HBA-JRA C.S.H.B. 69 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 69
By: Nixon, Joe
Civil Practices
4/26/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Currently, to seek legal redress against the state, a party must seek
permission from the legislature to sue the state.  However, if the
legislature waives this sovereign immunity, and the plaintiff prevails in
the action against the state, the state remains immune from liability.  A
plaintiff cannot recover a court judgment from the state unless the state
agrees to pay the judgment.  C.S.H.B. 69 establishes a process by which
claims against a unit of state government for breach of contract may be
made. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to each unit of state government with
rulemaking authority and the chief administrative law judge of the State
Office of Administrative Hearings in SECTION 1 (Sections 2260.052 and
2260.103, Government Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subtitle F, Title 10, Government Code, by adding Chapter
2260, as follows: 

CHAPTER 2260.  RESOLUTION OF CERTAIN CONTRACT CLAIMS
AGAINST THE STATE

SUBCHAPTER A.  GENERAL PROVISIONS

Sec. 2260.001.  DEFINITIONS.  Defines "contract," "contractor,"
"institution of higher education," and "unit of state government." 

Sec. 2260.002.  APPLICABILITY.  Provides that this chapter does not apply
to a claim for personal injury or wrongful death arising from the breach of
a contract. 

Sec. 2260.003.  DAMAGES.  Prohibits the total amount of money recoverable
on a claim for breach of contract under this chapter from exceeding the
balance due and owing on the contract price after deducting any amount owed
the unit of state government for work not performed under a contract or in
substantial compliance with its terms. 

Sec. 2260.004.  REQUIRED CONTRACT PROVISION.  Requires each unit of state
government that enters into a contract to which this chapter applies to
include as a term of the contract a provision stating that the dispute
resolution process used by the unit of state government under this chapter
must be used to attempt to resolve a dispute arising under the contract.
Requires the attorney general to provide assistance to a unit of state
government in developing the contract provision required by this section. 

Sec. 2260.005.  EXCLUSIVE PROCEDURE.  Provides that the procedures
contained in this chapter are exclusive and required prerequisites to suit
in accordance with Chapter 107 (Permission to Sue the State), Civil
Practice and Remedies Code. 

SUBCHAPTER B.  NEGOTIATION OF CLAIM
 
Sec. 2260.051.  CLAIM FOR BREACH OF CONTRACT; NOTICE.  Authorizes a
contractor to make a claim against a unit of state government for breach of
a contract between the unit of state government and the contractor.
Authorizes the unit of state government to assert a counterclaim against
the contractor.  Provides that a contractor must provide written notice to
the unit of state government of a claim for breach of contract by the 180th
day after the date of the event giving rise to the claim, which states with
particularity the nature of the alleged breach, the amount the contractor
seeks as damages, and the legal theory of recovery.  Provides that a unit
of state government must assert any counterclaim, in writing, by the 90th
day after the date of the notice or waive its right to assert the
counterclaim. 

Sec. 2260.052.  NEGOTIATION.  Requires the chief administrative officer or
another officer of the unit of state government designated in the contract
to examine the claim and any counterclaim and negotiate with the contractor
in an effort to resolve them.  Provides that the negotiation must begin by
the 60th day after the later of the date of termination of the contract,
the completion date in the original contract, or the date the claim is
received. Entitles a unit of state government to delay negotiation until
after the 180th day after the date of the event giving rise to the claim.
Requires each unit of state government with rulemaking authority to develop
rules to govern the negotiation of a claim under this section.  Requires a
unit that does not have rulemaking authority to follow the rules adopted by
the attorney general. 

Sec. 2260.053.  PARTIAL RESOLUTION OF CLAIM.  Requires the parties to
reduce the agreement or settlement to writing and each party to sign it if
the negotiation results in the resolution of some disputed issues.
Provides that a partial settlement or resolution of a claim does not waive
a party's rights under this chapter as to the parts of the claim that are
not resolved. 

Sec. 2260.054.  PAYMENT OF CLAIM FROM APPROPRIATED FUNDS.  Authorizes a
unit of state government to pay a resolved claim only from money
appropriated to it for payment of contract claims or for payment of the
contract that is the subject of the claim. Authorizes the balance of the
claim to be paid only from money appropriated by the legislature for
payment of the claim if money previously appropriated for payment of
contract claims or payment of the contract is insufficient to pay the claim
or settlement. 

Sec. 2260.055.  INCOMPLETE RESOLUTION.  Authorizes a contractor to file a
request for hearing under Subchapter C if a claim is not entirely resolved
on or before the 270th day after the date the claim is filed with the unit
of state government, unless the  parties agree in writing to an extension
of time. 

