1-1 By: Swinford (Senate Sponsor - Haywood) H.B. No. 1463
1-2 (In the Senate - Received from the House April 18, 1995;
1-3 April 19, 1995, read first time and referred to Committee on
1-4 Natural Resources; May 5, 1995, reported favorably by the following
1-5 vote: Yeas 8, Nays 2; May 5, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to a lien in favor of a seller of agricultural chemicals,
1-9 agricultural seeds, or animal feed or of a provider of labor in
1-10 connection with the agricultural chemicals or agricultural seeds;
1-11 providing penalties.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Title 5, Agriculture Code, is amended by adding
1-14 Subtitle H to read as follows:
1-15 SUBTITLE H. HORTICULTURAL LIENS
1-16 CHAPTER 128. AGRICULTURAL CHEMICAL AND SEED LIENS
1-17 SUBCHAPTER A. GENERAL PROVISIONS
1-18 Sec. 128.001. DEFINITIONS. In this chapter:
1-19 (1) "Agricultural chemical" includes fertilizer
1-20 material as defined under Section 63.001, pesticides as defined
1-21 under Section 76.001, plant regulators as defined under Section
1-22 76.001, lime, plant and soil amendments, plant food, herbicides,
1-23 and chemical compounds that are applied to crops or to land used
1-24 for growing crops.
1-25 (2) "Agricultural seed" has the meaning assigned under
1-26 Section 61.001.
1-27 (3) "Labor" means labor or services performed in the
1-28 application, delivery, or preparation of an agricultural chemical
1-29 or agricultural seed.
1-30 (4) "Reasonable or agreed charges" means:
1-31 (A) any agreed price for agricultural chemicals,
1-32 agricultural seeds, or labor sold or provided to a lien debtor at
1-33 the lien debtor's request; or
1-34 (B) the reasonable value of agricultural
1-35 chemicals, agricultural seeds, or labor, as of the date of
1-36 application, delivery, or preparation, if there is not an agreed
1-37 price or an agreed method for determining price.
1-38 Sec. 128.002. PROCEEDS. (a) For the purposes of this
1-39 chapter, proceeds are the amounts received by a lien debtor, before
1-40 a deduction for taxes, fees, or assessments or a deduction made
1-41 under a court order, from the sale of:
1-42 (1) the crop that existed at the time of application
1-43 on the land of the agricultural chemical sold by the lien claimant
1-44 or applied, delivered, or prepared by the lien claimant;
1-45 (2) the first crop produced on the land after the
1-46 agricultural chemical sold by the lien claimant or applied,
1-47 delivered, or prepared by the lien claimant was applied, if crops
1-48 did not exist on the land at the time the agricultural chemical was
1-49 applied; or
1-50 (3) the crop produced from the agricultural seed
1-51 supplied by the lien claimant or applied, delivered, or prepared by
1-52 the lien claimant.
1-53 (b) For the purposes of this chapter, the following are not
1-54 included as proceeds:
1-55 (1) amounts due or owing to a cooperative association
1-56 under Chapter 51 or 52; or
1-57 (2) amounts retained by a cooperative association
1-58 under Chapter 51 or 52.
1-59 (Sections 128.003-128.005 reserved for expansion
1-60 SUBCHAPTER B. AGRICULTURAL CHEMICAL AND SEED LIEN
1-61 Sec. 128.006. NOTICE BEFORE PURCHASE; REQUIRED NOTICE BEFORE
1-62 CLAIMING LIEN. (a) A person claiming a lien under this chapter
1-63 must have provided notice of the provisions of this chapter, before
1-64 purchase, either generally to purchasers of agricultural chemicals,
1-65 agricultural seeds, or labor as part of the lien claimant's normal
1-66 business practices or specifically to the lien debtor. Notice
1-67 provided under this subsection must read, to the extent applicable,
1-68 substantially as follows: "The sale of agricultural chemicals or
2-1 agricultural seed on credit and the provision of labor related to
2-2 agricultural chemicals or agricultural seed is subject to Chapter
2-3 128, Agriculture Code. Failure to pay the agreed or reasonable
2-4 charges for the chemicals, seed, or labor may result in the
2-5 attachment of a lien to the proceeds of the agricultural products
2-6 produced with the aid of the chemicals, seed, or labor." A
2-7 potential lien claimant may satisfy the requirements of this
2-8 subsection:
2-9 (1) by printing or stamping the notice on credit
2-10 applications filled out by purchasers; and
2-11 (2) for future purchases by purchasers who are not
2-12 notified on the credit application, by printing or stamping the
2-13 notice on an invoice or on a statement sent by separate cover.
