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.