THEATTOFZNEP GETNEEZAL 

QFTEXAS 

Honorable Joe M. Chapman 

Chairman, Judiciary Committee 

House of Representatives 

Austin, Texas 

Opinion No. C-79 

Re: Constitutionality and construction 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 negligence in design and construction of property after such property has been accepted 

by the owner? 

“3. With the adoption of the amendment, would the bill relieve the builders, 

architects, etc. of liability for negligence 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 injury 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 instructions~ 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 accordance~wlth plans, specifications, and lnstructlons 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; providing that the provisions of the Act shall not 

apply to actions based on negligence; repealing 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 affected for Injury done to the person of another, 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 maintained 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 action 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 materlalman, contractor or builder that he furnished 

his materials and performed his work In 

accordance with plans, specifications and instructions of the architect, engineer or owner; 

and for the architect or engineer that he prepared 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. ~~A11 laws 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 remaining portions thereof; It being the Intention 

of the Legislature to pass the constltutional 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, archltects and engineers to new risks and contingent llabllltles for accidents caused~ 

by conditions existing on property belonging 

to other persons, after they have rellnqulshed possession and control of the premises, has caused confusion and uncertainty; 

create an emergency and an Imperative public 

necessity that the Constitutional Rule requiring 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 following 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, builder, architect, engineer, materialman, laborer,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 S upreme 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 exceptions which, as In the cases of products 

liability, have largely emasculated the 

rule but should now disapprove the doctrine 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 particular 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 distlnction be made between an injury occurring 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 (consldering 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 lssue 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 therefrom 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 

then notion 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 nevertheless be held Immune from liability solely 

because his work has been completed and accepted 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. !Thls defect is unnoticed 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 defectively fastened handrail is automatically cut 

off by the owner's acceptance of the premises? Should negligent Inspection excuse 

negligent construction, or should acceptance of a structure in a dangerous condltion because of a hidden defect cut off a 

contractor's liability? At least, under 

such a factual situation and others similar 

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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. Rowe need-not, 

however, reI:y upon exceptionsin this case 

as liability Is fixed by the general rule 

of tort llablllty. 

"Wee see no difference in applicable 

principle between the hypothetical case 

given and the one actually before.us. AS 

pointed.'out in footnote 4 of the original 

opinion, the ~jury ~found from evidence, sufficient in law thatthe hoIe left by Qehring was 'Inherently dangerous.' In determining whether a condition is 'inherently 

dangerous' under circumstances like those 

before us in this case; the question 'of foreseeability of resulting harm Is clearly involved." 

Thus it is seen that the proposed legislation Is de& 

signed to'establlsh In this State whatls known as the 'accepted 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. 

Board, 298 s.w.2d 946 (Tex.Civ.App. 

Wilson v. Naturopathic 

-den. 78 s.ct. 121, 1958). 

1957 , error re ., n.r.e., 

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,ates the 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. 

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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 liability 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~r inherently 

dangerous conditions which were brought about by the negligent 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 provisions of Section 1 and Section 2 are 

in irreconcilable conflict. 

Senate Bill 255, with Committee Amendment No. 1, Is valid, since It is within 

the province of the Legislature to prescribe 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 

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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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