By Hilbert, Wohlgemuth                                H.B. No. 3158

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to certain bonds executed by sureties.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Section 1, Chapter 87, Acts of the 56th

 1-5     Legislature, Regular Session, 1959 (Article 7.19-1, Vernon's Texas

 1-6     Insurance Code), is amended by amending Subsection (a) and by

 1-7     adding Subsections (c) and (d) to read as follows:

 1-8           (a)  Whenever any bond, undertaking, recognizance or other

 1-9     obligation is, by law or the charter, ordinances, rules and

1-10     regulations of a municipality, board, body, organization, court,

1-11     judge or public officer, required or permitted to be made, given,

1-12     tendered or filed, and whenever the performance of any act, duty or

1-13     obligation, or the refraining from any act, is required or

1-14     permitted to be guaranteed, such bond, undertaking, obligation,

1-15     recognizance or guarantee may be executed by a surety company duly

1-16     authorized to do business in this state; and, except as provided by

1-17     Subsection (b), (c), or (d) of this section, such execution by such

1-18     company of such bond, undertaking, obligation, recognizance or

1-19     guarantee shall be in all respects a full and complete compliance

1-20     with every law, charter, rule or regulation that such bond,

1-21     undertaking, obligation, recognizance or guarantee shall be

1-22     executed by one surety or by one or more sureties, or that such

1-23     sureties shall be residents, or householders, or freeholders, or

1-24     either, or both, or possess any other qualification and all courts,

 2-1     judges, heads of departments, boards, bodies, municipalities, and

 2-2     public officers of every character shall accept and treat such

 2-3     bond, undertaking, obligation, recognizance or guarantee when so

 2-4     executed by such company, as conforming to, and fully and

 2-5     completely complying with, every requirement of every such law,

 2-6     charter, ordinance, rule or regulation.

 2-7           Provided, however, that any municipality may require in any

 2-8     specifications for work or supplies, on which sealed bids are

 2-9     required, that any corporate surety tender shall designate, in a

2-10     manner satisfactory to it, an agent resident in the county of such

2-11     municipality to whom any requisite notices may be delivered and on

2-12     whom service of process may be had in matters arising out of such

2-13     suretyship.

2-14           (c)  A bond that is made, given, tendered, or filed under

2-15     Chapter 53, Property Code, or Chapter 2253, Government Code, may be

2-16     executed only by a surety company that is authorized and admitted

2-17     to write surety bonds in this state.  If the amount of the bond

2-18     exceeds $100,000, the surety must also:

2-19                 (1)  hold a certificate of authority from the United

2-20     States secretary of the treasury to qualify as a surety on

2-21     obligations permitted or required under federal law; or

2-22                 (2)  have obtained reinsurance for any liability in

2-23     excess of $100,000 from a reinsurer that is authorized and admitted

2-24     as a reinsurer in this state and is the holder of a certificate of

2-25     authority from the United States secretary of the treasury to

2-26     qualify as a surety or reinsurer on obligations permitted or

2-27     required under federal law.

 3-1           (d)  In determining whether the surety on the bond or the

 3-2     reinsurer holds a certificate of authority from the United States

 3-3     secretary of the treasury, a party may conclusively rely on the

 3-4     list of companies holding certificates of authority as acceptable

 3-5     sureties on federal bonds and as acceptable reinsuring companies

 3-6     published in the Federal Register by the United States Department

 3-7     of the Treasury covering the date on which the bond was executed.

 3-8     A purchaser, insurer of title, or lender acquiring or insuring an

 3-9     interest or title to real property may also conclusively rely on

3-10     and is protected by a statement on a recorded bond or a sworn

3-11     statement by the surety that is recorded and refers to the specific

3-12     recorded bond and that states that, at the time the bond was

3-13     executed, the surety:

3-14                 (1)  was a holder of a certificate of authority from

3-15     the United States secretary of the treasury to qualify as a surety

3-16     on obligations permitted or required under federal law; or

3-17                 (2)  had reinsured any liability in excess of $100,000

3-18     by a reinsurer holding a certificate of authority described by

3-19     Subdivision (1) of this subsection.

