H.B. No. 2049
AN ACT
relating to indemnification and duties of engineers and architects
under certain governmental contracts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 271.904, Local Government Code, is
amended to read as follows:
Sec. 271.904. ENGINEERING OR ARCHITECTURAL SERVICES
CONTRACTS: INDEMNIFICATION LIMITATIONS; DUTIES OF ENGINEER OR
ARCHITECT. (a) A covenant or promise in, in connection with, or
collateral to a contract for engineering or architectural services
to which a governmental agency is a party is void and unenforceable
if the covenant or promise provides that a licensed engineer or
registered architect whose work product is the subject of the
contract must indemnify or[,] hold harmless[, or defend] the
governmental agency against liability for damage, other than
liability for damage to the extent that the damage is caused by or
results from an act of negligence, intentional tort, intellectual
property infringement, or failure to pay a subcontractor or
supplier committed by the indemnitor or the indemnitor's agent,
consultant under contract, or another entity over which the
indemnitor exercises control.
(b) Except as provided by Subsection (c), a covenant or
promise in, in connection with, or collateral to a contract for
engineering or architectural services to which a governmental
agency is a party is void and unenforceable if the covenant or
promise provides that a licensed engineer or registered architect
whose work product is the subject of the contract must defend a
party, including a third party, against a claim based wholly or
partly on the negligence of, fault of, or breach of contract by the
governmental agency, the agency's agent, the agency's employee, or
other entity, excluding the engineer or architect or that person's
agent, employee, or subconsultant, over which the governmental
agency exercises control. A covenant or promise may provide for the
reimbursement of a governmental agency's reasonable attorney's fees
in proportion to the engineer's or architect's liability.
(c) Notwithstanding Subsection (b), a governmental agency
may require in a contract for engineering or architectural services
to which the governmental agency is a party that the engineer or
architect name the governmental agency as an additional insured
under the engineer's or architect's general liability insurance
policy and provide any defense provided by the policy.
(d) A contract for engineering or architectural services to
which a governmental agency is a party must require a licensed
engineer or registered architect to perform services:
(1) with the professional skill and care ordinarily
provided by competent engineers or architects practicing in the
same or similar locality and under the same or similar
circumstances and professional license; and
(2) as expeditiously as is prudent considering the
ordinary professional skill and care of a competent engineer or
architect.
(e) In a contract for engineering or architectural services
to which a governmental agency is a party, a provision establishing
a different standard of care than a standard described by
Subsection (d) is void and unenforceable. If a contract contains a
void and unenforceable provision, the standard of care described by
Subsection (d) applies.
(f) In this section, "governmental agency" has the meaning
assigned by Section 271.003.
SECTION 2. Section 271.904, Local Government Code, as
amended by this Act, applies only to a contract for which a request
for proposals or a request for qualifications is first published or
distributed on or after the effective date of this Act. A contract
for which a request for proposals or a request for qualifications is
first published or distributed before the effective date of this
Act is governed by the law in effect on the date the request was
published or distributed, and the former law is continued in effect
for that purpose.
SECTION 3. This Act takes effect September 1, 2015.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2049 was passed by the House on May 4,
2015, by the following vote: Yeas 131, Nays 7, 1 present, not
voting; and that the House concurred in Senate amendments to H.B.
No. 2049 on May 26, 2015, by the following vote: Yeas 143, Nays 1,
3 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 2049 was passed by the Senate, with
amendments, on May 22, 2015, by the following vote: Yeas 26, Nays
5.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor