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The 81st Regular Legislative Session Wrap-Up June 2009
Civil Remedies-Related Legislation
SB 1201 (Carona(author)/Lewis(sponsor)) requires that the 3rd party design professional who signs the affidavit (certificate of merit) must be knowledgeable in the area of practice of the defendant. The law used to require that the affidavit be signed by a design professional practicing in the same area as the defendant, but now knowledge is sufficient. This bill also expands the requirement for certificates of merit on each theory of recovery for which damages are sought.
SB 2141 (Wentworth(author)/Hughes(sponsor)) clarifies that the 10-year statute of repose applies to design professionals even if they are brought into a lawsuit as a 3rd party defendant. This law clears up a misinformed San Antonio appellate court opinion that held otherwise. [VETOED – but Texas Supreme Court released its opinion on the petition for review on June 26, 2009 overturning the bad opinion and agreed with TSA, so the veto is a moot issue]
HB 669 (Solomons (author)/Harris(sponsor)) removes liability to those filing property liens that may have technical errors in the liens (like transposed numbers). This is in response to a trend seen with defense attorneys who seek penalties against parties who file liens with technical errors, calling them “fraudulent liens.”
Procurement-Related Legislation
HB 987 (Creighton (author)/West (sponsor)) makes changes to procurement laws for school district and local governmental entities by raising the competitive bidding threshold from $25,000 to $50,000; the bill also allows for the award of reasonable and necessary attorneys’ fees against local governmental entities in cases involving breach of contract.
HB 2082 (Isett(author)/Duncan(sponsor)) changes current law, which allows local governmental entities to give preference to local bidders who are within 5% of the lowest bidder, so that this “local preference” is limited to contracts under $100,000.
HB 2820 (Chisum(author)/ Wentworth(sponsor ) brought geoscientists and landscape architects into the requirements of the Professional Services Procurement Act. [VETOED]
SB 229 (West(author)/Callegari(sponsor)) gets rid of a sunset provision dated 9/1/11 to allow local governmental entities with a population of 100,000 or more to continue to use Design-Build in civil works projects.
Industry-Related Legislation
HB 1055 (Parker (author)/Harris (sponsor)) changes the 5-day rule for submission of plans to TDLR for accessibility review to a 20-day rule.
HB 1513 (Smith(author)/ Jackson(sponsor)) amends the law so that when subcontractors are paid and there’s a subsequent bankruptcy action by the payor, the funds paid to the subcontractor(s) cannot be taken back by the bankruptcy court. This is particularly significant in that liens are usually released by the subcontractors once paid by the payor, leaving the subcontractors in the above scenario in a very difficult position of no longer having lien rights.
HB 2515 (Smith(author)/Harris(sponsor)) increases the threshold for the requirement of a payment bond, on projects with governmental entities, to $50,000, rather than $25,000.
SB 970 (Seliger(author)/Phillips(sponsor)) removes the requirement that the Executive Director of TxDot be a licensed engineer.
SB 585 (Carona(author)Kent(sponsor)) creates standards of conduct for board members and employees of the 25 metropolitan planning organizations across the state to preclude potential conflicts of interests and maintain confidentiality.
HB 3864 (Smithee(author)/Seliger(sponsor) gives the Parks and Wildlife Department the authority to accept donated “turnkey” building projects on state land, with ultimate department approval of plans. The legislation specifically addresses that this process is not subject to competitive bidding.
Building Codes-Related Legislation
SB 820 (Duncan(author)/Menendez(sponsor)) requires cities with a population over 100,000 to publish conspicuously on their website notice on or before the 21st day the city takes action on the adoption of, or amendment to, a national model code; the bill also requires that cities encourage public comment from affected persons, and if requested in writing, hold a public hearing on or before the 14th day before the city adopts the ordinance that amends a national model code. These provisions do not apply if the city has an advisory board or other similar entity that is responsible for obtaining public comment on these issues. Lastly, cities must delay implementation of code adoptions/changes for at least 30 days after final adoption to give affected persons the ability to comply, unless there’s a threat of imminent harm to the health and safety of the public, which then allows for an immediate effective date.
HB 2833 (Marquez(author)/Shapleigh(sponsor)) requires that in certain counties within 50 miles of the international border, new construction of single-family and duplexes must conform to the International Residential Code in effect May 2008. Inspection and enforcement provisions are included.
SB 1410 (M. Jackson (author)/Gutierrez(sponsor)) prohibits cities from enacting ordinances, building codes, rules that would require the installation of fire sprinkler systems in one or two family dwellings.
SB 1715 (West(author)/Giddings(sponsor)) requires that a multi-family residential owner provide an appropriately modified smoke detector for hearing-impaired tenants, if requested. This applies only to post-construction apartments and is not intended to impact the construction or renovation of multi-family residential units.
Energy/Environment/Sustainable Development-Related Legislation
SB 1 (Ogden (author)/Pitts (sponsor)) allocates federal stimulus money towards (a) energy efficiency upgrades on certain state owned buildings, (b) facilitating a “green jobs training program” through the Texas Workforce Commission and (c) increasing energy efficiency in homes occupied or owned by low-income persons through the Texas Department of Housing and Community Affairs; also included provisions to allocate $20 million to the Texas Courthouse Preservation program for the 2010-11 biennium, as compared to $62 million in the last biennium.
