The above statement may seem to be sweeping, but as a lawyer who has represented many builders and many homeowners in Texas, I feel fairly confident making it. Basically, if you are a homeowner in Texas, and you have a complaint about the construction of your home that arises after September 1, 2003, you had better be independently wealthy if you want to sue your contractor, because you're going to have a difficult time finding an attorney who will take your case without a huge retainer. I want to illustrate a brief example of "spin" at this point: according to the TRCC's website, "The Act provides homeowners and builders an opportunity to resolve differences through an administrative process prior to pursuing a legal action." That sounds great, right? Well, what the Act actually does is to REQUIRE homeowners to embark on a very complicated and expensive administrative procedure before they are allowed to file a lawsuit against their contractor.
 

     The reward for navigating the treacherous waters of the TRCCA is that the homeowner is then given a "decision" that is completely unenforceable. First, under the Act, homeowners must now give their builder notice of each and every defect the homeowner claims to exist. The builder is then allowed 30 days to either fix the defect, or to explain to the owner why he or she won't fix the defect(s). If the builder fails to adequately repair the defect, the homeowner is then required to submit his claim to the Texas Residential Construction Commission (at the homeowner's expense). However, the homeowner cannot merely submit the claim; he must submit the claim with evidence sufficient to allow the commission to investigate the claim. In essence, this requires the homeowner to hire an expert witness (an architect, building consultant, etc.) to validate the homeowners' claim.

     There are many, many steps in the administrative process, and those procedural steps are beyond the scope of this discussion, but suffice it to say that the procedure set up by the TRCCA is a labyrinth of legal maneuvering that (if done incorrectly) can result in the homeowner actually disqualifying his own expert witnesses at a later trial of the matter. Of course, the most monumentally unfair aspect of the act is that once the administrative procedure is completed, the finding of the commission is not even binding on either the homeowner or the builder. So after the homeowner goes through the time and expense of filing his claim with the commission, he is given a "decision" that makes the builder do nothing.

     NOW the homeowner is finally allowed to file his lawsuit. Of course, after hiring an attorney to guide him through the maze of the administrative precursor to filing the lawsuit, and after paying expert witnesses to obtain a decision from the commission, the homeowner has most likely spent more money than correcting the defect would have cost in the first plce. And now he gets to spend REAL money filing a lawsuit. Moreover, the Act severely limits the amounts and types of damages the homeowner can seek and recover.

     Before September 1st, 2003, a homeowner could sue to recover damages including cost of repairs, out of pocket expenses like inspector’s fees, attorney’s fees plus mental anguish and punitive damages. After September 1st, the homeowner is limited to recovering for "breach of warranty" (which eliminates mental anguish and punitive damages). The Act also strips the homeowner of the right to sue the builder under the Texas Deceptive Trade Practices Act (our primary consumer protection law since the 1970’s).

     The practical effect of vastly increasing the cost of even filing a lawsuit against a builder, coupled with vastly decreasing the eventual recovery allowed, is that most lawyers are going to avoid filing lawsuits against builders unless the homeowner/client has a war-chest of funds to pay the lawyer for years of legal work. Sandra Bullock can afford to sue her builder in Texas...most Texans cannot.

     CONSLUSION: If you are a homebuilder in Texas, you basically have a license to perform substandard work with little risk of ever having to correct it. You should pat your lobbyists on the back - they did a great job for you. If you are a homeowner in Texas, and you come to our firm because you've been damaged by a shoddy builder, you'd better bring your checkbook. (caveat: the opinions expressed in this post are those of Chris Harris, and they should not be construed as legal advice. No attorney/client relationship is created as a result of the content of this page, and you should always consult an attorney directly if you have specific questions regarding a dispute with your builder.