BILL ANALYSIS
S.B. 494
By: Bivins (Place)
5-15-95
Committee Report (Unamended)
BACKGROUND
Currently, an offender on probation pays the victim of the offense
for property damage or medical expenses sustained during the
offense. According to the Pardons and Paroles Division of the
Texas Department of Criminal Justice, only six percent of the
people in the system with court-ordered restitution requirements
have completed paying their restitution while serving parole.
PURPOSE
If enacted, S.B. 494 would impose a lien on certain persons
convicted of criminal offenses to secure payment of restitution,
fines, or costs.
RULEMAKING AUTHORITY
It is the committee's opinion that this bill does not grant any
additional rulemaking authority to a state officer, institution, or
agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Chapter 42, Code of Criminal Procedure (JUDGMENT
AND SENTENCE), by adding Article 42.21, as follows:
Art. 42.21. RESTITUTION LIENS
Sec. 1. DEFINITIONS. Defines "department," "motor vehicle,"
"state," "victim," and "personal property."
Sec. 2. LIEN ESTABLISHED.
(a) Provides that the victim of a criminal offense has a
restitution lien to secure the amount of restitution to which
the victim is entitled under the order of a court in a
criminal case.
(b) Provides that the state also has a restitution lien to
secure the amount of fines or costs entered against a
defendant in the judgment in a felony criminal case.
Sec. 3. PERFECTION. Considers a restitution lien perfected when
an affidavit to perfect the lien is filed in accordance with this
article.
Sec. 4. JUDGMENT REQUIRED. Prohibits an affidavit to perfect a
restitution lien from being filed until a court has ordered
restitution or entered a judgment requiring the defendant to pay a
fine or costs.
Sec. 5. PERSONS WHO MAY FILE. Sets forth persons authorized to
file an affidavit to perfect a restitution lien.
Sec. 6. AFFIDAVIT. Requires an affidavit to perfect a restitution
lien to be signed by the attorney representing the state or a
magistrate and sets forth items to be included in the affidavit.
Sec. 7. FILING.
(a) Sets forth persons with whom an affidavit to perfect a
restitution lien may be filed.
(b) Requires a uniform fee of $5 for filing and indexing and
for stamping a copy furnished by the state or victim to show
the date and place of filing.
(c) Requires the secretary of state to deposit the filing fee
in the state treasury to the credit of the statutory filing
fund solely to defray the costs of administration of this
section. Requires the Texas Department of Transportation
(department) to deposit the filing fee in the state treasury
to the credit of the state highway fund solely to defray the
costs of administering this section.
(d) Requires the county clerk to record the restitution lien
in the judgment records of the county and to note the date and
hour the lien is received.
(e) Requires the secretary of state to file the restitution
lien in the security interest and financing statements records
of the secretary of state and to note the date and hour the
lien is received.
(f) Requires the department to file the restitution lien in
the department's motor vehicle records and to note the date
and hour the lien is received.
(g) Requires, when a restitution lien is filed, the county
clerk, secretary of state, or department to enter the
restitution lien in an alphabetical index to the records
showing certain information.
(h) Requires a person who files an affidavit to perfect a
restitution lien to notify the clerk of the court entering the
judgment creating the lien (court clerk) of all officers or
entities with which the affidavit was filed.
Sec. 8. SUBJECT PROPERTY. Sets forth interests to which a
restitution extends.
Sec. 9. PRIORITY. Provides that the perfection of a restitution
lien is notice of the claim to all persons dealing with the
defendant or the property identified in the affidavit perfecting
the lien. Provides that a perfected lien in favor of a victim is
superior to a lien perfected by the state, and the perfected lien
in favor of the state is superior to the claim or interest of any
other person, with some exceptions.
Sec. 10. PAYMENT. Requires the agency receiving payment from a
defendant ordered to pay restitution to make payments to the person
with interest in the lien on a schedule of not less than quarterly
payments as determined by the agency.
Sec. 11. FORECLOSURE. Authorizes the person with interest in the
lien, if a defendant fails to timely make a payment, to file suit
to foreclose the lien. Authorizes the court, if the defendant
cures the default on or before 20 days after the suit is filed and
pays the person who files the suit court costs and attorney's fees,
to dismiss the suit without prejudice to the person. Authorizes
the person to refile the suit against the defendant if the
defendant subsequently defaults.
Sec. 12. EXPIRATION; RECORDS.
(a) Provides that a restitution lien expires on the 10th
anniversary of the date the lien was filed or on the date the
defendant satisfies the judgment creating the lien, whichever
occurs first. Authorizes the person with interest in the lien
to refile the lien before the expiration date.
(b) Provides that the failure to execute or foreclose the
restitution lien does not cause dormancy of the lien.
(c) Requires the court clerk to maintain a record of the
outstanding balance of restitution, fines, or costs owed.
Requires the clerk to immediately notify in writing all
officers or entities with which the affidavit perfecting the
lien was filed, if the defendant satisfies the judgment.
SECTION 2. Makes application of this Act prospective.
SECTION 3. Effective date: September 1, 1996.
SECTION 4. Emergency clause.
SUMMARY OF COMMITTEE ACTION
SB 494 was considered by the full committee in a formal meeting on
May 15, 1995. SB 494 was reported favorably without amendment,
with the recommendation that it do pass and be printed, by a record
vote of 7 ayes, 0 nays, 0 pnv, and 2 absent.