89R1463 MZM-F
By: Hughes S.B. No. 687
A BILL TO BE ENTITLED
AN ACT
relating to liability for land surveying services in or in
connection with certain construction or services contracts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 130.001, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 130.001. DEFINITIONS [DEFINITION]. In this chapter:
(1) "Construction ["construction] contract" means a
contract or agreement made and entered into by an owner,
contractor, subcontractor, registered architect, licensed
engineer, land surveyor, or supplier concerning the design,
construction, alteration, repair, or maintenance of a building,
structure, appurtenance, road, highway, bridge, dam, levee, or
other improvement to or on real property, including moving,
demolition, and excavation connected with the real property.
(2) "Land surveyor" means a registered professional
land surveyor or licensed state land surveyor as those terms are
defined by Section 1071.002, Occupations Code.
SECTION 2. Sections 130.002(a), (b), (c), (d), and (f),
Civil Practice and Remedies Code, are amended to read as follows:
(a) A covenant or promise in, in connection with, or
collateral to a construction contract is void and unenforceable if
the covenant or promise provides for a contractor who is to perform
the work that is the subject of the construction contract to
indemnify or hold harmless a registered architect, licensed
engineer, or land surveyor, or an agent, servant, or employee of a
registered architect, [or] licensed engineer, or land surveyor from
liability for damage that:
(1) is caused by or results from:
(A) defects in plans, designs, or specifications
prepared, approved, or used by the architect, [or] engineer, or
land surveyor; or
(B) negligence of the architect, [or] engineer,
or land surveyor in the rendition or conduct of professional duties
called for or arising out of the construction contract and the
plans, designs, or specifications that are a part of the
construction contract; and
(2) arises from:
(A) personal injury or death;
(B) property injury; or
(C) any other expense that arises from personal
injury, death, or property injury.
(b) A covenant or promise in, in connection with, or
collateral to a construction contract other than a contract for a
single family or multifamily residence is void and unenforceable if
the covenant or promise provides for a registered architect, [or]
licensed engineer, or land surveyor whose engineering, [or]
architectural, or land surveying design services are the subject of
the construction contract to indemnify or hold harmless an owner or
owner's agent or employee from liability for damage that is caused
by or results from the negligence of an owner or an owner's agent or
employee.
(c) Except as provided by Subsection (d), (e), or (f), a
covenant or promise in, in connection with, or collateral to a
construction contract for engineering, [or] architectural, or land
surveying services related to an improvement to real property is
void and unenforceable to the extent the covenant or promise
provides that a licensed engineer, [or] registered architect, or
land surveyor 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, or
land surveying 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,
or land surveyor's liability.
(d) Notwithstanding Subsection (c), an owner that is a party
to a contract for engineering, [or] architectural, or land
surveying services related to an improvement to real property may
require in the contract that the engineer, [or] architect, or land
surveyor name the owner as an additional insured under any of the
engineer's, [or] architect's, or land surveyor's insurance coverage
to the extent additional insureds are allowed under the policy and
provide any defense to the owner provided by the policy to a named
insured.
(f) Subsection (c) does not apply to a covenant to defend a
party, including a third party, for a claim of negligent hiring of
the architect, [or] engineer, or land surveyor.
SECTION 3. The heading to Section 130.0021, Civil Practice
and Remedies Code, is amended to read as follows:
Sec. 130.0021. ARCHITECT'S, [OR] ENGINEER'S, OR LAND
SURVEYOR'S STANDARD OF CARE.
SECTION 4. Sections 130.0021(a) and (b), Civil Practice and
Remedies Code, are amended to read as follows:
(a) A construction contract for architectural, [or]
engineering, or land surveying services or a contract related to
the construction or repair of an improvement to real property that
contains architectural, [or] engineering, or land surveying
services as a component part must require that the architectural,
[or] engineering, or land surveying services be performed with the
professional skill and care ordinarily provided by competent
architects, [or] engineers, or land surveyors 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,
or land surveying services.
SECTION 5. Section 130.004(b), Civil Practice and Remedies
Code, is amended to read as follows:
(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, or
land surveyor.