2-14 (b) Before a person may claim a lien under this chapter, the
2-15 person must send to the debtor by certified mail written notice
2-16 that states:
2-17 (1) that the payment of the reasonable or agreed
2-18 charges is more than 30 days overdue;
2-19 (2) the amount that is overdue;
2-20 (3) that the debtor has the following three
2-21 alternatives:
2-22 (A) to allow the lien to be filed;
2-23 (B) to enter into an agreement granting a
2-24 security interest in the proceeds described by Section 128.002
2-25 under the Business & Commerce Code; or
2-26 (C) to pay the reasonable or agreed charges; and
2-27 (4) in at least 10-point type, that:
2-28 (A) the debtor has until the 10th day after the
2-29 date on which the notice is received to select an alternative under
2-30 Subdivision (3), notify the claimant of the alternative selected,
2-31 and satisfy all the requirements of the selected alternative; and
2-32 (B) the claimant may file the notice of claim of
2-33 lien at any time after the 10th day after the date on which the
2-34 debtor receives the notice if the debtor does not comply with the
2-35 requirements of Paragraph (A).
2-36 Sec. 128.007. ATTACHMENT OF LIEN. A lien established under
2-37 this chapter attaches to the proceeds described by Section
2-38 128.002.
2-39 Sec. 128.008. AMOUNT OF LIEN. The amount of a lien under
2-40 this chapter is equal to the sum of:
2-41 (1) the amount of the unpaid reasonable or agreed
2-42 charges for:
2-43 (A) agricultural chemicals, labor, or both, as
2-44 appropriate, furnished within the 60-day period ending on the day
2-45 the lien attaches; and
2-46 (B) agricultural seeds, labor, or both, as
2-47 appropriate, furnished within the 45-day period ending on the day
2-48 the lien attaches; and
2-49 (2) the filing fees for the lien as provided by this
2-50 chapter.
2-51 Sec. 128.009. PERSON ENTITLED TO FILE; EXCEPTION. (a)
2-52 Except as provided by Subsection (b) or by Section 128.047, a
2-53 person who provides an agricultural chemical, agricultural seed, or
2-54 labor may file a notice of claim of lien as provided by this
2-55 chapter.
2-56 (b) A claimant may not file a notice of claim of lien if the
2-57 arbitration of a dispute between the claimant and the debtor is
2-58 pending or has not been resolved under Chapter 64. A claimant may
2-59 not file a notice of claim of lien if the settlement of a dispute
2-60 between the claimant and the debtor is pending or has not been
2-61 resolved under Section 128.012.
2-62 Sec. 128.010. PERFECTION OF LIEN. A lien created under this
2-63 chapter is perfected on the filing of a notice of claim of lien
2-64 with the secretary of state as provided by this chapter.
2-65 Sec. 128.011. DURATION OF NOTICE OF CLAIM OF LIEN. (a)
2-66 Except as otherwise provided by this chapter, the notice of claim
2-67 of lien is effective, and a new notice of claim of lien is not
2-68 required to maintain the lien, as long as the person who provides
2-69 the agricultural chemical, agricultural seed, or labor either:
2-70 (1) remains unpaid for the amount secured by the lien;
3-1 or
3-2 (2) continues to provide an agricultural chemical,
3-3 agricultural seed, or labor on a regular basis to the lien debtor.
3-4 (b) For purposes of this section, providing an agricultural
3-5 chemical, agricultural seed, or labor is not considered to be made
3-6 on a regular basis if a period of more than 45 days elapses between
3-7 applications, deliveries, or preparations.
3-8 Sec. 128.012. PROCEDURES FOR SETTLEMENT OF DISPUTES. (a)
3-9 The commissioner of agriculture by rule shall establish a procedure
3-10 to settle a dispute between a claimant supplying agricultural
3-11 chemicals or labor in the application, delivery, or preparation of
3-12 agricultural chemicals and a debtor. The procedures must provide:
3-13 (1) a time requirement for submitting the dispute to
3-14 the department;
3-15 (2) a time requirement within which a notice of the
3-16 dispute must be submitted to each party; and
3-17 (3) a process for evaluating the dispute.
