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.