SECTION 6. Section 130.005, Civil Practice and Remedies
Code, is amended to read as follows:
Sec. 130.005. APPLICATION OF CHAPTER. This chapter does
not apply to a contract or agreement in which an architect, [or]
engineer, or land surveyor, or an agent, servant, or employee of an
architect, [or] engineer, or land surveyor is indemnified from
liability for:
(1) negligent acts other than those described by this
chapter; or
(2) negligent acts of the contractor, any
subcontractor, any person directly or indirectly employed by the
contractor or a subcontractor, or any person for whose acts the
contractor or a subcontractor may be liable.
SECTION 7. Section 271.904, Local Government Code, is
amended to read as follows:
Sec. 271.904. ENGINEERING, [OR] ARCHITECTURAL, OR LAND
SURVEYING SERVICES CONTRACTS: INDEMNIFICATION LIMITATIONS; DUTIES
OF ENGINEER, [OR] ARCHITECT, OR LAND SURVEYOR. (a) A covenant or
promise in, in connection with, or collateral to a contract for
engineering, [or] architectural, or land surveying services to
which a governmental agency is a party is void and unenforceable if
the covenant or promise provides that a licensed engineer, [or]
registered architect, or land surveyor whose work product is the
subject of the contract must indemnify or hold harmless the
governmental agency against liability for damage, other than
liability for damage to the extent that the damage is caused by or
results from an act of negligence, intentional tort, intellectual
property infringement, or failure to pay a subcontractor or
supplier committed by the indemnitor or the indemnitor's agent,
consultant under contract, or another entity over which the
indemnitor exercises control.
(b) Except as provided by Subsection (c), a covenant or
promise in, in connection with, or collateral to a contract for
engineering, [or] architectural, or land surveying services to
which a governmental agency is a party is void and unenforceable if
the covenant or promise provides that a licensed engineer, [or]
registered architect, or land surveyor whose work product is the
subject of the contract 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 governmental agency, the
agency's agent, the agency's employee, or other entity, excluding
the engineer, [or] architect, or land surveyor or that person's
agent, employee, or subconsultant, over which the governmental
agency exercises control. A covenant or promise may provide for
the reimbursement of a governmental agency's reasonable attorney's
fees in proportion to the engineer's, [or] architect's, or land
surveyor's liability.
(c) Notwithstanding Subsection (b), a governmental agency
may require in a contract for engineering, [or] architectural, or
land surveying services to which the governmental agency is a party
that the engineer, [or] architect, or land surveyor name the
governmental agency as an additional insured under the engineer's,
[or] architect's, or land surveyor's general liability insurance
policy and provide any defense provided by the policy.
(d) A contract for engineering, [or] architectural, or land
surveying services to which a governmental agency is a party must
require a licensed engineer, [or] registered architect, or land
surveyor to perform services:
(1) with the professional skill and care ordinarily
provided by competent engineers, [or] architects, or land surveyors
practicing under the same or similar circumstances and professional
license; and
(2) as expeditiously as is prudent considering the
ordinary professional skill and care of a competent engineer, [or]
architect, or land surveyor.
(e) In a contract for engineering, [or] architectural, or
land surveying services to which a governmental agency is a party, a
provision establishing a different standard of care than a standard
described by Subsection (d) is void and unenforceable. If a
contract contains a void and unenforceable provision, the standard
of care described by Subsection (d) applies.
(f) In this section:
(1) "Governmental [, "governmental] agency" has the
meaning assigned by Section 271.003.
(2) "Land surveyor" means a registered professional
land surveyor or licensed state land surveyor as those terms are
defined by Section 1071.002, Occupations Code.
(g) Nothing in this section prohibits a governmental agency
in a contract for engineering, [or] architectural, or land
surveying services to which the governmental agency is a party from
including and enforcing conditions that relate to the scope, fees,
and schedule of a project in the contract.
SECTION 8. The change in law made by this Act applies only
to a contract or covenant or promise in, in connection with, or
collateral to a construction contract entered into on or after the
effective date of this Act. A contract or covenant or promise in,
in connection with, or collateral to a construction contract
entered into before the effective date of this Act is governed by
the law applicable to the contract or covenant or promise
immediately before the effective date of this Act, and that law is
continued in effect for that purpose.
SECTION 9. This Act takes effect September 1, 2025.