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.