3-18 (b) Each party to the dispute is equally liable for the
3-19 reasonable costs incurred by the department in carrying out this
3-20 section.
3-21 Sec. 128.013. CONTENTS OF NOTICE OF CLAIM OF LIEN. The
3-22 notice of claim of lien must include:
3-23 (1) the name and address of the lien claimant;
3-24 (2) the name and address of the lien debtor;
3-25 (3) the location of the property to which the
3-26 agricultural chemical, agricultural seed, or labor was provided;
3-27 (4) a statement that the payment of the reasonable or
3-28 agreed charges is more than 30 days overdue;
3-29 (5) the amount that is overdue;
3-30 (6) a statement, signed under penalty of perjury,
3-31 that:
3-32 (A) the lien claimant provided notice of the
3-33 provisions of this chapter, before purchase, either generally to
3-34 purchasers of agricultural chemicals, agricultural seeds, or labor
3-35 as part of the lien claimant's normal business practices or
3-36 specifically to the lien debtor, in the manner required by Section
3-37 128.006(a);
3-38 (B) the lien claimant sent to the lien debtor
3-39 the notice required by Section 128.006(b);
3-40 (C) more than 10 days have elapsed since the
3-41 date on which the notice was received by the lien debtor; and
3-42 (D) the lien debtor has not complied with the
3-43 requirements of an alternative set out by Section 128.006(b); and
3-44 (7) a statement that the lien claimant has an
3-45 agricultural chemical or agricultural seed lien under this chapter.
3-46 Sec. 128.014. SIGNATURE. The notice of claim of lien shall
3-47 be signed by the lien claimant or by a person authorized to sign
3-48 documents of a similar kind on behalf of the claimant.
3-49 Sec. 128.015. FORM. (a) The notice of claim of lien must
3-50 be filed on a form that satisfies the requirements of a financing
3-51 statement under Section 9.402, Business & Commerce Code, except
3-52 that:
3-53 (1) the lien claimant may be identified either as a
3-54 lien claimant or as a secured party;
3-55 (2) the form must be signed by the lien claimant and
3-56 is not required to be signed by the lien debtor; and
3-57 (3) in the space for the description of the
3-58 collateral, the information specified in Sections 128.013(3), (4),
3-59 (5), and (7) must be entered.
3-60 (b) A separately signed statement containing the information
3-61 specified in Section 128.013(6) shall be attached to the form
3-62 required under Subsection (a).
3-63 Sec. 128.016. FILING AND MARKING IN OFFICE OF SECRETARY OF
3-64 STATE; FEE. (a) The notice of claim of lien shall be filed and
3-65 marked in the office of the secretary of state in the same manner
3-66 as a financing statement is filed and marked under Section 9.403,
3-67 Business & Commerce Code.
3-68 (b) The uniform fee for filing and indexing and for stamping
3-69 a copy furnished by the secured party is the same as the fee
3-70 assessed under Section 9.403, Business & Commerce Code.
4-1 Sec. 128.017. TIME OF WRITTEN NOTICE. The lien claimant
4-2 shall provide written notice of the claim of lien to the lien
4-3 debtor not later than the 10th day after the date the notice of
4-4 claim of lien is filed with the office of the secretary of state.
4-5 Sec. 128.018. RECOGNITION OF NOTICE AS FINANCING STATEMENT.
4-6 The secretary of state shall recognize a notice of claim of lien
4-7 under this subchapter as a financing statement under Section 9.402,
4-8 Business & Commerce Code.
4-9 (Sections 128.019-128.025 reserved for expansion
4-10 SUBCHAPTER C. PRIORITY OF LIEN
4-11 Sec. 128.026. TIME OF FILING. (a) A lien created under
4-12 this chapter has the same priority as a security interest perfected
4-13 by the filing of a financing statement on the date the notice of
4-14 claim of lien was filed.
4-15 (b) A lien created under this chapter does not have priority
4-16 over labor claims for wages and salaries for personal services that
4-17 are provided by an employee to a lien debtor in connection with the
4-18 production of agricultural products, the proceeds of which are
4-19 subject to the lien.
4-20 (Sections 128.027-128.030 reserved for expansion
4-21 SUBCHAPTER D. INFORMATION CONCERNING LIEN
4-22 Sec. 128.031. ISSUANCE OF CERTIFICATE TO MEMBER OF PUBLIC;
4-23 FEE. (a) A person may obtain a certificate identifying any lien
4-24 on file and any notice of claim of lien naming a particular debtor
4-25 and stating the date and time of filing of each notice and the
4-26 names and addresses of each lienholder in the certificate.
