MEMBER UPDATE
June 22, 2009
PERRY VETOES STATUTE OF REPOSE PROTECTIONS
Governor Perry has vetoed SB 2141, a bill intended to protect the statute of repose for engineers and architects. The veto potentially exposes design professionals for liability for older projects.
The policy intent of a statute of repose is that design professionals should not be exposed to liability for an unlimited amount of time after a project is completed. In Texas, this repose period is set at ten years.
The legal issues associated with this bill are rooted in the comprehensive tort reform changes of 2003. The Legislature in that year enacted HB 4, which established a system of proportionate responsibility in Texas law.
Under this system, a defendant in a lawsuit may designate a responsible third party if the defendant believes the third party is partly at fault for the damages for which the plaintiff sued the defendant. Within 60 days of this designation, the third party can be sued directly by the plaintiff, regardless of any statute of limitations (as opposed to statute of repose). There was no discussion in 2003 that this provision would trump the statute of repose. However, in 2008 an appeals court ruled that it did and that a design professional who is designated third party can be sued even for a project that is protected by the statute of repose.
SB 2141 would have corrected this ruling, which we believe to be erroneous. If a design professional can be sued after ten years, the statute of repose has little meaning. SB 2141 would have established that the statute of repose is the limitation it is intended to be.
Governor Perry's veto will potentially allow a design professional to be liable for an indefinite period of time after a project is completed. We do not believe that was the Legislature's intent in 2003 and the Legislature agreed with our interpretation this session by enacting SB 2141. The Governor's veto lets stand a judicial expansion of liability. For a supposedly business-oriented leader, this is indefensible.
SPECIAL SESSION LOOMS ON SUNSET ISSUES
The Governor is expected to call a special session of the Legislature within the next couple of weeks to address the extension of several state agencies, including TxDOT, after Sunset bills failed in the closing days of the regular session. Other issues that could be included in the Governor's call include authorization for Proposition 12 general obligation bonds for transportation, creation of a state transportation revolving fund, and extension of comprehensive development agreements. It is unlikely that all of the other TxDOT reform issues will be addressed. The apparent thinking is that the Legislature can deal with the critical issues in a short 2-3 day session.
IN THE NEWS
Go to Infrastructure News at www.cectexas.org/infrastructure for newspaper articles from around the state and country on transportation, environment, construction, public works and other areas including:
- Pickett: TxDOT is open for business and El Paso is in a good position to gain from it.
- The Houston metropolitan area showed a small net gain in jobs in May.
- Dallas leaders received assurances from federal agency leaders that the Trinity River project remains a priority.
- The Austin City Council is considering a $1.5 million study of "gaps" in the city's transportation system.
- The Obama administration and the top Democrat in the House on transportation policy are on a collision course on the federal highway bill.
- Tenaska has selected Fluor to begin planning for a clean coal facility to be constructed in Texas.
- The big up front deal for SH 121 weighs on NTTA.
- San Antonio has been ranked the strongest metropolitan area in the nation for economic performance during the recession.
- Construction of new homes jumped 17% nationally in May.
- A Dallas City Council committee recommended a $514 million bond plan for a convention center hotel.
- and much more . . . .
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