By:  Jackson                                          S.B. No. 1675
         Line and page numbers may not match official copy.
         Bill not drafted by TLC or Senate E&E.
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the conduct of the business of certain surety
 1-3     companies.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Chapter 7, Insurance Code, is amended by adding
 1-6     Article 7.18 to read as follows:
 1-7           Art. 7.18.  CONSTRUCTION PAYMENT BOND OF SURETY COMPANY;
 1-8     PROMPT PAYMENT
 1-9           Sec. 1.  DEFINITIONS.  In this article:
1-10           (1)  "Construction Payment Bond" means a surety agreement or
1-11     obligation issued to guarantee or assure payment by a principal
1-12     obligor for work performed or materials supplied or specially
1-13     fabricated for public or private construction projects.
1-14           (2)  "Claimant" means a person directly entitled to payment
1-15     under a construction payment bond.
1-16           (3)  "Notice of claim" means a written notification by a
1-17     claimant that makes a claim for payment from the surety company.
1-18     "Notice of claim" does not include a routine statutory notice
1-19     required by Sections 53.056(b), 53.057, 53.058, 53.252(b) or 53.253
1-20     of the Property Code, or by Sections 2253.047(b), (c) or (d) of the
1-21     Government Code.
1-22           (4)  "Surety company" means a licensed surety or guaranty
1-23     company executing and delivering a construction payment bond as
 2-1     surety for a principal obligor.
 2-2           Sec. 2.  NOTICE OF CLAIM.  (a)  A surety company that has
 2-3     issued a construction payment bond shall, not later than the 15th
 2-4     day after receipt of written notice of claim under the bond:
 2-5                 (1)  acknowledge receipt of the claim;
 2-6                 (2)  begin any review or investigation necessary to
 2-7     determine whether the surety company is obligated to satisfy the
 2-8     claim under the bond; and
 2-9                 (3)  request from the claimant each document, item of
2-10     information, accounting, statement or form that the surety company
2-11     then reasonably believes will be requir ed from the claimant.
2-12           (b)  Nothing in this Article shall excuse a claimant from
2-13     compliance with any applicable statutory or contractual notice
2-14     requirements.
2-15           (c)  If the bond provides an address of the surety company to
2-16     which claims should be submitted, the notice of claim shall be
2-17     effective upon its receipt at that address.
2-18           Sec. 3.  ACCEPTANCE OR REJECTION OF CLAIMS.  (a)  Except as
2-19     provided by Subsection (c) of this section, a surety company shall
2-20     notify a claimant in writing of the acceptance or rejection of the
2-21     claim not later than the 30th day after the date the surety company
2-22     receives all documents, items of information, accountings,
2-23     statements, and forms requested by the surety company as provided
2-24     in Section 2.
2-25           (b)  If the surety company rejects all or any part of the
2-26     claim, the notice required by Subsection (a) of this section must
 3-1     state in specific terms the reasons for the rejection known to it
 3-2     at that time.
 3-3           (c)  If the surety company is unable to accept or reject the
 3-4     claim within the period specified by Subsection (a) of this
 3-5     section, the surety company shall provide written notice to the
 3-6     claimant, not later than the date specified under Subsection (a),
 3-7     that the surety company is unable to accept or reject the claim
 3-8     within that period.  The notice provided under this subsection
 3-9     must:
3-10                 (1)  state the reasons for which the surety company
3-11     needs additional time to accept or reject the claim; and
3-12                 (2)  include a request for any additional information
3-13     reasonably needed by the surety to process the claim.
3-14           (d)  Not later than the 30th day after the date a surety
3-15     company notifies a claimant under Subsection (c) of this section,
3-16     the surety company shall notify the claimant in writing of the
3-17     acceptance or rejection of the claim.  If the surety company
3-18     rejects all or part of the claim, the surety company shall state in
3-19     specific terms the reasons for any rejection known to it at that
3-20     time.
3-21           (e)  In addition to any other contractual or statutory basis
3-22     for denying a claim, the surety company may reject all or any part
3-23     of a claim:
3-24                 (1)  which is the subject of a legitimate dispute
3-25     between the principal and the claimant; or
3-26                 (2)  for which the claimant has failed to provide
 4-1     supporting documents or information reasonably requested by the
 4-2     surety company.
 4-3           (f)  The time limits set forth in Sections 2 and 3 of this
 4-4     article may be varied by any statute requiring the bond.
 4-5           (g)  Nothing in this section shall preclude a surety company
 4-6     from asserting other defenses in any action brought by a claimant
 4-7     against the construction payment bond provided a good faith effort
 4-8     is made to inform the claimant of reasons for rejection in
 4-9     accordance with this Section.
4-10           Sec. 4.  PAYMENT OF CLAIMS.  (a)  If a surety company
4-11     notifies a claimant under Section 3 of this article that the surety
4-12     company accepts a claim or part of a claim, the surety company
4-13     shall pay the claim not later than the 15th day after the date of
4-14     the notice.
4-15           (b)  If the payment of the claim, or part of the claim, is
4-16     conditioned on execution of a document or performance of an act by
4-17     the claimant, the surety company shall pay the claim not later than
4-18     the seventh day after the surety company receives the executed
4-19     document or evidence that the act has been performed.
4-20           (c)  For purposes of this Section, payment occurs when the
4-21     surety company places its check or draft in the United States mail
4-22     properly addressed to the claimant or its representative.
4-23           Sec. 5.  JURISDICTION OF THE DEPARTMENT.  The Texas
4-24     Department of Insurance is authorized to promulgate regulations
4-25     enforcing this Article in the event a surety company violates this
4-26     Article as a general business practice.
 5-1           Sec. 6.  CONSTRUCTION.  (a)  This article shall be construed
 5-2     to encourage prompt payment of just claims made under construction
 5-3     payment bonds of surety companies and shall not foreclose any other
 5-4     remedy available to a claimant by law or contract.
 5-5           (b)  This Article shall not be construed to:
 5-6                 (1)  create a private cause of action;
 5-7                 (2)  be a precondition to judicially enforcing
 5-8     obligations under a construction payment bond;
 5-9                 (3)  diminish any other obligation of a surety that
5-10     exists by law; or
5-11                 (4)  prohibit a surety from asserting a defense against
5-12     a construction payment bond claim in a proceeding to enforce a
5-13     claim.
5-14           Sec. 7.  MODIFICATION PROHIBITED.  Any term contained within
5-15     a construction payment bond that is inconsistent with this Article
5-16     is void.
5-17           SECTION 2.  This Act takes effect September 1, 2001, and
5-18     applies only to a claim made under a bond as defined in this Act
5-19     that is delivered, issued for delivery, or renewed on or after the
5-20     effective date.  A bond that is delivered, issued for delivery, or
5-21     renewed before September 1, 2001, is governed by the law as it
5-22     existed immediately before the effective date of this Act, and that
5-23     law is continued in effect for that purpose.