By Siebert                                            H.B. No. 1522
         Substitute the following for H.B. No. 1522:
         By Siebert                                        C.S.H.B. No. 1522
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to prompt payment requirements for work performed by
 1-3     contractors and subcontractors on certain real property.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Section 28.002, Property Code, is amended to read
 1-6     as follows:
 1-7           Sec. 28.002.  PROMPT PAY REQUIRED.  (a)  A contractor shall
 1-8     submit invoices at least monthly to the owner for goods or services
 1-9     provided for the owner, including goods or services provided to the
1-10     contractor by a subcontractor.  A subcontractor shall submit
1-11     invoices at least monthly to the contractor for goods or services
1-12     provided to the subcontractor by another subcontractor.  This
1-13     subsection does not apply to a contractor or subcontractor
1-14     providing goods or services for an owner under a contract for
1-15     construction of or improvements to a detached single-family
1-16     residence, duplex, triplex, or quadruplex.
1-17           (b)  If an owner or a person authorized to act on behalf of
1-18     the owner receives a written payment request from a contractor for
1-19     an amount that is allowed to the contractor under the contract for
1-20     properly performed work or suitably stored or specially fabricated
1-21     materials, the owner shall pay the amount to the contractor, less
1-22     any amount withheld as authorized by statute [statutory offsets],
1-23     not later than the 35th [45th] day after the date the owner
1-24     receives the request.
 2-1           (c) [(b)]  A contractor who receives a payment under
 2-2     Subsection (b) [(a)] or otherwise from an owner in connection with
 2-3     a contract to improve real property shall pay each of its
 2-4     subcontractors the portion of the owner's payment, including
 2-5     interest, if any, that is attributable to work properly performed
 2-6     or materials suitably stored or specially fabricated as provided
 2-7     under the contract by that subcontractor [if payment for stored
 2-8     materials is provided for in the contract], to the extent of that
 2-9     subcontractor's interest in the owner's payment.  The payment
2-10     required by this subsection must be made not later than the seventh
2-11     day after the date the contractor receives the owner's payment.
2-12           (d) [(c)]  A subcontractor who receives a payment under
2-13     Subsection (c) [(b)] or otherwise from a contractor in connection
2-14     with a contract to improve real property shall pay each of its
2-15     subcontractors the portion of the payment, including interest, if
2-16     any, that is attributable to work properly performed or materials
2-17     suitably stored or specially fabricated as provided under the
2-18     contract by that subcontractor [if payment for stored materials is
2-19     provided for in the contract], to the extent of that
2-20     subcontractor's interest in the payment.  The payment required by
2-21     this subsection must be made not later than the seventh day after
2-22     the date the subcontractor receives the contractor's payment.
2-23           SECTION 2.  Section 28.003, Property Code, is amended to read
2-24     as follows:
2-25           Sec. 28.003.  EXCEPTION FOR GOOD FAITH DISPUTE; WITHHOLDING.
2-26     (a)  If a good faith dispute exists concerning the amount owed for
2-27     a payment requested or required by this chapter under a contract
 3-1     for construction of or improvements to a detached single-family
 3-2     residence, duplex, triplex, or quadruplex, the owner, contractor,
 3-3     or subcontractor that is disputing its obligation to pay or the
 3-4     amount of payment may withhold from the payment owed not more than
 3-5     110 percent of the difference between the amount the obligee claims
 3-6     is due and the amount the obligor claims is due.  A good faith
 3-7     dispute includes a dispute regarding whether the work was performed
 3-8     in a proper manner.
 3-9           (b)  If a good faith dispute exists concerning the amount
3-10     owed for a payment requested or required by this chapter under a
3-11     contract for construction of or improvements to real property,
3-12     excluding a detached single-family residence, duplex, triplex, or
3-13     quadruplex, the owner, contractor, or subcontractor that is
3-14     disputing its obligation to pay or the amount of payment may
3-15     withhold from the payment owed not more than 100 percent of the
3-16     difference between the amount the obligee claims is due and the
3-17     amount the obligor claims is due.  A good faith dispute includes a
3-18     dispute regarding whether the work was performed in a proper
3-19     manner.
3-20           SECTION 3.  Section 28.006(b), Property Code, is amended to
3-21     read as follows:
3-22           (b)  A written contract between an owner and a contractor for
3-23     improvements to or construction of a single-family residence may
3-24     provide that the payment required under Section 28.002(b)
3-25     [28.002(a)] be made not later than a date that occurs before the
3-26     61st day after the date the owner receives the payment request.