SB 300 (Patrick(author)/Shelton (sponsor)) modifies the law for school districts that passed last Session regarding setting energy efficiency goals. “Goal-setting” repealed and replaced with requirement that school districts establish a long-range energy plan to reduce energy consumption by 5% starting fiscal year 2008 and to follow that plan for subsequent years. The plan must include strategies for achieving energy efficiency that results in net savings or can be achieved without any cost, and requires that each strategy consider an analysis of short-term capital costs as well as lifetime costs/savings that may result from the strategy. The analysis shall consider a 7-year term. This plan may be submitted to SECO to determine whether loan programs apply for funding.
HB 1937 (Villarreal (author)/Seliger (sponsor)) gives cities a tool to help homeowners make energy efficient improvements or to install renewable energy devices by allowing homeowners to pay for the improvements via assessments on their property taxes.
SB 184 (Watson (author)/Chisum (sponsor)) requires that before the beginning of the next legislative session, the Comptroller must prepare a report that lists strategies for reducing greenhouse gas emissions. The report must include a cost analysis (both upfront and long-term) for businesses and consumers.
HB 432 (Lucio III (author)/Estes (sponsor)) promotes the purchase of low emissions and plug-in hybrids for fleets of major state agencies.
HB 2642 – (Kent (author)/Carona (sponsor)) authorizes the Texas Historic Commission and TxDot to cooperate in creating a historic roads and highways program where federal funds for highway enhancements may be pursued and dedicated.
SB 2169 (Ellis(author)/Alvarado(sponsor)) creates a working group made up of various state agencies (with input from stakeholders) to develop a comprehensive smart growth plan in response to the state’s projected population growth. [VETOED]
Business-Related Legislation
HB 4765 (Oliveira (author)/Patrick (sponsor)) raises the small business exemption in the franchise tax from the current $300,000 to $1,000,000 for the 2010-11 biennium, then falling to $600,000 in the years thereafter.
Disaster-Related Legislation
HB 1831 (Corte (author)/Carona (sponsor)) provides greater guidance to the Division of Emergency Management of the Office of the Governor (“GDEM”) to provide emergency relief to victims of natural disasters by requiring that the Division, among other things, improve the integration of volunteer groups into emergency management plans, encourage volunteerism in emergency programs, educate the public on volunteer programs, and establish a liability awareness program for volunteers. This bill requires that when critical governmental facilities construct, renovate or replace major HVAC equipment, they must evaluate whether equipping the facility with Combined Heating and Power systems would result in a net savings, despite initial costs, over a 20-year period. If the answer is “yes,” then the governmental entity may equip the facility with CHP systems.
Licensing-Related Legislation
HB 1484 (Pitts(author)/Fraser(sponsor)) limited TBAE to regulating the title “registered interior designer” rather than “interior designer.” This narrowing of regulation was in response to litigation initiated by the Institute for Justice against the Board claiming an unconstitutional violation of free speech.
HB 2649 (Smith(author)/Deull(sponsor)) amends the law so that engineers are required on residential projects (1) where windstorm certification standards are required to be met or (2) where the slab is located on soils with a plasticity index of greater than 30. The bill also included a provision that would preclude cities and other governmental entities from requiring engineers to have additional certification(s) (e.g. Storm Water Certifications) to seal an engineering plan, specification, plat or report.
Civil Remedies-Related Legislation
SB 555 (Duncan(author)/Eiland(sponsor) - would have prohibited overly broad indemnification provisions in construction contracts.
Procurement-Related Legislation
HB 1887 – would have allowed bidding of architectural services for K-12 work.
HB 1105 – would have allowed bidding of architectural services for public works.
Industry-Related Legislation
SB 1090 – would have created a licensing requirement for the practice of construction/program management, administered through the Texas Department of Licensing and Regulation.
SB 1110 – would have consolidated all project delivery methods, currently found in various different state Codes, into one section of the Government Code.
SB 1523 (Shapleigh) – would have required all architectural students to take a LEED course prior to and as a prerequisite to graduation from a Texas architecture school.
Energy/Environment-Related Legislation
HB 2783 – would have created high performance building standards for K-12 schools; while the legislation did not mandate the standards for schools, it would have paved the way for schools to have access to information regarding the long-term energy and water savings stemming from innovative building techniques; the bill also would have updated the state energy standards for single family and duplex residential construction to the energy provisions in the IRC as existed on May 1, 2001, and then beginning in 2012, upgrading to the energy efficiency standards in the IRC as existed on May 1, 2009; the bill also would have required that, beginning January 2012, the IECC (as of May 1, 2009) be adopted as the state energy code for other residential, commercial and industrial construction.
HB 431 – would have required that all state buildings be designed and constructed to achieve high performance standards; would have created some similar, but not as stringent, standards for higher educational facilities; final version with house amendments would have included HB 2783 language (above).
SB 16 - was an omnibus energy efficiency bill that included provisions to update the state’s minimum residential and commercial building codes from 2001 to 2009 standards.
HB 2338 – would have created a rebate program for taxes on labor relating to commercial renovations that achieve EPA Energy Star Designation or EPA Designed to Earn Designation.
SB 545 – would have created a $500 million solar incentive program to attract the solar industry to Texas.
