By Wolens H.B. No. 99 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to certain criteria for enforceability of indemnification 1-3 agreements and release agreements. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Subchapter D, Chapter 35, Business & Commerce 1-6 Code, is amended by adding Section 35.43 to read as follows: 1-7 Sec. 35.43. ENFORCEABILITY OF INDEMNIFICATION AGREEMENTS AND 1-8 RELEASE AGREEMENTS. (a) In this section: 1-9 (1) "Indemnification agreement" means an agreement in 1-10 writing to defend or indemnify a person against loss, liability, 1-11 cost, or expense (including attorneys' fees). 1-12 (2) a"Release agreement" means an agreement in writing 1-13 to release a person from liability. 1-14 (3) "Disclosure criterion" means a standard imposed 1-15 for the purpose of drawing attention to a particular term of an 1-16 agreement or a requirement that a particular obligation of a party 1-17 to the agreement be specifically expressed or expressed by the use 1-18 of particular language, including but not limited to any standard 1-19 or requirement that: 1-20 (A) the obligation be expressed in specific, 1-21 clear, or unequivocal language, rather than by implication; 1-22 (B) the term be set forth in print, type, or 1-23 some other form of writing that is conspicuous within the meaning 2-1 of Section 1.201 of the Uniform Commercial Code or that is 2-2 otherwise designed to attract attention to the term; 2-3 (C) the obligation be expressed by the use of 2-4 the word "negligence" or other particular words; 2-5 (D) the agreement contain a statement of the 2-6 consequences of the particular term or that the parties intend 2-7 certain consequences; or 2-8 (E) the term or obligation meet some other 2-9 criterion for notice or expression, whether or not heretofore 2-10 imposed by the courts of this state. 2-11 (b) The legality, validity, or enforceability of an 2-12 indemnification agreement or release agreement shall not be 2-13 affected by the fact that the indemnification agreement or release 2-14 agreement, or any part thereof, does not meet any disclosure 2-15 criterion. 2-16 (c) Subsection (b) of this section does not apply to an 2-17 indemnification agreement or release agreement if the indemnitor or 2-18 the releasing party is an individual who entered into the agreement 2-19 primarily for personal, family, or household purposes. 2-20 (d) Whether an agreement constitutes an indemnification or 2-21 release agreement to which subsection (b) of this section applies 2-22 is not affected by: 2-23 (1) whether the loss, liability, cost, or expense 2-24 against which a person is to be defended or indemnified, or the 2-25 liability from which a person is released, is wholly or partially a 3-1 result of the indemnitee's or released party's own past, present, 3-2 or future action or inaction; 3-3 (2) whether the action or inaction constitutes 3-4 negligence or gross negligence; or 3-5 (3) whether the loss, liability, cost, or expense 3-6 against which a person is to be defended or indemnified is a 3-7 liability to, or a loss, cost, or expense of, the indemnitor 3-8 itself. 3-9 SECTION 2. This Act applies to an agreement entered into 3-10 before, on, or after the effective date of this Act; provided, 3-11 however, that this Act shall not apply to any agreement that is the 3-12 subject of any action that was filed in a court of competent 3-13 jurisdiction before the effective date of this Act, and the law in 3-14 effect immediately prior to the effective date of this Act is 3-15 continued in full force and effect solely for the purpose of 3-16 determining the rights and liabilities of a party to such an 3-17 action. 3-18 SECTION 3. This Act takes effect September 1, 1995. 3-19 SECTION 4. The importance of this legislation and the 3-20 crowded condition of the calendars in both houses create an 3-21 emergency and an imperative necessity tht the constitutional rule 3-22 requiring bills to be read on three several days in each house be 3-23 suspended, and this rule is hereby suspended.