To paraphrase one of Frank Sinatra’s greatest hits, it was a very good session. We set out with two primary goals: 1) to curtail a devastating form of “legal extortion” that has been increasingly putting the design/construction industry at risk; and 2) to become significant contributors on the issue of school safety. We were hoping to achieve other practice benefits while pursuing the two major goals. (For a full list of bills we tracked, see “The 86th Texas Legislative Recap” at txamagazine.org.)
Of six bills we established as priorities, five passed. The item we opposed most — a measure we believe could have devastated design practices — was never scheduled for floor debate in the House. More significant for the future, as a result of TxA members’ testimony and research contributions during this year’s legislative hearings, legislators saw and acknowledged the importance of including architects’ professional expertise in school safety deliberations by adding a designated spot for an architect on the Texas School Safety Center (TSSC) board of directors.
Good Stuff That Passed
Three of our five priority bills were intended to reduce, if not eliminate, overly broad, generic lawsuits filed by school districts or other public entities alleging nonspecific problems, sometimes even only the potential of future damages. HB 1734 by Rep. Justin Holland of Rockwall requires that proceeds resulting from construction defect lawsuits brought by school districts must be used to fix the problem(s) cited in the claims. HB 1999 by Rep. Jeff Leach of Plano says that if a political subdivision plans to file a construction defect lawsuit, the designer and contractor must be notified of the problem and (except in specific egregious situations) given the opportunity to repair that alleged shortcoming. Finally, HB 2826 by Rep. Greg Bonnen of Friendswood establishes that if a public entity wants to engage a law firm using a contingent fee contract, it must employ a qualifications-based selection (QBS) process, the same process architects and engineers must follow, to document the need for that type of contract as well as to ensure transparency. All three bills are effective September 1, 2019.
We also celebrated passage of HB 4342 by Rep. Travis Clardy of Nacogdoches, the bill that added a designated spot on the TSSC board for an architect, and SB 1928 by Sen. Pat Fallon of Frisco, which ensures that professional opinions required to comply with the Certificate of Merit law are provided by experienced practitioners, not just someone who holds the same license.
The real stinker I mentioned earlier was HB 2901 by Rep. Leach, a bill that would have reversed 112 years of judicial precedent and drastically altered the historical dynamic between Texas designers and constructors. As filed, it would have relieved contractors of liability in virtually every situation, not just by eliminating a builder’s traditional responsibilities to an owner, but also by shifting the (impossible) expectation of an owner occupying a perfectly built structure to an (equally impossible) expectation for a designer to produce a perfect set of plans.
Two measures we weren’t wild about, HB 2439 by Rep. Dade Phelan of Beaumont and HB 2496 by Rep. John Cyrier of Lockhart, did pass, though the first was amended along the way in response to concerns that we and other groups raised. That first one prevents a municipality from adopting or enforcing a code or regulation that restricts the use of any building product or material that has been approved for use by a national model building code within the previous three code cycles, about 10 years. The other bill sharply raises the bar for designating a property as historic without the owner’s consent or, in the case of a church, possibly prohibiting the designation at all if the congregation objects. Given the fact that the authors of those bills both chaired the respective committees where their bills were assigned, not to mention that both are considered up-and-coming House members, we knew we might be able to influence how the two bills would emerge from the legislative process, but we also knew that both would emerge, ultimately. Rather than starve on principle, we enjoyed a partial loaf, improving the final product as best we could.
Session Statistics / Overview
There were 7,324 House and Senate bills filed, along with 471 resolutions, of which 1,564 passed (1,429 bills; 135 resolutions). This doesn’t include the number of committee substitutes offered (probably close to 2,500), or the number of proposed amendments — something at which I won’t even take a stab. While these numbers aren’t a record, they are close — fewer than 100 below the high-water mark of 7,871 set in 2009.
The two most significant things about 2019 were the passage of HB 3, the comprehensive overhaul of the state’s public education funding system, and the (near) absence of socially volatile legislation that, in 2017, had the House and Senate at each other’s throats and Ds and Rs going at each other hammer and tong. The general mood was much better, with far more productive results than the 85th legislative session.
That’s A Wrap
I did promise to identify my other top sessions from when I joined this merry band (the 71st) through this year’s — 31 years later. It is said that you always remember your first one. 1989 was #1 because we passed the Architects Practice Act after failing to achieve that for 50 years, plus secured lien rights for architects. After that, it’s pretty much a toss-up between 2011 (when we ended a 22-year turf war with the engineers); 2015 (reduced the annual license renewal fee by $200, every year); and 2019, for the reasons just cited. Sessions not in the top quartile were still rewarding, even when shy of award-winning.
The past 31 years have allowed me to represent — and hang with — the most creative, intelligent, and humane group of (sometimes practical) visionaries known to man, and for that I will be forever grateful. I relish every encounter (whether we won or are still working on it), every session, every year. Paraphrasing Ol’ Blue Eyes once more, It Was a Very Good Career. Adios, and good luck.
David Lancaster, Hon. AIA, is TxA’s senior advocate.