Texas Construction Anti-Indemnity Act

The Texas Construction Anti-Indemnity Act (TCAIA) is Subchapter C of Chapter 151 of the Texas Insurance Code, effective January 1, 2012. It voids broad-form indemnity provisions in construction contracts that purport to indemnify the indemnitee for its own fault, even shared or contributory fault, and renders unenforceable related additional-insured insurance procurement provisions to the same extent. The Act cannot be waived. It applies prospectively to construction contracts entered into on or after January 1, 2012.

The core prohibition

Section 151.102 voids any provision in a construction contract that purports to require an indemnitor to indemnify, hold harmless, or defend an indemnitee against a claim caused by the indemnitee's negligence, fault, or breach of contract. The prohibition is absolute, it cannot be circumvented by careful drafting (express references to negligence and conspicuous language under Ethyl Corp.). Unlike the common-law fair-notice doctrine, TCAIA renders the offending indemnity provision void, not merely unenforceable.

Scope, broad definition of construction contract

The TCAIA's reach is intentionally broad. "Construction contract" includes contracts to "construct, alter, remodel, repair, demolish, or maintain" improvements to real property other than single-family homes, townhouses, duplexes, or land development directly related thereto (§ 151.001(5)). The definition has been applied to crane leases, equipment rental agreements with installation services, and other arrangements that parties reasonably believed had little to do with "construction." Master service agreements between facility owners and service providers often fall within the Act's scope without the parties realizing it.

Additional-insured procurement also void

Section 151.104 extends the prohibition to additional-insured insurance procurement. A contract provision requiring the indemnitor to procure additional-insured coverage protecting the indemnitee against the indemnitee's own fault is void to the same extent as the underlying indemnity provision. This eliminates the most common workaround that pre-2012 Texas construction contracts used, extracting through additional-insured policies what could not be extracted through indemnity. Specific exception: consolidated insurance programs (CIPs) under Subchapter A may carry additional-insured terms otherwise prohibited.

Employee injury exception

Section 151.103 provides a critical exception: the prohibition does NOT apply to claims for the bodily injury or death of the indemnitor's employee, agent, or subcontractor of any tier. This means indemnity provisions covering injuries to the indemnitor's own workforce remain enforceable, including for the indemnitee's own negligence. The exception is the subject of substantial case law, including Maxim Crane Works, L.P. v. Zurich American Ins. Co., 642 S.W.3d 551 (Tex. 2022), addressing scope of the exception.

Other exceptions

Section 151.105 provides additional exceptions, including: (1) public works contracts with municipalities; (2) workers' compensation benefits; (3) copyright infringement claims; (4) certain rail-related contracts; (5) claims arising from pre-existing environmental conditions; (6) liens for failure to pay subcontractors. These narrow exceptions do not materially limit the Act's broad application to typical commercial construction.

Drafting after TCAIA

Compliant indemnity provisions in post-2012 Texas construction contracts must be limited to the indemnitor's own fault and the fault of those for whom it is responsible (employees, agents, subcontractors). Common compliant patterns: "to the extent caused by the negligence or willful misconduct of Contractor, its employees, agents, or subcontractors." Pre-2012 form contracts must be revised before use; AIA and ConsensusDocs forms have been updated to reflect TCAIA but require Texas-specific verification.