S.B. No. 494 AN ACT 1-1 relating to the imposition of a lien on certain persons convicted 1-2 of criminal offenses to secure payment of restitution, fines, or 1-3 costs. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Chapter 42, Code of Criminal Procedure, is 1-6 amended by adding Article 42.21 to read as follows: 1-7 Art. 42.21. RESTITUTION LIENS 1-8 Sec. 1. DEFINITIONS. In this article: 1-9 (1) "Department" means the Texas Department of 1-10 Transportation. 1-11 (2) "Motor vehicle" has the meaning assigned by 1-12 Section 1, Certificate of Title Act (Article 6687-1, Vernon's Texas 1-13 Civil Statutes). 1-14 (3) "State" means the State of Texas and all political 1-15 subdivisions thereof. 1-16 (4) "Victim" means a "close relative of a deceased 1-17 victim," "guardian of a victim," or "victim," as those terms are 1-18 defined by Article 56.01 of this code. 1-19 (5) "Personal property" means any property other than 1-20 real property including all tangible and intangible types of 1-21 property and including but not limited to copyrights, book rights, 1-22 movie rights, patents, and trademarks acquired by the defendant 1-23 prior to, during, and after conviction. 1-24 Sec. 2. LIEN ESTABLISHED. (a) The victim of a criminal 2-1 offense has a restitution lien to secure the amount of restitution 2-2 to which the victim is entitled under the order of a court in a 2-3 criminal case. 2-4 (b) The state also has a restitution lien to secure the 2-5 amount of fines or costs entered against a defendant in the 2-6 judgment in a felony criminal case. 2-7 Sec. 3. PERFECTION. A restitution lien attaches and is 2-8 perfected when an affidavit to perfect the lien is filed in 2-9 accordance with this article. 2-10 Sec. 4. JUDGMENT REQUIRED. An affidavit to perfect a 2-11 restitution lien may not be filed under this article until a court 2-12 has ordered restitution or entered a judgment requiring the 2-13 defendant to pay a fine or costs. 2-14 Sec. 5. PERSONS WHO MAY FILE. The following persons may 2-15 file an affidavit to perfect a restitution lien: 2-16 (1) the attorney representing the state in a criminal 2-17 case in which a victim is determined by the court to be entitled to 2-18 restitution or in which a defendant is ordered to pay fines or 2-19 costs; or 2-20 (2) a victim in a criminal case determined by the 2-21 court to be entitled to restitution. 2-22 Sec. 6. AFFIDAVIT. An affidavit to perfect a restitution 2-23 lien must be signed by the attorney representing the state or a 2-24 magistrate and must contain: 2-25 (1) the name and date of birth of the defendant whose 2-26 property or other interests are subject to the lien; 2-27 (2) the residence or principal place of business of 3-1 the person named in the lien, if known; 3-2 (3) the criminal proceeding giving rise to the lien, 3-3 including the name of the court, the name of the case, and the 3-4 court's file number for the case; 3-5 (4) the name and address of the attorney representing 3-6 the state and the name of the person entitled to restitution; 3-7 (5) a statement that the notice is being filed under 3-8 this article; 3-9 (6) the amount of restitution and the amount of fines 3-10 and costs the defendant has been ordered to pay by the court; and 3-11 (7) a statement that the amount of restitution owed at 3-12 any one time may be less than the original balance and that the 3-13 outstanding balance is reflected in the records of the clerk of the 3-14 court hearing the criminal proceeding giving rise to the lien. 3-15 Sec. 7. FILING. (a) An affidavit to perfect a restitution 3-16 lien may be filed with: 3-17 (1) the secretary of state; 3-18 (2) the department; or 3-19 (3) the county clerk of the county in which: 3-20 (A) the crime was committed; 3-21 (B) the defendant resides; or 3-22 (C) the property is located. 3-23 (b) The uniform fee for filing and indexing and for stamping 3-24 a copy furnished by the state or victim to show the date and place 3-25 of filing is $5. 3-26 (c) The secretary of state shall deposit the filing fee in 3-27 the state treasury to the credit of the statutory filing fund 4-1 solely to defray the costs of administration of this section. The 4-2 department shall deposit the filing fee in the state treasury to 4-3 the credit of the state highway fund to be used solely to defray 4-4 the costs of administering this section. 4-5 (d) The county clerk shall immediately record the 4-6 restitution lien in the judgment records of the county. The clerk 4-7 shall note in the records the date and hour the lien is received. 4-8 (e) The secretary of state shall immediately file the 4-9 restitution lien in the security interest and financing statement 4-10 records of the secretary of state. The secretary of state shall 4-11 note in the records the date and hour the lien is received. 4-12 (f) The department shall immediately file the restitution 4-13 lien in the motor vehicle records of the department. The 4-14 department shall note in the records the date and hour the lien is 4-15 received. 