By: Krause, et al. (Senate Sponsor - Powell) H.B. No. 2116
         (In the Senate - Received from the House April 21, 2021;
  May 6, 2021, read first time and referred to Committee on State
  Affairs; May 21, 2021, reported favorably by the following vote:  
  Yeas 8, Nays 1; May 21, 2021, sent to printer.)
Click here to see the committee vote
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to certain agreements by architects and engineers in or in
  connection with certain construction contracts.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  The heading to Chapter 130, Civil Practice and
  Remedies Code, is amended to read as follows:
  CHAPTER 130. LIABILITY PROVISIONS [INDEMNIFICATION] IN CERTAIN
  CONSTRUCTION CONTRACTS
         SECTION 2.  Section 130.002, Civil Practice and Remedies
  Code, is amended by adding Subsections (c), (d), and (e) to read as
  follows:
         (c)  Except as provided by Subsection (d) or (e), a covenant
  or promise in, in connection with, or collateral to a construction
  contract for engineering or architectural services related to an
  improvement to real property is void and unenforceable if the
  covenant or promise provides that a licensed engineer or registered
  architect must defend a party, including a third party, against a
  claim based wholly or partly on the negligence of, fault of, or
  breach of contract by the owner, the owner's agent, the owner's
  employee, or another entity over which the owner exercises control.
  A covenant or promise in, in connection with, or collateral to a
  contract for engineering or architectural services related to an
  improvement to real property may provide for the reimbursement of
  an owner's reasonable attorney's fees in proportion to the
  engineer's or architect's liability.
         (d)  Notwithstanding Subsection (c), an owner that is a party
  to a contract for engineering or architectural services related to
  an improvement to real property may require in the contract that the
  engineer or architect name the owner as an additional insured under
  the engineer's or architect's commercial general liability
  insurance policy and provide any defense to the owner provided by
  the policy to a named insured.
         (e)  Subsection (c) does not apply to a contract for
  design-build services in which an owner contracts with a single
  entity to provide both design and construction services.
         SECTION 3.  Chapter 130, Civil Practice and Remedies Code,
  is amended by adding Section 130.0021 to read as follows:
         Sec. 130.0021.  ARCHITECT'S OR ENGINEER'S STANDARD OF CARE.  
  (a) A construction contract for architectural or engineering
  services or a contract related to the construction or repair of an
  improvement to real property that contains architectural or
  engineering services as a component part must require that the
  architectural or engineering services be performed with the
  professional skill and care ordinarily provided by competent
  architects or engineers practicing under the same or similar
  circumstances and professional license.
         (b)  If a contract described by Subsection (a) contains a
  provision establishing a different standard of care than the
  standard described by Subsection (a):
               (1)  the provision is void and unenforceable; and
               (2)  the standard of care described by Subsection (a)
  applies to the performance of the architectural or engineering
  services.
         (c)  Section 130.004 does not limit the applicability of this
  section.
         SECTION 4.  Section 130.004, Civil Practice and Remedies
  Code, is amended to read as follows:
         Sec. 130.004.  OWNER OF INTEREST IN REAL PROPERTY. (a)
  Except as provided by Section 130.002(b) or (c) or Section
  130.0021, this chapter does not apply to an owner of an interest in
  real property or persons employed solely by that owner.
         (b)  Except as provided by Section 130.002(b) or (c) or
  Section 130.0021, this chapter does not prohibit or make void or
  unenforceable a covenant or promise to:
               (1)  indemnify or hold harmless an owner of an interest
  in real property and persons employed solely by that owner; or
               (2)  allocate, release, liquidate, limit, or exclude
  liability in connection with a construction contract between an
  owner or other person for whom a construction contract is being
  performed and a registered architect or licensed engineer.
         SECTION 5.  (a)  Section 130.002(c), Civil Practice and
  Remedies Code, as added by this Act, applies only to a covenant or
  promise in, in connection with, or collateral to a contract entered
  into on or after the effective date of this Act.
         (b)  Sections 130.002(d) and 130.0021, Civil Practice and
  Remedies Code, as added by this Act, apply only to a contract
  entered into on or after the effective date of this Act.
         SECTION 6.  This Act takes effect September 1, 2021.
 
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