Texas 2009 - 81st Regular

Texas Senate Bill SB1201 Compare Versions

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1	1	S.B. No. 1201
2	2
3	3
4	4	AN ACT
5	5	relating to an affidavit required to be filed in a cause of action
6	6	against certain licensed or registered professionals.
7	7	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	8	SECTION 1. The heading to Chapter 150, Civil Practice and
9	9	Remedies Code, as amended by Chapters 189 (H.B. 854) and 208 (H.B.
10	10	1573), Acts of the 79th Legislature, Regular Session, 2005, is
11	11	reenacted to read as follows:
12	12	CHAPTER 150. LICENSED OR REGISTERED PROFESSIONALS
13	13	SECTION 2. Sections 150.001 and 150.002, Civil Practice and
14	14	Remedies Code, as amended by Chapters 189 (H.B. 854) and 208 (H.B.
15	15	1573), Acts of the 79th Legislature, Regular Session, 2005, are
16	16	reenacted and amended to read as follows:
17	17	Sec. 150.001. DEFINITIONS. In this chapter:
18	18	(1) "Licensed or registered professional" means a
19	19	licensed architect, licensed professional engineer, registered
20	20	professional land surveyor, registered landscape architect, or any
21	21	firm in which such licensed or registered professional practices,
22	22	including but not limited to a corporation, professional
23	23	corporation, limited liability corporation, partnership, limited
24	24	liability partnership, sole proprietorship, joint venture, or any
25	25	other business entity.
26	26	(2) "Practice of architecture" has the meaning
27	27	assigned by Section 1051.001, Occupations Code.
28	28	(3) "Practice of engineering" has the meaning assigned
29	29	by Section 1001.003, Occupations Code.
30	30	Sec. 150.002. CERTIFICATE OF MERIT. (a) In any action or
31	31	arbitration proceeding for damages arising out of the provision of
32	32	professional services by a licensed or registered professional, the
33	33	plaintiff shall be required to file with the complaint an affidavit
34	34	of a third-party licensed architect, licensed professional
35	35	engineer, registered landscape architect, or registered
36	36	professional land surveyor who:
37	37	(1) is competent to testify;
38	38	(2) holds the same professional license or
39	39	registration as the defendant; and
40	40	(3) is knowledgeable in the area of practice of the
41	41	defendant and offers testimony based on the person's:
42	42	(A) knowledge;
43	43	(B) skill;
44	44	(C) experience;
45	45	(D) education;
46	46	(E) training; and
47	47	(F) practice.
48	48	(b) The affidavit shall set forth specifically for each
49	49	theory of recovery for which damages are sought, the negligence, if
50	50	any, or other action, error, or omission of the licensed or
51	51	registered professional in providing the professional service,
52	52	including any error or omission in providing advice, judgment,
53	53	opinion, or a similar professional skill [at least one negligent
54	54	act, error, or omission] claimed to exist and the factual basis for
55	55	each such claim. The third-party licensed architect, licensed
56	56	professional engineer, registered landscape architect, or
57	57	registered professional land surveyor shall be licensed or
58	58	registered in this state and actively engaged in the practice of
59	59	architecture, engineering, or surveying.
60	60	(c) [(b)] The contemporaneous filing requirement of
61	61	Subsection (a) shall not apply to any case in which the period of
62	62	limitation will expire within 10 days of the date of filing and,
63	63	because of such time constraints, the plaintiff has alleged that an
64	64	affidavit of a third-party licensed architect, licensed
65	65	professional engineer, registered landscape architect, or
66	66	registered professional land surveyor could not be prepared. In
67	67	such cases, the plaintiff shall have 30 days after the filing of the
68	68	complaint to supplement the pleadings with the affidavit. The
69	69	trial court may, on motion, after hearing and for good cause, extend
70	70	such time as it shall determine justice requires.
71	71	(d) [(c)] The defendant shall not be required to file an
72	72	answer to the complaint and affidavit until 30 days after the filing
73	73	of such affidavit.
74	74	(e) [(d)] The plaintiff's failure to file the affidavit in
75	75	accordance with this section [Subsection (a) or (b)] shall result
76	76	in dismissal of the complaint against the defendant. This
77	77	dismissal may be with prejudice.
78	78	(f) [(e)] An order granting or denying a motion for
79	79	dismissal is immediately appealable as an interlocutory order.
80	80	(g) [(f)] This statute shall not be construed to extend any
81	81	applicable period of limitation or repose.
82	82	(h) [(g)] This statute does not apply to any suit or action
83	83	for the payment of fees arising out of the provision of professional
84	84	services.
85	85	SECTION 3. The change in law made by this Act applies only
86	86	to an action or arbitration filed or commenced on or after the
87	87	effective date of this Act. An action or arbitration filed or
88	88	commenced before the effective date of this Act is governed by the
89	89	law in effect immediately before the effective date of this Act, and
90	90	that law is continued in effect for that purpose.
91	91	SECTION 4. This Act takes effect September 1, 2009.
92	92	______________________________ ______________________________
93	93	President of the Senate Speaker of the House
94	94	I hereby certify that S.B. No. 1201 passed the Senate on
95	95	April 23, 2009, by the following vote: Yeas 30, Nays 0; and that
96	96	the Senate concurred in House amendment on May 29, 2009, by the
97	97	following vote: Yeas 31, Nays 0.
98	98	______________________________
99	99	Secretary of the Senate
100	100	I hereby certify that S.B. No. 1201 passed the House, with
101	101	amendment, on May 27, 2009, by the following vote: Yeas 148,
102	102	Nays 0, one present not voting.
103	103	______________________________
104	104	Chief Clerk of the House
105	105	Approved:
106	106	______________________________
107	107	Date
108	108	______________________________
109	109	Governor