Texas 2021 - 87th Regular

Texas House Bill HB1418 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	87R16494 AJA-F
2		-	By: Leach, et al. H.B. No. 1418
3		-	Substitute the following for H.B. No. 1418:
4		-	By: Krause C.S.H.B. No. 1418
	1	+	87R1648 AJA-F
	2	+	By: Leach H.B. No. 1418
5	3
6	4
7	5		A BILL TO BE ENTITLED
8	6		AN ACT
9	7		relating to civil liability and responsibility for the consequences
10	8		of defects in the plans, specifications, or related documents for
11	9		the construction or repair of an improvement to real property.
12	10		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
13	11		SECTION 1. Title 4, Business & Commerce Code, is amended by
14	12		adding Chapter 59 to read as follows:
15	13		CHAPTER 59. RESPONSIBILITY FOR DEFECTS IN PLANS AND SPECIFICATIONS
16	14		SUBCHAPTER A. GENERAL PROVISIONS
17	15		Sec. 59.0001. DEFINITIONS. In this chapter:
18	16		(1) "Construction" includes:
19	17		(A) the initial construction of an improvement to
20	18		real property;
21	19		(B) the construction of an addition to an
22	20		improvement to real property; or
23	21		(C) the repair, alteration, or remodeling of an
24	22		improvement to real property.
25	23		(2) "Contractor" means a person engaged in the
26	24		business of developing, constructing, fabricating, repairing,
27	25		altering, or remodeling improvements to real property.
28	26		(3) "Critical infrastructure facility" has the
29		-	meaning assigned by Section 423.0045, Government Code, provided
30		-	that the absence of fencing or signage described in the definition
31		-	provided by that section does not disqualify an item listed in that
32		-	definition from being classified or treated as a critical
33		-	infrastructure facility for purposes of this chapter. The term
34		-	includes:
35		-	(A) pipelines and pipeline appurtenances or
36		-	facilities, including pipes, valves, meters, pumps, compressors,
37		-	treating and processing facilities, cathodic protection
38		-	facilities, and any other equipment, facilities, devices,
39		-	structures, and buildings used or intended for use in the
40		-	gathering, transportation, treating, or processing of oil, gas, or
41		-	other minerals, and the liquefied or gaseous substances,
42		-	constituents, products, or mixtures derived from those minerals
43		-	through refining, processing, or other methods;
44		-	(B) utility-scale equipment or facilities to
45		-	transmit or distribute electricity; and
46		-	(C) utility-scale water storage facilities.
47		-	(4) "Design-build contract" means a contract in which
48		-	a single contractor agrees to:
49		-	(A) construct, repair, alter, or remodel an
50		-	improvement to real property; and
51		-	(B) be responsible for the development of plans,
52		-	specifications, or other design or bid documents used by the
53		-	contractor to construct, repair, alter, or remodel the improvement.
54		-	(5) "Subcontractor" means a contractor directly
	27	+	meaning assigned by Section 423.0045, Government Code.
	28	+	(4) "Subcontractor" means a contractor directly
55	29		retained and compensated by another contractor to perform labor or
56	30		perform labor and supply materials in the construction.
57	31		SUBCHAPTER B. CONTRACTOR RESPONSIBILITY
58	32		Sec. 59.0051. APPLICABILITY OF SUBCHAPTER. (a) This
59	33		subchapter applies only to a contract for the construction or
60	34		repair of an improvement to real property.
61	35		(b) This subchapter does not apply to a contract entered
62	36		into by a person for the construction or repair of a critical
63	37		infrastructure facility owned or operated by the person or any
64	38		building, structure, improvement, appurtenance, or other facility
65		-	owned by the person that is necessary to the operation of and
66		-	directly related to the critical infrastructure facility. For
67		-	purposes of this subsection, "person" includes a parent,
68		-	subsidiary, affiliated entity, joint venture partner, or owner of
69		-	the person.
70		-	(c) This chapter does not apply to the construction, repair,
71		-	alteration, or remodeling of an improvement to real property if:
72		-	(1) the construction, repair, alteration, or
73		-	remodeling is performed under a design-build contract; and
74		-	(2) the part of the plans, specifications, or other
75		-	design or bid documents for which the contractor is responsible
76		-	under the contract is the part alleged to be defective.
	39	+	owned by the person that is necessary to the business operations
	40	+	associated with the critical infrastructure facility. For purposes
	41	+	of this subsection, "person" includes a parent, subsidiary,
	42	+	affiliated entity, joint venture partner, or owner of the person.
77	43		Sec. 59.0052. LIMITATION ON CONTRACTOR'S LIABILITY AND
78	44		RESPONSIBILITY FOR CERTAIN DEFECTS. (a) A contractor is not
79	45		responsible for the consequences of defects in and may not warranty
80	46		the accuracy, adequacy, sufficiency, or suitability of plans,
81	47		specifications, or other design or bid documents provided to the
82	48		contractor by:
83	49		(1) the person with whom the contractor entered into
84	50		the contract; or
85	51		(2) another person on behalf of the person with whom
86	52		the contractor entered into the contract.
87		-	(b) A contractor must~~, within a reasonable time of learning~~
88		-	~~of the defect, disclose in writing to the person with~~ whom the
89		-	~~contractor enters into a contract the existence of any~~ known defect
90		-	in the ~~plans, specifications,~~ or ~~other design or bid documents that~~
91		-	~~is discovered by the contractor before or during~~ construction.
