Texas 2021 - 87th Regular

Texas House Bill HB2116 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	H.B. No. 2116
	1	+	By: Krause, et al. (Senate Sponsor - Powell) H.B. No. 2116
	2	+	(In the Senate - Received from the House April 21, 2021;
	3	+	May 6, 2021, read first time and referred to Committee on State
	4	+	Affairs; May 21, 2021, reported favorably by the following vote:
	5	+	Yeas 8, Nays 1; May 21, 2021, sent to printer.)
	6	+	Click here to see the committee vote
2	7
3	8
	9	+	A BILL TO BE ENTITLED
4	10		AN ACT
5	11		relating to certain agreements by architects and engineers in or in
6	12		connection with certain construction contracts.
7	13		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	14		SECTION 1. The heading to Chapter 130, Civil Practice and
9	15		Remedies Code, is amended to read as follows:
10	16		CHAPTER 130. LIABILITY PROVISIONS [INDEMNIFICATION] IN CERTAIN
11	17		CONSTRUCTION CONTRACTS
12	18		SECTION 2. Section 130.002, Civil Practice and Remedies
13		-	Code, is amended by adding Subsections (c), (d), (e), and (f) to
14		-	read as follows:
15		-	(c) Except as provided by Subsection (d), (e), or (f), a
16		-	covenant or promise in, in connection with, or collateral to a
17		-	construction contract for engineering or architectural services
18		-	related to an improvement to real property is void and
19		-	unenforceable to the extent the covenant or promise provides that a
20		-	licensed engineer or registered architect must defend a party,
21		-	including a third party, against a claim based wholly or partly on
22		-	the negligence of, fault of, or breach of contract by the owner, the
23		-	owner's agent, the owner's employee, or another entity over which
24		-	the owner exercises control. A covenant or promise in, in
25		-	connection with, or collateral to a contract for engineering or
26		-	architectural services related to an improvement to real property
27		-	may provide for the reimbursement of an owner's reasonable
28		-	attorney's fees in proportion to the engineer's or architect's
29		-	liability.
	19	+	Code, is amended by adding Subsections (c), (d), and (e) to read as
	20	+	follows:
	21	+	(c) Except as provided by Subsection (d) or (e), a covenant
	22	+	or promise in, in connection with, or collateral to a construction
	23	+	contract for engineering or architectural services related to an
	24	+	improvement to real property is void and unenforceable if the
	25	+	covenant or promise provides that a licensed engineer or registered
	26	+	architect must defend a party, including a third party, against a
	27	+	claim based wholly or partly on the negligence of, fault of, or
	28	+	breach of contract by the owner, the owner's agent, the owner's
	29	+	employee, or another entity over which the owner exercises control.
	30	+	A covenant or promise in, in connection with, or collateral to a
	31	+	contract for engineering or architectural services related to an
	32	+	improvement to real property may provide for the reimbursement of
	33	+	an owner's reasonable attorney's fees in proportion to the
	34	+	engineer's or architect's liability.
30	35		(d) Notwithstanding Subsection (c), an owner that is a party
31	36		to a contract for engineering or architectural services related to
32	37		an improvement to real property may require in the contract that the
33	38		engineer or architect name the owner as an additional insured under
34		-	any of the engineer's or architect's insurance coverage to the
35		-	extent additional insureds are allowed under the policy and provide
36		-	any defense to the owner provided by the policy to a named insured.
37		-	(e) Subsection (c) does not apply to a contract for services
38		-	in which an owner contracts with an entity to provide both design
39		-	and construction services.
40		-	(f) Subsection (c) does not apply to a covenant to defend a
41		-	party, including a third party, for a claim of negligent hiring of
42		-	the architect or engineer.
	39	+	the engineer's or architect's commercial general liability
	40	+	insurance policy and provide any defense to the owner provided by
	41	+	the policy to a named insured.
	42	+	(e) Subsection (c) does not apply to a contract for
	43	+	design-build services in which an owner contracts with a single
	44	+	entity to provide both design and construction services.
43	45		SECTION 3. Chapter 130, Civil Practice and Remedies Code,
44	46		is amended by adding Section 130.0021 to read as follows:
45	47		Sec. 130.0021. ARCHITECT'S OR ENGINEER'S STANDARD OF CARE.
46	48		(a) A construction contract for architectural or engineering
47	49		services or a contract related to the construction or repair of an
48	50		improvement to real property that contains architectural or
49	51		engineering services as a component part must require that the
50	52		architectural or engineering services be performed with the
51	53		professional skill and care ordinarily provided by competent
52	54		architects or engineers practicing under the same or similar
53	55		circumstances and professional license.
54	56		(b) If a contract described by Subsection (a) contains a
55	57		provision establishing a different standard of care than the
56	58		standard described by Subsection (a):
57	59		(1) the provision is void and unenforceable; and
58	60		(2) the standard of care described by Subsection (a)
59	61		applies to the performance of the architectural or engineering
60	62		services.
61	63		(c) Section 130.004 does not limit the applicability of this
62	64		section.
63	65		SECTION 4. Section 130.004, Civil Practice and Remedies
64	66		Code, is amended to read as follows:
65	67		Sec. 130.004. OWNER OF INTEREST IN REAL PROPERTY. (a)
66	68		Except as provided by Section 130.002(b) or (c) or Section
67	69		130.0021, this chapter does not apply to an owner of an interest in
68	70		real property or persons employed solely by that owner.
69	71		(b) Except as provided by Section 130.002(b) or (c) or
70	72		Section 130.0021, this chapter does not prohibit or make void or
71	73		unenforceable a covenant or promise to:
72	74		(1) indemnify or hold harmless an owner of an interest
73	75		in real property and persons employed solely by that owner; or
74	76		(2) allocate, release, liquidate, limit, or exclude
75	77		liability in connection with a construction contract between an
76	78		owner or other person for whom a construction contract is being
77	79		performed and a registered architect or licensed engineer.
78	80		SECTION 5. (a) Section 130.002(c), Civil Practice and
79	81		Remedies Code, as added by this Act, applies only to a covenant or
80	82		promise in, in connection with, or collateral to a contract entered
81	83		into on or after the effective date of this Act.
82	84		(b) Sections 130.002(d) and 130.0021, Civil Practice and
83	85		Remedies Code, as added by this Act, apply only to a contract
84	86		entered into on or after the effective date of this Act.
85	87		SECTION 6. This Act takes effect September 1, 2021.
86		-	______________________________ ______________________________
87		-	President of the Senate Speaker of the House
88		-	I certify that H.B. No. 2116 was passed by the House on April
89		-	21, 2021, by the following vote: Yeas 126, Nays 21, 1 present, not
90		-	voting; and that the House concurred in Senate amendments to H.B.
91		-	No. 2116 on May 28, 2021, by the following vote: Yeas 136, Nays 6,
92		-	2 present, not voting.
93		-	______________________________
94		-	Chief Clerk of the House
95		-	I certify that H.B. No. 2116 was passed by the Senate, with
96		-	amendments, on May 24, 2021, by the following vote: Yeas 28, Nays
97		-	2.
98		-	______________________________
99		-	Secretary of the Senate
100		-	APPROVED: __________________
101		-	Date
102		-	__________________
103		-	Governor
	88	+	* * * * *