3-27     Notwithstanding Section 28.004(b), an unpaid amount under contract
 4-1     subject to this subsection that allows payment later than the date
 4-2     otherwise required under Section 28.002(b) [28.002(a)] bears
 4-3     interest at the rate of 1-1/2 percent each month.
 4-4           SECTION 4.  Section 28.008, Property Code, is amended to read
 4-5     as follows:
 4-6           Sec. 28.008.  EXCEPTION FOR FAILURE OF LENDER TO DISBURSE
 4-7     FUNDS.  The date of payment required of the owner pursuant to
 4-8     Section 28.002(b) [28.002(a)] shall change from the 35th [45th] day
 4-9     after the date the owner receives the payment request to the fifth
4-10     [5th] day after the date the owner receives loan proceeds, in the
4-11     event that:
4-12                 (1)  the owner has obtained a loan intended to pay for
4-13     all or part of a contract to improve real property;
4-14                 (2)  the owner has timely and properly requested
4-15     disbursement of proceeds from that loan; and
4-16                 (3)  the lender is legally obligated to disburse such
4-17     proceeds to the owner, but has failed to do so within 35 [45] days
4-18     after the date the owner received the contractor's payment request.
4-19           SECTION 5.  Chapter 28, Property Code, is amended by adding
4-20     Sections 28.009 and 28.010 to read as follows:
4-21           Sec. 28.009.  RIGHT TO SUSPEND WORK.  (a)  If an owner fails
4-22     to pay the contractor the undisputed amount within the time limits
4-23     provided by this chapter, the contractor or any subcontractor may
4-24     suspend contractually required performance the 10th day after the
4-25     date the contractor or subcontractor gives the owner and the
4-26     owner's lender written notice:
4-27                 (1)  informing the owner and lender that payment has
 5-1     not been received; and
 5-2                 (2)  stating the intent of the contractor or
 5-3     subcontractor to suspend performance for nonpayment.
 5-4           (b)  For purposes of Subsection (a), the contractor or
 5-5     subcontractor must give the owner's lender the written notice only
 5-6     if:
 5-7                 (1)  the owner has obtained a loan intended to pay for
 5-8     all or part of the construction project;
 5-9                 (2)  the lender has remitted funds, including
5-10     acquisition funds, for construction purposes;
5-11                 (3)  the loan obtained:
5-12                       (A)  is evidenced by a promissory note secured by
5-13     a deed of trust recorded in the real property records of the county
5-14     in which the real property that is the subject of the contract is
5-15     located; and
5-16                       (B)  is not only for the acquisition of personal
5-17     property or secured only by a security instrument;
5-18                 (4)  the owner or lender, at the lender's option:
5-19                       (A)  securely posts not later than the 10th day
5-20     after the date construction commences a sign on the project site in
5-21     a prominent place accessible to each contractor, subcontractor, and
5-22     supplier that states the lender's name, address, and the person to
5-23     whom any notice should be sent; and
5-24                       (B)  maintains the sign during the pendency of
5-25     the construction project;
5-26                 (5)  not later than the 10th day after the date
5-27     construction commences, the owner or lender, at the lender's
 6-1     option, provides a written copy of the notice prescribed by
 6-2     Subdivision (4) to the contractor and any subcontractor or supplier
 6-3     identified by the contractor by depositing the notice properly
 6-4     addressed in the United States mail, first class, postage paid; and
 6-5                 (6)  not later than the 10th day after the date a
 6-6     subcontractor or supplier performing labor or furnishing materials
 6-7     or equipment for the construction project, the owner, contractor,
 6-8     or subcontractor provides a written copy of the notice prescribed
 6-9     by Subdivision (4) to the subcontractor or supplier.
6-10           (c)  A contractor or subcontractor who suspends performance
6-11     as provided by this section is not:
6-12                 (1)  required to supply further labor, services, or
6-13     materials until the person is paid the amount provided by this
6-14     chapter, plus costs for demobilization and remobilization; or
6-15                 (2)  responsible for damages resulting from suspending
6-16     work if the contractor or subcontractor has not been notified in
6-17     writing before suspending performance that payment has been made or
6-18     that a good faith dispute for payment exists.
6-19           (d)  A notification that a good faith dispute for payment
6-20     exists provided under Subsection (c) must include a list of
6-21     specific reasons for nonpayment.  If a reason specified includes
6-22     labor, services, or materials provided by a subcontractor that are
6-23     not provided in compliance with the contract, the subcontractor is
6-24     entitled to a reasonable opportunity to:
6-25                 (1)  cure the listed items; or
6-26                 (2)  offer a reasonable amount to compensate for listed
6-27     items that cannot be promptly cured.
