By: Carona S.B. No. 1201
Substitute the following for S.B. No. 1201:
By: Madden C.S.S.B. No. 1201
A BILL TO BE ENTITLED
AN ACT
relating to an affidavit required to be filed in a cause of action
against certain licensed or registered professionals.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 150, Civil Practice and
Remedies Code, as amended by Chapters 189 (H.B. 854) and 208 (H.B.
1573), Acts of the 79th Legislature, Regular Session, 2005, is
reenacted to read as follows:
CHAPTER 150. LICENSED OR REGISTERED PROFESSIONALS
SECTION 2. Sections 150.001 and 150.002, Civil Practice and
Remedies Code, as amended by Chapters 189 (H.B. 854) and 208 (H.B.
1573), Acts of the 79th Legislature, Regular Session, 2005, are
reenacted and amended to read as follows:
Sec. 150.001. DEFINITIONS. In this chapter:
(1) "Licensed or registered professional" means a
licensed architect, licensed professional engineer, registered
professional land surveyor, registered landscape architect, or any
firm in which such licensed or registered professional practices,
including but not limited to a corporation, professional
corporation, limited liability corporation, partnership, limited
liability partnership, sole proprietorship, joint venture, or any
other business entity.
(2) "Practice of architecture" has the meaning
assigned by Section 1051.001, Occupations Code.
(3) "Practice of engineering" has the meaning assigned
by Section 1001.003, Occupations Code.
Sec. 150.002. CERTIFICATE OF MERIT. (a) In any action or
arbitration proceeding for damages arising out of the provision of
professional services by a licensed or registered professional, the
plaintiff shall be required to file with the complaint an affidavit
of a third-party licensed architect, licensed professional
engineer, registered landscape architect, or registered
professional land surveyor who:
(1) is competent to testify;
(2) holds the same professional license or
registration as the defendant; and
(3) is knowledgeable in the area of practice of the
defendant and offers testimony based on the person's:
(A) knowledge;
(B) skill;
(C) experience;
(D) education;
(E) training; and
(F) practice.
(b) The affidavit shall set forth specifically for each
theory of recovery for which damages are sought, the negligence, if
any, or other action, error, or omission of the licensed or
registered professional in providing the professional service,
including any error or omission in providing advice, judgment,
opinion, or a similar professional skill [skill at least one
negligent act, error, or omission] claimed to exist and the factual
basis for each such claim. The third-party licensed architect,
licensed professional engineer, registered landscape architect, or
registered professional land surveyor shall be licensed or
registered in this state and actively engaged in the practice of
architecture, engineering, or surveying.
(c) [(b)] The contemporaneous filing requirement of
Subsection (a) shall not apply to any case in which the period of
limitation will expire within 10 days of the date of filing and,
because of such time constraints, the plaintiff has alleged that an
affidavit of a third-party licensed architect, licensed
professional engineer, registered landscape architect, or
registered professional land surveyor could not be prepared. In
such cases, the plaintiff shall have 30 days after the filing of the
complaint to supplement the pleadings with the affidavit. The
trial court may, on motion, after hearing and for good cause, extend
such time as it shall determine justice requires.
(d) [(c)] The defendant shall not be required to file an
answer to the complaint and affidavit until 30 days after the filing
of such affidavit.
(e) [(d)] The plaintiff's failure to file the affidavit in
accordance with this section [Subsection (a) or (b)] shall result
in dismissal of the complaint against the defendant. This
dismissal may be with prejudice.
(f) [(e)] An order granting or denying a motion for
dismissal is immediately appealable as an interlocutory order.
(g) [(f)] This statute shall not be construed to extend any
applicable period of limitation or repose.
(h) [(g)] This statute does not apply to any suit or action
for the payment of fees arising out of the provision of professional
services.
SECTION 3. The change in law made by this Act applies only
to an action or arbitration filed or commenced on or after the
effective date of this Act. An action or arbitration filed or
commenced before the effective date of this Act is governed by the
law in effect immediately before the effective date of this Act, and
that law is continued in effect for that purpose.
SECTION 4. This Act takes effect September 1, 2009.