By: Bivins S.B. No. 494
A BILL TO BE ENTITLED
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 is perfected when an
2-8 affidavit to perfect the lien is filed in accordance with this
2-9 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 possesses a valid lien or security
5-22 interest perfected before the perfection of the restitution lien;
5-23 (2) a bona fide purchaser who acquires an interest in
5-24 the property, if personal property, before the filing of the
5-25 restitution lien, to the extent that the purchaser gives value; or
5-26 (3) a bona fide purchaser who acquires and records an
5-27 interest in the property, if real property, before the perfection
6-1 of the restitution lien, to the extent that the purchaser gives
6-2 value.
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 notify in
7-5 writing all officers or entities with which the affidavit
7-6 perfecting the lien was filed, as indicated by the notice received
7-7 by the clerk under Section 7(h) of this article.
7-8 SECTION 2. A restitution lien arises only from a judgment in
7-9 a criminal case entered on or after the effective date of this Act.
7-10 SECTION 3. This Act takes effect September 1, 1996.
7-11 SECTION 4. The importance of this legislation and the
7-12 crowded condition of the calendars in both houses create an
7-13 emergency and an imperative public necessity that the
7-14 constitutional rule requiring bills to be read on three several
7-15 days in each house be suspended, and this rule is hereby suspended.