4-27 (b) The fee for a certificate under Subsection (a) shall be
4-28 established by the secretary of state in an amount necessary to
4-29 cover the cost of administering this section.
4-30 Sec. 128.032. COPIES OF NOTICES OF CLAIM OF LIEN AND OTHER
4-31 NOTICES; FEE. (a) A person may obtain a copy of any notice of
4-32 claim of an agricultural chemical or seed lien filed.
4-33 (b) The fee for a copy of a notice of claim of lien obtained
4-34 under Subsection (a) shall be established by the secretary of
4-35 state in an amount necessary to cover the cost of administering
4-36 this section.
4-37 (Sections 128.033-128.035 reserved for expansion
4-38 SUBCHAPTER E. ENFORCEMENT OF LIEN
4-39 Sec. 128.036. WRITTEN NOTICE TO SECURED CREDITORS BY LIEN
4-40 CLAIMANT. (a) A lien claimant shall provide written notice to any
4-41 secured creditor at least 30 days before the date the lien claimant
4-42 enforces a claim of lien.
4-43 (b) For purposes of this section, "secured creditor" means
4-44 any entity named as a secured party in a financing statement that
4-45 is filed regarding the debtor and that covers:
4-46 (1) a farm product, an account, or a crop subject to
4-47 the lien;
4-48 (2) a crop growing or grown on the land on which the
4-49 agricultural chemical was applied or for which the agricultural
4-50 seed was supplied; or
4-51 (3) the next crop to be grown on that land, if a crop
4-52 is not planted.
4-53 Sec. 128.037. FORECLOSURE IN ACTION TO RECOVER REASONABLE OR
4-54 AGREED CHARGES. The lien claimant may foreclose on a lien under
4-55 this chapter only in an action to recover the reasonable or agreed
4-56 charges.
4-57 Sec. 128.038. TERMINATION STATEMENT. (a) If a lien
4-58 claimant receives payment for the total amount secured by a lien
4-59 under this chapter and the lien claimant has not furnished an
4-60 agricultural chemical, agricultural seed, or labor during the
4-61 45-day period before the date on which payment is received, the
4-62 lien claimant shall file a termination statement with the secretary
4-63 of state and shall send the lien debtor a copy of the statement as
4-64 provided by this section. The statement shall state that the lien
4-65 claimant no longer claims a security interest under the notice of
4-66 claim of lien.
4-67 (b) The notice of claim of lien must be identified in the
4-68 statement under Subsection (a) by the date, names of parties to the
4-69 agreement, and file number of the original lien.
4-70 (c) If the lien claimant does not send the termination
5-1 statement required by this section before the 11th day after the
5-2 date on which the lien claimant received payment, the lien claimant
5-3 is liable to the lien debtor for actual damages suffered by the
5-4 lien debtor as a result of the failure. If the lien claimant acts
5-5 in bad faith in failing to send the statement, the lien claimant is
5-6 liable for an additional penalty of $100.
5-7 (d) The filing officer in the secretary of state's office
5-8 shall mark each termination statement with the date and time of
5-9 filing and shall index the statement under the name of the lien
5-10 debtor and under the file number of the original lien. If the
5-11 filing officer has a microfilm or other photographic record of the
5-12 lien and related filings, the filing officer may destroy the filed
5-13 notice of claim of lien at any time after receiving the termination
5-14 statement. If the filing officer does not have a photographic
5-15 record, the filing officer may destroy the filed notice of claim of
5-16 lien at any time after the first anniversary of the date on which
5-17 the filing officer received the termination statement.
5-18 (e) The uniform filing fee for filing and indexing the
5-19 termination statement is the same as the fee assessed under Section
5-20 9.404(c), Business & Commerce Code.
5-21 Sec. 128.039. RIGHT OF ASSIGNMENT OR TRANSFER; FILING OF
5-22 STATEMENT. (a) A lien created under this chapter may be assigned
5-23 by the holder of the lien, with full rights of enforcement.
5-24 (b) The lienholder shall file a statement of assignment with
5-25 the secretary of state as provided by Section 9.405, Business &
5-26 Commerce Code.
