Monday, June 27, 2011

2011 Session Summary (Updated!)

In previous ADVOCACY blogs, we reported that all our priority bills had passed so, barring a veto from Governor Perry, they would become law. We’re delighted to say that, for the first time in four sessions, the Governor didn’t veto a single bill we identified—and supported—as architectural practice priority. Since we previously described those priority bills in some detail, this report will focus more on when those changes become effective, etc., as well as providing a link to more detailed information, including a link to the Enrolled version of each bill. (Click on bill numbers in the sub-titles.) In reverse numerical order, they are:

HB 2284 (see May 25, 27 and June 6 blogs)

Summary—A/E “Peace Accord” bill that settles 20+-year scope-of-practice disputes between the professions. In trade for creating a process by which certain licensed engineers can be “grandfathered” (between September 1, 2011 and January 1, 2012) to continue practicing architecture without an architecture license, language was added to the Engineering Practice Act stating that an architect must prepare the architectural plans and specifications for any building intended for human use or occupancy, as well as “the practice of engineering does not include the practice of architecture.”

Effective Date—September 1, 2011

Exemptions or Exclusions—See those previously reported on the TSA Blog regarding an engineer’s eligibility to apply for “grandfathering.”

HB 2093 (see May 25 and 27 blogs)

Summary—Makes broad-form indemnification clauses “void and unenforceable.” In other words, as a matter of public policy, after the effective date most contracts will require each party to be responsible for its own acts, and will not allow one party to dictate to another that a “second party” must indemnify and defend the “first party” against the first party’s acts of negligence. The “void and unenforceable” limitation also extends to any requirement to purchase additional insurance for such indemnification contingencies.

Effective Date—January 1, 2012

Exemptions or Exclusions—Specific classes of exempted construction contracts include residential (single family house, townhouse or duplex, including any related land development) and municipal projects. In addition, language for common or current exemptions such as bodily injury or death of an employee, breach of contract, general indemnity agreements required by sureties or in loan or financing documents, general “benefits and protections” language under state workers comp or governmental immunity laws, etc., are included.

HB 1728 (see May 25 and June 7 blogs)

Summary—Establishes parameters for energy-performance or energy-conservation contracts, including available sources of funds to pay for them. Of particular interest to architects is the language limiting K-12 public education entities from disallowing “proper allocation” of available tax credits added to Section 44.902 of the Education Code (See page 3). Similar language for other public entities is found in HB 51.

Effective Date—September 1, 2011

Exemptions or Exclusions—None

HB 628 (see May 25 and May 27 blogs)

Summary—Consolidates the language dealing with Alternative Project Delivery methods now found in three different codes (Education, Government and Local Government) into a single chapter of the Government Code. It also provides a bit of needed tort reform by requiring that money received by a school district as the result of a construction-defect lawsuit—regardless whether a settlement or verdict—be spent to fix the problem for which the lawsuit was filed.

Effective Date— September 1, 2011

Exemptions or Exclusions—While the bill has almost universal impact on all public entities, there are notable exceptions like the Texas Department of Transportation and institutions of higher learning (although community and junior colleges are included).

HB 51 (see May 25 and June 7 blogs)

Summary—Requires state buildings to be designed and constructed or renovated to achieve certification under a nationally recognized program such as LEED or Green Globes, or a comparable program developed by a municipally owned energy producer. Also includes language that says a design professional’s services to achieve such third-party certification are not to be considered “basic services,” and that public entities may not disallow proper allocation of potential tax credits. (See page 5, lines 15-24 of the bill.)

Effective Date—September 1, 2011

Exemptions or Exclusions—Higher education buildings may be exempted in cases where the governing board has already adopted another, reasonably equivalent, set of energy-conservation standards, or requests and is granted an “undue hardship” waiver from SECO, which includes providing documentation demonstrating need for the waiver. Also, buildings for which a Higher Ed entity advertises seeking RFQs, RFPs, bids, etc., before September 1, 2013 are exempt. Only their buildings or projects initiated after that date are covered. For state buildings, the effective date is September 1, 2011.

No comments: