HBA-NIK C.S.S.C.R. 24 76(R)    BILL ANALYSIS


Office of House Bill AnalysisC.S.S.C.R. 24
By: Carona
Civil Practices
5/7/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

The DalMac Construction Company, Inc. (company), alleges that on February
15, 1993, the company and Texas A&M University (university) entered into a
contract for the construction of a recreational sports building and that
the university has breached the contract. C.S.S.C.R. 24 provides that the
company is granted permission to file a claim against the university with
the State Office of Administrative Hearings for amounts owed under the
contract for construction of the recreational sports building. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

C.S.S.C.R. 24 provides that DalMac Construction Company, Inc. (company) is
granted permission to file a claim against Texas A&M University
(university) with the State Office of Administrative Hearings (office) for
amounts owed under the contract for construction of the recreational sports
building. 

Requires an administrative law judge of the office to hear the claim as a
contested case under Chapter 2001, Government Code, and render a written
order containing the administrative law judge's findings of facts and
recommendations. 

Authorizes the university to assert in the contested case authorized by
this resolution any counterclaim or offset that the university claims
against the company, with respect to the contract. 

Requires the university to pay, exclusively from money appropriated for
this purpose, the claim or any part of  claim if the administrative law
judge finds, by a preponderance of the evidence, the claim or part of the
claim is valid under the laws of this state. 

Prohibits the amount awarded by the administrative law judge in a contested
case authorized by this resolution from including any amount attributable
to consequential damages resulting from any breach of contract, punitive or
exemplary damages, or attorney's fees. 

Prohibits the amount of a claim paid in accordance with any order of an
administrative law judge from exceeding the balance due and owing on the
contract price, including any orders for additional work, less any amount
owed for work not performed under the contract or in substantial compliance
with the contract and less any valid counterclaim or offset asserted by the
university, or in any event, an amount exceeding $3 million. 

Provides that any act, finding, ruling, or award of an administrative law
judge in a contested case authorized under this resolution is not subject
to appeal to any court of this state. 

Authorizes an administrative law judge to establish a fee in an amount that
allows the office to recover its costs with respect to the contested case
authorized by this resolution and assess the fee against the party that
does not prevail in the contested case or apportion the fee against the
parties  to the contested case in an equitable manner. 

Requires the hearings held by the office in accordance with this resolution
to be held in accordance with legislation enacted by the 76th Legislature
under which the office may hear claims against the state, and any rules or
procedures adopted under that legislation. 

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.S.C.R. 24 removes text from the original bill which proposed to do the
following: 

Provided that the DalMac Construction Company, Inc. (company) is granted
permission to sue the State of Texas and Texas A&M University (university)
subject to Chapter 107, Civil Practice and Remedies Code. 

Provided that the president of the university be served process as provided
by Subdivision (3), Subsection (a), Section 107.002, Civil Practice and
Remedies Code. 

Provided that the company is entitled to seek actual monetary damages,
including court costs and attorney's fees, but excluding exemplary damages
or costs incurred in the preparation of its claims. 

Prohibited any of the court records, pleadings, motions, or discovery
related to the suit authorized by this resolution from being sealed by the
court or the parties from public inspection. 

C.S.S.C.R. 24 replaces the removed text concerning a civil suit with text
authorizing the company to file a claim with the State Office of
Administrative Hearings. For an analysis of the added text, please see the
Section-by-Section Analysis portion of this document.