5-27 (Sections 128.040-128.045 reserved for expansion
5-28 SUBCHAPTER F. MISCELLANEOUS
5-29 Sec. 128.046. RULES. The secretary of state may adopt rules
5-30 necessary to carry out the secretary's duties under this chapter,
5-31 including prescribing necessary forms.
5-32 Sec. 128.047. MAXIMUM NUMBER OF LIENS. Not more than four
5-33 liens may be enforced under this chapter against the same proceeds
5-34 of a lien debtor even if the liens are filed by different lien
5-35 claimants.
5-36 Sec. 128.048. APPLICABILITY OF OTHER LAW. Chapter 9,
5-37 Business & Commerce Code, applies to a lien created under this
5-38 chapter to the extent Chapter 9 is consistent with this chapter.
5-39 SECTION 2. Title 6, Agriculture Code, is amended by adding
5-40 Subtitle E to read as follows:
5-41 SUBTITLE E. LIENS ON ANIMAL PRODUCTS
5-42 CHAPTER 188. LIENS FOR ANIMAL FEED
5-43 SUBCHAPTER A. GENERAL PROVISIONS
5-44 Sec. 188.001. DEFINITIONS. In this chapter:
5-45 (1) "Animal feed" includes:
5-46 (A) commercial feed as described by Section
5-47 141.002(a), including a substance listed by Section 141.002(c) if
5-48 used as a feed for animals; or
5-49 (B) customer-formula feed as defined under
5-50 Section 141.001.
5-51 (2) "Labor" means labor or services performed in the
5-52 delivery or preparation of animal feed provided by the seller of
5-53 the animal feed.
5-54 (3) "Livestock" means beef cattle, dairy cattle,
5-55 sheep, goats, hogs, horses, poultry, and ratites.
5-56 (4) "Reasonable or agreed charges" means:
5-57 (A) any agreed price for animal feed, including
5-58 labor, sold to a lien debtor at the lien debtor's request; or
5-59 (B) the reasonable value of animal feed,
5-60 including labor, as of the date of delivery or preparation, if
5-61 there is not an agreed price or an agreed method for determining
5-62 price.
5-63 Sec. 188.002. PROCEEDS. (a) For the purposes of this
5-64 chapter, proceeds are the amounts received by a lien debtor, before
5-65 a deduction for taxes, fees, or assessments or a deduction made
5-66 under a court order, from the sale of:
5-67 (1) the livestock for which the animal feed was used;
5-68 (2) meat, milk, skins, wool, or other products derived
5-69 from that livestock; or
5-70 (3) issue born to that livestock.
6-1 (b) For the purposes of this chapter, proceeds do not
6-2 include amounts:
6-3 (1) due or owing to a cooperative association under
6-4 Chapter 51 or 52; or
6-5 (2) retained by a cooperative association under
6-6 Chapter 51 or 52.
6-7 (Sections 188.003-188.005 reserved for expansion
6-8 SUBCHAPTER B. ANIMAL FEED LIEN
6-9 Sec. 188.006. NOTICE BEFORE PURCHASE; REQUIRED NOTICE BEFORE
6-10 CLAIMING LIEN. (a) A person claiming a lien under this chapter
6-11 must have provided notice of the provisions of this chapter, before
6-12 purchase, either generally to purchasers of animal feed as part of
6-13 the lien claimant's normal business practices or specifically to
6-14 the lien debtor. Notice provided under this subsection must read,
6-15 to the extent applicable, substantially as follows: "The sale of
6-16 animal feed on credit is subject to Chapter 188, Agriculture Code.
6-17 Failure to pay the agreed or reasonable charges for the feed may
6-18 result in the attachment of a lien to the proceeds of the livestock
6-19 for which the feed is used or the proceeds of the animal products
6-20 produced from the livestock." A potential lien claimant may
6-21 satisfy the requirements of this subsection:
6-22 (1) by printing or stamping the notice on credit
6-23 applications filled out by purchasers; and
6-24 (2) for future purchases by purchasers who are not
6-25 notified on the credit application, by printing or stamping the
6-26 notice on an invoice or on a statement sent by separate cover.
