86R25530 AJA-F
By: Leach H.B. No. 2901
Substitute the following for H.B. No. 2901:
By: White C.S.H.B. No. 2901
A BILL TO BE ENTITLED
AN ACT
relating to civil liability and responsibility for the consequences
of defects in the plans, specifications, or related documents for
the construction or repair of an improvement to real property.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Title 4, Business & Commerce Code, is amended by
adding Chapter 59 to read as follows:
CHAPTER 59. RESPONSIBILITY FOR DEFECTS IN PLANS AND SPECIFICATIONS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 59.001. DEFINITIONS. In this chapter:
(1) "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.
(2) "Contractor" means a person engaged in the
business of developing, constructing, fabricating, repairing,
altering, or remodeling improvements to real property.
(3) "Critical infrastructure facility" has the
meaning assigned by Section 423.0045, Government Code.
(4) "Subcontractor" means a contractor directly
retained and compensated by another contractor to perform labor or
perform labor and supply materials in the construction.
SUBCHAPTER B. CONTRACTOR RESPONSIBILITY
Sec. 59.051. APPLICABILITY OF SUBCHAPTER. (a) This
subchapter applies only to a contract for the construction or
repair of an improvement to real property.
(b) This subchapter does not apply to a contract entered
into by a person for the construction or repair of a critical
infrastructure facility owned or operated by the person or any
building, structure, improvement, appurtenance, or other facility
owned by the person that is necessary to the business operations
associated with the critical infrastructure facility. For purposes
of this subsection, "person" includes a parent, subsidiary,
affiliated entity, joint venture partner, or owner of the person.
Sec. 59.052. LIMITATION ON CONTRACTOR'S LIABILITY AND
RESPONSIBILITY FOR CERTAIN DEFECTS. (a) A contractor is not
responsible for the consequences of defects in and may not warranty
the accuracy, adequacy, sufficiency, or suitability of plans,
specifications, or other design or bid documents provided to the
contractor by:
(1) the person with whom the contractor entered into
the contract; or
(2) another person on behalf of the person with whom
the contractor entered into the contract.
(b) A contractor must disclose in writing to the person with
whom the contractor enters into a contract the existence of any
known defect in the plans, specifications, or other design or bid
documents discovered by the contractor before or during
construction.
(c) A contractor who fails to disclose a condition as
required by Subsection (b) may be liable for defects that result
from the failure to disclose.
Sec. 59.053. WAIVER OF SUBCHAPTER ON PUBLIC PROJECT. This
subchapter may not be waived by a contractor, subcontractor, or
owner on a public contract.
Sec. 59.054. WAIVER OF SUBCHAPTER ON PRIVATE PROJECT. (a)
Except as provided by Subsection (b), this subchapter may not be
waived on a private contract.
(b) This subchapter may be waived only by written agreement.
To be enforceable, the written agreement must:
(1) clearly and prominently state that the parties
agree to waive specifically this subchapter in its entirety;
(2) identify the specific plans, specifications, or
other design or bid documents to which the waiver applies; and
(3) be signed by the contractor on a date that is not
earlier than the date the contractor receives the plans,
specifications, or other design or bid documents to which the
waiver applies.
(c) A purported waiver of this subchapter in violation of
this section is void.
SECTION 2. Subchapter A, Chapter 2254, Government Code, is
amended by adding Section 2254.0041 to read as follows:
Sec. 2254.0041. ARCHITECT'S OR ENGINEER'S STANDARD OF CARE.
(a) A governmental entity may not require in a contract for
engineering or architectural services related to the construction
or repair of an improvement to real property, or in a contract
related to the construction or repair of an improvement to real
property that contains engineering or architectural services as a
component part, that the engineering or architectural services be
performed to a level of professional skill and care beyond that
which would be provided by an ordinarily prudent engineer or
architect with the same professional license under the same or
similar circumstances.
(b) Nothing in this section prevents a party to a contract
for engineering or architectural services from enforcing specific
obligations in the contract that are separate from the standard of
care.
SECTION 3. (a) The changes in law made by this Act apply
only to a contract entered into on or after the effective date of
this Act. A contract entered into before the effective date of this
Act is governed by the law in effect when the contract was entered
into, and the former law is continued in effect for that purpose.
(b) An original contract for the construction or repair of
an improvement to real property with the owner of an interest in
real property that is entered into before the effective date of this
Act, and a subcontract or purchase order for providing labor or
materials associated with that original contract, whether the
subcontract or purchase order is entered into before, on, or after
the effective date of this Act, is governed by the law in effect
when the original contract was entered into, and the former law is
continued in effect for that purpose.
SECTION 4. This Act takes effect September 1, 2019.