1-1  By:  West                                              S.B. No. 558
    1-2        (In the Senate - Filed February 14, 1995; February 15, 1995,
    1-3  read first time and referred to Committee on Economic Development;
    1-4  April 28, 1995, reported adversely, with favorable Committee
    1-5  Substitute by the following vote:  Yeas 7, Nays 0; April 28, 1995,
    1-6  sent to printer.)
    1-7  COMMITTEE SUBSTITUTE FOR S.B. No. 558                    By:  Ellis
    1-8                         A BILL TO BE ENTITLED
    1-9                                AN ACT
   1-10  relating to construction contract provisions, construction trust
   1-11  funds, and the creation of and management policies applicable to a
   1-12  construction account created to hold funds associated with a
   1-13  construction contract; providing penalties.
   1-14        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-15        SECTION 1.  Section 162.001, Property Code, is amended by
   1-16  adding Subsection (c) to read as follows:
   1-17        (c)  If a contractor and property owner have entered into a
   1-18  written construction contract for the improvement of specific real
   1-19  property in this state before the commencement of construction of
   1-20  the improvement and the contract provides for the payment by the
   1-21  owner of the costs of construction and a reasonable fee specified
   1-22  in the contract payable to the contractor, the fee paid to the
   1-23  contractor is not considered trust funds.
   1-24        SECTION 2.  Section 162.003, Property Code, is amended to
   1-25  read as follows:
   1-26        Sec. 162.003.  Beneficiaries of Trust Funds.  An artisan
   1-27  <artist>, laborer, mechanic, contractor, subcontractor, or
   1-28  materialman who labors or who furnishes labor or material for the
   1-29  construction or repair of an improvement on specific real property
   1-30  in this state is a beneficiary of any trust funds paid or received
   1-31  in connection with the improvement.
   1-32        SECTION 3.  Section 162.005, Property Code, is amended to
   1-33  read as follows:
   1-34        Sec. 162.005.  Definitions.  In this chapter:
   1-35              (1)  A trustee acts with "intent to defraud" when the
   1-36  trustee:
   1-37                    (A)  <he> retains, uses, disburses, or diverts
   1-38  trust funds with the intent to deprive the beneficiaries of the
   1-39  trust funds;
   1-40                    (B)  retains, uses, disburses, or diverts trust
   1-41  funds and fails to establish or maintain a construction account as
   1-42  required by Section 162.007 or fails to establish or maintain an
   1-43  account record for the construction account as required by Section
   1-44  162.008; or
   1-45                    (C)  uses, disburses, or diverts trust funds that
   1-46  were paid to the trustee in reliance on an affidavit furnished by
   1-47  the trustee under Section 53.085 if the affidavit contains false
   1-48  information relating to the trustee's payment of current or past
   1-49  due obligations.
   1-50              (2)  "Current or past due obligations" are those
   1-51  obligations incurred or owed by the trustee for labor or materials
   1-52  furnished in the direct prosecution of the work under the
   1-53  construction contract prior to the receipt of the trust funds and
   1-54  which are due and payable by the trustee no later than 30 days
   1-55  following receipt of the trust funds.
   1-56              (3)  "Direct cost" means a cost included under a
   1-57  construction contract that is specific to the construction of the
   1-58  improvement that is the subject of the contract.
   1-59              (4)  "Indirect cost" means a cost included under a
   1-60  construction contract that is not specific to the construction of
   1-61  the improvement that is the subject of the contract.
   1-62              (5)  "Financial institution" means a bank, trust
   1-63  company, insurance company, credit union, savings and loan
   1-64  association, investment trust, investment  company, or any other
   1-65  organization held out to the public as a place for deposit of funds
   1-66  or medium of savings or collective investment.
   1-67              (6)  "Construction account" means a separate account in
   1-68  a financial institution into which only funds from construction
    2-1  payments made by the property owner and funds deposited by the
    2-2  contractor that are necessary to pay charges imposed on the account
    2-3  by the financial institution may be maintained.
