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.