1-1           By:  West                                        S.B. No. 241

 1-2           (In the Senate - Filed January 17, 1997; January 21, 1997,

 1-3     read first time and referred to Committee on Jurisprudence;

 1-4     February 25, 1997, reported favorably by the following vote:  Yeas

 1-5     6, Nays 0; February 25, 1997, sent to printer.)

 1-6                            A BILL TO BE ENTITLED

 1-7                                   AN ACT

 1-8     relating to construction contract provisions, construction trust

 1-9     funds, and the creation of and management policies applicable to a

1-10     construction account created to hold funds associated with a

1-11     construction contract; providing criminal penalties.

1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-13           SECTION 1.  Section 162.001, Property Code, is amended by

1-14     adding Subsection (c) to read as follows:

1-15           (c)  If a contractor and property owner have entered into a

1-16     written construction contract for the improvement of specific real

1-17     property in this state before the commencement of construction of

1-18     the improvement and the contract provides for the payment by the

1-19     owner of the costs of construction and a reasonable fee specified

1-20     in the contract payable to the contractor, the fee paid to the

1-21     contractor is not considered trust funds.

1-22           SECTION 2.  Section 162.003, Property Code, is amended to

1-23     read as follows:

1-24           Sec. 162.003.  BENEFICIARIES OF TRUST FUNDS.  An artisan

1-25     [artist], laborer, mechanic, contractor, subcontractor, or

1-26     materialman who labors or who furnishes labor or material for the

1-27     construction or repair of an improvement on specific real property

1-28     in this state is a beneficiary of any trust funds paid or received

1-29     in connection with the improvement.

1-30           SECTION 3.  Section 162.005, Property Code, is amended to

1-31     read as follows:

1-32           Sec. 162.005.  DEFINITIONS.  In this chapter:

1-33                 (1)  A trustee acts with "intent to defraud" when the

1-34     trustee:

1-35                       (A)  [he] retains, uses, disburses, or diverts

1-36     trust funds with the intent to deprive the beneficiaries of the

1-37     trust funds;

1-38                       (B)  retains, uses, disburses, or diverts trust

1-39     funds and fails to establish or maintain a construction account as

1-40     required by Section 162.006 or fails to establish or maintain an

1-41     account record for the construction account as required by Section

1-42     162.007; or

1-43                       (C)  uses, disburses, or diverts trust funds that

1-44     were paid to the trustee in reliance on an affidavit furnished by

1-45     the trustee under Section 53.085 if the affidavit contains false

1-46     information relating to the trustee's payment of current or past

1-47     due obligations.

1-48                 (2)  "Current or past due obligations" are those

1-49     obligations incurred or owed by the trustee for labor or materials

1-50     furnished in the direct prosecution of the work under the

1-51     construction contract prior to the receipt of the trust funds and

1-52     which are due and payable by the trustee no later than 30 days

1-53     following receipt of the trust funds.

1-54                 (3)  "Direct cost" means a cost included under a

1-55     construction contract that is specific to the construction of the

1-56     improvement that is the subject of the contract.

1-57                 (4)  "Indirect cost" means a cost included under a

1-58     construction contract that is not specific to the construction of

1-59     the improvement that is the subject of the contract.

1-60                 (5)  "Financial institution" means a bank, trust

1-61     company, insurance company, credit union, savings and loan

1-62     association, investment trust, investment  company, or any other

1-63     organization held out to the public as a place for deposit of funds

1-64     or medium of savings or collective investment.

 2-1                 (6)  "Construction account" means an account in a

 2-2     financial institution into which only trust funds and funds

 2-3     deposited by the contractor that are necessary to pay charges

 2-4     imposed on the account by the financial institution may be

 2-5     maintained.

 2-6           SECTION 4.  Subchapter A, Chapter 162, Property Code, is

 2-7     amended by adding Sections 162.006 and 162.007 to read as follows:

 2-8           Sec. 162.006.  CONSTRUCTION ACCOUNT REQUIRED IN CERTAIN

 2-9     CIRCUMSTANCES.  (a)  A contractor who agrees with a property owner

2-10     to construct improvements to a residential homestead for an amount

2-11     exceeding $5,000 shall deposit the trust funds received from the

2-12     owner in a construction account in a financial institution.

2-13           (b)  The periodic statement received from the financial

2-14     institution must refer to the account as a  "construction account"

2-15     to satisfy the requirements of this section.

2-16           Sec. 162.007.  MANAGEMENT OF CONSTRUCTION ACCOUNTS.  (a)  A

2-17     contractor required to maintain a construction account under this

2-18     subchapter shall maintain an account record for the construction

2-19     account that provides information relating to:

2-20                 (1)  the source and amount of the funds in the account

2-21     and the date the funds were deposited;

2-22                 (2)  the date and amount of each disbursement from the

2-23     account and the person to whom the funds were disbursed; and

2-24                 (3)  the current balance of the account.

2-25           (b)  The contractor shall maintain an account record for each

2-26     construction project that specifies the direct costs and indirect

2-27     costs charged to the owner.

2-28           (c)  The  contractor shall retain all invoices and other

2-29     supporting documentation received relating to funds that were

2-30     disbursed from the construction account.

2-31           (d)  The contractor shall ensure that all deposit and

2-32     disbursement documentation includes the construction account number

2-33     or information that provides a direct connection between the

2-34     documentation and the account.

2-35           (e)  The contractor may not destroy information required to

2-36     be maintained under this section before the first anniversary of

2-37     the date the improvement that is the subject of the contract is

2-38     completed.

2-39           SECTION 5.  Section 162.032, Property Code, is amended by

2-40     adding Subsection (c) to read as follows:

2-41           (c)  A trustee who fails to establish or maintain a

2-42     construction account in violation of Section 162.006 or fails to

2-43     establish or maintain an account record for the construction

2-44     account in violation of Section 162.007 commits a Class A

2-45     misdemeanor.

2-46           SECTION 6.  (a)  This Act takes effect September 1, 1997.

2-47     The changes in law made by this Act apply only to a construction

2-48     contract entered into on or after September 1, 1997, and funds

2-49     received under a construction contract entered into on or after

2-50     September 1, 1997.

2-51           (b)  A construction contract entered into before September 1,

2-52     1997, or funds received under a construction contract entered into

2-53     before September 1, 1997, are governed by the law as it existed

2-54     immediately before September 1, 1997, and that law is continued in

2-55     effect for that purpose.

2-56           SECTION 7.  The importance of this legislation and the

2-57     crowded condition of the calendars in both houses create an

2-58     emergency and an imperative public necessity that the

2-59     constitutional rule requiring bills to be read on three several

2-60     days in each house be suspended, and this rule is hereby suspended.

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