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AN ACT
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relating to certain agreements by architects and engineers in or in |
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connection with certain construction contracts. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The heading to Chapter 130, Civil Practice and |
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Remedies Code, is amended to read as follows: |
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CHAPTER 130. LIABILITY PROVISIONS [INDEMNIFICATION] IN CERTAIN |
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CONSTRUCTION CONTRACTS |
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SECTION 2. Section 130.002, Civil Practice and Remedies |
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Code, is amended by adding Subsections (c), (d), (e), and (f) to |
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read as follows: |
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(c) Except as provided by Subsection (d), (e), or (f), a |
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covenant or promise in, in connection with, or collateral to a |
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construction contract for engineering or architectural services |
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related to an improvement to real property is void and |
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unenforceable to the extent the covenant or promise provides that a |
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licensed engineer or registered architect must defend a party, |
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including a third party, against a claim based wholly or partly on |
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the negligence of, fault of, or breach of contract by the owner, the |
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owner's agent, the owner's employee, or another entity over which |
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the owner exercises control. A covenant or promise in, in |
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connection with, or collateral to a contract for engineering or |
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architectural services related to an improvement to real property |
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may provide for the reimbursement of an owner's reasonable |
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attorney's fees in proportion to the engineer's or architect's |
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liability. |
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(d) Notwithstanding Subsection (c), an owner that is a party |
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to a contract for engineering or architectural services related to |
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an improvement to real property may require in the contract that the |
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engineer or architect name the owner as an additional insured under |
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any of the engineer's or architect's insurance coverage to the |
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extent additional insureds are allowed under the policy and provide |
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any defense to the owner provided by the policy to a named insured. |
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(e) Subsection (c) does not apply to a contract for services |
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in which an owner contracts with an entity to provide both design |
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and construction services. |
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(f) Subsection (c) does not apply to a covenant to defend a |
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party, including a third party, for a claim of negligent hiring of |
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the architect or engineer. |
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SECTION 3. Chapter 130, Civil Practice and Remedies Code, |
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is amended by adding Section 130.0021 to read as follows: |
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Sec. 130.0021. ARCHITECT'S OR ENGINEER'S STANDARD OF CARE. |
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(a) A construction contract for architectural or engineering |
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services or a contract related to the construction or repair of an |
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improvement to real property that contains architectural or |
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engineering services as a component part must require that the |
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architectural or engineering services be performed with the |
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professional skill and care ordinarily provided by competent |
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architects or engineers practicing under the same or similar |
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circumstances and professional license. |
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(b) If a contract described by Subsection (a) contains a |
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provision establishing a different standard of care than the |
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standard described by Subsection (a): |
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(1) the provision is void and unenforceable; and |
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(2) the standard of care described by Subsection (a) |
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applies to the performance of the architectural or engineering |
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services. |
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(c) Section 130.004 does not limit the applicability of this |
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section. |
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SECTION 4. Section 130.004, Civil Practice and Remedies |
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Code, is amended to read as follows: |
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Sec. 130.004. OWNER OF INTEREST IN REAL PROPERTY. (a) |
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Except as provided by Section 130.002(b) or (c) or Section |
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130.0021, this chapter does not apply to an owner of an interest in |
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real property or persons employed solely by that owner. |
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(b) Except as provided by Section 130.002(b) or (c) or |
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Section 130.0021, this chapter does not prohibit or make void or |
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unenforceable a covenant or promise to: |
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(1) indemnify or hold harmless an owner of an interest |
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in real property and persons employed solely by that owner; or |
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(2) allocate, release, liquidate, limit, or exclude |
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liability in connection with a construction contract between an |
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owner or other person for whom a construction contract is being |
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performed and a registered architect or licensed engineer. |
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SECTION 5. (a) Section 130.002(c), Civil Practice and |
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Remedies Code, as added by this Act, applies only to a covenant or |
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promise in, in connection with, or collateral to a contract entered |
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into on or after the effective date of this Act. |
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(b) Sections 130.002(d) and 130.0021, Civil Practice and |
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Remedies Code, as added by this Act, apply only to a contract |
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entered into on or after the effective date of this Act. |
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SECTION 6. This Act takes effect September 1, 2021. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 2116 was passed by the House on April |
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21, 2021, by the following vote: Yeas 126, Nays 21, 1 present, not |
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voting; and that the House concurred in Senate amendments to H.B. |
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No. 2116 on May 28, 2021, by the following vote: Yeas 136, Nays 6, |
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2 present, not voting. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 2116 was passed by the Senate, with |
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amendments, on May 24, 2021, by the following vote: Yeas 28, Nays |
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2. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: __________________ |
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Date |
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__________________ |
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Governor |