TEXAS CONSTRUCTION ASSOCIATION - THE 2021 LEGISLATIVE SESSION EDITION - Texas Construction ...
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
THE 2021 LEGISLATIVE SESSION EDITION TEXAS CONSTRUCTION ASSOCIATION Working on issues of major importance to the Texas construction industry Winter 2021
Texas Construction Association Board
OFFICERS
Jerry Bratton - Chair Andy Adams - Treasurer
Texas Structural Steel Institute Chris Lambert - Secretary American Subcontractors Association
Central Texas Houston Chapter
David Stone - Vice Chair
Subcontractors Association
Fire Sprinkler Contractors Raymond Risk - President / CEO
Association of Texas Texas Construction Association
DIRECTORS
Ken Boen Jeff Henkener
Plumbing-Heating-Cooling Mechanical Contractors Robbie Ketch
Contractors of Texas DFW Drywall & Acoustical
Association of Texas
Contractors Association
.Kevin Camarata Fred Heldenfels IV
Texas Masonry Council Precast Concrete Manufacturers’ Courtney Talley
Association of Texas National Utility Contractors
Brian Chester Association - Texas
American Subcontractors Association Victor Longo
North Texas Chapter Southwest Terrazzo Association Felix Munson
Texas Glass Association
Keith Colvin Paul Holden
Texas Iron Workers Subcontractors Association Carmen Smith
of the Metroplex American Subcontractors Association
Employers’ Association
Texas Chapters
Roger Fisher II Mike Kanetzky
National Electrical Allan Woodruff
Texas Council - Painting & Decorating
Contractors Association Texas Crane Owners Association
Contractors of America - Dallas
Texas Chapters
LEGAL COUNSEL
Fred Wilshusen
Thomas, Feldman, & Wilshusen
American Subcontractors Southwest Terrazzo
Association - Texas Chapters Association
Central Texas Subcontractors Association
Subcontractors Association of the Metroplex
DFW Drywall &
Texas Council Painting &
Acoustical Contractors Decorating Contractors
Association
Fire Sprinkler Contractors Texas Crane Owners
Association of Texas Association
Mechanical Texas Glass
Contractors Association Association
of Texas
National Electrical Texas Iron Workers
Contractors Association Employers’ Association
Texas Chapters
National Utility
Texas Masonry
Contractors Association
Council
Texas Chapter
Plumbing-Heating-Cooling Texas Structural
Contractors of Texas Steel Institute
Precast Concrete
Manufacturers’ Association Room to Grow!
of Texas
Texas 2020 General Election
by Eric Woomer
In some ways, this year’s historic both candidates are Republicans. Rs and 67 Ds). The flips came in Harris
election was like a Hollywood The 18R/13D margin in the Senate is County, where Reps. Sarah Davis
blockbuster: big stars, (R-Houston) and Gina
with big expectations; Calanni (D-Houston)
a monstrous budget; a appear to be the only
record-breaking turnout casualties. Open seats like
at the box office with lines House District 138 near
around the block; and Houston (previously held
everyone talking about it. by Rep. Dwayne Bohac
A nail-biter throughout, (R-Houston)) and House
with a cliffhanger ending District 92 in Tarrant
that leaves you guessing. County (previously
And yet, despite all the held by Rep. Jonathan
hype and money splashed Stickland (R-Bedford))
across the video screen, have new occupants but
when it concludes and remain in the same party.
you step out of the theater Nearly all incumbents
and into the sunshine, prevailed, some by very
everything is pretty much slim margins – notably
the same. Reps. Angie Chen Button
significant. In the 2015 session, after (R-Richardson) and Jon Rosenthal
The unprecedented attention to (D-Houston).
the GOP lost their supermajority of
presidential politics, and the national
21 (two-thirds), the Senate amended
attention gained by Democrats, failed For the House overall, this means a GOP
to dramatically impact races closer to their rules to require only 19 (three- speaker and control of key committees.
home. Although there was a one-seat fifths) votes to move a bill through the The announced Speaker candidates at
gain for Democrats in the Texas Senate, Texas Senate. Thus, previously, Lt. Gov. one time included Reps. Chris Paddie,
Dan Patrick had the luxury of only
there remain 83 Republicans and 67 Dade Phelan, Trent Ashby, and Geanie
needing Republican votes to advance
Democrats in the Texas House. Morrison; however, Rep. Dade Phelan,
his favored legislation. Now, he will (R-Beaumont) appears to have a clear
There was really only one race in need to rely on at least one Democrat.
Texas that was expected to impact the path at becoming the next speaker of
It remains to be seen whether Lt. Gov. the Texas House after securing the
partisan divide in the State Senate (19 Patrick and GOP Senators will consider
Rs and 12 Ds heading into election support of over 90 House members.
an effort to eliminate or further reduce
night): Senate District 19, held by Sen. the supermajority requirement, which While many expect a tamer-than-
Pete Flores (R-Pleasanton), who was would be another noteworthy departure usual regular session, due to budgetary
elected in a special election in 2018 to from longstanding precedent. shortfalls and COVID-19 continuing
represent the historically Democratic to impact process and the Legislature’s
district running from San Antonio to The real action in state politics was in ability to navigate complex or
West Texas. He was defeated by seven- the Texas House of Representatives, controversial issues, GOP control
term State Representative Roland where a nine-vote margin separated will have a significant impact on
Gutierrez (D-San Antonio). One the GOP leadership from the redistricting later next summer, when
special election remains – on December Democratic minority. Many observers the Texas Congressional delegation
19, Rep. Drew Springer (R-Muenster) expected meaningful gains for the Ds, is predicted to gain two seats, and the
squares off against Dallas hair salon and perhaps even taking control of Republican-led bodies will have the
owner Shelley Luther (R) in a runoff the Chamber. But, despite the millions first crack at redrawing lines for U.S.
for Senate District 30, to replace Pat poured into races all over the state, Congress and the Texas House and
Fallon (R-Prosper), who was elected to it seems it was all just a wash – there Senate.
