85R19292 AJA-F
By: Workman, Anderson of McLennan, Villalba H.B. No. 2343
Substitute the following for H.B. No. 2343:
By: Romero, Jr. C.S.H.B. No. 2343
A BILL TO BE ENTITLED
AN ACT
relating to prerequisites to asserting certain claims arising from
certain construction defects.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 6, Civil Practice and Remedies Code, is
amended by adding Chapter 130A to read as follows:
CHAPTER 130A. CERTAIN CONSTRUCTION LIABILITY CLAIMS
Sec. 130A.001. DEFINITIONS. In this chapter:
(1) "Action" means a court or judicial proceeding or
an arbitration. The term does not include an administrative
action.
(2) "Commercial use" does not include residential or
industrial use.
(3) "Construction" includes:
(A) the initial construction of an improvement to
real property;
(B) the construction of an addition to an
improvement to real property; or
(C) the repair, alteration, or remodeling of an
improvement to real property.
(4) "Construction defect" means a deficiency in the
construction of an improvement to real property, including a
deficiency in or arising out of the design, specifications,
surveying, planning, or supervision of the construction, that is
the result of:
(A) the use of defective materials, products, or
components in the construction;
(B) a violation of a building code applicable by
law to the construction;
(C) a failure of the design of an improvement to
real property to meet the professional standards of care applicable
at the time of governmental approval of the design or as otherwise
applicable if no governmental approval of the design was required
or obtained; or
(D) a failure to perform the construction in
accordance with the accepted trade standards for good and
workmanlike construction.
(5) "Contractor" means a person legally engaged in the
business of designing, developing, constructing, manufacturing,
repairing, altering, or remodeling improvements to real property.
(6) "Design professional" means a person licensed as
an architect, interior designer, landscape architect, engineer,
surveyor, or geologist.
(7) "Subcontractor" means a contractor directly
retained and compensated by another contractor to perform labor or
perform labor and supply materials in the construction.
(8) "Supplier" means a person who provides only
materials, equipment, or other supplies for the construction.
Sec. 130A.002. APPLICABILITY OF CHAPTER. (a) This chapter
applies only to a claim:
(1) for:
(A) damages arising from damage to or loss of
real or personal property caused by an alleged construction defect
in an improvement to real property intended wholly or partly for
commercial use; or
(B) indemnification for damages described by
Paragraph (A);
(2) asserted by a person with an interest in the real
property affected by the alleged construction defect, including a
person whose interest arose from the purchase of the affected
property after any relevant construction contract was entered into
or relevant activity was performed; and
(3) asserted against a contractor, subcontractor,
supplier, or design professional.
(b) This chapter does not apply to:
(1) a claim asserted by a contractor, subcontractor,
supplier, or design professional;
(2) a claim for personal injury, survival, or wrongful
death;
(3) a claim involving the construction of residential
property covered under Chapter 27, Property Code;
(4) a defect or design claim covered by Section
82.119, Property Code;
(5) a contract entered into by the Texas Department of
Transportation; or
(6) a project that receives money from a state or
federal highway fund.
Sec. 130A.003. INSPECTION AND REPORT. (a) Before bringing
an action asserting a claim to which this chapter applies, the
claimant must obtain from an independent third-party licensed
professional engineer an inspection of the improvement affected by
the alleged construction defect and a written report that:
(1) identifies the specific construction defect on
which the claim is based;
(2) describes the present physical condition of the
affected improvement; and
(3) describes any modification, maintenance, or
repairs to the improvement made by the claimant or others.
(b) The claimant must provide written notice of the
inspection required by this section to each party who is subject to
the claim not later than the 10th day before the date the inspection
will occur. The notice must:
(1) identify the party who will conduct the inspection
and prepare the report;
(2) identify each specific area of the improvement to
be inspected; and
(3) include the date and time the inspection will
occur.
(c) Each party subject to the claim or the party's
representative may attend the inspection required by this section.
Sec. 130A.004. OPPORTUNITY TO CORRECT. Before bringing an
action asserting a claim to which this chapter applies, the
claimant must allow each party subject to the claim at least 150
days after the date the report required by Section 130A.003 is
provided to the party to inspect and correct any construction
defect or related condition identified in the report.
Sec. 130A.005. TOLLING OF LIMITATIONS PERIOD. If the
notice of inspection required by Section 130A.003 is provided
during the final year of the limitations period applicable to the
claim, the limitations period is tolled until the first anniversary
of the date on which the notice is provided.
Sec. 130A.006. ABATEMENT; DISMISSAL. (a) If a person
brings an action asserting a claim to which this chapter applies
without complying with Sections 130A.003 and 130A.004, the court,
arbitrator, or other adjudicating authority may abate the action
for not more than one year on a showing that the person bringing the
action intends to comply with those sections.
(b) Except as provided by Subsection (a), if a person brings
an action asserting a claim to which this chapter applies without
complying with Sections 130A.003 and 130A.004, the court,
arbitrator, or other adjudicating authority shall dismiss the
action. The dismissal may be with prejudice at the discretion of
the court, arbitrator, or other adjudicating authority.
SECTION 2. The change in law made by this Act applies only
to a cause of action that accrues on or after the effective date of
this Act. A cause of action that accrues before the effective date
of this Act is governed by the law as it existed immediately before
that date, and that law is continued in effect for that purpose.
SECTION 3. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2017.