Texas Construction Defect Claims: Certificates of Merit, RCLA Notice, and the Statute of Repose

A surprising number of Texas construction defect cases are decided before anyone argues about whether the work was defective. The claimant skipped a required affidavit, filed suit without the presuit notice the statute demands, or waited past a deadline that no discovery rule can extend. Three rules account for most of these outcomes. Owners, contractors, and design professionals should know all three before a defect claim is on the table.

Claims against design professionals: the certificate of merit

Chapter 150 of the Civil Practice and Remedies Code applies to any action or arbitration for damages arising out of professional services by a licensed or registered professional, meaning an architect, engineer, landscape architect, or land surveyor, or a firm through which one practices. The claimant must file with the complaint an affidavit from a third-party professional who:

• holds the same license as the defendant and is licensed or registered in Texas;
• is actively engaged in the practice; and
• is knowledgeable in, and since 2019 practices in, the defendant's area of practice.

The affidavit must set out, for each theory of recovery, at least one negligent act, error, or omission and the factual basis for it. A conclusory affidavit is not enough.

The consequences of getting this wrong are severe. A missing or deficient certificate is grounds for dismissal, and the dismissal can be with prejudice. The statute gives a narrow extension when a complaint is filed within ten days of limitations running and time did not allow the affidavit to be prepared. It does not extend any period of limitations or repose, and an order granting or denying a motion to dismiss is immediately appealable. In practice, that means a certificate fight can add months to a case.

Third-party claims

For years, defendants sued by an owner could bring an architect or engineer into the case without a certificate. In Jaster v. Comet II Construction, Inc., 438 S.W.3d 556 (Tex. 2014), the Texas Supreme Court held that the requirement applied to "the plaintiff," not to a defendant asserting a third-party claim or cross-claim. The Legislature responded in 2019 by amending Chapter 150 to require a certificate with any complaint that asserts such a claim for the first time. A general contractor who wants to shift responsibility to the design team now needs the same affidavit an owner does, and it needs it at the time of filing.

Third-party practice in defect cases raises other problems as well. I wrote about one of them in "The Importance of Being Injured: A Potential Problem With Third-Party Causes of Action in Texas Construction Defect Cases," Construction Law Journal (Summer 2019).

Residential claims: presuit notice under the RCLA

The Residential Construction Liability Act, Chapter 27 of the Property Code, governs claims for damages against a contractor for defects in a residence, including alterations, repairs, and appurtenances. It does not apply to commercial projects.

The Act builds in a repair-or-settle period before litigation:

1. Notice. At least 60 days before filing suit or an arbitration, the homeowner must send the contractor written notice, by certified mail, return receipt requested, describing the defects in reasonable detail.
2. Inspection. The contractor may request to inspect within 35 days of receiving the notice, and the homeowner must provide a reasonable opportunity.
3. Offer. Within 45 days of receiving the notice, the contractor may make a written offer to repair or to pay.
4. Response. The homeowner has 25 days to accept or reject the offer in writing. A rejection must explain why the offer is unreasonable, and silence counts as a rejection.

A suit filed without the required notice can be abated until the process runs its course. The larger stakes are in the offer. A homeowner who unreasonably rejects a reasonable offer can have recoverable damages capped. A contractor who makes no offer, or an unreasonable one, loses those protections. The Act also limits the categories of damages a homeowner can recover.

For contractors, the settlement offer is often the most important document in the case, and it should be written with the expectation that a judge or jury will read it. For homeowners, the notice letter frames everything that follows.

The ten-year statute of repose

Limitations periods for defect claims, two years for negligence and generally four for breach of contract, can be extended by the discovery rule. The statute of repose cannot. Under Civil Practice and Remedies Code § 16.009, a claim against a person who constructs or repairs an improvement to real property must be brought within ten years after substantial completion. Section 16.008 sets the same ten-year period for architects, engineers, interior designers, and landscape architects who design, plan, or inspect the work. The clock runs from substantial completion, whether or not anyone knew about the defect.

Three features of the repose statutes regularly decide cases.

A written claim buys two years. If the claimant presents a written claim to the contractor or design professional within the ten-year period, the period is extended for two years from the date the claim is presented. A demand letter sent in year nine can matter more than the lawsuit that follows it.

Contribution and indemnity claims are covered. The repose periods apply to claims for contribution and indemnity as well as direct damages. A contractor sued late in the ten-year window has little time to bring in the subcontractors or designers it believes are responsible.

Joinder rules do not revive a barred claim. In Galbraith Engineering Consultants, Inc. v. Pochucha, 290 S.W.3d 863 (Tex. 2009), homeowners joined an engineer as a defendant after it was designated a responsible third party, more than ten years after the work was completed. The Texas Supreme Court held that the proportionate-responsibility statute's joinder provision could not revive a claim the statute of repose had already extinguished.

The repose statutes have narrow exceptions, including claims based on willful misconduct or fraudulent concealment in performing the work. They are exceptions, not a plan.

What to do with this

Owners and homeowners should identify each potential defendant's role before filing. Design professionals require a certificate of merit. Residential contractors require RCLA notice. Everyone is subject to repose. Calendar the date of substantial completion and present written claims well before the tenth year.

Contractors should respond to RCLA notices on the statute's schedule and treat the offer as trial evidence. Evaluate third-party claims against subcontractors and designers as soon as a claim arrives, both for the certificate requirement and for repose. Keep the documents that establish substantial completion, because that date will be contested.

Design professionals should test every certificate filed against them. The 2019 amendments narrowed who can sign one, and a deficient affidavit is a dispositive issue, not a technicality.

None of these rules turns on whether the work was good or bad. That is exactly why they deserve attention first.

Frequently asked questions

What is a certificate of merit in Texas? An affidavit from a licensed professional in the same field as the defendant, filed with any complaint seeking damages from an architect, engineer, landscape architect, or land surveyor for professional services. It must identify at least one negligent act, error, or omission and its factual basis for each theory of recovery.

Does a third-party claim against an architect or engineer need a certificate of merit? Yes, under the 2019 amendments to Chapter 150, which responded to Jaster v. Comet II Construction (2014).

Does the RCLA apply to commercial projects? No. It covers residential construction defect claims against contractors.

When does the statute of repose start? Generally at substantial completion. Suit must usually be brought within ten years, extended by two years if a written claim is presented within the ten-year period.