Congress. However, there will be no are a couple of new faces, but the
impact on the make up of the Senate as partisan divide remains the same (83
Texas Construction Association 3
A Preview of the 87th
Texas Legislature
The major issues vying for the attention state legislators. Some of these lawsuits will be other issues along these lines
of Texas legislators in the upcoming have been resolved, but others remain that come to light during session.
session convening on January 12, 2021, pending. Additionally, the Governor
will be, in some way, related to the recently extended his Harvey Disaster Medicaid Expansion
COVID-19 health crisis. Chief among Declaration more than three years after The expansion of Medicaid to include
them will be the state budget, and not the hurricane hit Texas. These issues more Texans has been discussed since
just for the next biennium, but for the will no doubt result in legislation aimed the adoption of the federal ACA and has
current one as well. Other issues will at limiting, or at least clarifying, the recently seen more bipartisan support
be the Governor’s authority during Governor’s executive authority during than usual. Some legislators have put
an emergency, the on-going debate an emergency. the price tag for expansion at over $1.5
of state vs. local power and Medicaid billion whereas others have argued the
expansion. State vs. Local Authority final number is offset by savings in
The ongoing tug-of-war between state other areas resulting in a program that
Texas State Budget and local officials will be on full display would effectively be budget-neutral.
In July the Texas Comptroller, Glenn during the upcoming session. As seen Thus, this is shaping up to be a “battle
Hegar, announced a $4.58 billion during the COVID-19 health crisis, the of the economists”.
shortfall for the current biennium. actions of many local officials, mainly
That means the Legislature will need to county judges and mayors, were in All of the items listed above are in
address changes to the current (9/2019 - direct conflict with executive orders addition to so many other issues, large
8/2021) budget during the 2021 session from the Governor. Additionally, and small, including, but of course not
via a Supplemental Appropriations the Governor has tasked staff with limited to, Redistricting, COVID-19
bill. Additionally, the Comptroller reviewing statutes and proposing liability, public school finance, higher
will report to the Legislative Budget legislation to allow the state to take over ed finance (Tuition Revenue Bonds)
Board prior to the session to provide public safety duties in cities that vote to and property tax caps.
the Biennial Revenue Estimate needed “de-fund” their police. No doubt there
to craft a balanced budget. With the
economic slowdown in the oil and
gas sector and the economic impact
of the COVID-19 health crisis hitting
state revenues hard, it is expected that
the Comptroller’s estimate will be
several billion dollars below what many
legislators believe is needed to meet the
demands of Texans.
Executive Authority
in an Emergency
During the COVID-19 health crisis,
Governor Abbott has issued 25
executive orders addressing a wide
variety of matters; not all of them
have been well received by Texans
and/or Texas legislators. In fact, Gov.
Abbott’s orders have been the subject of
litigation in federal and state court from
bar owners and other Texans, as well
as separate filings in state court from
Texas Construction Association 4
Responsible Accountability
for Design Defects
Flash back to the turn of the 20th the contract and the specifications, prohibitions on unlicensed persons
century. Following recovery from the must be held responsible for the loss, performing acts reserved in statute for
Civil War, the landscape of Texas was notwithstanding the fact that the house licensed professionals.
changing. It was a building boom fell by reason of its weakness arising
-- statewide population increases led out of defects in the specifications and Unfortunately, the Texas Supreme
to larger towns and cities. Building without any fault on the part of the Court has failed to evolve in its
practices changed significantly with builder.” (emphasis added) reasoning. While it seems reasonable
the innovations of the use of steel, for a contractor to rely on plans and
steam-heating and electrical lighting. specifications prepared by design
Gone were the utilitarian buildings professionals hired by the project
-- although brick and stone were still owner to build a project, if the work
extensively employed for structure turns out to be defective due to an
and visual interest, in large cities there error in the plans and specifications,
were commercial buildings of three contractors bear the risk of liability for
to six stories which became sources the consequences of defective design.
of considerable pride. These changes Additionally, an implied warranty
brought forth more sophisticated of constructability by the original
building components, an increase in contractor to the owner gets passed
the number of architects and engineers, via contract to the subcontractors.
and an increased risk. “Liability of the builder does not rest Therefore, under current law, a
upon a guaranty of the specifications subcontractor 3 or 4 tiers below the
It was during this time, in 1899, that the but upon his failure to perform his original contractor could be held liable
Thomas Lonergan Co. was contracted contract to complete and deliver the for construction defects attributable
to construct a building in San Antonio. structure.” to an architect’s or engineer’s plans.
The owner of the building, San Antonio Typical general liability insurance
Loan & Trust Co., had hired an architect Flash forward to 2020, with one carried by a construction contractor
to draw up plans for a 5-story building. exception (passage of HB 2899 in or subcontractor does not cover this
Lonergan undertook the construction 2019 leveling the field for construction liability and the possible loss may well
of the building, following the architect’s of roads, highways and related exceed a company’s net worth.
plans to the letter; however, it collapsed improvements), Lonergan is still the
before it was finished. Lonergan refused law of the land in Texas (although Bottom line -- the current system is
to rebuild the building based on the 48 states follow the Spearin doctrine not fair. The construction team should
architect’s design and San Antonio Loan set forth by the U.S. Supreme Court not be liable for construction that
& Trust sued for damages. The case in 1917 which holds the opposite of is defective due to erroneous design
went all the way to the Texas Supreme Lonergan). There have been countless documents furnished to the contractor
Court. Lonergan v. San Antonio Loan changes in the construction industry, by the owner. The Texas Supreme
& Trust Co., 104 S.W. 1061 (Tex. 1907). chief among them is the state of Texas’ Court’s reasoning in Lonergan is no
In its opinion, the Court noted, “The policy decision in the 1930s to license longer appropriate in this day and age.
fact that Lonergan Co. contracted to architects and engineers, among Therefore, the Legislature must amend
construct the building according to the other design professionals. Through the law to provide for the equitable
specifications furnished implied that the passage of licensing statutes, the distribution of liability in construction
they understood the plans.” Legislature determined that in the cases between all parties, including
interest of public health and safety, a owners and design professionals.
