construct homes according to either the International Residential Code (IRC), a modified version of the IRC or the building code adopted by an area municipality; that option also requires inspections during the foundation, framing and completion stages of construction. Another option encompasses those requirements but also requires builders to notify the county of when a home is being built and when the inspections take place.

Or, counties can opt out of those options and choose to not have residential building codes in their unincorporated areas.

Loving County was left out of the legislation.

Which option counties chose or choose to take is largely dependent on the perceived need in the area, as well as the area’s overall philosophy surrounding county living. But that freedom to choose what to do and how to do it was an important aspect of the legislation, which sought to fill a last-minute, end-of-session hole left by the sunsetting of the Texas Residential Construction Commission (TRCC).

The legislation took effect Sept. 1. As of October, Bosque, Floyd, Franklin, Hunt, Madison, Milam, Tom Green and Young counties were among those that had chosen not to require residential building codes in their areas.

“It deals with the government’s intrusion into rural Texas,” Ellis County Commissioner Heath Sims said, while other county commissioners and judges said they hadn’t felt there was a need in their areas.

The option to “do nothing” and preserve the rural philosophy of hands-off government alive was popular among counties. “Doing the local option lets the growing areas of the state that know they have a lot of building going on that need enforcement to do that, while other areas of the state can let well enough alone. … If you don’t want building codes and the authority to enforce them, this legislation was written for you,” said Conference of Urban Counties Executive Director Don Lee, adding that counties can pass a resolution to require building codes and standards at any time and that doing nothing still allows homeowners a chance to air grievances against homebuilders in court, which was difficult under the TRCC rules.

“(Homeowners) still have all the tools they had for most of the last, you know, forever. But there is no standards or code that the builder will be violating. So if you do nothing, then there is no building code anymore in a county, but there never really was much of one anyway. What was there wasn’t there for long and came with a downside for homeowners.”

Because the grievance process again involves civil suits, which can be costly Lee said he believes the legislation will prove more helpful to middle class homeowners than the homeowners of colonias, which were the original benefactor of the legislation.

“They are the homeowners who would have building code expectations,” he added.
Bastrop, El Paso, Hamilton, Hays and McLennan counties are among those that have chosen one of the two proactive options.

The Bastrop County Commissioners court chose to adopt 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 when inspections take place.

They chose that option because they believed it was the most they could do without creating a cost for the county. Unfortunately, the legislation prohibited counties from charging any fee for enforcing the building codes, and many counties felt that enforcing whether a builder was filing notices properly would be too costly and cumbersome without additional staff.

“The challenge as we saw it was if we did nothing, then there would be no regulatory code in the unincorporated areas of the county,” said Bastrop County Judge Ronnie McDonald. “We don’t have the personnel to monitor.”

Hays County commissioners chose to go a step further and require that builders file notices with the county’s records division. They made the decision based partly on the recommendation of the area’s homebuilders association.

“We were contacted by some members of the local Central Texas Home Builders Association who we’ve known and done business with and they sort of laid out what the background and the situation was ... we knew that the house bill was coming into rule and we could act on it if we chose to,” said Hays Commissioner Karen Ford.

“We had them come present to the court a little bit about the wheres and the whys and the whatnot of the bill and about the sunsetting of the TRCC.”
The commissioners were assured that taking the option would not place any additional stresses or requirements on reputable builders or new homeowners moving into the county.

“We discussed a bit about what this might mean for the county if we were left with no inspections of residential construction in the unincorporated areas of the county,” she said. “There was some promise of assurance through the TRCC that homes were being inspected and that there were residential construction (standards) across the county … it was nothing out of the ordinary, we were just picking up the slack or closing the gap that had been left by the time
the TRCC got sunsetted.”

The commissioners court worked with its planning director to create a process that would not cost the county any additional funds. Though they also felt like they did not have the funding necessary to provide enforcement for the new requirements, they still believed that providing a records repository for public information would be
beneficial for residents.