4-16 (g) When a restitution lien is filed, the county clerk, 4-17 secretary of state, or department shall enter the restitution lien 4-18 in an alphabetical index to the records in which the lien is filed 4-19 showing: 4-20 (1) the name of the person entitled to restitution; 4-21 (2) the name of the defendant obligated to pay 4-22 restitution, fines, or costs; 4-23 (3) the amount of the lien; and 4-24 (4) the name of the court that ordered restitution. 4-25 (h) A person who files an affidavit to perfect a restitution 4-26 lien under this article shall notify in writing the clerk of the 4-27 court entering the judgment creating the lien of all officers or 5-1 entities with which the affidavit was filed. 5-2 Sec. 8. SUBJECT PROPERTY. A restitution lien extends to: 5-3 (1) any interest of the defendant in real property 5-4 whether then owned or after-acquired located in a county in which 5-5 the lien is perfected by the filing of an affidavit with the county 5-6 clerk; 5-7 (2) any interest of the defendant in tangible or 5-8 intangible personal property whether then owned or after-acquired 5-9 other than a motor vehicle if the lien is perfected by the filing 5-10 of the affidavit with the secretary of state; or 5-11 (3) any interest of the defendant in a motor vehicle 5-12 whether then owned or after-acquired if the lien is perfected by 5-13 the filing of the affidavit with the department. 5-14 Sec. 9. PRIORITY. The perfection of a restitution lien 5-15 under this article is notice of the claim to all persons dealing 5-16 with the defendant or the property identified in the affidavit 5-17 perfecting the lien. A perfected lien in favor of a victim is 5-18 superior and prior to a lien perfected by the state under this 5-19 article, and the perfected lien in favor of the state is superior 5-20 and prior to the claim or interest of any other person, other than: 5-21 (1) a person who acquires a valid lien or security 5-22 interest perfected before the perfection of the restitution lien or 5-23 a valid lien or security interest secured by a vendor's lien; 5-24 (2) a bona fide purchaser who acquires an interest in 5-25 the property, if personal property, before the filing of the 5-26 restitution lien, to the extent that the purchaser gives value; or 5-27 (3) a bona fide purchaser for value who acquires and 6-1 files for record an interest in the property, if real property, 6-2 before the perfection of the restitution lien. 6-3 Sec. 10. PAYMENT. The clerk or other agency receiving a 6-4 payment from a defendant ordered to pay restitution shall make 6-5 payments to the person having an interest in the restitution lien 6-6 on a schedule of not less than quarterly payments as determined by 6-7 the clerk or agency. 6-8 Sec. 11. FORECLOSURE. If a defendant fails to timely make a 6-9 payment required by the order of the court entering the judgment 6-10 creating the restitution lien, the person having an interest in the 6-11 lien may file suit in a court of competent jurisdiction to 6-12 foreclose the lien. If the defendant cures the default on or 6-13 before the 20th day after the date the suit is filed and pays the 6-14 person who files the suit costs of court and reasonable attorney's 6-15 fees, the court may dismiss the suit without prejudice to the 6-16 person. The person may refile the suit against the defendant if 6-17 the defendant subsequently defaults. 6-18 Sec. 12. EXPIRATION; RECORDS. (a) A restitution lien 6-19 expires on the 10th anniversary of the date the lien was filed or 6-20 on the date the defendant satisfies the judgment creating the lien, 6-21 whichever occurs first. The person having an interest in the lien 6-22 may refile the lien before the date the lien expires. A lien that 6-23 is refiled expires on the 10th anniversary of the date the lien was 6-24 refiled or the date the defendant satisfies the judgment creating 6-25 the lien, whichever occurs first. 6-26 (b) Failure to execute or foreclose the restitution lien 6-27 does not cause dormancy of the lien. 7-1 (c) The clerk of the court entering the judgment creating 7-2 the restitution lien shall maintain a record of the outstanding 7-3 balance of restitution, fines, or costs owed. If the defendant 7-4 satisfies the judgment, the clerk shall immediately execute and 7-5 file for record a release of the restitution lien with all officers 7-6 or entities with which the affidavit perfecting the lien was filed, 7-7 as indicated by the notice received by the clerk under Section 7(h) 7-8 of this article, unless a release was executed and filed by the 7-9 person who filed the affidavit to perfect the lien. 7-10 (d) A partial release of a lien as to specific property may 7-11 be executed by the attorney representing the state or a magistrate 7-12 who signs an affidavit described by Section 6 of this article on 7-13 payment of a sum determined to represent the defendant's interest 7-14 in any property to which the lien may attach. 7-15 SECTION 2. A restitution lien arises only from a judgment in 7-16 a criminal case entered on or after the effective date of this Act. 7-17 SECTION 3. This Act takes effect September 1, 1996. 7-18 SECTION 4. The importance of this legislation and the 7-19 crowded condition of the calendars in both houses create an 7-20 emergency and an imperative public necessity that the 7-21 constitutional rule requiring bills to be read on three several 7-22 days in each house be suspended, and this rule is hereby suspended.