“We are of opinion that Thos. Lonergan certain degree of knowledge is necessary Everyone comes to the table and is held
Co., having failed to comply with their for a person to hold themselves out to responsible for the results of their own
agreement to construct and complete the public as a design professional. In work. Period.
the building in accordance with fact, the applicable statutes include
Texas Construction Association 5
Securing the Construction Team's
Retainage Loan
Section 53.101 of the Texas Property The reality is that retainage is a loan 100% of the value of the project, funds
Code states “the owner shall retain by the construction team to the owner. up to 90 percent of the construction
10 percent of the contract price of the The owner financing the construction costs during construction, and the
work to the owner”; and Section 53.102 with a bank loan will rarely borrow construction team members finance
states, “the retained funds secure the money to fund its retainage obligation the remaining 10 percent through
payment of artisans and mechanic deductions in their pay requests.
who perform the labor or service and
the payment of other persons who The bank’s loan is secured by a deed
furnish material, material and labor, of If owners want to of trust. When executed and timely
specially fabricated material…” While filed, the deed of trust provides a high
typically 10 percent is being deducted continue to finance priority lien on the property. The
from contractors and subcontractors construction team’s loan is unsecured
monthly pay requests, it has become
10% of their projects unless a retainage lien under Chapter
apparent that the amount deducted, on the backs of the 53 is perfected. Even then, that lien is
known as “retainage”, is not being put secondary to the bank’s deed of trust. In
aside for the benefit of the artisans, construction team, the the event of a foreclosure by the bank,
mechanics, and material suppliers. all mechanics liens, are wiped away --
construction team's the bank’s loan trumps the construction
It is common practice in the team’s. If owners want to continue to
construction industry that an owner retainage loan needs finance 10 percent of their projects on
who is not self-funded usually the backs of the construction team,
borrows only 90 percent of the to be protected. the construction team’s retainage loan
monthly construction costs during a needs to be protected. This can be
construction project. The 10 percent done by ensuring that a perfected lien
retainage has not been borrowed by for retainage survives the foreclosure
the owner; therefore, the owner is not until the end of a project when of the bank’s lien on a project. Only
paying interest on the retainage, and the retainage is due to the original then will the current retainage system
the lender is under no obligation to contractor. Instead, the owner borrows be just and reasonable.
release the money if an owner defaults from the construction team. Thus, the
on the construction loan. bank holds a note and deed of trust for
LET'S GET SOCIAL
We are ready to
connect with you!
YouTube Texas Construction Association
Like, Follow Twitter TX ConstructionAssoc
or @Texcon1
& Subscribe Facebook Texas Construction Association
Scan To Get
LinkedIn Texas Construction TCA
Started!
Instagram Texcon1
Texas Construction Association 6
Texas' Broken Lien Laws
Need A Remodel
The lien laws in Texas are broken. In line with the Texas Constitution, the in the construction chain; and owners
Of all the states, Texas has the most Legislature has enacted laws dealing do not necessarily have knowledge of
burdensome and complex lien law with the statutory lien rights for all the subcontractors and suppliers on
scheme. Due to its complexity many people furnishing labor and material a project who have a right to file a lien.
subcontractors and suppliers fail on private work. These lien rights All of these can serve as a trap for honest
to comply with the statutory filing provide security to the contractor, mistakes which prevent claimants from
requirements. People who provide labor subcontractor, and supplier in exchange protecting their lien rights or result in
or materials should not be required for the improvements being made to surprise liens for owners.
to navigate thru a statutory quagmire the owner's property.
in order to establish a lien for unpaid TCA has been working with several
work and materials. Unfortunately, as the Legislature has other groups to craft legislation to
amended Chapter 53 of the Property address the broken Texas lien law
The Texas Constitution, as adopted Code in piecemeal over the last system. Simple changes such as
in 1876, Article 16, Sec. 37, states that century, the result has been current updating and clarifying definitions,
“Mechanics, artisans and materialmen, liens laws that are difficult for attorneys allowing email delivery of notices and
of every class, shall have a lien upon the to decipher and nearly impossible eliminating the second month notice,
buildings and articles made or repaired for the lay person to understand. The will go a long way toward making
by them for the value of their labor problems presented in perfecting lien the lien process more accessible to
done thereon, or material furnished rights are numerous: often it is difficult contractors. Chapter 53 of the Property
therefor[e]; and the Legislature shall to obtain the legal description of the Code may need a complete rebuild, but
provide by law for the speedy and property or the name of the owner; even a remodel will benefit everyone
efficient enforcement of said liens.” deadlines for filing notices vary and involved in construction.
depend on the position of the person
Spotlight on Executive Director
Beverly Reynal
North Texas Chapter of the
American Subcontractors Association
Since 2014, Beverly Reynal, a graduate of Texas A&M University, has been
energetically serving in the role of Executive Director of the American
Subcontractors Association North Texas Chapter. In addition, she is presently
serving as the National ASA Executive Director Council Chair.
