| |
| |
|
|
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. |