        THEATTOFZNEP              GETNEEZAL
                      QFTEXAS




Honorable Joe M. Chapman
Chairman, Judiciary Committee
House of Representatives
Austin, Texas
                            Opinion No. C-79
                            Re:   Constitutionality and con-
                                  struction of Senate Bill
Dear Mr. Chapman:                 255 of the 58th Legislature.
       Your request for an opinion on the above subject
matter poses the following questions:
            "1. Is the bill with its proposed
       amendment constitutional?
            "2i If the bill is passed without
       the amendment will It relieve builders,
       architects, etc. from liability for negli-
       gence in design and construction of proper-
       ty after such property has been accepted
       by the owner?
            “3.  With the adoption of the amend-
       ment, would the bill relieve the builders,
       architects, etc. of liability for negli-
       gence in design or construction?"
       Senate Bill 255, referred to in your request, reads
as follows:
            "AN ACT
       limiting the liability of laborers, mechanics,
       materialmen, contractors, builders, architects
       and engineers who are not also owners of the
       lands, improvements, or machinery affected,
       for Injuries done to the person of another or
       for trespass for Injury to the estate or the
       property of another as a result of conditions
       existing on lands or of buildings, machinery


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Hon. Joe M. Chapman, Page   2 (C-79)


      or other work or improvements constructed,
      installed orperformed thereon where such in-
      jury or trespass occurs after possession of
      the premises was delivered to the owner upon
      completion;~and providing a defense to any
      such action, for the laborer or mechanic that
      he performed his work according to the instruc-
      tions~of the contractor, builder, architect,
      engineer or owner, or for the materlalman,
      contractor or builder that.he furnished his
      materials and performed his work in accord-
      ance~wlth plans, specifications, and lnstruc-
      tlons of the architect, engineer or owner;
      and for the architect or engineer that he
      prepared his design, plans and specifications
      and issued his instructions in accordance
      with the Instructions of the owner; provid-
      ing that the provisions of the Act shall not
      apply to actions based on negligence; repeal-
      ing all laws In conflict herewith; providing
      a savings clause; and declaring an emergency.
"BE IT ENACTED BY THE LECISLATCHE OF THE STATE OF TEXAS:
           "Section 1. No action against a laborer,
      mechanic, materialman, contractor, builder,
      architect or engineer who Is not also owner
      of the lands, improvements, or machinery af-
      fected for Injury done to the person of an-
      other, as the result of conditions existing
      on lands or of buildings, machinery or other
      work or Improvements constructed, installed or
      performed thereon, shall be brought or main-
      tained by the person injured or the person whose
      property or estate has been injured if such
      trespass or injury occurred after possession of
      the premises was delivered to the owner upon
      completion. It shall be a defense to any ac-
      tion brought by the owner, for the laborer or
      mechanic that he performed his work according
      to instructions of the contractor, builder,
      architect, engineer or owner; for the materlal-
      man, contractor or builder that he furnished
      his materials and performed his work In
      accordance with plans, specifications and in-
      structions of the architect, engineer or owner;
      and for the architect or engineer that he pre-
      pared his design, plans and specifications a,nd


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    Hon. Joe M. Chapman, Page 3 (C-79)


           issued his Instructions in accordance with
           the instructions of the owner.
                "Seci 2. Nothing herein shall apply
           to actions brought against such person
           based on negligence, either active or by
           omission.
                "Sec. 3. ~~A11laws and parts of laws
           in conflict herewith are hereby repealed.
               'Sec. 4. If any.Section, sentence,
          phrase or part of this Act shall be held
          unconstitutional, such unconstitutionality
          shall not affect the validity of the remain-
          ing portions thereof; It being the Intention
          of the Legislature to pass the constltution-
          al Sections, sentences, phrases and,partsof
          this Act even though one or more Sections,
          sentences, phrases or parts shall be held to
          be invalid.
               "Sec. 5. The fact, that the Supreme
          Court of Texas has recently overturned the
          long established 'accepted work' doctrine,
          thereby subjecting laborers, mechanics,
          materlalmen, contractors, builders, archl-
          tects and engineers to new risks and con-
          tingent llabllltles for accidents caused~
          by conditions existing on property belonging
          to other persons, after they have relln-
          qulshed possession and control of the prem-
          ises, has caused confusion and uncertainty;
          create an emergency and an Imperative public
          necessity that the Constitutional Rule re-
          quiring bills to be read on three several
          days in each House be suspended, and said
          Rule is hereby suspended; and that this Act
          shall take effect and be in force from and
          after its passage, and it is so enacted."
    The amendment referred to in your request inserts the fol-
    lowing proviso between the first and second sentences of
    Section 1:
                       provided, however, that this
           Act shali not apply to any manufactured



