TX Civil Practice and Remedies Code, Chapter 95

The exclusive remedy provision of Chapter 95 “carves out” a select, intended class of “property owners” which were intended to be beneficiaries of the statute.

PIPELINE OWNERS BEWARE! Chapter 95 does not apply to temporary easements with only nonpossessory rights of entry for maintenance and repair! 

Despite thousands of parties in the State of Texas claiming Chapter 95 as applicable to midstream operations during defensive proceedings, your midstream assets are not secure under Chapter 95 if you fail to secure a possessory interest underneath the pipeline.

Sec. 95.003. Liability for Acts of Independent Contractors.

A property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless:

(1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and

(2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn.

Tex. Civ. Prac. & Rem. Code § 95.003. Enacted by Acts 1995, 74th Leg., ch. 136 (S.B. 28), § 2, effective September 1, 1996.

Texas law overwhelmingly distinguishes between possessory interests and nonpossessory interests, and for the purposes of Chapter 95 has distinguished “fee interest” holders from third parties with the right to “occupy the premises.”

A landowner may choose to relinquish a portion of the right to exclude by granting an easement, but such a relinquishment is limited in nature. Cf. San Jacinto Sand Co. v. Southwestern Bell Tel. Co., 426 S.W.2d 338, 345 (Tex. Civ. App.-Houston [14th Dist.] 1968, writ ref'd n.r.e.); see generally II GEORGE W. THOMPSON, THOMPSON ON PROPERTY §§ 315-16, 319, at 6-7, 14-16, 32-34. Unlike a possessory interest in land, an easement is a nonpossessory interest that authorizes its holder to use the property for only particular purposes. See RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 1.2 cmt. d.

Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex. 2002).

The “nonpossessory” aspect of easements can be seen in Chapter 95 precedent, especially in those cases distinguishing between “premises” occupiers and actual “property owners." 

Both parties and the court of appeals used the phrase ‘premises owner’ when referring to Chapter 95 and its contents. The word ‘premises’ does not appear in Chapter 95. Instead, the chapter uses the phrase ‘property owner,’ which section 95.001(3) defines to mean ‘a person or entity that owns real property primarily used for commercial or business purposes.’ Tex. Civ. Prac. & Rem. Code § 95.001(3). We use the phrase "property owner" to remain consistent with the statutory text.

Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 47 (Tex. 2015).