By Nixon H.B. No. 69
76R109 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to claims against a unit of state government relating to
1-3 contracts for certain services or projects.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Title 5, Civil Practice and Remedies Code, is
1-6 amended by adding Chapter 110 to read as follows:
1-7 CHAPTER 110. CONTRACT CLAIMS AGAINST THE STATE
1-8 Sec. 110.001. DEFINITION. In this chapter, "unit of state
1-9 government" means the state or an agency, department, commission,
1-10 bureau, board, office, council, court, or other entity that is in
1-11 any branch of state government and that is created by the
1-12 constitution or a statute of this state, including a university
1-13 system or institution of higher education as defined by Section
1-14 61.003, Education Code. The term does not include a county,
1-15 municipality, court of a county or municipality, special purpose
1-16 district, or other political subdivision of this state.
1-17 Sec. 110.002. RIGHTS OF CONTRACTING PARTIES. (a) A
1-18 claimant may proceed under Section 110.003 with respect to a claim
1-19 against a unit of state government that alleges that the unit has
1-20 breached a written contract with the claimant for engineering or
1-21 construction services.
1-22 (b) Sovereign immunity to suit is waived for purposes of an
1-23 appeal under Section 110.006.
1-24 Sec. 110.003. CLAIM. A claim may be made by filing a
2-1 petition with the chief administrative officer or, if designated in
2-2 the contract, another officer of the unit of state government. The
2-3 petition must:
2-4 (1) contain a concise statement of the facts relied on
2-5 by the claimant, the relief or remedy desired, a copy of the
2-6 contract, and other contract documents that pertain to the claim;
2-7 and
2-8 (2) be sworn to by the claimant or the claimant's
2-9 representative or attorney.
2-10 Sec. 110.004. NEGOTIATION AND MEDIATION. (a) The chief
2-11 administrative officer or, if designated in the contract, another
2-12 officer of the unit of state government, shall examine the claim
2-13 and negotiate in good faith with the claimant in an effort to
2-14 resolve the claim.
2-15 (b) If the claim is not resolved before the 31st day after
2-16 the date the claim is received, the parties shall mediate the claim
2-17 with an independent mediator selected by the parties. The
2-18 mediation shall be completed during the following 30 days or, if
2-19 both parties agree to the extension during the mediation process,
2-20 may continue for a longer period.
2-21 (c) If the mediation does not produce agreement as to the
2-22 claim, the chief administrative officer or, if designated in the
2-23 contract, another officer of the unit of state government, shall
2-24 respond to the claim providing the factual and legal basis for the
2-25 position of the unit as to the claim not later than the 30th day
2-26 after the date the mediation is terminated.
2-27 Sec. 110.005. CONTESTED CASE HEARING. (a) If the claimant
3-1 is not satisfied with the response to the claim by the unit of
3-2 state government, the claimant may file an appeal with the unit.
3-3 (b) The appeal must:
3-4 (1) state the factual and legal basis for the claim;
3-5 and
3-6 (2) request that the claim be referred to the State
3-7 Office of Administrative Hearings for a contested case hearing.
3-8 (c) On receipt of an appeal under Subsection (a), the unit
3-9 of state government shall refer the claim to the State Office of
3-10 Administrative Hearings for a contested case hearing under Chapter
3-11 2001, Government Code, as to the issues raised in the appeal.
3-12 Sec. 110.006. APPEAL TO COURT. The final order of the unit
3-13 of state government on the claim may be appealed as a final
3-14 decision in a contested case under Section 2001.171, Government
3-15 Code, and the court to which the claim is appealed may make an
3-16 award in accordance with Section 110.007.
3-17 Sec. 110.007. AWARD. (a) An award based on a claim made
3-18 under this chapter may not exceed the total value of the
3-19 consideration the claimant was to receive under the contract,
3-20 including any charge accepted by a unit of state government.
3-21 (b) The award may not include any:
3-22 (1) consequential or similar damages; or
3-23 (2) exemplary damages.
3-24 Sec. 110.008. VENUE. An appeal brought under Section
3-25 110.006 shall be brought in Travis County.
3-26 Sec. 110.009. SERVICE OF CITATION. In an appeal brought
3-27 under Section 110.006, service of citation and other required
4-1 process must be made on:
4-2 (1) the attorney general; and
4-3 (2) the chief administrative officer or another
4-4 officer of the unit of state government with which the claimant
4-5 contracted.
4-6 Sec. 110.010. PREJUDGMENT INTEREST. Chapter 304, Finance
4-7 Code, applies to a judgment awarded to a claimant under this
4-8 chapter, except that the applicable rate of interest may not exceed
4-9 six percent.
4-10 Sec. 110.011. SETTLEMENT. The attorney general may settle
4-11 or compromise an appeal brought under Section 110.006.
4-12 Sec. 110.012. PAYMENT OF JUDGMENT OR SETTLEMENT. (a) A
4-13 unit of state government shall pay a judgment or settlement under
4-14 this chapter from money appropriated to the unit that the unit is
4-15 authorized to use for the services or property obtained under the
4-16 contract on which the suit was based.
4-17 (b) To the extent money described by Subsection (a) is not
4-18 available to make the payment, the judgment or settlement may be
4-19 paid only from money appropriated by the legislature for payment of
4-20 the judgment or settlement.
4-21 Sec. 110.013. EXECUTION ON STATE PROPERTY NOT AUTHORIZED.
4-22 This chapter does not authorize execution on property owned by the
4-23 state or a unit of state government.
4-24 Sec. 110.014. APPLICATION OF OTHER LAWS. Chapter 107 does
4-25 not apply to an appeal brought under Section 110.006.
4-26 SECTION 2. This Act takes effect September 1, 1999.
4-27 SECTION 3. (a) This Act applies only to a suit based on a
5-1 written contract described by Section 110.002, Civil Practice and
5-2 Remedies Code, as added by this Act, entered into by a unit of
5-3 state government on or after the effective date of this Act. A
5-4 suit based on a contract entered into before the effective date of
5-5 this Act is governed by the law as it existed immediately before
5-6 the effective date of this Act, and that law is continued in effect
5-7 for that purpose.
5-8 (b) For purposes of this section, a contract is entered into
5-9 after the effective date of this Act if it is executed or renewed
5-10 after the effective date of this Act.
5-11 SECTION 4. The importance of this legislation and the
5-12 crowded condition of the calendars in both houses create an
5-13 emergency and an imperative public necessity that the
5-14 constitutional rule requiring bills to be read on three several
5-15 days in each house be suspended, and this rule is hereby suspended.