land surveyors get the architects’ and engineers’ contract protections

The text as introduced · 1,965 words

89R1463 MZM-F

By: Bumgarner
H.B. No. 2203

A BILL TO BE ENTITLED

AN ACT

relating to liability for land surveying services in or in

connection with certain construction or services contracts.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 130.001, Civil Practice and Remedies

Code, is amended to read as follows:

Sec. 130.001. DEFINITIONS [ DEFINITION ]. In this chapter :

(1) "Construction [ "construction ] contract" means a

contract or agreement made and entered into by an owner,

contractor, subcontractor, registered architect, licensed

engineer, land surveyor, or supplier concerning the design,

construction, alteration, repair, or maintenance of a building,

structure, appurtenance, road, highway, bridge, dam, levee, or

other improvement to or on real property, including moving,

demolition, and excavation connected with the real property.

(2) "Land surveyor" means a registered professional

land surveyor or licensed state land surveyor as those terms are

defined by Section 1071.002, Occupations Code.

SECTION 2. Sections 130.002(a), (b), (c), (d), and (f),

Civil Practice and Remedies Code, are amended to read as follows:

(a) A covenant or promise in, in connection with, or

collateral to a construction contract is void and unenforceable if

the covenant or promise provides for a contractor who is to perform

the work that is the subject of the construction contract to

indemnify or hold harmless a registered architect, licensed

engineer , or land surveyor, or an agent, servant, or employee of a

registered architect , [ or ] licensed engineer , or land surveyor from

liability for damage that:

(1) is caused by or results from:

(A) defects in plans, designs, or specifications

prepared, approved, or used by the architect , [ or ] engineer , or

land surveyor ; or

(B) negligence of the architect , [ or ] engineer ,

or land surveyor in the rendition or conduct of professional duties

called for or arising out of the construction contract and the

plans, designs, or specifications that are a part of the

construction contract; and

(2) arises from:

(A) personal injury or death;

(B) property injury; or

(C) any other expense that arises from personal

injury, death, or property injury.

(b) A covenant or promise in, in connection with, or

collateral to a construction contract other than a contract for a

single family or multifamily residence is void and unenforceable if

the covenant or promise provides for a registered architect , [ or ]

licensed engineer , or land surveyor whose engineering , [ or ]

architectural , or land surveying design services are the subject of

the construction contract to indemnify or hold harmless an owner or

owner's agent or employee from liability for damage that is caused

by or results from the negligence of an owner or an owner's agent or

employee.

(c) Except as provided by Subsection (d), (e), or (f), a

covenant or promise in, in connection with, or collateral to a

construction contract for engineering , [ or ] architectural , or land

surveying services related to an improvement to real property is

void and unenforceable to the extent the covenant or promise

provides that a licensed engineer , [ or ] registered architect , or

land surveyor 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 , or

land surveying 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 ,

or land surveyor's liability.

(d) Notwithstanding Subsection (c), an owner that is a party

to a contract for engineering , [ or ] architectural , or land

surveying services related to an improvement to real property may

require in the contract that the engineer , [ or ] architect , or land

surveyor name the owner as an additional insured under any of the

engineer's , [ or ] architect's , or land surveyor's insurance coverage

to the extent additional insureds are allowed under the policy and

provide any defense to the owner provided by the policy to a named

insured.

(f) Subsection (c) does not apply to a covenant to defend a

party, including a third party, for a claim of negligent hiring of

the architect , [ or ] engineer , or land surveyor .

SECTION 3. The heading to Section 130.0021, Civil Practice

and Remedies Code, is amended to read as follows:

Sec. 130.0021. ARCHITECT'S , [ OR ] ENGINEER'S , OR LAND

SURVEYOR'S STANDARD OF CARE.

SECTION 4. Sections 130.0021(a) and (b), Civil Practice and

Remedies Code, are amended to read as follows:

(a) A construction contract for architectural , [ or ]

engineering , or land surveying services or a contract related to

the construction or repair of an improvement to real property that

contains architectural , [ or ] engineering , or land surveying

services as a component part must require that the architectural ,

[ or ] engineering , or land surveying services be performed with the

professional skill and care ordinarily provided by competent

architects , [ or ] engineers , or land surveyors 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 ,

or land surveying services.

SECTION 5. Section 130.004(b), Civil Practice and Remedies

Code, is amended to read as follows:

(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 , or

land surveyor .

