H.B. No. 1429 1-1 AN ACT 1-2 relating to prompt payment to contractors and subcontractors in 1-3 connection with improvements to real property. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Title 4, Property Code, is amended by adding 1-6 Chapter 28 to read as follows: 1-7 CHAPTER 28. PROMPT PAYMENT TO CONTRACTORS AND 1-8 SUBCONTRACTORS 1-9 Sec. 28.001. DEFINITIONS. In this chapter: 1-10 (1) "Contractor" means a person who contracts with an 1-11 owner to improve real property or perform construction services for 1-12 an owner. 1-13 (2) "Improve" means to: 1-14 (A) build, construct, effect, erect, alter, 1-15 repair, or demolish any improvement on, connected with, or beneath 1-16 the surface of real property; 1-17 (B) excavate, clear, grade, fill, or landscape 1-18 real property; 1-19 (C) construct a driveway or roadway; 1-20 (D) furnish any material, including trees or 1-21 shrubbery, for the purpose of taking any action described by 1-22 Paragraphs (A)-(C) of this subdivision; or 1-23 (E) perform any labor on or in connection with 1-24 an improvement. 2-1 (3) "Improvement" includes all or any part of: 2-2 (A) a building, structure, erection, alteration, 2-3 demolition, or excavation on, connected with, or beneath the 2-4 surface of real property; and 2-5 (B) the act of clearing, grading, filling, or 2-6 landscaping real property, including constructing a driveway or 2-7 roadway or furnishing trees or shrubbery. 2-8 (4) "Owner" means a person or entity, other than a 2-9 governmental entity, with an interest in real property that is 2-10 improved, for whom an improvement is made, and who ordered the 2-11 improvement to be made. 2-12 (5) "Real property" includes lands, leaseholds, 2-13 tenements, hereditaments, and improvements placed on the real 2-14 property. 2-15 (6) "Subcontractor" means a person who contracts to 2-16 furnish labor or material to, or has performed labor or supplied 2-17 materials for, a contractor or another subcontractor in connection 2-18 with a contract to improve real property. 2-19 Sec. 28.002. PROMPT PAY REQUIRED. (a) If an owner receives 2-20 a written payment request from a contractor for an amount that is 2-21 allowed to the contractor for properly performed work or suitably 2-22 stored materials, the owner shall pay the amount to the contractor, 2-23 less any statutory offsets, not later than the 45th day after the 2-24 owner receives the request. 2-25 (b) A contractor who receives a payment under Subsection (a) 2-26 or otherwise from an owner in connection with a contract to improve 2-27 real property shall pay each of its subcontractors the portion of 3-1 the owner's payment, including interest, if any, that is 3-2 attributable to work performed or materials suitably stored by that 3-3 subcontractor if payment for stored materials is provided for in 3-4 the contract, to the extent of that subcontractor's interest in the 3-5 owner's payment. The payment required by this subsection must be 3-6 made not later than the seventh day after the date the contractor 3-7 receives the owner's payment. 3-8 (c) A subcontractor who receives a payment under Subsection 3-9 (b) or otherwise from a contractor in connection with a contract to 3-10 improve real property shall pay each of its subcontractors the 3-11 portion of the payment, including interest, if any, that is 3-12 attributable to work performed or materials suitably stored by that 3-13 subcontractor if payment for stored materials is provided for in 3-14 the contract, to the extent of that subcontractor's interest in the 3-15 payment. The payment required by this subsection must be made not 3-16 later than the seventh day after the date the subcontractor 3-17 receives the contractor's payment. 3-18 Sec. 28.003. EXCEPTION FOR GOOD FAITH DISPUTE; WITHHOLDING. 3-19 If a good faith dispute exists concerning the amount owed for a 3-20 payment requested or required by this chapter, the owner, 3-21 contractor, or subcontractor disputing its obligation to pay or the 3-22 amount of payment may withhold from the payment owed not more than 3-23 110 percent of the difference between the amount the obligee claims 3-24 is due and the amount the obligor claims is due. A good faith 3-25 dispute includes a dispute regarding whether the work was performed 3-26 in a proper manner. 3-27 Sec. 28.004. INTEREST ON OVERDUE PAYMENT. (a) An unpaid 4-1 amount required under this chapter begins to accrue interest on the 4-2 day after the date on which the payment becomes due. 4-3 (b) An unpaid amount bears interest at the rate of 1-1/2 4-4 percent each month. 4-5 (c) Interest on an unpaid amount stops accruing under this 4-6 section on the earlier of: 4-7 (1) the date of delivery; 4-8 (2) the date of mailing, if payment is mailed and 4-9 delivery occurs within three days; or 4-10 (3) the date a judgment is entered in an action 4-11 brought under this chapter. 4-12 Sec. 28.005. ACTION TO ENFORCE PAYMENT. (a) A person may 4-13 bring an action to enforce the person's rights under this chapter. 4-14 (b) In an action brought under this chapter, the court may 4-15 award costs and reasonable attorney's fees as the court determines 4-16 equitable and just. 4-17 Sec. 28.006. NO WAIVER. (a) Except as provided by 4-18 Subsection (b), an attempted waiver of a provision of this chapter 4-19 is void. 4-20 (b) A written contract between an owner and a contractor for 4-21 improvements to or construction of a single-family residence may 4-22 provide that the payment required under Section 28.002(a) be made 4-23 not later than a date that occurs before the 61st day after the 4-24 date the owner receives the payment request. Notwithstanding 4-25 Section 28.004(b), an unpaid amount under contract subject to this 4-26 subsection that allows payment later than the date otherwise 4-27 required under Section 28.002(a) bears interest at the rate of 5-1 1-1/2 percent each month. 5-2 Sec. 28.007. LEGAL CONSTRUCTION. (a) This chapter may not 5-3 be interpreted to void a contractor's or subcontractor's 5-4 entitlement to payment for properly performed work or suitably 5-5 stored materials. 5-6 (b) Nothing in this statute shall be interpreted to change 5-7 the rights and obligations set forth in Chapter 53, Property Code. 5-8 Sec. 28.008. EXCEPTION FOR FAILURE OF LENDER TO DISBURSE 5-9 FUNDS. The date of payment required of the owner pursuant to 5-10 Section 28.002(a) shall change from the 45th day after the date the 5-11 owner receives the payment request to the 5th day after the owner 5-12 receives loan proceeds, in the event that: 5-13 (1) the owner has obtained a loan intended to pay for 5-14 all or part of a contract to improve real property; 5-15 (2) the owner has timely and properly requested 5-16 disbursement of proceeds from that loan; and 5-17 (3) the lender is legally obligated to disburse such 5-18 proceeds to the owner, but has failed to do so within 45 days after 5-19 the date the owner received the contractor's payment request. 5-20 SECTION 2. This Act applies only to a contract to improve 5-21 real property entered into on or after the effective date of this 5-22 Act. 5-23 SECTION 3. This Act takes effect September 1, 1993. 5-24 SECTION 4. The importance of this legislation and the 5-25 crowded condition of the calendars in both houses create an 5-26 emergency and an imperative public necessity that the 5-27 constitutional rule requiring bills to be read on three several 6-1 days in each house be suspended, and this rule is hereby suspended.