Beverly has spent more than 25 years as a force in the Dallas/Fort Worth
Construction Industry. During 18 of these years, she was one of the few female
salespersons specializing in the field of commercial concrete. Just prior to joining
the staff at ASA, Beverly participated as a member in the activities and events of
the ASA North Texas Chapter, National Association of Women in Construction
and the TEXO association, while simultaneously serving on the board of directors
for both ASA and NAWIC.
Her husband, John, the President of Encore Mechanical, is a member of ASA-NTC.
Together, they have inspired both their daughters to pursue higher education
related to the construction industry. Beverly promotes Texas Construction
Association and the ASA North Texas community, helping to further the success
the Chapter has contributed to the Texas construction industry. Texas Construction Association 7
The Texas Legislature is involved in your business.
Its decisions affect the way you do your business every day.
The Legislature passes or defeats laws involving your taxes, your tort liability, your contracts,
your insurance protection, the roads you travel, the education and regulation of your
workforce, and a myriad of other issues.
To have a say in these issues, you have to be involved.
How do you get involved? Contribute to the TCA PAC.
The TCA PAC is organized to make contributions to individuals running for the Texas
Legislature and non-judicial statewide offices. Funds are also used to support grassroots
efforts by TCA members.
Why should you contribute to the TCA PAC? The TCA PAC is able to pool the resources of
numerous construction industry members to have a greater impact than a single individual.
Is this really important? YES! TCA’s advocates must have the ability to make contributions
to candidates who share your viewpoint. If you don’t have a well-funded PAC, you are at a
disadvantage because it is guaranteed that your opponents do.
To contribute, visit the TCA PAC website at www.tcapac.org.
Texas Construction Association PAC
Meet Your Texas Constructi
Alan
Alan Burrows is a lobbyist with nearly 20 years of experience working in and around the Texas
Capitol. He first began working in the Legislature during the 2001 legislative session and over
the following eight years worked for Republicans and Democrats in both the Texas House and
Senate. Prior to the 2009 legislative session, he established his own lobby practice and counts
the Texas Construction Association among his first clients.
Alan is a graduate of the University of Texas at Austin. Outside of work, Alan enjoys
swimming, cycling and live music when live music was a thing.
Fun Fact: This past summer, while cycling at Valles Caldera Natural Preserve, Alan stood down a black bear!
Clint
Clint Hackney is a lobbyist and government affairs attorney in Austin, Texas and Washington,
D.C. Periodically Clint can be heard on radio stations nationwide as the author of Tales of
American Political History, a weekly program consisting of political stories of our past.
He was born in Lufkin, Texas where he graduated from high school in 1970. He received a
B.A. in Political Science from Texas A & M University in 1974 where he was a member of the
Corps of Cadets and Ross Volunteers along with many other activities. After undergraduate
school, Clint served as a First Lieutenant in the U.S. Army as a paratrooper. Afterwards, he
studied Comparative Laws at Oxford University in Oxford, England in 1976 and received a
law degree from the University of Houston Law Center in 1977.
Clint was elected to the Texas House of Representatives in 1980 at the age of 28. He served there for eight years representing
a District in Northwest Houston. While serving in the Legislature Clint chaired both the House Elections Committee and
the House Energy Committee and, among his handiwork in the Legislature he helped rewrite the Election Code in 1985 and
played major roles in creating the Texas Department of Commerce (now the Economic Development and Tourism Office)
and establishing the state’s Rainy Day Fund.
After an unsuccessful statewide campaign, Mr. Hackney moved to Austin to use his expertise in government and public
policy. Along the way, Hackney has been a commentator on the Texas State Radio Network, created and owned a commuter
bus company, served as Director of Cornerstone Savings and Loan, been active with the Southwest Energy Council and been
active in various civic and non-profit organizations.
In addition to his duties to his clients, he enjoys spending time with his lovely wife Susan, his 4 children and 6 grandchildren,
and he somehow manages to play some golf and see a lot of baseball.
Fun fact: After receiving his college degree and serving in the Army, Clint landed what he says was “the best
job I ever had.” He went to Houston and sang and played light rock guitar at Steak & Ale Lounges, as
well as his favorite Bar, Marky Farky’s on Allen Parkway.ion Association Lobby Team
Eric
Eric Woomer is a governmental affairs consultant and lobbyist with extensive senior leadership
experience advising legislators at the state and national level as well as business interests ranging
from Fortune 100 companies to trade associations to family-owned businesses.
Eric has served as Chief of Staff and Legislative Director to three Texas state senators, both
Republicans and Democrats, representing areas as diverse as the Texas Panhandle and the Houston
Ship Channel. Additionally, Eric served as Press Secretary for U.S. Congressman J.J. “Jake” Pickle,
and as a Senior Policy Advisor to U.S. Senator Kay Bailey Hutchison.
In 2010, Eric opened Policy Solutions, a full-service public affairs consulting practice. Eric offers
his clients legislative tactical guidance and policy expertise on matters related to energy & water,
natural resources, health care, economic development policy, and the state budget. These abilities
are complimented with media management skills and compelling collateral writing – speeches, legislative hearing testimony,
press conferences & communications materials, briefings, newsletters and white papers.
A 1988 National Merit Scholar, Eric received a Bachelor of Arts degree in Government from the University of Texas in 1993.
In 2002, he obtained his Masters of Public Affairs from the University of Texas’ Lyndon Baines Johnson School of Public
Affairs. He also received the LBJ Award for Academic Excellence, presented annually by former First Lady “Lady Bird”
Johnson to the school’s top graduates.
Eric resides in Austin, Texas with his son, Jackson.
Fun fact: Eric was born in Malawi, Africa, while his parents served in the Peace Corps.
Jocelyn
Jocelyn Dabeau is a lobbyist and attorney with nearly 20 years of experience advocating on behalf
of clients across a wide variety of industries, including before the Texas state legislature and many
state agencies. Dabeau received a B.A. in government with high honors from the University of
Texas at Austin and a J.D. from Harvard Law School.
