BILL ANALYSIS C.S.S.B. 494 By: Bivins Criminal Justice 04-10-95 Committee Report (Substituted) 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 As proposed, C.S.S.B. 494 imposes 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, 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 criminal case. Sec. 3. PERFECTION. Provides that a restitution lien is 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 general revenue fund. Requires the county clerk to deposit the fee in the county treasury. (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 motor vehicles records of the department 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.