“Since we are doing record keeping for development and septic and driveway permits for buildings, it became just another attachment to our normal application forms,” Ford said, adding that the documents are electronic so they will not take up more physical space in the county’s offices. “It’s implicit that we do want our residents out here to not fall prey to folks that may be coming in, making a buck and leaving. We want to make sure that there is room for a level playing
field among the reputable builders in our area.”

When it was originally filed at the beginning of the legislative session by Rep. Marisa Marquez, the bill only impacted El Paso County. That commissioners court and county attorney’s office had visited with Marquez about local problems and safety concerns they were having related to poor housing construction and standards in its
unincorporated areas.

“Growing up in El Paso, I am very aware of the problems that plague the colonia neighborhoods that line the outskirts of El Paso and along the border,” Marquez said. “When I started my first session the El Paso County Attorney, Jose Rodriguez, came to me with a piece of legislation that gave the counties along the border the authority to adopt building codes in unincorporated areas. … The border counties
were excluded from protections of their unincorporated areas under the TRCC. Initially, the plan was to extend TRCC inspections to the border counties.”

The bill was drastically modified at the end of the session to encompass all counties after the Legislature voted to close the Texas Residential Construction Commission based on the recommendation of the Sunset Advisory Commission’s final report.

“When Senator (Eliot) Shapleigh and I realized that the TRCC sunset bill was not going to pass and the commission would expire, we feared that counties across the state would lose building code regulations whether they wanted it that way or not,” Marquez said, adding that the bill doesn’t serve as a complete replacement for the TRCC. “We moved quickly to use HB 2833 as a vehicle to allow counties to retain some authority over construction in their unincorporated areas. … The TRCC touched much more than HB 2833 does, so the bill should not be seen as an effort to replace TRCC.

HB 2833 seeks to resolve just one of the issues that TRCC addressed. It happens to be an issue that has been important to the border counties for years and so its passage represents a major achievement for the border region. It is one of the first laws that will allow counties on the border to protect building quality in colonias.”

The TRCC’s function has been to regulate the 28,000 home builders who have registered approximately 588,000 homes since 2004. The Sunset commission’s report listed several problems with the TRCC’s initial implementation in 2003, starting with its founding principles and moving on to rules that took away homeowners’ access to the legal system. Part of the TRCC’s purpose and mission was to provide a dispute resolution process between homeowners and builders before either party could pursue legal action.

“The Texas Residential Construction Commission was never meant to be a true regulatory agency with a clear mission of protecting the public,” states the sunset report. “Despite changes last session ostensibly to strengthen the process by making builders subject to new penalties if they refuse to offer repair of a confirmed defect, the commission still has no real power to require builders to make repairs. Because homeowners must submit to this process before they may seek remedies in court, those who fail to satisfy its requirements either out of confusion or frustration lose their access to court.

No other regulatory agency has a program with such a potentially devastating effect on consumers’ ability to seek their own remedies.”

The report goes on to state that “the cumulative impact of these programs is a greater lack of trust than is seen with other regulatory agencies” and that “anything short of a true regulatory program does more harm than good and should be abolished.”

Rep. Garnet Coleman, who chaired the House County Affairs Committee that passed the original bill as it pertained to El Paso County, said he believes the decision of how to completely replace the TRCC still needs to be properly vetted.

“We will have to answer that question in the interim and in through the next session,” Coleman said, adding that because the bill was amended at the end of the session the County Affairs committee never had a chance to hold a hearing or debate the pros and cons of the legislation. “I think it makes sense to do it in the counties, if you’re not going to have a state entity. ...(but) that language never
went through committee, that’s why we have to have a discussion about it to see if this is the best way to go.”

While the final decision of where the authority to implement and enforce building codes should lie is still awaiting a verdict, Ford said she feels there are long-range benefits that come with the county having the information.

“It’s a fairly easy thing and something we can pay attention to, and it may help us focus and catch some things that we may not have caught, or at least be aware even from a planning perspective of where the houses are being built. It can help us look at where the pockets of growth are and where we are going to be needing improvements to infrastructure and to other services that we provide citizens,” she
said. “We find ourselves with limited tools to manage growth in a high-growth county.”