Bill not drafted by TLC or Senate E&E.

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      By Giddings                                            H.B. No. 109

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to construction contract provisions, construction trust

 1-3     funds, and the creation of and management policies applicable to a

 1-4     construction account created to hold funds associated with a

 1-5     construction contract; providing penalties.

 1-6           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-7           SECTION 1.  Section 162.001, Property Code, is amended by

 1-8     adding Subsection (c) to read as follows:

 1-9           (c)  If a contractor and property owner have entered into a

1-10     written construction contract for the improvement of specific real

1-11     property in this state before the commencement of construction of

1-12     the improvement and the contract provides for the payment by the

1-13     owner of the costs of construction and a reasonable fee specified

1-14     in the contract payable to the contractor, the fee paid to the

1-15     contractor is not considered trust funds.

1-16           SECTION 2.  Section 162.003, Property Code, is amended to

1-17     read as follows:

1-18           Sec. 162.003.  BENEFICIARIES OF TRUST FUNDS.  An artisan

1-19     [artist], laborer, mechanic, contractor, subcontractor, or

1-20     materialman who labors or who furnishes labor or material for the

1-21     construction or repair of an improvement on specific real property

1-22     in this state is a beneficiary of any trust funds paid or received

1-23     in connection with the improvement.

1-24           SECTION 3.  Section 162.005, Property Code, is amended to

 2-1     read as follows:

 2-2           Sec. 162.005.  DEFINITIONS.  In this chapter:

 2-3                 (1)  A trustee acts with "intent to defraud" when the

 2-4     trustee:

 2-5                       (A)  [he] retains, uses, disburses, or diverts

 2-6     trust funds with the intent to deprive the beneficiaries of the

 2-7     trust funds;

 2-8                       (B)  retains, uses, disburses, or diverts trust

 2-9     funds and fails to establish or maintain a construction account as

2-10     required by Section 162.007 or fails to establish or maintain an

2-11     account record for the construction account as required by Section

2-12     162.008; or

2-13                       (C)  uses, disburses, or diverts trust funds that

2-14     were paid to the trustee in reliance on an affidavit furnished by

2-15     the trustee under Section 53.085 if the affidavit contains false

2-16     information relating to the trustee's payment of current or past

2-17     due obligations.

2-18                 (2)  "Current or past due obligations" are those

2-19     obligations incurred or owed by the trustee for labor or materials

2-20     furnished in the direct prosecution of the work under the

2-21     construction contract prior to the receipt of the trust funds and

2-22     which are due and payable by the trustee no later than 30 days

2-23     following receipt of the trust funds.

2-24                 (3)  "Direct cost" means a cost included under a

2-25     construction contract that is specific to the construction of the

2-26     improvement that is the subject of the contract.

2-27                 (4)  "Indirect cost" means a cost included under a

2-28     construction contract that is not specific to the construction of

2-29     the improvement that is the subject of the contract.

2-30                 (5)  "Financial institution" means a bank, trust

 3-1     company, insurance company, credit union, savings and loan

 3-2     association, investment trust, investment  company, or any other

 3-3     organization held out to the public as a place for deposit of funds

 3-4     or medium of savings or collective investment.

 3-5                 (6)  "Construction account" means an account in a

 3-6     financial institution into which only trust funds and funds

 3-7     deposited by the contractor that are necessary to pay charges

 3-8     imposed on the account by the financial institution may be

 3-9     maintained.

3-10           SECTION 4.  Subchapter A, Chapter 162, Property Code, is

3-11     amended by adding Sections 162.006, 162.007, and 162.008 to read as

3-12     follows:

3-13           Sec. 162.006.  CONSTRUCTION ACCOUNT REQUIRED IN CERTAIN

3-14     CIRCUMSTANCES.  (a)  A contractor who agrees with a property owner

3-15     to construct improvements to a residential homestead for an amount

3-16     exceeding $5,000 shall deposit the trust funds received from the

3-17     owner in a construction account in a financial institution.

3-18           (b)  The periodic statement received from the financial

3-19     institution must refer to the account as a  "construction account"

3-20     to satisfy the requirements of this section.

3-21           Sec. 162.007.  MANAGEMENT OF CONSTRUCTION ACCOUNTS.  (a)  A

3-22     contractor required to maintain a construction account under this

3-23     subchapter shall maintain an account record for the construction

3-24     account that provides information relating to:

3-25                 (1)  the source and amount of the funds in the account

3-26     and the date the funds were deposited;

3-27                 (2)  the date and amount of each disbursement from the

3-28     account and the person to whom the funds were disbursed; and

3-29                 (3)  the current balance of the account.

3-30           (b)  The contractor shall maintain an account record for each

 4-1     construction project that specifies the direct costs and indirect

 4-2     costs charged to the owner.

 4-3           (c)  The contractor shall retain all invoices and other

 4-4     supporting documentation received relating to funds that were

 4-5     disbursed from the construction account.

 4-6           (d)  The contractor shall ensure that all deposit and

 4-7     disbursement documentation includes the construction account number

 4-8     or information that provides a direct connection between the

 4-9     documentation and the account.

4-10           (e)  The contractor may not destroy information required to

4-11     be maintained under this section before the first anniversary of

4-12     the date the improvement that is the subject of the contract is

4-13     completed.

4-14           SECTION 5.  Section 162.032, Property Code, is amended  by

4-15     adding Subsections (c) and (d) to read as follows:

4-16           (c)  A trustee who fails to establish or maintain a

4-17     construction account in violation of Section 162.007 or fails to

4-18     establish or maintain an account record for the construction

4-19     account in violation of Section 162.008 commits a Class A

4-20     misdemeanor.

4-21           SECTION 6.  (a)  This Act takes effect September 1, 1997.

4-22     The changes in law made by this Act apply only to a construction

4-23     contract entered into on or after September 1, 1997, and funds

4-24     received under a construction contract entered into on or after

4-25     September 1, 1997.

4-26           (b)  A construction contract entered into before September 1,

4-27     1997, or funds received under a construction contract entered into

4-28     before September 1, 1997, are governed by the law as it existed

4-29     immediately before September 1, 1997, and that law is continued in

4-30     effect for that purpose.

 5-1           SECTION 7.  The importance of this legislation and the

 5-2     crowded condition of the calendars in both houses create an

 5-3     emergency and an imperative public necessity that the

 5-4     constitutional rule requiring bills to be read on three several

 5-5     days in each house be suspended, and this rule is hereby suspended.