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The Governor of Texas recently signed two new pieces of legislation affecting individuals seeking damage claims in construction defect cases. First, the governor amended/strengthened the Certificate of Merit Law to add more protection for architects, engineers, and surveyors when suits arise against them for their rendering of professional services. Second, a new bill places certain requirements on public school districts if they bring an action for recovery of damages for defective design, construction, renovation, or improvement to a facility financed by bonds. Here is an overview of these two new laws and how they affect those seeking damage claims. 

Certificate of Merit Law (SB 1928)

Under Texas law, a certificate of merit is required when filing a claim for damages resulting from the provision of professional services by a registered/licensed professional. The statute is designed to discourage and quickly deal with non-meritorious claims. The following changes have been incorporated: 

Section 1: 

Amending subdivision (1-a)

“Claimant” to mean a party seeking compensation for contribution, damages, or indemnification, including plaintiffs and third party plaintiffs

Amending subdivision (1-b)

“Licensed/registered professional” to mean a licensed professional engineer, licensed architect, registered landscape architect, licensed professional land surveyor, or any company in which the licensed professional practices. 

Adding subdivision (1-c)

“National model code group” to mean an organization that consists of government and industry fire and building safety officials developing and promulgating a national model code.

Section 2 amendments:

Section 2(a) 

The claimant (previously plaintiff) seeking recovery for damages caused by a registered or licensed professional in the provision of professional services should file an affidavit of a third party professional who: 

  1. Has the same professional registration or license as the defendant 
  2. Is competent to testify 
  3. Practices in the same field as the defendant and can testify based on his or hers: 
  • Skill 
  • Knowledge 
  • Education
  • Experience
  • Training
  • Practice 

Section 2(c)

The period of limitation after filing an affidavit of a third party registered professional under subsection (a) is 10 days. In the event that the claimant is unable to accomplish this within the time limit, he or she will have 30 days after filing the claim to provide the affidavit. 

Section 2(e)

The trial court may extend the time limit for good cause. If the claimant fails to present the affidavit on time, the complaint shall be withdrawn from the defendant.

Litigation of certain defects in school district facilities (HB 1734)

Addition of subchapter E in Education Code 

This law typically applies to school districts seeking recovery for damages resulting from defective construction, design, improvement, or renovation of a facility sponsored by government bonds. In such a case, the district is required to send a copy of the petition to the commissioner within 10 days of filing the claim. Failure to do this shall lead to the dismissal of the petition. If the petition is successful, the proceeds should go towards repairing the facility. 

The school district must provide an itemized accounting of the repairs to the commissioner. Any balance after the repairs should be sent back to the state, otherwise, the school district may be liable for legal action by the state AG. 

It is important to keep yourself updated on the latest developments in state laws, especially if you are a business owner or professional in the construction industry. If you have any legal concerns, Capshaw & Associates is here to help. Contact us today at (214) 761-6610.