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Hon. Joe M. Chapman, Page 4 (C-79)


       products, except those attached to lands
       or buildings contained thereon."
and substitutes the following for Section 2:
            "Section 2. This  Act is not to apply
       in situations where it has been proven by
       a perponderance of the evidence that the
       Injury was caused by either hidden dangers
       and/or inherently dangerous conditions,
       which were brought about by the negligent
       acts, or omissions of the contractor, build-
       er, architect, engineer, materialman, labor-
       er,their agents or employees."
       A reading of the emergency clause contained in Senate
Bill 255 reveals that the purpose of the Act Is to set aside
the principle of law announced in Strakos v. Gehring,    Tex .
    360 s.w.2d 787 (1962). In that case th Supreme CEiTrt
i%id that a contractor can be held liable 1: tort for In;
juries occurring after acceptance of his work if the cause
of injury is the condition In which the contractor left the
premises upon completion of his work, the Court stating at
360 S.W.2d 790:
            "We think however, in the interest of
       clarity in the statement of the law, we
       should not concern ourselves with excep-
       tions which, as In the cases of products
       liability, have largely emasculated the
       rule but should now disapprove the doc-
       trine set forth in Gorsline In 1926 that
       a contractor cannot be held liable in tort
       for injuries occurring after the acceptance
       of his work by his employer although the
       cause of injury was the condition in which
       the contractor left the premises upon the
       completion of the work. Under the particu-
       lar facts of this case it could have been
       reasonably anticipated that the leaving of
       a hole near the approach of a farm access
       gate could cause injury If the hole be left
       unfilled for a comparatively short period
       of time. It Is difficult to see why a
       failure to use ordinary care to protect
       those using the farm access road would be
       terminated by an agreement between the
       contracting parties. Why should a dis-
       tlnction be made between an injury occur-
       ring the day before the acceptance of the
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Hon. Joe M. Chapman, page 5 (C-79)

       contractor's work by the county (conslder-
       ing liability to exist at that time) and an
       Injury occurrlng'the day after the work was
       contractually accepted? The only authority
       cited in Gorsllne for the holding now in ls-
       sue was a statement from 14 R.C.L. 86 to the
       effect that an employer generally Incurs
       responslbllity to the public for defective
       work after he accepts it from the contractor.
       The fact that one who assumes control over
       a dangerous condition left by a contractor
       may be liable for injuries resulting there-
       from does not necessarily mean that he who
       creates the danger should escape liability.
       &phasls   by the Courq
            " . . .
            "Our rejection of the 'accepted work'
       doctrine is not an imposition of absolute
       liablllty on contractors. We simply reject
       thennotion that although a contractor is
       found to have performed negligent work or
       left premises in an unsafe condition and
       such action or negligence Is found to be
       a proximate cause of Injury, he must never-
       theless be held Immune from liability solely
       because his work has been completed and ac-
       cepted in an unsafe condition."
       On motion for rehearing, the Court further held, at
360 S.W.2d 802, 803:

            "By way of analogy, we may consider
       the case of a contractor who negligently
       affixed handrails to bathtubs in a home
       for aged persons. !Thlsdefect is unnotic-
       ed by an Inspector with the result that
       the building is accepted by the owner. 1%
       there any reasonable basis for saying that
       the liability of the negligent contractor
       to one injured by the use of the defective-
       ly fastened handrail is automatically cut
       off by the owner's acceptance of the prem-
       ises? Should negligent Inspection excuse
       negligent construction, or should accept-
       ance of a structure in a dangerous condl-
       tion because of a hidden defect cut off a
       contractor's liability? At least, under
       such a factual situation and others similar