6-27 (b) Before a person may claim a lien under this chapter, the
6-28 person must send to the debtor by certified mail written notice
6-29 that states:
6-30 (1) that the payment of the reasonable or agreed
6-31 charges is more than 30 days overdue;
6-32 (2) the amount that is overdue;
6-33 (3) that the debtor has the following three
6-34 alternatives:
6-35 (A) to allow the lien to be filed;
6-36 (B) to enter into an agreement granting a
6-37 security interest in the proceeds described by Section 188.002
6-38 under the Business & Commerce Code; or
6-39 (C) to pay the reasonable or agreed charges; and
6-40 (4) in at least 10-point type, that:
6-41 (A) the debtor has until the 10th day after the
6-42 date on which the notice is received to select an alternative under
6-43 Subdivision (3), notify the claimant of the alternative selected,
6-44 and satisfy all the requirements of the selected alternative; and
6-45 (B) the claimant may file the notice of claim of
6-46 lien at any time after the 10th day after the date on which the
6-47 debtor receives the notice if the debtor does not comply with the
6-48 requirements of Paragraph (A).
6-49 Sec. 188.007. ATTACHMENT OF LIEN. A lien established under
6-50 this chapter attaches to the proceeds described by Section 188.002.
6-51 Sec. 188.008. AMOUNT OF LIEN. The amount of a lien under
6-52 this chapter is equal to the sum of:
6-53 (1) the amount of the unpaid reasonable or agreed
6-54 charges for animal feed furnished within the 45-day period ending
6-55 on the day the lien attaches; and
6-56 (2) the filing fees for the lien as provided by this
6-57 chapter.
6-58 Sec. 188.009. PERSON ENTITLED TO FILE; EXCEPTION. (a)
6-59 Except as provided by Subsection (b) or by Section 188.047, a
6-60 person who provides animal feed may file a notice of claim of lien
6-61 as provided by this chapter.
6-62 (b) The claimant may not file a notice of claim of lien if
6-63 the settlement of a dispute between the claimant and the debtor is
6-64 pending or has not been resolved under Section 188.012.
6-65 Sec. 188.010. PERFECTION OF LIEN. A lien created under this
6-66 chapter is perfected on the filing of a notice of claim of lien
6-67 with the secretary of state as provided by this chapter.
6-68 Sec. 188.011. DURATION OF NOTICE OF CLAIM OF LIEN. (a)
6-69 Except as otherwise provided by this chapter, the notice of claim
6-70 of lien is effective, and a new notice of claim of lien is not
7-1 required to maintain the lien, as long as the person who provides
7-2 the animal feed, including labor, either:
7-3 (1) remains unpaid for the amount secured by the lien;
7-4 or
7-5 (2) continues to provide animal feed on a regular
7-6 basis to the lien debtor.
7-7 (b) For purposes of this section, providing animal feed,
7-8 including labor, is not considered to be made on a regular basis if
7-9 a period of more than 45 days elapses between deliveries or
7-10 preparations.
7-11 Sec. 188.012. PROCEDURES FOR SETTLEMENT OF DISPUTES. (a)
7-12 The commissioner of agriculture by rule shall establish a procedure
7-13 to settle a dispute between a claimant supplying animal feed and
7-14 labor and a debtor. The procedures must provide:
7-15 (1) a time requirement for submitting the dispute to
7-16 the department;
7-17 (2) a time requirement within which a notice of the
7-18 dispute must be submitted to each party; and
7-19 (3) a process for evaluating the dispute.
7-20 (b) Each party to the dispute is equally liable for the
7-21 reasonable costs incurred by the department in carrying out this
7-22 section.
7-23 Sec. 188.013. CONTENTS OF NOTICE OF CLAIM OF LIEN. The
7-24 notice of claim of lien must include:
7-25 (1) the name and address of the lien claimant;
7-26 (2) the name and address of the lien debtor;
7-27 (3) the location of the livestock for which the animal
7-28 feed was provided;
7-29 (4) a statement that the payment of the reasonable or
7-30 agreed charges is more than 30 days overdue;
7-31 (5) the amount that is overdue;
7-32 (6) a statement, signed under penalty of perjury,
7-33 that:
7-34 (A) the lien claimant provided notice of the
7-35 provisions of this chapter, before purchase, either generally to
7-36 purchasers of animal feed as part of the lien claimant's normal
7-37 business practices or specifically to the lien debtor, in the
7-38 manner required by Section 188.006(a);
7-39 (B) the lien claimant sent to the lien debtor
7-40 the notice required by Section 188.006(b);
7-41 (C) more than 10 days have elapsed since the
7-42 date on which the notice was received by the lien debtor; and
7-43 (D) the lien debtor has not complied with the
7-44 requirements of an alternative set out by Section 188.006(b); and
7-45 (7) a statement that the lien claimant has an animal
7-46 feed lien under this chapter.