3-20           SECTION 2.  Sections 53.172 and 53.202, Property Code, are

3-21     amended to read as follows:

3-22           Sec. 53.172.  Bond Requirements.  The bond must:

3-23                 (1)  describe the property on which the liens are

3-24     claimed;

3-25                 (2)  refer to each lien claimed in a manner sufficient

3-26     to identify it;

3-27                 (3)  be in an amount that is double the amount of the

 4-1     liens referred to in the bond unless the total amount claimed in

 4-2     the liens exceeds $40,000, in which case the bond must be in an

 4-3     amount that is the greater of 1 1/2  times the amount of the liens

 4-4     or the sum of $40,000 and the amount of the liens;

 4-5                 (4)  be payable to the parties claiming the liens;

 4-6                 (5)  be executed by:

 4-7                       (A)  the party filing the bond as principal; and

 4-8                       (B)  a corporate surety authorized and admitted

 4-9     to do business under the law in this state and licensed by this

4-10     state to execute the bond as surety, subject to Section 1, Chapter

4-11     87, Acts of the 56th Legislature, Regular Session, 1959 (Article

4-12     7.19-1, Vernon's Texas Insurance Code); and

4-13                 (6)  be conditioned substantially that the principal

4-14     and sureties will pay to the named obligees or to their assignees

4-15     the amount that the named obligees would have been entitled to

4-16     recover if their claims had been proved to be valid and enforceable

4-17     liens on the property.

4-18           Sec. 53.202.  Bond Requirements.  The bond must:

4-19                 (1)  be in a penal sum at least equal to the total of

4-20     the original contract amount;

4-21                 (2)  be in favor of the owner;

4-22                 (3)  have the written approval of the owner endorsed on

4-23     it;

4-24                 (4)  be executed by:

4-25                       (A)  the original contractor as principal; and

4-26                       (B)  a corporate surety authorized and admitted

4-27     to do business in this state and licensed by this state to execute

 5-1     bonds as surety, subject to Section 1, Chapter 87, Acts of the 56th

 5-2     Legislature, Regular Session, 1959 (Article 7.19-1, Vernon's Texas

 5-3     Insurance Code); and

 5-4                 (5)  be conditioned on prompt payment for all labor,

 5-5     subcontracts, materials, specially fabricated materials, and normal

 5-6     and usual extras not exceeding 15 percent of the contract price.

 5-7           SECTION 3.  Subchapter B, Chapter 2253, Government Code, is

 5-8     amended by adding Section 2253.022 to read as follows:

 5-9           Sec. 2253.022.  PERFORMANCE AND PAYMENT BONDS; INSURED LOSS.

5-10     (a)  A governmental entity shall ensure that an insurance company

5-11     that is fulfilling its obligation under a contract of insurance by

5-12     arranging for the replacement of a loss, rather than by making a

5-13     cash payment directly to the governmental entity, furnishes or has

5-14     furnished by a contractor, in accordance with this chapter:

5-15                 (1)  a performance bond as described by Section

5-16     2253.021(b) for the benefit of the governmental entity; and

5-17                 (2)  a payment bond as described in Section 2253.021(c)

5-18     for the benefit of the beneficiaries described by that subsection.

5-19           (b)  The bonds required to be furnished under Subsection (a)

5-20     must be furnished before the contractor begins work.

5-21           (c)  It is an implied obligation under a contract of

5-22     insurance for the insurance company to furnish the bonds required

5-23     by this section.

5-24           (d)  To recover in a suit with respect to which the insurance

5-25     company has furnished or caused to be furnished a payment bond, the

5-26     only notice required of a payment bond beneficiary is the notice

5-27     given to the surety in accordance with Subchapter C.

 6-1           (e)  This section does not apply to a governmental entity

 6-2     when a surety company is complying with an obligation under a bond

 6-3     that had been issued for the benefit of the governmental entity.

 6-4           (f)  If the payment bond required by Subsection (a) is not

 6-5     furnished, the governmental entity is subject to the same liability

 6-6     that a surety would have if the surety had issued the payment bond

 6-7     and the governmental entity had required the bond to be provided.

 6-8     To recover in a suit under this subsection, the only notice

 6-9     required of a payment bond beneficiary is a notice given to the

6-10     governmental entity, as if the governmental entity were the surety,

6-11     in accordance with Subchapter C.

6-12           SECTION 4.  This Act takes effect September 1, 1997, and

6-13     applies only to a bond made, given, tendered, or filed on or after

6-14     that date.  A bond made, given, tendered, or filed before the

6-15     effective date of this Act is governed by the law as it existed

6-16     immediately before the effective date of this Act, and that law is

6-17     continued in effect for that purpose.

6-18           SECTION 5.  The importance of this legislation and the

6-19     crowded condition of the calendars in both houses create an

6-20     emergency and an imperative public necessity that the

6-21     constitutional rule requiring bills to be read on three several

6-22     days in each house be suspended, and this rule is hereby suspended.