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AN ACT
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relating to an affidavit required to be filed in a cause of action |
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against certain licensed or registered professionals. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. The heading to Chapter 150, Civil Practice and |
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Remedies Code, as amended by Chapters 189 (H.B. 854) and 208 (H.B. |
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1573), Acts of the 79th Legislature, Regular Session, 2005, is |
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reenacted to read as follows: |
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CHAPTER 150. LICENSED OR REGISTERED PROFESSIONALS |
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SECTION 2. Sections 150.001 and 150.002, Civil Practice and |
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Remedies Code, as amended by Chapters 189 (H.B. 854) and 208 (H.B. |
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1573), Acts of the 79th Legislature, Regular Session, 2005, are |
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reenacted and amended to read as follows: |
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Sec. 150.001. DEFINITIONS. In this chapter: |
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(1) "Licensed or registered professional" means a |
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licensed architect, licensed professional engineer, registered |
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professional land surveyor, registered landscape architect, or any |
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firm in which such licensed or registered professional practices, |
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including but not limited to a corporation, professional |
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corporation, limited liability corporation, partnership, limited |
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liability partnership, sole proprietorship, joint venture, or any |
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other business entity. |
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(2) "Practice of architecture" has the meaning |
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assigned by Section 1051.001, Occupations Code. |
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(3) "Practice of engineering" has the meaning assigned |
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by Section 1001.003, Occupations Code. |
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Sec. 150.002. CERTIFICATE OF MERIT. (a) In any action or |
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arbitration proceeding for damages arising out of the provision of |
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professional services by a licensed or registered professional, the |
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plaintiff shall be required to file with the complaint an affidavit |
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of a third-party licensed architect, licensed professional |
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engineer, registered landscape architect, or registered |
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professional land surveyor who: |
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(1) is competent to testify; |
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(2) holds the same professional license or |
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registration as the defendant; and |
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(3) is knowledgeable in the area of practice of the |
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defendant and offers testimony based on the person's: |
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(A) knowledge; |
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(B) skill; |
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(C) experience; |
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(D) education; |
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(E) training; and |
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(F) practice. |
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(b) The affidavit shall set forth specifically for each |
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theory of recovery for which damages are sought, the negligence, if |
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any, or other action, error, or omission of the licensed or |
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registered professional in providing the professional service, |
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including any error or omission in providing advice, judgment, |
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opinion, or a similar professional skill [at least one negligent
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act, error, or omission] claimed to exist and the factual basis for |
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each such claim. The third-party licensed architect, licensed |
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professional engineer, registered landscape architect, or |
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registered professional land surveyor shall be licensed or |
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registered in this state and actively engaged in the practice of |
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architecture, engineering, or surveying. |
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(c) [(b)] The contemporaneous filing requirement of |
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Subsection (a) shall not apply to any case in which the period of |
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limitation will expire within 10 days of the date of filing and, |
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because of such time constraints, the plaintiff has alleged that an |
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affidavit of a third-party licensed architect, licensed |
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professional engineer, registered landscape architect, or |
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registered professional land surveyor could not be prepared. In |
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such cases, the plaintiff shall have 30 days after the filing of the |
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complaint to supplement the pleadings with the affidavit. The |
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trial court may, on motion, after hearing and for good cause, extend |
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such time as it shall determine justice requires. |
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(d) [(c)] The defendant shall not be required to file an |
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answer to the complaint and affidavit until 30 days after the filing |
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of such affidavit. |
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(e) [(d)] The plaintiff's failure to file the affidavit in |
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accordance with this section [Subsection (a) or (b)] shall result |
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in dismissal of the complaint against the defendant. This |
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dismissal may be with prejudice. |
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(f) [(e)] An order granting or denying a motion for |
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dismissal is immediately appealable as an interlocutory order. |
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(g) [(f)] This statute shall not be construed to extend any |
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applicable period of limitation or repose. |
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(h) [(g)] This statute does not apply to any suit or action |
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for the payment of fees arising out of the provision of professional |
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services. |
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SECTION 3. The change in law made by this Act applies only |
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to an action or arbitration filed or commenced on or after the |
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effective date of this Act. An action or arbitration filed or |
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commenced before the effective date of this Act is governed by the |
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law in effect immediately before the effective date of this Act, and |
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that law is continued in effect for that purpose. |
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SECTION 4. This Act takes effect September 1, 2009. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I hereby certify that S.B. No. 1201 passed the Senate on |
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April 23, 2009, by the following vote: Yeas 30, Nays 0; and that |
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the Senate concurred in House amendment on May 29, 2009, by the |
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following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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I hereby certify that S.B. No. 1201 passed the House, with |
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amendment, on May 27, 2009, by the following vote: Yeas 148, |
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Nays 0, one present not voting. |
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______________________________ |
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Chief Clerk of the House |
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Approved: |
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______________________________ |
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Date |
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______________________________ |
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Governor |