7-47 Sec. 188.014. SIGNATURE. The notice of claim of lien shall
7-48 be signed by the lien claimant or by a person authorized to sign
7-49 documents of a similar kind on behalf of the claimant.
7-50 Sec. 188.015. FORM. (a) The notice of claim of lien must
7-51 be filed on a form that satisfies the requirements of a financing
7-52 statement under Section 9.402, Business & Commerce Code, except
7-53 that:
7-54 (1) the lien claimant may be identified either as a
7-55 lien claimant or as a secured party;
7-56 (2) the form must be signed by the lien claimant and
7-57 is not required to be signed by the lien debtor; and
7-58 (3) in the space for the description of the
7-59 collateral, the information specified in Sections 188.013(3), (4),
7-60 (5), and (7) must be entered.
7-61 (b) A separately signed statement containing the information
7-62 specified in Section 188.013(6) shall be attached to the form
7-63 required under Subsection (a).
7-64 Sec. 188.016. FILING AND MARKING IN OFFICE OF SECRETARY OF
7-65 STATE; FEE. (a) The notice of claim of lien shall be filed and
7-66 marked in the office of the secretary of state in the same manner
7-67 as a financing statement is filed and marked under Section 9.403,
7-68 Business & Commerce Code.
7-69 (b) The uniform fee for filing and indexing and for stamping
7-70 a copy furnished by the secured party is the same as the fee
8-1 assessed under Section 9.403, Business & Commerce Code.
8-2 Sec. 188.017. TIME OF WRITTEN NOTICE. The lien claimant
8-3 shall provide written notice of the claim of lien to the lien
8-4 debtor not later than the 10th day after the date the notice of
8-5 claim of lien is filed with the office of the secretary of state.
8-6 Sec. 188.018. RECOGNITION OF NOTICE AS FINANCING STATEMENT.
8-7 The secretary of state shall recognize a notice of claim of lien
8-8 under this subchapter as a financing statement under Section 9.402,
8-9 Business & Commerce Code.
8-10 (Sections 188.019-188.025 reserved for expansion
8-11 SUBCHAPTER C. PRIORITY OF LIEN
8-12 Sec. 188.026. TIME OF FILING. (a) A lien created under
8-13 this chapter has the same priority as a security interest perfected
8-14 by the filing of a financing statement on the date the notice of
8-15 claim of lien was filed.
8-16 (b) A lien created under this chapter does not have priority
8-17 over:
8-18 (1) labor claims for wages and salaries for personal
8-19 services that are provided by an employee to a lien debtor in
8-20 connection with the livestock, the production of animal products
8-21 derived from the livestock, or issue born to the livestock, the
8-22 proceeds of which are subject to the lien; or
8-23 (2) claims for charges for the care of the livestock,
8-24 the proceeds of which are subject to the lien.
8-25 (Sections 188.027-188.030 reserved for expansion
8-26 SUBCHAPTER D. INFORMATION CONCERNING LIEN
8-27 Sec. 188.031. ISSUANCE OF CERTIFICATE TO MEMBER OF PUBLIC;
8-28 FEE. (a) A person may obtain a certificate identifying any lien
8-29 on file and any notice of claim of lien naming a particular debtor
8-30 and stating the date and time of filing of each notice and the
8-31 names and addresses of each lienholder in the certificate.
8-32 (b) The fee for a certificate under Subsection (a) shall be
8-33 established by the secretary of state in an amount necessary to
8-34 cover the cost of administering this section.
8-35 Sec. 188.032. COPIES OF NOTICES OF CLAIM OF LIEN AND OTHER
8-36 NOTICES; FEE. (a) A person may obtain a copy of any notice of
8-37 claim of an animal feed lien filed.
8-38 (b) The fee for a copy of a notice of claim of lien obtained
8-39 under Subsection (a) shall be established by the secretary of state
8-40 in an amount necessary to cover the cost of administering this
8-41 section.
8-42 (Sections 188.033-188.035 reserved for expansion
8-43 SUBCHAPTER E. ENFORCEMENT OF LIEN
8-44 Sec. 188.036. WRITTEN NOTICE TO SECURED CREDITORS BY LIEN
8-45 CLAIMANT. (a) A lien claimant shall provide written notice to any
8-46 secured creditor at least 30 days before the date the lien claimant
8-47 enforces a claim of lien.
