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A BILL TO BE ENTITLED
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AN ACT
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relating to prerequisites to asserting certain claims arising from |
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certain construction defects. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 6, Civil Practice and Remedies Code, is |
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amended by adding Chapter 130A to read as follows: |
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CHAPTER 130A. CERTAIN CONSTRUCTION LIABILITY CLAIMS |
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Sec. 130A.001. DEFINITIONS. In this chapter: |
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(1) "Action" means a court or judicial proceeding or |
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an arbitration. The term does not include an administrative |
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action. |
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(2) "Commercial use" does not include residential or |
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industrial use. |
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(3) "Construction" includes: |
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(A) the initial construction of an improvement to |
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real property; |
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(B) the construction of an addition to an |
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improvement to real property; or |
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(C) the repair, alteration, or remodeling of an |
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improvement to real property. |
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(4) "Construction defect" means a deficiency in the |
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construction of an improvement to real property, including a |
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deficiency in or arising out of the design, specifications, |
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surveying, planning, or supervision of the construction, that is |
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the result of: |
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(A) the use of defective materials, products, or |
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components in the construction; |
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(B) a violation of a building code applicable by |
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law to the construction; |
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(C) a failure of the design of an improvement to |
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real property to meet the professional standards of care applicable |
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at the time of governmental approval of the design or as otherwise |
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applicable if no governmental approval of the design was required |
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or obtained; or |
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(D) a failure to perform the construction in |
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accordance with the accepted trade standards for good and |
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workmanlike construction. |
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(5) "Contractor" means a person legally engaged in the |
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business of designing, developing, constructing, manufacturing, |
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repairing, altering, or remodeling improvements to real property. |
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(6) "Design professional" means a person licensed as |
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an architect, interior designer, landscape architect, engineer, |
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surveyor, or geologist. |
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(7) "Subcontractor" means a contractor directly |
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retained and compensated by another contractor to perform labor or |
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perform labor and supply materials in the construction. |
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(8) "Supplier" means a person who provides only |
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materials, equipment, or other supplies for the construction. |
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Sec. 130A.002. APPLICABILITY OF CHAPTER. (a) This chapter |
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applies only to a claim: |
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(1) for: |
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(A) damages arising from damage to or loss of |
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real or personal property caused by an alleged construction defect |
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in an improvement to real property intended wholly or partly for |
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commercial use; or |
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(B) indemnification for damages described by |
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Paragraph (A); |
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(2) asserted by a person with an interest in the real |
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property affected by the alleged construction defect, including a |
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person whose interest arose from the purchase of the affected |
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property after any relevant construction contract was entered into |
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or relevant activity was performed; and |
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(3) asserted against a contractor, subcontractor, |
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supplier, or design professional. |
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(b) This chapter does not apply to: |
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(1) a claim asserted by a contractor, subcontractor, |
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supplier, or design professional; |
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(2) a claim for personal injury, survival, or wrongful |
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death; |
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(3) a claim involving the construction of residential |
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property covered under Chapter 27, Property Code; |
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(4) a defect or design claim covered by Section |
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82.119, Property Code; |
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(5) a contract entered into by the Texas Department of |
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Transportation; or |
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(6) a project that receives money from a state or |
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federal highway fund. |
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Sec. 130A.003. INSPECTION AND REPORT. (a) Before bringing |
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an action asserting a claim to which this chapter applies, the |
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claimant must obtain from an independent third-party licensed |
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professional engineer an inspection of the improvement affected by |
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the alleged construction defect and a written report that: |
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(1) identifies the specific construction defect on |
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which the claim is based; |
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(2) describes the present physical condition of the |
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affected improvement; and |
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(3) describes any modification, maintenance, or |
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repairs to the improvement made by the claimant or others. |
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(b) The claimant must provide written notice of the |
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inspection required by this section to each party who is subject to |
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the claim not later than the 10th day before the date the inspection |
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will occur. The notice must: |
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(1) identify the party who will conduct the inspection |
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and prepare the report; |
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(2) identify each specific area of the improvement to |
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be inspected; and |
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(3) include the date and time the inspection will |
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occur. |
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(c) Each party subject to the claim or the party's |
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representative may attend the inspection required by this section. |
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Sec. 130A.004. OPPORTUNITY TO CORRECT. Before bringing an |
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action asserting a claim to which this chapter applies, the |
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claimant must allow each party subject to the claim at least 150 |
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days after the date the report required by Section 130A.003 is |
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provided to the party to inspect and correct any construction |
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defect or related condition identified in the report. |
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Sec. 130A.005. TOLLING OF LIMITATIONS PERIOD. If the |
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notice of inspection required by Section 130A.003 is provided |
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during the final year of the limitations period applicable to the |
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claim, the limitations period is tolled until the first anniversary |
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of the date on which the notice is provided. |
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Sec. 130A.006. ABATEMENT; DISMISSAL. (a) If a person |
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brings an action asserting a claim to which this chapter applies |
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without complying with Sections 130A.003 and 130A.004, the court, |
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arbitrator, or other adjudicating authority may abate the action |
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for not more than one year on a showing that the person bringing the |
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action intends to comply with those sections. |
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(b) Except as provided by Subsection (a), if a person brings |
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an action asserting a claim to which this chapter applies without |
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complying with Sections 130A.003 and 130A.004, the court, |
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arbitrator, or other adjudicating authority shall dismiss the |
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action. The dismissal may be with prejudice at the discretion of |
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the court, arbitrator, or other adjudicating authority. |
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SECTION 2. The change in law made by this Act applies only |
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to a cause of action that accrues on or after the effective date of |
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this Act. A cause of action that accrues before the effective date |
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of this Act is governed by the law as it existed immediately before |
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that date, and that law is continued in effect for that purpose. |
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SECTION 3. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2017. |