Dabeau began her career in Dallas, Texas at the law firm of Thompson & Knight, LLP. She then
spent six years working as legal counsel for Texas Instruments, followed by a turn as General
Counsel and policy advisor for the Texas Health Services Authority. She opened her own law and
lobby practice in 2011.
Throughout her career, Dabeau has been active in public service, assisting several non-profit
entities with their fundraising and public relations efforts, as well as working in direct service roles in her community.
Dabeau has also served on the Board of Directors for the Downtown Austin Neighborhood City and the Original West
Austin Neighborhood City, has been an attorney ad litem and a CASA representing children in child custody cases and is
currently on the board of the Harvard Law School Association of Austin.
Fun fact: In her free time, Jocelyn enjoys spending time with friends on Lake Austin, dancing, and
finding new dog-friendly patio spots for herself and her two pups, Charlie and Lizzie.Workforce Development &
Public Education
During the 2019 session, lawmakers on CTE; the remainder may be spent an educator preparation program).
recognized that successful workforce in other areas at the discretion of the However, one major barrier to hiring
development occurs when public school board. Most districts spend former professionals is teacher pay:
education (K-12), post-secondary more than that, but many do not spend districts cannot start those teachers
education and employers work closely all the money designated for these at a higher pay scale to align with
together, and when technical job programs. their years of work experience in
training is properly funded. In the order to be competitive in the market.
upcoming 2021 legislative session, the House Bill 334 filed by Rep. Gary Gates The Legislature and the education
Texas Construction Association along for consideration by the Legislature community should consider an “out
with the Texas Workforce Coalition in 2021, would increase the required of the box” solution such as allowing
and its partners will work with the spending of the CTE-weighted stipends to augment salaries, or signing
Legislature to build on this success allotment to 90%. Adopting such a bonuses, or allowing districts to start
and ensure that everyone understand measure would not only increase CTE salaries at a higher pay-level. Any
the needs of employers so that talent offerings to students, but it would of these solutions should be funded
pipelines are filled with skilled and also send a strong message to school through the CTE-weighted allotment.
educated prospective employees administrators about the importance of
CTE to Texas school children. CTE Programs of Study
K-12 Public Education Funding Within the state’s A-F accountability
The Career and Technology Education Another funding issue for the system, there are certain indicators
(CTE) allotment in the Texas state 2021 Legislature relates to student by students that help school districts
budget is the amount sent to individual transportation. It may seem trivial, receive credit (or a ratings boost) in the
school districts to support the provision but currently, high school students student achievement domain for career
of CTE to its students, traditionally in who participate in work-based readiness. These indicators are based
high school grades, but the Legislature learning opportunities (internships, on how many students achieve one of
added middle schools in 2019. Also in apprenticeships, etc.) can get to the the following:
2019, the Legislature set the minimum company or work site on a school • Earn an industry-based
percentage that school districts must bus only through a set route, or by certification;
spend on CTE programs from the driving themselves. For some students, • Complete a coherent sequence of
CTE-weighted allotment at 55%. That driving their own car or ensuring their CTE courses (this is discounted to
means that school districts receive a internship is on a school bus route is 1/2 credit point);
set amount of money from the state not feasible. A statutory change would • Complete a level I or level II
associated with CTE and they are be needed to allow vehicles other certificate; or
required to spend 55% of those funds than buses to be used for work-based • Complete one of the approved
learning transportation, industry-based certifications
and for school district (IBCs).
costs, including bus
and train passes, to be The current list of approved IBCs is
covered by the CTE woefully incomplete and the Texas
allotment. Education Agency’s (TEA) evaluation
process for revising the list is inefficient.
Finally, the “school In fact, TEA recently announced that
district teaching permit” the next evaluation process will not
is used widely by districts be completed until the 2022-2023
who seek to hire former school year. This means that the input
industry professionals provided by employers about future
as CTE teachers (those workforce needs in 2020 will not
not certified through be incorporated into classroom
Texas Construction Association 12Workforce Development & Public Education Continued...
curriculums until the 2023-2024 school with a higher education partner to if community colleges could opt into
year. Therefore, to improve efficiency, serve their needs, the law should allow a similar funding model for their non-
the responsibility for evaluating and a community or junior college the first credit courses – technical training,
revising the IBC list should be given to right of refusal to meet those needs certifications, credentials, continuing
another agency – either the State Board of its community’s employers. If the education, workforce training – that
of Education, the Texas Workforce community college is unwilling or mirrors TSTC’s “returned value”
Commission, the Texas Workforce unable, local employers should be able formula? Like TSTC, students would be
Investment Council, or all three. to invite competing higher education tracked into the workforce to determine
Additionally, the IBC list should include and workforce training providers, most job placements and wages, so data
certifications that students can start in likely from neighboring communities, coordination would be a priority.
high school and finish postsecondary. to partner with them. This will broaden
opportunities for students while better Regardless of whether an outcomes-
Additionally, there is currently no meeting the workforces needs of based funding option is adopted for
study or report on “the state of CTE” employers. community colleges, employers want
in public education. To truly study
an issue, it is imperative that data and
other information be collected and
published for public consumption.
Therefore, employer groups, including
TCA and the Workforce Coalition,
will encourage the 2021 Legislature to
require the Texas Education Agency
(TEA) to produce a robust report about
CTE every two years.