8-48 (b) For purposes of this section, "secured creditor" means
8-49 any entity named as a secured party in a financing statement that
8-50 is filed regarding the debtor and that covers an animal product, an
8-51 account, or livestock subject to the lien.
8-52 Sec. 188.037. FORECLOSURE IN ACTION TO RECOVER REASONABLE OR
8-53 AGREED CHARGES. The lien claimant may foreclose on a lien under
8-54 this chapter only in an action to recover the reasonable or agreed
8-55 charges.
8-56 Sec. 188.038. TERMINATION STATEMENT. (a) If a lien
8-57 claimant receives payment for the total amount secured by a lien
8-58 under this chapter and the lien claimant has not furnished animal
8-59 feed during the 45-day period before the date on which payment is
8-60 received, the lien claimant shall file a termination statement with
8-61 the secretary of state and shall send the lien debtor a copy of the
8-62 statement as provided by this section. The statement shall state
8-63 that the lien claimant no longer claims a security interest under
8-64 the notice of claim of lien.
8-65 (b) The notice of claim of lien must be identified in the
8-66 statement under Subsection (a) by the date, names of parties to the
8-67 agreement, and file number of the original lien.
8-68 (c) If the lien claimant does not send the termination
8-69 statement required by this section before the 11th day after the
8-70 date on which the lien claimant received payment, the lien claimant
9-1 is liable to the lien debtor for actual damages suffered by the
9-2 lien debtor as a result of the failure. If the lien claimant acts
9-3 in bad faith in failing to send the statement, the lien claimant is
9-4 liable for an additional penalty of $100.
9-5 (d) The filing officer in the secretary of state's office
9-6 shall mark each termination statement with the date and time of
9-7 filing and shall index the statement under the name of the lien
9-8 debtor and under the file number of the original lien. If the
9-9 filing officer has a microfilm or other photographic record of the
9-10 lien and related filings, the filing officer may destroy the filed
9-11 notice of claim of lien at any time after receiving the termination
9-12 statement. If the filing officer does not have a photographic
9-13 record, the filing officer may destroy the filed notice of claim of
9-14 lien at any time after the first anniversary of the date on which
9-15 the filing officer received the termination statement.
9-16 (e) The uniform filing fee for filing and indexing the
9-17 termination statement is the same as the fee assessed under Section
9-18 9.404(c), Business & Commerce Code.
9-19 Sec. 188.039. RIGHT OF ASSIGNMENT OR TRANSFER; FILING OF
9-20 STATEMENT. (a) A lien created under this chapter may be assigned
9-21 by the holder of the lien, with full rights of enforcement.
9-22 (b) The lienholder shall file a statement of assignment with
9-23 the secretary of state as provided by Section 9.405, Business &
9-24 Commerce Code.
9-25 (Sections 188.040-188.045 reserved for expansion
9-26 SUBCHAPTER F. MISCELLANEOUS
9-27 Sec. 188.046. RULES. The secretary of state may adopt rules
9-28 necessary to carry out the secretary's duties under this chapter,
9-29 including prescribing necessary forms.
9-30 Sec. 188.047. MAXIMUM NUMBER OF LIENS. Not more than four
9-31 liens may be enforced under this chapter against the same proceeds
9-32 of a lien debtor even if the liens are filed by different lien
9-33 claimants.
9-34 Sec. 188.048. APPLICABILITY OF OTHER LAW. Chapter 9,
9-35 Business & Commerce Code, applies to a lien created under this
9-36 chapter to the extent Chapter 9 is consistent with this chapter.
9-37 SECTION 3. (a) Chapter 128, Agriculture Code, as added by
9-38 this Act, applies to an agricultural chemical, agricultural seed,
9-39 or labor supplied on or after the effective date of this Act.
9-40 (b) Chapter 188, Agriculture Code, as added by this Act,
9-41 applies to animal feed and labor supplied on or after the effective
9-42 date of this Act.
9-43 SECTION 4. This Act takes effect September 1, 1995.
9-44 SECTION 5. The importance of this legislation and the
9-45 crowded condition of the calendars in both houses create an
9-46 emergency and an imperative public necessity that the
9-47 constitutional rule requiring bills to be read on three several
9-48 days in each house be suspended, and this rule is hereby suspended.
9-49 * * * * *