By: Leach, Guillen, Martinez H.B. No. 2265
        (Senate Sponsor - Hughes)
         (In the Senate - Received from the House May 8, 2023;
  May 9, 2023, read first time and referred to Committee on Business &
  Commerce; May 23, 2023, reported favorably by the following vote:  
  Yeas 9, Nays 1; May 23, 2023, sent to printer.)
Click here to see the committee vote
 
 
 
  COMMITTEE VOTE
 
 
         YeaNayAbsentPNV
         SchwertnerX
         KingX
         BirdwellX
         CampbellX
         CreightonX
         JohnsonX
         KolkhorstX
         MenéndezX
         MiddletonX
         NicholsX
         ZaffiriniX
 
 
A BILL TO BE ENTITLED
 
AN ACT
 
  relating to the award of compensatory damages caused by certain
  delays under governmental construction contracts.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subchapter Z, Chapter 2252, Government Code, is
  amended by adding Section 2252.909 to read as follows:
         Sec. 2252.909.  COMPENSATORY DAMAGES CAUSED BY GOVERNMENTAL
  DELAYS IN CONSTRUCTION CONTRACTS. (a)  In this section:
               (1)  "Compensatory damages" means the costs actually
  incurred by a contractor as a result of delay in the schedule that
  could not be reasonably mitigated by the contractor.  The term does
  not include:
                     (A)  special damages;
                     (B)  consequential damages;
                     (C)  home office overhead, except overhead costs
  for labor as defined in the applicable construction contract;
                     (D)  profit or markup on indirect costs;
                     (E)  the costs of performing additional work that
  are separately agreed to by the governmental entity and contractor
  in a construction contract; or
                     (F)  indirect costs not related to the project in
  the applicable construction contract.
               (2)  "Contractor" means a person engaged in the
  business of developing, constructing, fabricating, repairing,
  altering, or remodeling improvements to real property.
               (3)  "Governmental entity" means:
                     (A)  the state;
                     (B)  a municipality, county, public school
  district, or special-purpose district or authority;
                     (C)  a district, county, or justice of the peace
  court;
                     (D)  a board, commission, department, office, or
  other agency in the executive branch of state government, including
  an institution of higher education as defined by Section 61.003,
  Education Code;
                     (E)  the legislature or a legislative agency; or
                     (F)  the Supreme Court of Texas, the Texas Court
  of Criminal Appeals, a court of appeals, or the State Bar of Texas
  or another judicial agency having statewide jurisdiction.
         (b)  A provision of a construction contract between a
  governmental entity and a contractor may not prohibit the award of
  compensatory damages to the contractor for a delay to the extent
  that the delay is caused solely by the governmental entity or by a
  party for which the governmental entity is responsible.
         (c)  This section does not restrict, limit, or prohibit the
  inclusion of a contract provision in a construction contract
  prescribing requirements or conditions that must be met by a
  contractor to seek recovery of compensatory damages, including
  requirements or conditions relating to notice, justification, or a
  duty to mitigate or for demonstrating or proving the actual cost or
  schedule impact of a delay.
         (d)  This section may not be waived. A purported waiver of
  this section in violation of this subsection is void.
         (e)  This section does not apply to a construction contract
  for:
               (1)  services related to recovery or relief from a
  natural disaster involving the repair or renovation of a residence;
  or
               (2)  the construction or repair of a critical
  infrastructure facility, as that term is defined by Section 59.001,
  Business & Commerce Code, owned or operated by the governmental
  entity or any building, structure, improvement, appurtenance, or
  other facility owned by the governmental entity that is necessary
  to the operation of and directly related to the critical
  infrastructure facility.
         SECTION 2.  Section 2252.909, Government Code, as added by
  this Act, applies only to a construction contract entered into on or
  after the effective date of this Act.
         SECTION 3.  This Act takes effect September 1, 2023.
 
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