Texas 2017 - 85th Regular

Texas House Bill HB2343 Compare Versions

Version 1 (Old)

Version 2 (New)

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1	1	85R19292 AJA-F
2	2	By: Workman, Anderson of McLennan, Villalba H.B. No. 2343
3	3	Substitute the following for H.B. No. 2343:
4	4	By: Romero, Jr. C.S.H.B. No. 2343
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to prerequisites to asserting certain claims arising from
10	10	certain construction defects.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Title 6, Civil Practice and Remedies Code, is
13	13	amended by adding Chapter 130A to read as follows:
14	14	CHAPTER 130A. CERTAIN CONSTRUCTION LIABILITY CLAIMS
15	15	Sec. 130A.001. DEFINITIONS. In this chapter:
16	16	(1) "Action" means a court or judicial proceeding or
17	17	an arbitration. The term does not include an administrative
18	18	action.
19	19	(2) "Commercial use" does not include residential or
20	20	industrial use.
21	21	(3) "Construction" includes:
22	22	(A) the initial construction of an improvement to
23	23	real property;
24	24	(B) the construction of an addition to an
25	25	improvement to real property; or
26	26	(C) the repair, alteration, or remodeling of an
27	27	improvement to real property.
28	28	(4) "Construction defect" means a deficiency in the
29	29	construction of an improvement to real property, including a
30	30	deficiency in or arising out of the design, specifications,
31	31	surveying, planning, or supervision of the construction, that is
32	32	the result of:
33	33	(A) the use of defective materials, products, or
34	34	components in the construction;
35	35	(B) a violation of a building code applicable by
36	36	law to the construction;
37	37	(C) a failure of the design of an improvement to
38	38	real property to meet the professional standards of care applicable
39	39	at the time of governmental approval of the design or as otherwise
40	40	applicable if no governmental approval of the design was required
41	41	or obtained; or
42	42	(D) a failure to perform the construction in
43	43	accordance with the accepted trade standards for good and
44	44	workmanlike construction.
45	45	(5) "Contractor" means a person legally engaged in the
46	46	business of designing, developing, constructing, manufacturing,
47	47	repairing, altering, or remodeling improvements to real property.
48	48	(6) "Design professional" means a person licensed as
49	49	an architect, interior designer, landscape architect, engineer,
50	50	surveyor, or geologist.
51	51	(7) "Subcontractor" means a contractor directly
52	52	retained and compensated by another contractor to perform labor or
53	53	perform labor and supply materials in the construction.
54	54	(8) "Supplier" means a person who provides only
55	55	materials, equipment, or other supplies for the construction.
56	56	Sec. 130A.002. APPLICABILITY OF CHAPTER. (a) This chapter
57	57	applies only to a claim:
58	58	(1) for:
59	59	(A) damages arising from damage to or loss of
60	60	real or personal property caused by an alleged construction defect
61	61	in an improvement to real property intended wholly or partly for
62	62	commercial use; or
63	63	(B) indemnification for damages described by
64	64	Paragraph (A);
65	65	(2) asserted by a person with an interest in the real
66	66	property affected by the alleged construction defect, including a
67	67	person whose interest arose from the purchase of the affected
68	68	property after any relevant construction contract was entered into
69	69	or relevant activity was performed; and
70	70	(3) asserted against a contractor, subcontractor,
71	71	supplier, or design professional.
72	72	(b) This chapter does not apply to:
73	73	(1) a claim asserted by a contractor, subcontractor,
74	74	supplier, or design professional;
75	75	(2) a claim for personal injury, survival, or wrongful
76	76	death;
77	77	(3) a claim involving the construction of residential
78	78	property covered under Chapter 27, Property Code;
79	79	(4) a defect or design claim covered by Section
80	80	82.119, Property Code;
81	81	(5) a contract entered into by the Texas Department of
82	82	Transportation; or
83	83	(6) a project that receives money from a state or
84	84	federal highway fund.
85	85	Sec. 130A.003. INSPECTION AND REPORT. (a) Before bringing
86	86	an action asserting a claim to which this chapter applies, the
87	87	claimant must obtain from an independent third-party licensed
88	88	professional engineer an inspection of the improvement affected by
89	89	the alleged construction defect and a written report that:
90	90	(1) identifies the specific construction defect on
91	91	which the claim is based;
92	92	(2) describes the present physical condition of the
93	93	affected improvement; and
94	94	(3) describes any modification, maintenance, or
95	95	repairs to the improvement made by the claimant or others.
96	96	(b) The claimant must provide written notice of the
97	97	inspection required by this section to each party who is subject to
98	98	the claim not later than the 10th day before the date the inspection
99	99	will occur. The notice must:
100	100	(1) identify the party who will conduct the inspection
101	101	and prepare the report;
102	102	(2) identify each specific area of the improvement to
103	103	be inspected; and
104	104	(3) include the date and time the inspection will
105	105	occur.
106	106	(c) Each party subject to the claim or the party's
107	107	representative may attend the inspection required by this section.
108	108	Sec. 130A.004. OPPORTUNITY TO CORRECT. Before bringing an
109	109	action asserting a claim to which this chapter applies, the
110	110	claimant must allow each party subject to the claim at least 150
111	111	days after the date the report required by Section 130A.003 is
112	112	provided to the party to inspect and correct any construction
113	113	defect or related condition identified in the report.
114	114	Sec. 130A.005. TOLLING OF LIMITATIONS PERIOD. If the
115	115	notice of inspection required by Section 130A.003 is provided
116	116	during the final year of the limitations period applicable to the
117	117	claim, the limitations period is tolled until the first anniversary
118	118	of the date on which the notice is provided.
119	119	Sec. 130A.006. ABATEMENT; DISMISSAL. (a) If a person
120	120	brings an action asserting a claim to which this chapter applies
121	121	without complying with Sections 130A.003 and 130A.004, the court,
122	122	arbitrator, or other adjudicating authority may abate the action
123	123	for not more than one year on a showing that the person bringing the
124	124	action intends to comply with those sections.
125	125	(b) Except as provided by Subsection (a), if a person brings
126	126	an action asserting a claim to which this chapter applies without
127	127	complying with Sections 130A.003 and 130A.004, the court,
128	128	arbitrator, or other adjudicating authority shall dismiss the
129	129	action. The dismissal may be with prejudice at the discretion of
130	130	the court, arbitrator, or other adjudicating authority.
131	131	SECTION 2. The change in law made by this Act applies only
132	132	to a cause of action that accrues on or after the effective date of
133	133	this Act. A cause of action that accrues before the effective date
134	134	of this Act is governed by the law as it existed immediately before
135	135	that date, and that law is continued in effect for that purpose.
136	136	SECTION 3. This Act takes effect immediately if it receives
137	137	a vote of two-thirds of all the members elected to each house, as
138	138	provided by Section 39, Article III, Texas Constitution. If this
139	139	Act does not receive the vote necessary for immediate effect, this
140	140	Act takes effect September 1, 2017.