S.C.R. No. 106
SENATE CONCURRENT RESOLUTION
1-1 WHEREAS, Harbert Construction Company alleges that:
1-2 (1) it entered into three separate contracts with the Texas
1-3 Department of Criminal Justice to construct 1,000 bed prisons
1-4 located in Hondo, Lamesa, and Pampa (known as the "Hondo Project,"
1-5 the "Lamesa Project," and the "Pampa Project");
1-6 (2) it has performed all of its obligations under the terms
1-7 of the contracts;
1-8 (3) the department's deficient management, lack of
1-9 coordination, and constructive acceleration of the projects
1-10 required Harbert Construction Company to hire additional employees
1-11 on the Hondo Project and the Lamesa Project;
1-12 (4) the department's actions required Harbert Construction
1-13 Company to incur extended overhead costs on the projects;
1-14 (5) Harbert Construction Company had to make changes in the
1-15 scope of the contract because of drawing errors discovered in the
1-16 contract;
1-17 (6) the department wrongfully withheld liquidated damages on
1-18 the projects;
1-19 (7) due to the department withholding payment, a mechanical
1-20 subcontractor on the Hondo Project has made a claim and several
1-21 other subcontractors have experienced serious losses;
1-22 (8) it is entitled to just compensation, including interest,
1-23 due to the department's failure to make prompt payment, as provided
1-24 by Subchapter B, Chapter 2251, Government Code;
2-1 (9) Harbert Construction Company and the Texas Department of
2-2 Criminal Justice have attempted to resolve these conflicts and
2-3 disputes by a dispute resolution agreement; and
2-4 (10) it has timely presented the claims and is entitled to
2-5 damages, including damages for acceleration costs, additional
2-6 supervision and overhead costs, claim preparation costs, withheld
2-7 liquidated damages, changes in the scope of the contract,
2-8 subcontractor claims, and interest; now, therefore, be it
2-9 RESOLVED by the Legislature of the State of Texas, That
2-10 Harbert Construction Company is granted permission to sue the State
2-11 of Texas and the Texas Department of Criminal Justice subject to
2-12 Chapter 107, Civil Practice and Remedies Code; and, be it further
2-13 RESOLVED, That the suit authorized by this resolution shall
2-14 be brought in Travis County, except that if each contract that is
2-15 the subject of the suit requires that the suit be brought in
2-16 another county the suit may be brought in that county; and, be it
2-17 further
2-18 RESOLVED, That the total of all damages awarded in the suit
2-19 authorized by this resolution, including any court costs,
2-20 attorney's fees, and prejudgment interest awarded under law, may
2-21 not exceed $1 million, that Harbert Construction Company may not
2-22 plead an amount in excess of that amount in a suit authorized by
2-23 this resolution, and that this is the total amount that may be
2-24 recovered with respect to the contracts that are the subject of
2-25 this resolution in all actions brought with respect to those
2-26 contracts; and, be it further
2-27 RESOLVED, That payment of any damages awarded in a suit
3-1 authorized by this section from the state treasury is subject to
3-2 appropriation; and, be it further
3-3 RESOLVED, That it is the intent of the 74th Legislature of
3-4 the State of Texas that, if any damages are awarded in a suit
3-5 authorized by this resolution, the damages be paid from money
3-6 appropriated to or otherwise available to the Texas Department of
3-7 Criminal Justice and that additional money should not be
3-8 appropriated for the purpose of paying these damages; and, be it
3-9 further
3-10 RESOLVED, That the remedies available to Harbert Construction
3-11 Company in the suit authorized by this resolution are limited to
3-12 the remedies traditionally available for breach of contract, except
3-13 that Harbert Construction Company may not recover consequential
3-14 damages resulting from any breach of contract, and that this
3-15 resolution does not authorize suit on any claim that sounds in
3-16 tort; and, be it further
3-17 RESOLVED, That Harbert Construction Company and the Texas
3-18 Department of Criminal Justice may agree to submit the matter that
3-19 is the subject of this resolution to binding arbitration; and, be
3-20 it further
3-21 RESOLVED, That the provisions of this resolution are not
3-22 severable, and if any provision of this resolution is finally held
3-23 to be invalid by a court of competent jurisdiction, the remaining
3-24 provisions are also invalid and this resolution has no force or
3-25 effect and no suit is authorized by this resolution; and, be it
3-26 further
3-27 RESOLVED, That the executive director of the Texas Department
4-1 of Criminal Justice be served process as provided by Subdivision
4-2 (3), Subsection (a), Section 107.002, Civil Practice and Remedies
4-3 Code.