85R19292 AJA-F     By: Workman, Anderson of McLennan, Villalba H.B. No. 2343     Substitute the following for H.B. No. 2343:     By:  Romero, Jr. C.S.H.B. No. 2343       A BILL TO BE ENTITLED   AN ACT   relating to prerequisites to asserting certain claims arising from   certain construction defects.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Title 6, Civil Practice and Remedies Code, is   amended by adding Chapter 130A to read as follows:   CHAPTER 130A. CERTAIN CONSTRUCTION LIABILITY CLAIMS          Sec. 130A.001.  DEFINITIONS. In this chapter:                (1)  "Action" means a court or judicial proceeding or   an arbitration.  The term does not include an administrative   action.                (2)  "Commercial use" does not include residential or   industrial use.                (3)  "Construction" includes:                      (A)  the initial construction of an improvement to   real property;                      (B)  the construction of an addition to an   improvement to real property; or                      (C)  the repair, alteration, or remodeling of an   improvement to real property.                (4)  "Construction defect" means a deficiency in the   construction of an improvement to real property, including a   deficiency in or arising out of the design, specifications,   surveying, planning, or supervision of the construction, that is   the result of:                      (A)  the use of defective materials, products, or   components in the construction;                      (B)  a violation of a building code applicable by   law to the construction;                      (C)  a failure of the design of an improvement to   real property to meet the professional standards of care applicable   at the time of governmental approval of the design or as otherwise   applicable if no governmental approval of the design was required   or obtained; or                      (D)  a failure to perform the construction in   accordance with the accepted trade standards for good and   workmanlike construction.                (5)  "Contractor" means a person legally engaged in the   business of designing, developing, constructing, manufacturing,   repairing, altering, or remodeling improvements to real property.                (6)  "Design professional" means a person licensed as   an architect, interior designer, landscape architect, engineer,   surveyor, or geologist.                (7)  "Subcontractor" means a contractor directly   retained and compensated by another contractor to perform labor or   perform labor and supply materials in the construction.                (8)  "Supplier" means a person who provides only   materials, equipment, or other supplies for the construction.          Sec. 130A.002.  APPLICABILITY OF CHAPTER. (a)  This chapter   applies only to a claim:                (1)  for:                      (A)  damages arising from damage to or loss of   real or personal property caused by an alleged construction defect   in an improvement to real property intended wholly or partly for   commercial use; or                      (B)  indemnification for damages described by   Paragraph (A);                (2)  asserted by a person with an interest in the real   property affected by the alleged construction defect, including a   person whose interest arose from the purchase of the affected   property after any relevant construction contract was entered into   or relevant activity was performed; and                (3)  asserted against a contractor, subcontractor,   supplier, or design professional.          (b)  This chapter does not apply to:                (1)  a claim asserted by a contractor, subcontractor,   supplier, or design professional;                (2)  a claim for personal injury, survival, or wrongful   death;                (3)  a claim involving the construction of residential   property covered under Chapter 27, Property Code;                (4)  a defect or design claim covered by Section   82.119, Property Code;                (5)  a contract entered into by the Texas Department of   Transportation; or                (6)  a project that receives money from a state or   federal highway fund.          Sec. 130A.003.  INSPECTION AND REPORT. (a) Before bringing   an action asserting a claim to which this chapter applies, the   claimant must obtain from an independent third-party licensed   professional engineer an inspection of the improvement affected by   the alleged construction defect and a written report that:                (1)  identifies the specific construction defect on   which the claim is based;                (2)  describes the present physical condition of the   affected improvement; and                (3)  describes any modification, maintenance, or   repairs to the improvement made by the claimant or others.          (b)  The claimant must provide written notice of the   inspection required by this section to each party who is subject to   the claim not later than the 10th day before the date the inspection   will occur. The notice must:                (1)  identify the party who will conduct the inspection   and prepare the report;                (2)  identify each specific area of the improvement to   be inspected; and                (3)  include the date and time the inspection will   occur.          (c)  Each party subject to the claim or the party's   representative may attend the inspection required by this section.          Sec. 130A.004.  OPPORTUNITY TO CORRECT. Before bringing an   action asserting a claim to which this chapter applies, the   claimant must allow each party subject to the claim at least 150   days after the date the report required by Section 130A.003 is   provided to the party to inspect and correct any construction   defect or related condition identified in the report.          Sec. 130A.005.  TOLLING OF LIMITATIONS PERIOD. If the   notice of inspection required by Section 130A.003 is provided   during the final year of the limitations period applicable to the   claim, the limitations period is tolled until the first anniversary   of the date on which the notice is provided.          Sec. 130A.006.  ABATEMENT; DISMISSAL.  (a)  If a person   brings an action asserting a claim to which this chapter applies   without complying with Sections 130A.003 and 130A.004, the court,   arbitrator, or other adjudicating authority may abate the action   for not more than one year on a showing that the person bringing the   action intends to comply with those sections.          (b)  Except as provided by Subsection (a), if a person brings   an action asserting a claim to which this chapter applies without   complying with Sections 130A.003 and 130A.004, the court,   arbitrator, or other adjudicating authority shall dismiss the   action. The dismissal may be with prejudice at the discretion of   the court, arbitrator, or other adjudicating authority.          SECTION 2.  The change in law made by this Act applies only   to a cause of action that accrues on or after the effective date of   this Act. A cause of action that accrues before the effective date   of this Act is governed by the law as it existed immediately before   that date, and that law is continued in effect for that purpose.          SECTION 3.  This Act takes effect immediately if it receives   a vote of two-thirds of all the members elected to each house, as   provided by Section 39, Article III, Texas Constitution.  If this   Act does not receive the vote necessary for immediate effect, this   Act takes effect September 1, 2017.