2021 TCA Legislative Session Re-Cap
The 87th Legislature concluded its work on May 31, 2021. Below is a list of bills supported by TCA that passed and were sent to the Governor.
S.B. 6 – Pandemic Liability (effective 6/14/21)
Establishes limits on liability relating to a pandemic. Regarding liability for causing exposure to a pandemic disease, a person is not liable unless the claimant can establish: (1) the person knowingly failed to warn the claimant of a condition that the person knew was likely to result in disease exposure; and (2) the person failed to implement official standards, guidance or protocols intended to lower the likelihood of exposure. Provides express exemption from liability for persons who donate personal protection equipment.
S.B. 219 -- Design Defect Liability Reform (effective 9/1/21)
Clarifies in statute that contractors are not responsible for damages due to defective design documents provided to them by someone other than their subcontractors. Creates a duty for contractors to notify the general contractor or owner, in writing, of a design defect discovered before or during construction. Includes exceptions for critical infrastructure construction, design-build contracts, EPC contracts and contracts that require input or review of the design documents and the contractor provides design input that is incorporated into the project plans. Includes standard of care limitation for architects and engineers.
S.B. 291 – Posting of Project Information (effective 9/1/21)
Requires the project developer to post name, contact information and a description of the project at the site entrance.
S.B. 338 – Uniform General Conditions for Schools (effective 6/7/21)
Allows school districts to adopt the Texas Facilities Commission’s Uniform General Conditions for school construction.
S.B. 968 – Omnibus Pandemic Response Bill (effective 6/16/21)
Includes a prohibition on local government’s ability to limit or prohibit residential or commercial construction during a declared pandemic disaster.
H.B. 19 – Keep Texas Trucking Coalition (effective 9/1/21)
Amends the Civil Practices & Remedies Code to add a chapter specifically for civil actions involving a commercial vehicle. Key reform is the bifurcation of the trial: in phase 1 the trier of fact determines liability of driver and compensatory damages; and phase 2 addresses liability of employer and exemplary damages.
H.B. 636 – Sunset Review of Texas State Board of Plumbing Examiners (effective 5/26/21)
Codifies some of the Sunset Commission’s recommended changes such as requiring fingerprints and background checks; requiring the Board to make information regarding certain disciplinary actions public; streamlining examinations and continuing education requirements; and creating a risk-based approach to on-site compliance checks. The Board is continued until September 1, 2027.
H.B. 692 – Public Works Retainage (effective 6/14/21)
Amends Government Code sections relating to retainage on public works projects. (Definition of public works projects includes the “construction, alteration, or repair of a public building or the construction or completion of a public work.”) Specifically adds a requirement that the contract include a provision that establishes “substantial completion” of the project; limits retainage to 10% for contracts less than $5 million and 5% for contracts greater than $5 million; and includes flow down provisions to subcontractors.
H.B. 1195 – Franchise Tax Exemption for PPP Loans (effective 5/8/21)
Clarifies that federal PPP loans are not to be treated as revenue for the purposes of calculating franchise tax obligations.
H.B. 1247 – Tri-Agency Framework for Work-Based Learning (effective 9/1/21)
Sets up the statutory framework for TWC, TEA and THECC to jointly develop a strategic plan for improving work-based learning and report to the Legislature before next session.
H.B. 1476 – Payment Disputes with Public Entities (effective 9/1/21)
Requires a governmental entity to notify the vendor of a disputed amount and include a detailed statement of the amount in dispute. Limits withholding to no more than 110% of the disputed amount.
H.B. 1477 – Payment & Performance Bonds -- VETOED by Governor
Extends current laws applicable to payment and performance bonds on public projects to private projects on leased public lands.
H.B. 1560 – Sunset Review of Texas Commission of Licensing & Regulation and the Texas Department of Licensing & Regulation (effective 9/1/21)
Revises statutes relating to complaints and includes a provision requiring the Department to post a statistical analysis of complaints. Requires the Department to conduct risk-based inspections and transfers certain duties relating to continuing education programs from TCLR to TDLR. Continues the agency until September 1, 2033.
H.B. 2237 -- Lien Law Update (effective for lien claims under a prime contract entered into on or after 1/1/22)
Revisions to Chapter 53, Property Code include: alignment of statutory deadlines with those applicable in other civil proceedings; elimination of second-month notice; adoption of statutory forms for Notice of Unpaid Balance and Notice of Unpaid Retainage; and reduces the statute of limitations on foreclosure on a lien to 1 year with an optional 2nd year upon agreement of the parties
H.B. 2416 – Attorney’s Fees as Compensatory Damages (effective 9/1/21)
Clarifies Civil Practices & Remedies Code to state that attorney’s fees in a suit for breach of a construction contract are compensatory damages; therefore, creating an expectation of insurance coverage.
H.B. 2581 – Bidding on Public Contracts (effective 9/1/21)
Requires all governmental entities, rather than just state agencies, to publish a detailed methodology for scoring. Requires release of scoring evaluations to an offerer upon request. For civil works projects, weighted value assigned to price must be at least 50% unless there is a finding of public interest and then it may be lowered to 36.9%. All bid evaluations are to be made public within 7 business days after the contract is awarded.
H.B. 3069 – Statute of Repose on Public Projects (effective 6/14/21)
Reduces deadline for a governmental entity to bring suit against a design professional or a contractor from 10 to 8 years after substantial completion of the project with a one year extension. Excepts contracts with TXDOT and civil works projects.