SUBCHAPTER C.  CONTESTED CASE HEARING

Sec. 2260.101.  DEFINITION.  Defines "office" in this subchapter.

Sec. 2260.102.  REQUEST FOR HEARING.  Authorizes a contractor to file a
request for hearing with the unit of state government.  Sets forth the
information the request must include.  Requires the unit of state
government to refer the claim to the State Office of Administrative
Hearings (SOAH) for a contested case hearing under Chapter 2001
(Administrative Procedure), Government Code. 

Sec. 2260.103.  HEARING FEE.  Authorizes the chief administrative law judge
(ALJ) of SOAH to set a fee for a hearing that is not less than $250 and
allows SOAH to recover all or a substantial part of its costs in holding
hearings.  Authorizes the chief ALJ of SOAH, by rule, to establish a
graduated fee scale, increasing the fee in relation to the amount in
controversy.  Authorizes SOAH to assess the fee against the party who does
not prevail in the hearing or apportion the fee against the parties in an
equitable manner. 

Sec. 2260.104.  HEARING.  Requires an ALJ of SOAH to conduct a hearing in
accordance  with the procedures adopted by the chief ALJ of SOAH.  Requires
the ALJ to issue a written decision containing the ALJ's findings and
recommendations within a reasonable time after the conclusion of the
hearing.  Requires the ALJ to base the decision on the pleadings filed with
SOAH and evidence received.  Provides that the decision must include the
findings of fact and conclusions of law on which the ALJ's decision is
based and a summary of the evidence. 

Sec. 2260.105.  PAYMENT OF CLAIM.  Requires the unit of government to pay
the amount of the claim or part of the claim if the ALJ finds, by a
preponderance of the evidence, that under the laws of this state the claim
or part of the claim is valid.  Requires the unit of government to pay a
claim under this subchapter from money appropriated to it for payment of
contract claims or for payment of the contract that is the subject of the
claim.  Authorizes the balance of the claim to be paid only from money
appropriated by the legislature for payment of the claim if money
previously appropriated for payment of contract claims or payment of the
contract is insufficient to pay the claim or settlement. 

Sec. 2260.106.  PREJUDGMENT INTEREST.  Provides that Chapter 304 (Judgment
Interest), Finance Code, applies to a judgment awarded to a claimant under
this chapter, but prohibits the applicable rate of interest from exceeding
six percent. 

Sec. 2260.107.  EXECUTION OF STATE PROPERTY NOT AUTHORIZED.  Provides that
this chapter does not authorize execution on property owned by the state or
a unit of state government. 

SECTION 2.  Effective date: September 1, 1999.

SECTION 3.  Makes this Act applicable to a claim pending or arising on or
after the effective date of this Act, without regard to whether the
contract was entered into before, on, or after that date. Provides that,
notwithstanding Section 2260.051(b), Government Code, a claimant must
provide written notice to the unit of state government for a claim pending
before the effective date of this Act by the 180th day after that date. 

SECTION 4.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute modifies the original in the caption to make a conforming
change. 

The substitute modifies the original in SECTION 1 by amending Subtitle F,
Title 10, Government Code, rather than Title 5, Civil Practice and Remedies
Code. 

The substitute defines "contract," "contractor,"  and "institution of
higher education," and redefines "unit of state government." The substitute
provides that this chapter does not apply to a claim for personal injury or
wrongful death arising from the breach of a contract.  The substitute also
adds a provision to require each unit of state government that enters into
a contract to which this chapter applies to include as a term of the
contract a provision stating that the dispute resolution process used by
the unit of state government under this chapter must be used to attempt to
resolve a dispute arising under the contract.  The substitute requires each
unit of state government with rulemaking authority to develop rules to
govern the negotiation of a claim under this section. In addition, the
substitute adds a provision to authorize the chief administrative law judge
of the State Office of Administrative Hearings to set fees for a hearing
and to issue a written decision containing findings and recommendations
within a reasonable time after the conclusion of the hearing.  For a more
complete analysis of the new text please see the Section-by-Section
Analysis of this document. 

The substitute deletes the requirement that the parties mediate the claim
with an independent mediator and extends the mediation period from 31 days
to at least 210 days.  The substitute also deletes the authorization of a
claimant to appeal a unit of government's final order to an appellate court
and the provision that sovereign immunity is waived for purposes of such an
appeal.  In addition, the substitute deletes the authorization of the
attorney general to settle or compromise an  appeal. 

The substitute prohibits the total amount of money recoverable on a claim
for breach of contract under this chapter from exceeding the balance due
and owing on the contract price after deducting any amount owed the unit of
state government for work not performed under a contract or in substantial
compliance with its terms, rather than the amount of consideration the
claimant was entitled to receive under the contract.