 7-1           (e)  This section does not apply to:
 7-2                 (1)  a contract for the construction of or improvements
 7-3     to a detached single-family residence, duplex, triplex, or
 7-4     quadruplex; or
 7-5                 (2)  a contract to improve real property for a
 7-6     governmental entity.
 7-7           (f)  The rights and remedies provided by this section are in
 7-8     addition to rights and remedies provided by this chapter or other
 7-9     law.
7-10           Sec. 28.010.  DIRECT CAUSE OF ACTION AGAINST OWNER.  (a)  If
7-11     an owner fails to pay the contractor the undisputed amount within
7-12     the time limits provided by this chapter, the contractor or a
7-13     subcontractor has a direct cause of action against the owner to
7-14     recover payment for:
7-15                 (1)  labor, services, or materials provided under
7-16     contract; and
7-17                 (2)  all reasonable damages, including the reasonable
7-18     cost of demobilization and remobilization.
7-19           (b)  The contractor or subcontractor may bring a direct cause
7-20     of action against the owner under this section beginning on the
7-21     10th day after the date the contractor or subcontractor gives the
7-22     owner written notice that the contractor or subcontractor intends
7-23     to exercise the rights and remedies provided by this section.
7-24           (c)  In a direct action brought under this section, the owner
7-25     may offset the payment required for damages for labor, services, or
7-26     materials provided by the contractor that do not comply with the
7-27     contract requirements.
 8-1           (d)  An agreement by a contractor to indemnify or defend the
 8-2     owner is unenforceable only to the extent that it applies to a
 8-3     direct cause of action by a subcontractor under this section.  An
 8-4     agreement by a subcontractor to indemnify or defend the owner,
 8-5     contractor, or another subcontractor is unenforceable only to the
 8-6     extent that it applies to a direct cause of action by a
 8-7     subcontractor under this section.
 8-8           (e)  This section does not apply to:
 8-9                 (1)  a contract for the construction of or improvements
8-10     to a detached single-family residence, duplex, triplex, or
8-11     quadruplex; or
8-12                 (2)  a contract to improve real property for a
8-13     governmental entity.
8-14           (f)  This section does not affect the requirements for
8-15     perfecting or enforcing a lien under Chapter 53.
8-16           (g)  The rights and remedies provided by this section are in
8-17     addition to rights and remedies provided by this chapter or other
8-18     law.
8-19           SECTION 6.  Subchapter A, Chapter 2251, Government Code, is
8-20     amended by adding Sections 2251.004 and 2251.005 to read as
8-21     follows:
8-22           Sec. 2251.004.  WAIVER PROHIBITED.  The provisions of this
8-23     chapter may not be waived by contract or otherwise.
8-24           Sec. 2251.005.  TIME FOR SUBMITTING INVOICES UNDER CERTAIN
8-25     CONTRACTS.  (a)  This section applies only to the submission of
8-26     invoices under a contract with a governmental entity to improve
8-27     real property or to perform construction or maintenance services.
 9-1           (b)  A vendor shall submit invoices to the governmental
 9-2     entity periodically, but no less often than monthly, for all goods
 9-3     and services provided by or through the vendor for the governmental
 9-4     entity, including those goods and services provided to the vendor
 9-5     by a subcontractor.
 9-6           (c)  A subcontractor shall submit invoices to the vendor
 9-7     periodically, but no less often than monthly, for all goods and
 9-8     services provided by or through the subcontractor for the vendor,
 9-9     including those goods and services provided to the subcontractor by
9-10     another subcontractor.
9-11           SECTION 7.  (a)  This Act takes effect September 1, 1999.
9-12           (b)  The changes in law made by this Act apply only to a
9-13     contract or agreement involving work performed on real property by
9-14     a contractor or subcontractor that is entered into on or after the
9-15     effective date of this Act.  A contract or agreement entered into
9-16     before the effective date of this Act is governed by the law in
9-17     effect when the contract was entered into, and the former law is
9-18     continued in effect for that purpose.
9-19           SECTION 8.  The importance of this legislation and the
9-20     crowded condition of the calendars in both houses create an
9-21     emergency and an imperative public necessity that the
9-22     constitutional rule requiring bills to be read on three several
9-23     days in each house be suspended, and this rule is hereby suspended.