Post-Secondary Education
Post-secondary education and training
programs are vital to maintaining
and growing an effective workforce, Post-Secondary Funding and need better alignment of data
and while the pandemic will provide Employers strongly support the Texas collection between the Texas Higher
challenges for the next state budget State Technical College (TSTC) model Education Coordinating Board, the
cycle, now is NOT the time to cut of outcomes-based funding that pays Texas Workforce Commission and the
technical training and workforce the system based on its graduates’ Texas Education Agency in order to
programs. The current economic income. This unique approach is collect consistent metrics. State agencies
recession and high unemployment laser-focused on quality instruction must collect, share and distribute robust
rates mean Texas should reallocate and job placement, not the contact- data on careers, wages, education and
resources to up-skilling and re-skilling program outcomes to better serve
to get more Texans trained for the jobs employers and to inform students’
that remain, often middle skill trades. "...local employers decisions about their education and
In that vein, it is important to match the ultimately, return on investment.
should be able to
employers’ workforce needs with post-
secondary educational offerings. invite competing Education and workforce development
efforts are key to continued operations
Unfortunately, geographical boundaries higher education and and growth of industry, and the
of community colleges can be barriers Texas Construction Association is
to quality programs in certain areas of workforce training committed to working with legislators,
the state, either by programs offered staff, and other stakeholders like the
or geography served, but especially in providers..." Texas Workforce Coalition to improve
service areas outside that community our state’s education-to-workforce
college’s authorized taxing districts. hour models currently in place for pipelines, and to remove legislative or
For employers seeking to collaborate community colleges. However, what regulatory barriers.
Texas Construction Association 13Pandemic Liability Protection Legislation
by George S. Christian, Texas Civil Justice League
With pre-filing of legislation for the and other entities. Because the Texas Court has developed a substantial
upcoming 2021 legislative session Constitution adopts the common body of precedent interpreting those
already under way, Texas Civil Justice law of England as the law of decision statutes, as well as made rule changes
League (TCJL) will propose a package in state courts (codified in § 5.001, and judicial decisions unique to our
of protections from COVID-19-related Civil Practice & Remedies Code), it is jurisprudence. Any federal law in this
liability for health care providers, unclear whether the Governor has the area will merely establish a floor. Texas
businesses, employers, product necessary authority to issue executive law is in some respects better for civil
manufacturers and distributors, non- orders suspending or modifying defendants than the federal proposals
profit organizations, currently on the table,
religious organizations, and legislation tailoring
schools and universities, liability protection to our
and local governments. law will provide a higher
The proposed legislation is level of liability protection.
currently undergoing the The federal proposals are
drafting and preparation also temporary and limited
process at the Texas to the novel coronavirus.
Legislative Council and TCJL’s proposal, on
will soon be available to the other hand, will be
TCJL members for review permanent and apply not
and comment. only to the current crisis,
but to any future pandemic
TCJL staff has been emergencies as well.
working with members of
the TCJL Pandemic Task The centerpiece of TCJL’s
Force, as well as allied organizations, its operation in tort litigation. The proposal is a strong liability shield
since the summer to develop the Legislature, consequently, must act protecting a person, including the
proposal. To assist the work of the Task in order to follow our sister states in person’s agent or employee, from
Force, we enlisted the counsel of three making sure that the pandemic crisis an action alleging personal injury
of the state’s pre-eminent attorneys and does not become a litigation crisis for or death resulting from another
legal experts: former Texas Supreme those who have acted in good faith, person’s exposure to a pandemic
Court Chief Justice Tom Phillips, either to deliver the critically needed disease (i.e., a disease that the World
former Senator and Chancellor of the treatments, drugs, equipment, and Health Organization or U.S. Centers
Texas Tech University System Bob vaccines to those afflicted by the virus, for Disease Control and Prevention
Duncan, and the League’s longtime or to the businesses and other entities declare as a pandemic). The proposal
consulting litigation counsel Shannon who have followed appropriate public requires a person alleging the exposure
Ratliff. They have provided invaluable health guidelines to prevent or mitigate to establish by clear and convincing
insight and advice on the specific the spread of the virus. evidence that:
language of the proposal and bringing • The claimant’s harm resulted from
it to the point of formal drafting. Regardless of whether Congress enacts the defendant’s gross negligence;
liability protections at the federal • Reliable scientific evidence
More than 20 state legislatures level (which looks uncertain at best), establishes that the defendant’s
have enacted some form of liability the Legislature must still put Texas- conduct was the cause in fact of
protection from exposure to the novel specific laws on the books. Since the the claimant’s exposure; and
coronavirus, and the governors of advent of the tort reform era in the • The claimant suffered serious
some others have issued executive mid-1980s, the Legislature has adopted bodily harm or death as a result of
orders extending a liability shield numerous statutes modifying the contracting the disease.
to health care providers, businesses, common law, and the Texas Supreme Continued on page 17...
Texas Construction Association 14Our TX Mutual Safety Group program our members. This is a combination
is continuing to have phenomenal of the regular dividends along with the
success in growth, dividends and safety group dividend. Dividends are
loss ratios. As of November 30, we not guaranteed, but Texas Mutual has a
had reached a group premium of $73 track record of never missing a year in
million with 1788 policy holders. Our paying one. The longer a company is
current loss ratio is 24.1% which has us insured with Texas Mutual and in the
comfortably in dividend range so far group, the higher the percentages can
for this term. The payroll represented be. The Texas Mutual dividend has a
for our members is almost $3.8 billion. loyalty component to it.
Thank you to all of the TCA members Accessing the insurance group is
who are utilizing this benefit. Your simple. Just ask YOUR agent to request
participation makes the work of TCA a quote in the group from Texas Mutual.
possible. Additional answers can be found at
To those of you who aren’t participating www.TXConstructionWC.com or by
currently, the examples below might be calling me, program administrator,
Gina O’Hara
eye-opening to you. This is the Texas Gina O’Hara at 512-330-9836, ext.