    2-4              (7)  "Draw schedule" means a listing of the amount of
    2-5  funds and the times in the construction process at which those
    2-6  funds are advanced from the property owner to the contractor.
    2-7        SECTION 4.  Subchapter A, Chapter 162, Property Code, is
    2-8  amended by adding Sections 162.006, 162.007, and 162.008 to read as
    2-9  follows:
   2-10        Sec. 162.006.  DRAW SCHEDULE REQUIRED.  A contractor who
   2-11  agrees to construct improvements to a residential homestead shall
   2-12  furnish a written draw schedule to the property owner before the
   2-13  commencement of construction.
   2-14        Sec. 162.007.  CONSTRUCTION ACCOUNT REQUIRED IN CERTAIN
   2-15  CIRCUMSTANCES.  (a)  A contractor who agrees with a property owner
   2-16  to construct improvements to a residential homestead for an amount
   2-17  exceeding $5,000 shall deposit the trust funds received from the
   2-18  owner in a construction account in a financial institution.
   2-19        (b)  The periodic statement received from the financial
   2-20  institution must refer to the account as a  "construction account"
   2-21  to satisfy the requirements of this section.
   2-22        Sec. 162.008.  MANAGEMENT OF CONSTRUCTION ACCOUNTS.  (a)  A
   2-23  contractor required to maintain a construction account under this
   2-24  subchapter shall maintain an account record for the construction
   2-25  account that provides information relating to:
   2-26              (1)  the source and character of all funds in the
   2-27  account and the date the funds were deposited;
   2-28              (2)  the date and amount of each disbursement from the
   2-29  account and the person to whom the funds were disbursed; and
   2-30              (3)  the current balance of the account.
   2-31        (b)  The contractor shall maintain an account record for each
   2-32  construction project that specifies the direct costs and indirect
   2-33  costs charged to the owner.
   2-34        (c)  The  contractor shall retain all invoices and other
   2-35  supporting documentation received relating to funds that were
   2-36  disbursed from the construction account.
   2-37        (d)  The contractor shall ensure that all deposit and
   2-38  disbursement documentation includes the construction account number
   2-39  or information that provides a direct connection between the
   2-40  documentation and the account.
   2-41        (e)  The contractor may not destroy information required to
   2-42  be maintained under this section before the first anniversary of
   2-43  the date the improvement that is the subject of the contract is
   2-44  completed.
   2-45        SECTION 5.  Section 162.032, Property Code, is amended  by
   2-46  adding Subsections (c) and (d) to read as follows:
   2-47        (c)  A trustee who fails to establish or maintain a
   2-48  construction account in violation of Section 162.007 or fails to
   2-49  establish or maintain an account record for the construction
   2-50  account in violation of Section 162.008 commits a Class A
   2-51  misdemeanor.
   2-52        (d)  A contractor who fails to furnish a draw schedule in
   2-53  violation of Section 162.006 commits a Class C misdemeanor.
   2-54        SECTION 6.  (a)  This Act takes effect September 1, 1995.
   2-55  The changes in law made by this Act apply only to a construction
   2-56  contract entered into on or after September 1, 1995, and funds
   2-57  received under a construction contract entered into on or after
   2-58  September 1, 1995.
   2-59        (b)  A construction contract entered into before September 1,
   2-60  1995, or funds received under a construction contract entered into
   2-61  before September 1, 1995, are governed by the law as it existed
   2-62  immediately before September 1, 1995, and  that law is continued in
   2-63  effect for that purpose.
   2-64        SECTION 7.  The importance of this legislation and the
   2-65  crowded condition of the calendars in both houses create an
   2-66  emergency and an imperative public necessity that the
   2-67  constitutional rule requiring bills to be read on three several
   2-68  days in each house be suspended, and this rule is hereby suspended.
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