SECTION 6. Section 130.005, Civil Practice and Remedies

Code, is amended to read as follows:

Sec. 130.005. APPLICATION OF CHAPTER. This chapter does

not apply to a contract or agreement in which an architect , [ or ]

engineer , or land surveyor, or an agent, servant, or employee of an

architect , [ or ] engineer , or land surveyor is indemnified from

liability for:

(1) negligent acts other than those described by this

chapter; or

(2) negligent acts of the contractor, any

subcontractor, any person directly or indirectly employed by the

contractor or a subcontractor, or any person for whose acts the

contractor or a subcontractor may be liable.

SECTION 7. Section 271.904, Local Government Code, is

amended to read as follows:

Sec. 271.904. ENGINEERING , [ OR ] ARCHITECTURAL , OR LAND

SURVEYING SERVICES CONTRACTS: INDEMNIFICATION LIMITATIONS; DUTIES

OF ENGINEER , [ OR ] ARCHITECT , OR LAND SURVEYOR . (a) A covenant or

promise in, in connection with, or collateral to a contract for

engineering , [ or ] architectural , or land surveying services to

which a governmental agency is a party is void and unenforceable if

the covenant or promise provides that a licensed engineer , [ or ]

registered architect , or land surveyor whose work product is the

subject of the contract must indemnify or hold harmless the

governmental agency against liability for damage, other than

liability for damage to the extent that the damage is caused by or

results from an act of negligence, intentional tort, intellectual

property infringement, or failure to pay a subcontractor or

supplier committed by the indemnitor or the indemnitor's agent,

consultant under contract, or another entity over which the

indemnitor exercises control.

(b) Except as provided by Subsection (c), a covenant or

promise in, in connection with, or collateral to a contract for

engineering , [ or ] architectural , or land surveying services to

which a governmental agency is a party is void and unenforceable if

the covenant or promise provides that a licensed engineer , [ or ]

registered architect , or land surveyor whose work product is the

subject of the contract 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 governmental agency, the

agency's agent, the agency's employee, or other entity, excluding

the engineer , [ or ] architect , or land surveyor or that person's

agent, employee, or subconsultant, over which the governmental

agency exercises control. A covenant or promise may provide for

the reimbursement of a governmental agency's reasonable attorney's

fees in proportion to the engineer's , [ or ] architect's , or land

surveyor's liability.

(c) Notwithstanding Subsection (b), a governmental agency

may require in a contract for engineering , [ or ] architectural , or

land surveying services to which the governmental agency is a party

that the engineer , [ or ] architect , or land surveyor name the

governmental agency as an additional insured under the engineer's ,

[ or ] architect's , or land surveyor's general liability insurance

policy and provide any defense provided by the policy.

(d) A contract for engineering , [ or ] architectural , or land

surveying services to which a governmental agency is a party must

require a licensed engineer , [ or ] registered architect , or land

surveyor to perform services:

(1) with the professional skill and care ordinarily

provided by competent engineers , [ or ] architects , or land surveyors

practicing under the same or similar circumstances and professional

license; and

(2) as expeditiously as is prudent considering the

ordinary professional skill and care of a competent engineer , [ or ]

architect , or land surveyor .

(e) In a contract for engineering , [ or ] architectural , or

land surveying services to which a governmental agency is a party, a

provision establishing a different standard of care than a standard

described by Subsection (d) is void and unenforceable. If a

contract contains a void and unenforceable provision, the standard

of care described by Subsection (d) applies.

(f) In this section :

(1) "Governmental [ , "governmental ] agency" has the

meaning assigned by Section 271.003.

(2) "Land surveyor" means a registered professional

land surveyor or licensed state land surveyor as those terms are

defined by Section 1071.002, Occupations Code.

(g) Nothing in this section prohibits a governmental agency

in a contract for engineering , [ or ] architectural , or land

surveying services to which the governmental agency is a party from

including and enforcing conditions that relate to the scope, fees,

and schedule of a project in the contract.

SECTION 8. The change in law made by this Act applies only

to a contract or covenant or promise in, in connection with, or

collateral to a construction contract entered into on or after the

effective date of this Act. A contract or covenant or promise in,

in connection with, or collateral to a construction contract

entered into before the effective date of this Act is governed by

the law applicable to the contract or covenant or promise

immediately before the effective date of this Act, and that law is

continued in effect for that purpose.

SECTION 9. This Act takes effect September 1, 2025.