Program Administrator for
Mutual dividend history for three of 6324. info@txconstructionwc.com
Texas Construction Safety Group
Texas Mutual Dividend Examples
Example 1 - Painter
Company TCA Safety 5 Yr. Net % Premium
Policy Effective Total Premium Dividends Group Dividends Premium Returned
2015-2020 $194,159 $129,241 $16,348 $56,570 70.86%
Example 2 - Mason
Company TCA Safety 5 Yr. Net % Premium
Policy Effective Total Premium Dividends Group Dividends Premium Returned
2015-2020 $565,940 $175,100 $46,277 $344,563 39.12%
Example 3 - Electrician
Company TCA Safety 5 Yr. Net % Premium
Policy Effective Total Premium Dividends Group Dividends Premium Returned
2015-2020 $98,994 $33,735 $7,095 $58,164 41.24%
Texas Construction Association 15Commercial Vehicle Litigation
By the Numbers
by Texans for Lawsuit Reform
As we’ve all seen in the past few months, Transportation (TXDOT), but many do insurance, ranging from a minimum of
our wellbeing depends on commercial not. Of those registered with TXDOT, a $300,000 to a maximum of $5 million.
vehicles delivering services and goods great majority are small, “mom and pop” Many carry more insurance than the
to distribution centers, retail outlets operations. In fact, nearly 88 percent minimum, with layers of insurance
and our front doors. It’s big business reaching into the multi-millions.
and it is essential. Unfortunately,
lawsuits against commercial vehicle Motor vehicle accident In addition to having a substantial
owners and operators have also become amount of insurance available to
big business for the cadre of plaintiff lawsuits in Texas have pay crash-related damages, many
lawyers who are endlessly searching for companies running commercial
another big payoff.
been increasing. vehicles have tangible assets that can be
subject to judgments. In other words,
Commercial vehicle litigation is of active carriers registered in Texas through insurance and their own assets,
reaching a tipping point that, unless operate 10 or fewer vehicles. We believe these companies have deep pockets,
addressed by the Texas Legislature, will many of the commercial vehicles that which are irresistible to personal injury
result in business failures, increased are not registered with TXDOT are also trial lawyers.
costs of doing business for the operated by small businesses, providing
companies that survive, and increased services that range from swimming Trial Lawyer Targeting of
costs for the goods and services we pool cleaning to pest control. These are Commercial Vehicles is Working
all need. We simply can’t allow these small business owners doing their part Personal injury trial lawyer ads
essential businesses to continue serving to create jobs and make a living. And all seeking clients to file car crash lawsuits
as punching bags for personal injury of them are targets for personal injury are ubiquitous on television, in
trial lawyers. lawyers because they all have deep newspapers and on billboards. Many
pockets. of the advertisements specifically seek
Defining the Players clients to sue owners and operators of
Commercial vehicles fall into a number Yes, even the mom and pop operators commercial vehicles. The advertising
of classes, from minivans used to of commercial vehicles have “deep seems to be working.
deliver flowers to big rigs that carry pockets” because a commercial
goods across the nation. Some must vehicle operating in Texas must carry Motor vehicle litigation is increasing
register with the Texas Department of a substantial amount of liability in Texas, while other kinds of personal
injury litigation are decreasing.
Breaking Down Commercial Vehicle Litigation in Texas According to the Texas Office of Court
Administration, the number of motor
vehicle lawsuits has increased steadily
since fiscal year 2008, climbing 118
percent from fiscal year 2008 to fiscal
year 2019. During the same period,
other kinds of injury and damage cases
decreased seven percent.
In addition to an increase in the
number of lawsuits involving a motor
vehicle of any kind, the lawsuit-to-
crash ratio is increasing over time. By
Source: Texas Department of Motor Vehicles, Office of Court Administration, Texas Department of Transportation. 2019, Texas had reached the point that
a lawsuit was filed in about one out of
Texas Construction Association 16Commercial Vehicle Litigation Continued...
10 vehicle crashes. Just 11 years earlier, Trucking’s Contribution to the Texas Economy
in 2008, the lawsuit-to-crash ratio was
one in 17. This is a 71 percent increase
in the lawsuit-to-crash ratio in only 11
years. Anecdotal information we have
received indicates the lawsuit-to-crash
ratio may be closer to one in five if a
large truck is involved.
Based on the data, it appears Texas is
moving toward a litigation environment
in which a collision with a truck—no
matter who is at fault and no matter the
severity of the event—is an opportunity
to hire a plaintiff ’s lawyer promising
riches. That is simply not a place we can
afford to go. Source: Texas Department of Transportation
Pandemic Liability Protection Legislation Continued...
Moreover, to maintain the lawsuit, the the proposal, a product provider is not produced a proposal applicable to
claimant must serve the defendant with liable unless it: physicians and health care providers
a report by a qualified expert setting • Had actual knowledge of a defect (including first responders) that closely
out the factual and scientific basis of the when the product left its control; parallels the placeholder language in
claim (as currently required for health • Acted with deliberate intention, the TCJL draft. This language will be
care liability claims). actual malice, or reckless disregard substituted into the TCJL draft so that
in designing, manufacturing, we go forward with identical proposals.