	53	+	(b) A contractor must disclose in writing to the person with
	54	+	whom the contractor enters into a contract the existence of any
	55	+	known defect in the plans, specifications, or other design or bid
	56	+	documents discovered by the contractor before or during
	57	+	construction.
92	58		(c) A contractor who fails to disclose a condition as
93		-	required by Subsection (b) may be liable for the consequences of
94		-	defects that result from the failure to disclose.
95		-	Sec. 59.0053. STANDARD OF CARE FOR CERTAIN DESIGNS. Design
96		-	services provided under a design-build contract are subject to the
97		-	same standard of care requirements provided in Section 130.0021,
98		-	Civil Practice and Remedies Code.
99		-	Sec. 59.0054. WAIVER PROHIBITED. This subchapter may not
	59	+	required by Subsection (b) may be liable for defects that result
	60	+	from the failure to disclose.
	61	+	Sec. 59.0053. WAIVER PROHIBITED. This subchapter may not
100	62		be waived by a contractor, subcontractor, or owner. A purported
101	63		waiver of this subchapter in violation of this section is void.
102		-	SECTION 2. The heading to Chapter 130, Civil Practice and
103		-	Remedies Code, is amended to read as follows:
104		-	CHAPTER 130. LIABILITY PROVISIONS [INDEMNIFICATION] IN CERTAIN
105		-	CONSTRUCTION CONTRACTS
106		-	SECTION 3. Chapter 130, Civil Practice and Remedies Code,
107		-	is amended by adding Section 130.0021 to read as follows:
108		-	Sec. 130.0021. ARCHITECT'S OR ENGINEER'S STANDARD OF CARE.
109		-	(a) A construction contract for architectural or engineering
110		-	services or a contract related to the construction or repair of an
111		-	improvement to real property that contains architectural or
112		-	engineering services as a component part must require that the
113		-	architectural or engineering services be performed with the
114		-	professional skill and care ordinarily provided by competent
115		-	architects or engineers practicing under the same or similar
116		-	circumstances and professional license.
117		-	(b) If a contract described by Subsection (a) contains a
118		-	provision establishing a different standard of care than the
119		-	standard described by Subsection (a):
120		-	(1) the provision is void and unenforceable; and
121		-	(2) the standard of care described by Subsection (a)
122		-	applies to the performance of the architectural or engineering
123		-	services.
124		-	(c) Section 130.004 does not limit the applicability of this
125		-	section.
126		-	SECTION 4. Section 130.004, Civil Practice and Remedies
127		-	Code, is amended to read as follows:
128		-	Sec. 130.004. OWNER OF INTEREST IN REAL PROPERTY. (a)
129		-	Except as provided by Section 130.002(b) or 130.0021, this chapter
130		-	does not apply to an owner of an interest in real property or
131		-	persons employed solely by that owner.
132		-	(b) Except as provided by Section 130.002(b) or 130.0021,
133		-	this chapter does not prohibit or make void or unenforceable a
134		-	covenant or promise to:
135		-	(1) indemnify or hold harmless an owner of an interest
136		-	in real property and persons employed solely by that owner; or
137		-	(2) allocate, release, liquidate, limit, or exclude
138		-	liability in connection with a construction contract between an
139		-	owner or other person for whom a construction contract is being
140		-	performed and a registered architect or licensed engineer.
141		-	SECTION 5. (a) The changes in law made by this Act apply
	64	+	SECTION 2. Subchapter A, Chapter 2254, Government Code, is
	65	+	amended by adding Section 2254.0041 to read as follows:
	66	+	Sec. 2254.0041. ARCHITECT'S OR ENGINEER'S STANDARD OF CARE.
	67	+	(a) A governmental entity may not require in a contract for
	68	+	architectural or engineering services related to the construction
	69	+	or repair of an improvement to real property, or in a contract
	70	+	related to the construction or repair of an improvement to real
	71	+	property that contains architectural or engineering services as a
	72	+	component part, that the architectural or engineering services be
	73	+	performed to a level of professional skill and care beyond that
	74	+	which would be provided by an ordinarily prudent architect or
	75	+	engineer with the same professional license under the same or
	76	+	similar circumstances.
	77	+	(b) Nothing in this section prevents a party to a contract
	78	+	for architectural or engineering services from enforcing specific
	79	+	obligations in the contract that are separate from the standard of
	80	+	care.
	81	+	SECTION 3. (a) The changes in law made by this Act apply
142	82		only to a contract entered into on or after the effective date of
143	83		this Act. A contract entered into before the effective date of this
144	84		Act is governed by the law in effect when the contract was entered
145	85		into, and the former law is continued in effect for that purpose.
146	86		(b) An original contract for the construction or repair of
147	87		an improvement to real property with the owner of an interest in
148	88		real property that is entered into before the effective date of this
149	89		Act, and a subcontract or purchase order for providing labor or
150	90		materials associated with that original contract, whether the
151	91		subcontract or purchase order is entered into before, on, or after
152	92		the effective date of this Act, is governed by the law in effect
153	93		when the original contract was entered into, and the former law is
154	94		continued in effect for that purpose.
155		-	SECTION 6. This Act takes effect September 1, 2021.
	95	+	SECTION 4. This Act takes effect September 1, 2021.