By: Burnam (Senate Sponsor - Davis) H.C.R. No. 161
(In the Senate - Received from the House May 13, 2009;
May 14, 2009, read first time and referred to Committee on
Jurisprudence; May 21, 2009, reported favorably by the following
vote: Yeas 5, Nays 0; May 21, 2009, sent to printer.)
HOUSE CONCURRENT RESOLUTION
WHEREAS, The Benbrook Water Authority, a governmental
subdivision of the State of Texas:
(1) is a party in the lawsuit Benbrook Water Authority
v. Carter & Burgess, et al., Cause No. 352-207733-04 in Tarrant
County, Texas, in which a witness in the litigation, John Cook, has
been threatened with liability by the opposing parties to the
Benbrook Water Authority in the litigation if Mr. Cook comes
forward with factual and expert testimony in the case on behalf of
Benbrook Water Authority;
(2) in an effort to protect John Cook from any legal
liability to the opposing parties in the above-referenced
litigation, now or at any time, however remote the possibility of
liability on John Cook's part might be, wishes to hold John Cook
harmless by contractually indemnifying Mr. Cook against any claims
he may face as a consequence of his truthful testimony offered in
the cited litigation;
(3) to be certain of the enforceability of a
contractual agreement, the terms of which are disclosed below,
wishes to have its immunity from suit waived to the extent John Cook
is compelled to enforce the terms of the agreement in a court of
law; and
(4) has executed a Hold Harmless and Indemnity
Agreement between Benbrook Water Authority and John Cook, that
reads as follows:
(1) "This Indemnification Agreement is by
and between Benbrook Water Authority ("Indemnitor")
and John Cook ("Indemnified Party") and is effective
the 13th day of March, 2009.
(2) The Texas Board of Professional
Engineers Licensing Requirements for engineers who
practice engineering in the State of Texas contain the
following provision:
"ยง137.55 Engineers Shall Protect the Public
(a) Engineers shall be entrusted to
protect the health, safety, property and welfare of
the public in the practice of their profession. The
public as used in this section and other rules is
defined as any individual(s), client(s), business or
public entities, or any member of the general
population whose normal course of life might
reasonably include an interaction of any sort with the
engineering work on the license holder.
(b) Engineers shall not perform any
engineering function which, when measured by generally
accepted engineering standards or procedures, is
reasonably likely to result in the endangerment of
lives, health, safety, property or welfare of the
public. Any act or conduct which constitutes
incompetence or gross negligence, or a criminal
violation of law, constitutes misconduct and shall be
censurable by the board.
(c) Engineers shall first notify
involved parties of any engineering decisions or
practices that might endanger the health, safety,
property or welfare of the public. When, in an
engineer's judgment, any risk to the public remains
unresolved, that engineer shall report any fraud,
gross negligence, incompetence, misconduct, unethical
or illegal conduct to the board or to proper civil or
criminal authorities.
(d) Engineers should strive to
adequately examine the environmental impact of their
actions and projects, including the prudent use and
conservation of resources and energy, in order to make
informed recommendations and decisions."
(3) In consideration of the preceding
regulation, and of Indemnified Party's voluntary
testimony in the above cause in fulfillment of his
duties as embodied in the regulation, Indemnitor and
Indemnified Party have entered into this Agreement.
(4) Indemnitor agrees to indemnify,
defend, and hold harmless the Indemnified Party from
and against any and all claims, demands, causes of
action, damages and rights of recovery of any type or
description (collectively, the "claims"), which may be
asserted against the Indemnified Party by any person,
arising directly or indirectly from Indemnified
Party's testimony in whatever form in the above styled
and numbered cause against Carter & Burgess, Inc.
Indemnitor expressly acknowledges that the
indemnification obligation created hereby includes,
without limitation, the obligation to indemnify the
Indemnified Party with respect to claims which may
arise out of the Indemnified Party's testimony herein,
but shall not extend to claims caused by the
Indemnified Party's willful misconduct.
(5) Indemnitor and Indemnified Party
believe that, based upon allegations made in open
Court by the representatives of Carter & Burgess, Inc.
in the above styled and numbered cause to the effect
that Indemnified Party is a "disgruntled ex-employee,"
that Carter & Burgess, Inc. may choose to attempt to
sue Indemnified Party for coming forward in this cause
to effectively intimidate Indemnified Party from
testifying truthfully herein. The purpose of this
Agreement is to avoid such intimidation by Carter &
Burgess, Inc. in the ensuing weeks and months.
(6) Indemnitor hereby waives any and all
immunity from suit and immunity from liability which
may impair the enforceability of this agreement by Mr.
John Cook, his heirs or representatives.
(7) This Agreement is performable in
Tarrant County, Texas. Benbrook Water Authority";
now, therefore, be it
RESOLVED by the Legislature of the State of Texas, That Mr.
John Cook, his heirs, and representatives are, in the event a legal
dispute arises with Benbrook Water Authority over the terms of the
Hold Harmless and Indemnity Agreement entered into between Benbrook
Water Authority and John Cook effective on March 13, 2009, granted
permission to sue the Benbrook Water Authority; and, be it further
RESOLVED, That any immunity from suit that might shield the
Benbrook Water Authority is hereby waived; and, be it further
RESOLVED by the Legislature of the State of Texas, That John
Cook is granted permission to sue the Benbrook Water Authority
subject to Chapter 107, Civil Practice and Remedies Code; and, be it
further
RESOLVED, That the president of the board of directors of the
Benbrook Water Authority and the attorney general shall be served
process as provided by Section 107.002(a)(3), Civil Practice and
Remedies Code.
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