                            -387-
Hon. Joe M. Chapman, page 6 (c-791


       thereto an exception to the 'acceptance
       ofthe work' rule is called for. Such 'an
       exception relating to inherently dangerous
       defects Is recognized in niuneroussjuris-'
       dictions. 58 A.L.R.2d 882.Roweneed-not,
       however, reI:yupon exceptionsin this case
       as liability Is fixed by the general rule
       of tort llablllty.
            "Weesee no difference in applicable
       principle between the hypothetical case
       given and the one actually before.us. AS
       pointed.'outin footnote 4 of the original
       opinion, the ~jury~found from evidence,suf-
       ficient in law thatthe hoIe left by Qeh-
       ring was 'Inherently dangerous.' In deter-
       mining whether a condition is 'inherently
       dangerous' under circumstances like those
       before us in this case; the question 'of fore-
       seeability of resulting harm Is clearly in-
       volved."
       Thus it is seen that the proposed legislation Is de&
signed to'establlsh In this State whatls known as the 'ac-
cepted work"~doctrine, which has been'rejected in Strakos
v. (tehrlng,supra,.
       While Section 1 provides that no action shall be
brought or maintained by the person injured if such injury
occurred after possessionof the premises was delivered to
the owner upon completion, Section 2 states "Nothing herein
shall apply to actions brought against such person based on
negligence, either active or by omission." Thus, in the
original version, It Is lmposslble~to give effectto Section
l'and.Section 2 land, therefore, ~the original'blll, in our
opinion;is invalld,for vagueness. Wilson v. Naturopathic
Board, 298 s.w.2d 946 (Tex.Civ.App. 1957 , error re ., n.r.e.,
-den.     78 s.ct. 121, 1958).
       The amendment above noted to Senate Bill 255 removes
this irreconcilable conflict. Thus,,the remaining question
to be determined on the constitutionality of Senate Bill 255
is whether the Legislature may determine the doctrine to be
applied In cases involving injury to persons or property.
It is our opinion that such Is within the province of the
Legislature. Senate B511 255 st,atesthe conditions which will
constitute a defense to a tort action and states the doctrine
to be applied In such cases. You are therefore advised that
Senate Bill 255, containing Committee Amendment No. 1, is
valid.
                              -388-
Hon. Joe M. Chapman, Page i' (C-79)


       In answer to Question No. 2, you are advised that
if Senate Bill 255 is passed without the smendment;it will
not relieve parties named In the Act from liability for
negligence in design and construction of property, after.
such property has been accepted by the owner, as the Act, as
held above, will be Invalid.
       With the adoption of the amendment, Senate Bill 255
will not relieve the individuals named in 'the Act from lia-
bility for negligence in design and construction of property
after such property hasbeen accepted by the owner, but will
require proof 'by a preponderance of the evidence that the
injury was caused by either hidden dangers and/o~rinherently
dangerous conditions which were brought about by the negli-
gent acts or omissions of the contractor, builder, architegt,
engineer, materlalman, laborer, their agents or employees.

                       SUMMARY
         Senate Bill 255 of the 58th Legislature
         without Committee Amendment No. 1, is
         invalid for vagueness, since the pro-
         visions of Section 1 and Section 2 are
         in irreconcilable conflict.
         Senate Bill 255, with Committee Amend-
         ment No. 1, Is valid, since It is within
         the province of the Legislature to pre-
         scribe conditions which will constitute
         a defense in tort actions and provide
         elements ofproof necessary to establish
         liability.
                            Yours very truly,
                           WAGGONER CARR
                           Attorney General




JR';ms




                                 -389
Hon. Joe M. Chapman, page a (C-79)

APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Qrady Chandler
J. S. Brzicewell
Edward Moffett
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone




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