Texas 2009 - 81st Regular

Texas House Bill HCR161 Compare Versions

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1	1	81R21368 MDR-F
2	2	By: Burnam H.C.R. No. 161
3	3
4	4
5	5	CONCURRENT RESOLUTION
6	6	WHEREAS, The Benbrook Water Authority, a governmental
7	7	subdivision of the State of Texas:
8	8	(1) is a party in the lawsuit Benbrook Water Authority
9	9	v. Carter & Burgess, et al., Cause No. 352-207733-04 in Tarrant
10	10	County, Texas, in which a witness in the litigation, John Cook, has
11	11	been threatened with liability by the opposing parties to the
12	12	Benbrook Water Authority in the litigation if Mr. Cook comes
13	13	forward with factual and expert testimony in the case on behalf of
14	14	Benbrook Water Authority;
15	15	(2) in an effort to protect John Cook from any legal
16	16	liability to the opposing parties in the above-referenced
17	17	litigation, now or at any time, however remote the possibility of
18	18	liability on John Cook's part might be, wishes to hold John Cook
19	19	harmless by contractually indemnifying Mr. Cook against any claims
20	20	he may face as a consequence of his truthful testimony offered in
21	21	the cited litigation;
22	22	(3) to be certain of the enforceability of a
23	23	contractual agreement, the terms of which are disclosed below,
24	24	wishes to have its immunity from suit waived to the extent John Cook
25	25	is compelled to enforce the terms of the agreement in a court of
26	26	law; and
27	27	(4) has executed a Hold Harmless and Indemnity
28	28	Agreement between Benbrook Water Authority and John Cook, that
29	29	reads as follows:
30	30	(1) "This Indemnification Agreement is by
31	31	and between Benbrook Water Authority ("Indemnitor")
32	32	and John Cook ("Indemnified Party") and is effective
33	33	the 13th day of March, 2009.
34	34	(2) The Texas Board of Professional
35	35	Engineers Licensing Requirements for engineers who
36	36	practice engineering in the State of Texas contain the
37	37	following provision:
38	38	"§137.55 Engineers Shall Protect the Public
39	39	(a) Engineers shall be entrusted to
40	40	protect the health, safety, property and welfare of
41	41	the public in the practice of their profession. The
42	42	public as used in this section and other rules is
43	43	defined as any individual(s), client(s), business or
44	44	public entities, or any member of the general
45	45	population whose normal course of life might
46	46	reasonably include an interaction of any sort with the
47	47	engineering work on the license holder.
48	48	(b) Engineers shall not perform any
49	49	engineering function which, when measured by generally
50	50	accepted engineering standards or procedures, is
51	51	reasonably likely to result in the endangerment of
52	52	lives, health, safety, property or welfare of the
53	53	public. Any act or conduct which constitutes
54	54	incompetence or gross negligence, or a criminal
55	55	violation of law, constitutes misconduct and shall be
56	56	censurable by the board.
57	57	(c) Engineers shall first notify
58	58	involved parties of any engineering decisions or
59	59	practices that might endanger the health, safety,
60	60	property or welfare of the public. When, in an
61	61	engineer's judgment, any risk to the public remains
62	62	unresolved, that engineer shall report any fraud,
63	63	gross negligence, incompetence, misconduct, unethical
64	64	or illegal conduct to the board or to proper civil or
65	65	criminal authorities.
66	66	(d) Engineers should strive to
67	67	adequately examine the environmental impact of their
68	68	actions and projects, including the prudent use and
69	69	conservation of resources and energy, in order to make
70	70	informed recommendations and decisions."
71	71	(3) In consideration of the preceding
72	72	regulation, and of Indemnified Party's voluntary
73	73	testimony in the above cause in fulfillment of his
74	74	duties as embodied in the regulation, Indemnitor and
75	75	Indemnified Party have entered into this Agreement.
76	76	(4) Indemnitor agrees to indemnify,
77	77	defend, and hold harmless the Indemnified Party from
78	78	and against any and all claims, demands, causes of
79	79	action, damages and rights of recovery of any type or
80	80	description (collectively, the "claims"), which may be
81	81	asserted against the Indemnified Party by any person,
82	82	arising directly or indirectly from Indemnified
83	83	Party's testimony in whatever form in the above styled
84	84	and numbered cause against Carter & Burgess, Inc.
85	85	Indemnitor expressly acknowledges that the
86	86	indemnification obligation created hereby includes,
87	87	without limitation, the obligation to indemnify the
88	88	Indemnified Party with respect to claims which may
89	89	arise out of the Indemnified Party's testimony herein,
90	90	but shall not extend to claims caused by the
91	91	Indemnified Party's willful misconduct.
92	92	(5) Indemnitor and Indemnified Party
93	93	believe that, based upon allegations made in open
94	94	Court by the representatives of Carter & Burgess, Inc.
95	95	in the above styled and numbered cause to the effect
96	96	that Indemnified Party is a "disgruntled ex-employee,"
97	97	that Carter & Burgess, Inc. may choose to attempt to
98	98	sue Indemnified Party for coming forward in this cause
99	99	to effectively intimidate Indemnified Party from
100	100	testifying truthfully herein. The purpose of this
101	101	Agreement is to avoid such intimidation by Carter &
102	102	Burgess, Inc. in the ensuing weeks and months.
103	103	(6) Indemnitor hereby waives any and all
104	104	immunity from suit and immunity from liability which
105	105	may impair the enforceability of this agreement by Mr.
106	106	John Cook, his heirs or representatives.
107	107	(7) This Agreement is performable in
108	108	Tarrant County, Texas. Benbrook Water Authority";
109	109	now, therefore, be it
110	110	RESOLVED by the Legislature of the State of Texas, That Mr.
111	111	John Cook, his heirs, and representatives are, in the event a legal
112	112	dispute arises with Benbrook Water Authority over the terms of the
113	113	Hold Harmless and Indemnity Agreement entered into between Benbrook
114	114	Water Authority and John Cook effective on March 13, 2009, granted
115	115	permission to sue the Benbrook Water Authority; and, be it further
116	116	RESOLVED, That any immunity from suit that might shield the
117	117	Benbrook Water Authority is hereby waived; and, be it further
118	118	RESOLVED by the Legislature of the State of Texas, That John
119	119	Cook is granted permission to sue the State of Texas and the
120	120	Benbrook Water Authority subject to Chapter 107, Civil Practice and
121	121	Remedies Code; and, be it further
122	122	RESOLVED, That the president of the board of directors of the
123	123	Benbrook Water Authority and the attorney general shall be served
124	124	process as provided by Section 107.002(a)(3), Civil Practice and
125	125	Remedies Code.