87R17665 AJA-F
By: Krause H.B. No. 2116
Substitute the following for H.B. No. 2116:
By: Smith C.S.H.B. No. 2116
A BILL TO BE ENTITLED
AN ACT
relating to certain agreements by architects and engineers in or in
connection with certain construction contracts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Chapter 130, Civil Practice and
Remedies Code, is amended to read as follows:
CHAPTER 130. LIABILITY PROVISIONS [INDEMNIFICATION] IN CERTAIN
CONSTRUCTION CONTRACTS
SECTION 2. Section 130.002, Civil Practice and Remedies
Code, is amended by adding Subsections (c), (d), and (e) to read as
follows:
(c) Except as provided by Subsection (d) or (e), a covenant
or promise in, in connection with, or collateral to a construction
contract for engineering or architectural services related to an
improvement to real property is void and unenforceable if the
covenant or promise provides that a licensed engineer or registered
architect 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 owner, the owner's agent, the owner's
employee, or another entity over which the owner exercises control.
A covenant or promise in, in connection with, or collateral to a
contract for engineering or architectural services related to an
improvement to real property may provide for the reimbursement of
an owner's reasonable attorney's fees in proportion to the
engineer's or architect's liability.
(d) Notwithstanding Subsection (c), an owner that is a party
to a contract for engineering or architectural services related to
an improvement to real property may require in the contract that the
engineer or architect name the owner as an additional insured under
the engineer's or architect's commercial general liability
insurance policy and provide any defense to the owner provided by
the policy to a named insured.
(e) Subsection (c) does not apply to a contract for
design-build services in which an owner contracts with a single
entity to provide both design and construction services.
SECTION 3. Chapter 130, Civil Practice and Remedies Code,
is amended by adding Section 130.0021 to read as follows:
Sec. 130.0021. ARCHITECT'S OR ENGINEER'S STANDARD OF CARE.
(a) A construction contract for architectural or engineering
services or a contract related to the construction or repair of an
improvement to real property that contains architectural or
engineering services as a component part must require that the
architectural or engineering services be performed with the
professional skill and care ordinarily provided by competent
architects or engineers practicing under the same or similar
circumstances and professional license.
(b) If a contract described by Subsection (a) contains a
provision establishing a different standard of care than the
standard described by Subsection (a):
(1) the provision is void and unenforceable; and
(2) the standard of care described by Subsection (a)
applies to the performance of the architectural or engineering
services.
(c) Section 130.004 does not limit the applicability of this
section.
SECTION 4. Section 130.004, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 130.004. OWNER OF INTEREST IN REAL PROPERTY. (a)
Except as provided by Section 130.002(b) or (c) or Section
130.0021, this chapter does not apply to an owner of an interest in
real property or persons employed solely by that owner.
(b) Except as provided by Section 130.002(b) or (c) or
Section 130.0021, this chapter does not prohibit or make void or
unenforceable a covenant or promise to:
(1) indemnify or hold harmless an owner of an interest
in real property and persons employed solely by that owner; or
(2) allocate, release, liquidate, limit, or exclude
liability in connection with a construction contract between an
owner or other person for whom a construction contract is being
performed and a registered architect or licensed engineer.
SECTION 5. (a) Section 130.002(c), Civil Practice and
Remedies Code, as added by this Act, applies only to a covenant or
promise in, in connection with, or collateral to a contract entered
into on or after the effective date of this Act.
(b) Sections 130.002(d) and 130.0021, Civil Practice and
Remedies Code, as added by this Act, apply only to a contract
entered into on or after the effective date of this Act.
SECTION 6. This Act takes effect September 1, 2021.