In addition to these heightened labeling, selling, or donating the It will protect providers from liability
requirements for establishing liability, product; and except in the case of reckless conduct
the proposed legislation also creates • The defective product presents an or intentional, willful, or wanton
an affirmative defense to liability if unreasonable risk of substantial misconduct. It will also extend
the defendant acted in compliance or harm to the person using or protection beyond the immediate
consistent with one of the following: exposed to the product. context of providing treatment to
federal or state law or regulations, persons exposed to the virus to the
a presidential or gubernatorial The same standards apply to a claim collateral effects of the pandemic, such
executive order or declaration, an based on a failure to warn or the as delaying or canceling scheduled
action of a local government entity, provision of inadequate instructions procedures, office visits, diagnostic
or recommendations or guidance of a regarding the use of the product. They tests, or other treatment of a non-
public health authority. also apply to a governmental unit, health pandemic disease or condition. These
care provider or institution, educational protections will be in addition to those
TCJL’s proposed legislation also institution, non-profit organization, applying to emergency care under
provides robust protections for product first responder, or a business, including current law.
manufacturers, distributors, sellers, an agent or employee of the business,
and other providers of products used that selects, distributes, or uses a With these proposed changes in place,
to treat, prevent, or mitigate the spread product. Texas will be better positioned to
of a pandemic disease. The legislation properly address liability related to
contains a broad definition of qualified Health care provider organizations the current COVID-19 pandemic and
products, including vaccines, drugs, operating under the umbrella any future pandemics that may occur.
and treatments; medical devices, organization Texans Allied for Patient Doing so is necessary to assign liability
equipment, and supplies; personal Access (TAPA), including TCJL appropriately during difficult times.
protective equipment; sanitization members Texas Medical Association
products; and diagnostic tests. Under and Texas Hospital Association, have
Texas Construction Association 17Texas Economic
Protection & Recovery Act
Texas job creators and workers have
Texas (ASSET), TCA is advocating employ millions of Texans.
suffered massive uncertainty due to
for smart economic policies that
the pandemic, hurting families andwill allow job creators to not only The Texas Economic Protection and
our economy. Small, medium and operate, but thrive, and continue to Recovery Act (TEPRA) will help
large businesses alike have all tried restart our economy and encourage
valiantly to continue operations and We need smart job creation and investment in all
maintain staffing levels, but as the corners of the state. By focusing on
COVID-19 health crisis continues economic policies that core principles such as local mandate
it is getting harder and harder preemption, liability protections,
for businesses to operate at pre-
will allow job creators and workforce development,
pandemic levels. to not only operate, TEPRA will ensure that job creators
in Texas do not have their hands
As one of the twenty-two business but thrive, and tied by policies that hurt economic
and industry association members growth. Allowing job creators to do
that have joined together to form
continue to employ what they do best is the key to the
the Alliance for Securing and millions of Texans. state’s ability to recover and come
Strengthening the Economy of back stronger than before.
Texas Construction Association 18Texas Construction Association Annual Report SPECIAL ADVERTISING SECTION
CONSTRUCTION AND
COVID-19 SAFETY
Recommended Safety Precautions
See TCA’s home page at www.texcon.org
for more extensive resources on COVID-19.
• MONITOR local, state and federal • LIMIT in-person meetings as much as
authorities’ recommendations concerning possible, limit the number of workers
the pandemic. Use the latest information to in attendance, and implement social-
inform safety protocols on the jobsite. distancing practices.
• SHARE information about the pandemic • IDENTIFY and minimize choke points where
with employees. workers stand together, such as hallways,
hoists and elevators, ingress and egress
• TRAIN workers on the signs and symptoms points, and break areas.
of COVID-19 and how the disease is
spread, including that infected people can • KEEP 6 ft of distance between passengers
spread the virus even if they do not have in elevators and personnel hoists, and
symptoms. equip operators with the appropriate
respiratory protection and other PPE.
• DISINFECT all shared spaces, as well
as portable toilet and hand-washing • COORDINATE site deliveries for minimal
facilities. Keep hand-sanitizer dispensers contact. Have delivery personnel remain in
filled and readily available. their vehicles if possible.
• PRE-SCREEN workers before entry to assess • ADOPT staggered work schedules. Provide
potential exposures and circumstances in alternating workdays and/or extra shifts to
the work environment. help minimize the number of employees on
a jobsite at a given time.
• ENFORCE the wearing of masks over noses
and mouths to help prevent spreading the • ENSURE that shared indoor spaces have
virus in aerosol droplets. good airflow, such as by turning on an air-
conditioner or opening windows.
• ENACT tight controls over jobsite access,
including screening of all visitors to a
construction site in advance of arrival.
• EDUCATE the workforce on the types,
proper use, limitations, locations, handling,
decontamination, removal and disposal
of any personal protective equipment
(PPE) being used.
Texas Construction Association 19
36 | December 7/14, 2020 enr.com/texas-louisiana/resources/SpecialAdLargest Dividend in TCA's History
Year 2020 saw some remarkable, historic events. One event in which many TCA Member
Companies shared was the distribution of $4,800,000 in Safety Group dividends from Texas
Mutual Insurance Company, the leading workers' compensation insurance company in Texas.
The TCA Member Companies receiving group dividends (these are in addition to the individual
company dividends from Texas Mutual) were
those who are insured with Texas Mutual
in the Texas Construction Safety Group.
With over 1,700 TCA Member Companies,
the Texas Construction Safety Group is the
largest such group in Texas. Congratulations
to TCA Member companies in the Safety
Group! Keep up the great work of elevating
Safety to the highest priority level at the office
and on job sites. It pays!
In 2020 TCA Member
Companies shared Built to Last.
$4,800,000
Our group constructs bigger dividends and a safer workplace for you.
Members of the Texas Construction Safety Group are
eligible to receive extra dividends, a greater discount on their
in Safety Group workers’ comp premiums and more. If you are committed to a
higher level of safety, join other leaders in your field to
dividends from
maximize the rewards. Be part of a safer Texas.
To learn more about becoming a member, contact
Texas Mutual
your agent or Gina O’Hara at (979) 774-6238 or
info@txconstructionwc.com.
Insurance Company
JOIN US! While we can’t guarantee dividends every year, Texas Mutual has returned
$3.1 billion to safety-conscious policyholder owners since 1999.
© 2 020 Texas Mutual Insurance CompanyYou can also read
