By: Hughes  S.B. No. 219          (In the Senate - Filed November 30, 2020; March 3, 2021,   read first time and referred to Committee on State Affairs;   March 24, 2021, reported adversely, with favorable Committee   Substitute by the following vote:  Yeas 6, Nays 1; March 24, 2021,   sent to printer.)Click here to see the committee vote     COMMITTEE SUBSTITUTE FOR S.B. No. 219 By:  Hughes     A BILL TO BE ENTITLED   AN ACT     relating to civil liability and responsibility for the consequences   of defects in the plans, specifications, or related documents for   the construction or repair of an improvement to real property.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Title 4, Business & Commerce Code, is amended by   adding Chapter 59 to read as follows:   CHAPTER 59. RESPONSIBILITY FOR DEFECTS IN PLANS AND SPECIFICATIONS   SUBCHAPTER A. GENERAL PROVISIONS          Sec. 59.0001.  DEFINITIONS. In this chapter:                (1)  "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.                (2)  "Contractor" means a person engaged in the   business of developing, constructing, fabricating, repairing,   altering, or remodeling improvements to real property.                (3)  "Critical infrastructure facility" has the   meaning assigned by Section 423.0045, Government Code, provided   that the absence of fencing or signage described in the definition   provided by that section does not disqualify an item listed in that   definition from being classified or treated as a critical   infrastructure facility for purposes of this chapter. The term   includes:                      (A)  pipelines and pipeline appurtenances or   facilities, including pipes, valves, meters, pumps, compressors,   treating and processing facilities, cathodic protection   facilities, and any other equipment, facilities, devices,   structures, and buildings used or intended for use in the   gathering, transportation, treating, or processing of oil, gas, or   other minerals, and the liquefied or gaseous substances,   constituents, products, or mixtures derived from those minerals   through refining, processing, or other methods;                      (B)  utility-scale equipment or facilities to   transmit or distribute electricity; and                      (C)  utility-scale water storage facilities.                (4)  "Design-build contract" means a contract in which   a single contractor agrees to:                      (A)  construct, repair, alter, or remodel an   improvement to real property; and                       (B)  be responsible for the development of plans,   specifications, or other design or bid documents used by the   contractor to construct, repair, alter, or remodel the improvement.                (5)  "Subcontractor" means a contractor directly   retained and compensated by another contractor to perform labor or   perform labor and supply materials in the construction.   SUBCHAPTER B. CONTRACTOR RESPONSIBILITY          Sec. 59.0051.  APPLICABILITY OF SUBCHAPTER. (a) This   subchapter applies only to a contract for the construction or   repair of an improvement to real property.          (b)  This subchapter does not apply to a contract entered   into by a person for the construction or repair of a critical   infrastructure facility owned or operated by the person or any   building, structure, improvement, appurtenance, or other facility   owned by the person that is necessary to the operation of and   directly related to the critical infrastructure facility.  For   purposes of this subsection, "person" includes a parent,   subsidiary, affiliated entity, joint venture partner, or owner of   the person.          (c)  This chapter does not apply to the construction, repair,   alteration, or remodeling of an improvement to real property if:                (1)  the construction, repair, alteration, or   remodeling is performed under a design-build contract; and                (2)  the part of the plans, specifications, or other   design or bid documents for which the contractor is responsible   under the contract is the part alleged to be defective.          Sec. 59.0052.  LIMITATION ON CONTRACTOR'S LIABILITY AND   RESPONSIBILITY FOR CERTAIN DEFECTS. (a) A contractor is not   responsible for the consequences of defects in and may not warranty   the accuracy, adequacy, sufficiency, or suitability of plans,   specifications, or other design or bid documents provided to the   contractor by:                 (1)  the person with whom the contractor entered into   the contract; or                (2)  another person on behalf of the person with whom   the contractor entered into the contract.          (b)  A contractor must, within a reasonable time of learning   of the defect, disclose in writing to the person with whom the   contractor enters into a contract the existence of any known defect   in the plans, specifications, or other design or bid documents that   is discovered by the contractor, or that reasonably should have   been discovered by the contractor using ordinary diligence, before   or during construction.          (c)  A contractor who fails to disclose a condition as   required by Subsection (b) may be liable for the consequences of   defects that result from the failure to disclose.          Sec. 59.0053.  STANDARD OF CARE FOR CERTAIN DESIGNS. Design   services provided under a design-build contract are subject to the   same standard of care requirements provided in Section 130.0021,   Civil Practice and Remedies Code.          Sec. 59.0054.  WAIVER PROHIBITED. This subchapter may not   be waived by a contractor, subcontractor, or owner.  A purported   waiver of this subchapter in violation of this section is void.          SECTION 2.  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 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 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 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)  The changes in law made by this Act apply   only to a contract entered into on or after the effective date of   this Act. A contract entered into before the effective date of this   Act is governed by the law in effect when the contract was entered   into, and the former law is continued in effect for that purpose.          (b)  An original contract for the construction or repair of   an improvement to real property with the owner of an interest in   real property that is entered into before the effective date of this   Act, and a subcontract or purchase order for providing labor or   materials associated with that original contract, whether the   subcontract or purchase order is entered into before, on, or after   the effective date of this Act, is governed by the law in effect   when the original contract was entered into, and the former law is   continued in effect for that purpose.          SECTION 6.  This Act takes effect September 1, 2021.     * * * * *