By: Carona S.B. No. 1201

A BILL TO BE ENTITLED

AN ACT

relating to an affidavit required to be filed in a cause of action against certain licensed or registered professionals.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. The heading to Chapter 150, Civil Practice and Remedies Code, as amended by Chapters 189 (H.B. 854) and 208 (H.B. 1573), Acts of the 79th Legislature, Regular Session, 2005, is reenacted to read as follows:

CHAPTER 150. LICENSED OR REGISTERED PROFESSIONALS

SECTION 2. Sections 150.001 and 150.002, Civil Practice and Remedies Code, as amended by Chapters 189 (H.B. 854) and 208 (H.B. 1573), Acts of the 79th Legislature, Regular Session, 2005, are reenacted and amended to read as follows:

Sec. 150.001. DEFINITIONS. In this chapter:

(1) "Licensed or registered professional" means a licensed architect, licensed professional engineer, registered professional land surveyor, registered landscape architect, or any firm in which such licensed or registered professional practices, including but not limited to a corporation, professional corporation, limited liability corporation, partnership, limited liability partnership, sole proprietorship, joint venture, or any other business entity.

(2) "Practice of architecture" has the meaning assigned by Section 1051.001, Occupations Code.

(3) "Practice of engineering" has the meaning assigned by Section 1001.003, Occupations Code.

Sec. 150.002. CERTIFICATE OF MERIT. (a) In any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor who:

(1) is competent to testify;

(2) holds the same professional license or registration as the defendant; and

(3) is knowledgeable in the area of practice of the defendant and offers testimony based on the person's:

(A) knowledge;

(B) skill;

(C) experience;

(D) education;

(E) training; and

(F) practice.

(b) The affidavit shall set forth specifically at least one negligent act, error, or omission claimed to exist and the factual basis for each such claim. The third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor shall be licensed or registered in this state and actively engaged in the practice of architecture, engineering, or surveying.

(c) [(b)] The contemporaneous filing requirement of Subsection (a) shall not apply to any case in which the period of limitation will expire within 10 days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect, or registered professional land surveyor could not be prepared. In such cases, the plaintiff shall have 30 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause, extend such time as it shall determine justice requires.

(d) [(c)] The defendant shall not be required to file an answer to the complaint and affidavit until 30 days after the filing of such affidavit.

(e) [(d)] The plaintiff's failure to file the affidavit in accordance with this section [Subsection (a) or (b)] shall result in dismissal of the complaint against the defendant. This dismissal may be with prejudice.

(f) [(e)] An order granting or denying a motion for dismissal is immediately appealable as an interlocutory order.

(g) [(f)] This statute shall not be construed to extend any applicable period of limitation or repose.

(h) [(g)] This statute does not apply to any suit or action for the payment of fees arising out of the provision of professional services.

SECTION 3. The change in law made by this Act applies only to an action or arbitration filed or commenced on or after the effective date of this Act. An action or arbitration filed or commenced before the effective date of this Act is governed by the law in effect immediately before the effective date of this Act, and that law is continued in effect for that purpose.

SECTION 4. This Act takes effect September 1, 2009.