News & Press: Member Update

86th Legislative Session Headlines

Tuesday, March 26, 2019  
Posted by: Michael Hancock
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Member Update

March 15, 2019


86th Legislative Session Headlines:
Flood Legislation, Design Defects, Right to Repair & Statute of Repose


Last Friday marked the deadline for legislators to file legislation for the 86th Legislative Session. There has been a 9% increase in number of bills filed from the 2017 session in both the House, with 4,627 bills filed, and in the Senate, filing 2,240. ACEC Texas has been reviewing all bills filed and is monitoring and tracking key legislation.

Flood related legislation made news last week following the Senate announcing a new, three-bill flood package. SB 6 by Sen. Lois Kolkhorst would address recommendations from the Rebuild Texas Commission’s report on Hurricane Harvey regarding emergency management. SB 7 by Sen. Brandon Creighton would create the Texas Infrastructure Resiliency Fund, which would consist of four different flood project funds. The amount to be allocated for each fund is still in the works. Finally, SB 8 by Sen. Charles Perry would address the development of state and regional flood planning. Rep. Dade Phelan refiled his flood mitigation and funding legislation (originally HB 478) to HB 13. Historically, lower bill numbers have been reserved for top priority legislation. HB 478 was heard in the House Committee on Natural Resources early this month and ACEC Texas was invited to testify in support of the legislation. This legislation is expected to be heard by the full House in the next couple of weeks.

Three design defect bills were filed last week to not hold a contractor liable for defective plans, HB 2899 and HB 2901 by Rep. Jeff Leach and HB 3087 by Rep. John Raney. HB 2899 and HB 3087 are specifically tailored to only transportation projects, while HB 3087 encompasses all projects. These bills would shift liability to the owners and governmental entities. ACEC’s position continues to be that this legislation could have consequences on design firms relating to increased liability and potential insurance issues. ACEC Texas has been working with the bill authors to express our industry’s concerns. HB 2899 and HB 2901 have been set for a hearing next Monday afternoon, March 18th in the House Committee on Judiciary and Civil Jurisprudence.

Two right to repair bills were heard in committee this week: HB 1999 by Rep. Jeff Leach (Right to Repair) and HB 1734 by Rep. Justin Holland (Right to Repair for School Districts). Additionally, the statute of repose bill, HB 1737 by Rep. Holland, was also heard. This bill lowers the statute of limitation and repose for engineers and architects from 10 years to 8 years after substantial completion of the project. ACEC Texas registered in support of all three bills during the committee hearing and has visited with the bill authors about our ongoing support.

Finally, ACEC Texas has been monitoring legislation regarding the Texas Board of Professional Land Surveyors, which is under Sunset review. The Sunset Advisory Commission adopted recommendations early this year to merge the Surveyors' with the Texas Board of Professional Engineers (TBPE). ACEC will continue to work with legislators and TBPE on the transition.

TxDOT Proposed Rules Update

As mentioned in a previous member update, the Texas Transportation Commission has proposed rule changes recommended by the agency’s Professional Engineering Procurement Services Division relating to annual rate negotiation and written bonus plans. ACEC Texas has filed comments (click here to view comments) in response to the rules and has suggested several changes:

  • Regarding bonus plans, this language should be revised to reflect the language in the AASHTO audit guide, which is more general. The proposed rule language has “audit traps” regarding documentation that are unrealistic.
  • Regarding annual rate negotiations, TxDOT needs to make clear that the rate negotiation process is not tied to administrative qualification (except for the timing of submittals) and that the failure to reach agreement on annual negotiated rates does not inhibit firms’ ability to compete for contracts.
  • TxDOT should state its opinion that rate submittals are protected under the Public Information Act and commit to working for that position with the Attorney General in the event of challenge. (ACEC Texas will also look at opportunities to include explicit protections in the PIA this session). TxDOT should also commit to strong sanctions against employees that violate these protections. Rate information must be firewalled from the selection process.
  • The rules should be clarified to state that TxDOT’s standard of review for submittals will be whether the rates are reasonable and within industry norms as established by industry surveys.

If individual firms have any additional comments, the deadline to file those comments with TxDOT is on Monday.

2019 Calendar of Events

  • March 22nd-23rd: ACEC Texas Annual Meeting - Four Seasons Resort - Irving, Texas
  • March 23rd: ACEC Texas Engineering Excellence Awards - Four Seasons Resort - Irving, Texas
  • May 15th-16th: ACEC Texas Business Conference - Crowne Plaza Hotel - Addison, Texas
  • July 11th-14th: ACEC Texas Summer Public Affairs Conference - Mont Tremblant, Quebec, Canada

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