By Bivins S.B. No. 494
74R1836 NSC-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the imposition of a lien on certain persons convicted
1-3 of criminal offenses to secure payment of restitution, fines, or
1-4 costs.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Chapter 42, Code of Criminal Procedure, is
1-7 amended by adding Article 42.21 to read as follows:
1-8 Art. 42.21. RESTITUTION LIENS
1-9 Sec. 1. DEFINITIONS. In this article:
1-10 (1) "Department" means the Texas Department of
1-11 Transportation.
1-12 (2) "Motor vehicle" has the meaning assigned by
1-13 Section 2, Certificate of Title Act (Article 6687-1, Vernon's Texas
1-14 Civil Statutes).
1-15 Sec. 2. LIEN ESTABLISHED. (a) The victim of a criminal
1-16 offense has a restitution lien to secure the amount of restitution
1-17 to which the victim is entitled under the order of a court in a
1-18 criminal case.
1-19 (b) The state also has a restitution lien to secure the
1-20 amount of fines or costs entered against a defendant in the
1-21 judgment in a criminal case.
1-22 Sec. 3. PERFECTION. A restitution lien is perfected when an
1-23 affidavit to perfect the lien is filed in accordance with this
1-24 article.
2-1 Sec. 4. JUDGMENT REQUIRED. An affidavit to perfect a
2-2 restitution lien may not be filed under this article until a court
2-3 has ordered restitution or entered a judgment requiring the
2-4 defendant to pay a fine or costs.
2-5 Sec. 5. PERSONS WHO MAY FILE. The following persons may
2-6 file an affidavit to perfect a restitution lien:
2-7 (1) the attorney representing the state in a criminal
2-8 case in which a victim is determined by the court to be entitled to
2-9 restitution or in which a defendant is ordered to pay fines or
2-10 costs; or
2-11 (2) a victim in a criminal case determined by the
2-12 court to be entitled to restitution.
2-13 Sec. 6. AFFIDAVIT. An affidavit to perfect a restitution
2-14 lien must be signed by the attorney representing the state or a
2-15 magistrate and must contain:
2-16 (1) the name and date of birth of the defendant whose
2-17 property or other interests are subject to the lien;
2-18 (2) the residence or principal place of business of
2-19 the person named in the lien, if known;
2-20 (3) the criminal proceeding giving rise to the lien,
2-21 including the name of the court, the name of the case, and the
2-22 court's file number for the case;
2-23 (4) the name and address of the attorney representing
2-24 the state and the name of the person entitled to restitution;
2-25 (5) a statement that the notice is being filed under
2-26 this article;
2-27 (6) the amount of restitution and the amount of fines
3-1 and costs the defendant has been ordered to pay by the court; and
3-2 (7) a statement that the amount of restitution owed at
3-3 any one time may be less than the original balance and that the
3-4 outstanding balance is reflected in the records of the clerk of the
3-5 court hearing the criminal proceeding giving rise to the lien.
3-6 Sec. 7. FILING. (a) An affidavit to perfect a restitution
3-7 lien may be filed with:
3-8 (1) the secretary of state;
3-9 (2) the department; or
3-10 (3) the county clerk of the county in which:
3-11 (A) the crime was committed;
3-12 (B) the defendant resides; or
3-13 (C) the property is located.
3-14 (b) A person who files an affidavit to perfect a restitution
3-15 lien shall pay a filing fee of $25 to the secretary of state, the
3-16 department, or the county clerk. The state or a political
3-17 subdivision of the state is exempt from paying the fee.
3-18 (c) The secretary of state or the department shall deposit
3-19 the filing fee in the state treasury to the credit of the general
3-20 revenue fund. The county clerk shall deposit the fee in the county
3-21 treasury.
3-22 (d) The county clerk shall immediately record the
3-23 restitution lien in the judgment records of the county. The clerk
3-24 shall note in the records the date and hour the lien is received.
3-25 (e) The secretary of state shall immediately file the
3-26 restitution lien in the security interest and financing statements
3-27 records of the secretary of state. The secretary of state shall
4-1 note in the records the date and hour the lien is received.
4-2 (f) The department shall immediately file the restitution
4-3 lien in the motor vehicles records of the department. The
4-4 department shall note in the records the date and hour the lien is
4-5 received.
4-6 (g) When a restitution lien is filed, the county clerk,
4-7 secretary of state, or department shall enter the restitution lien
4-8 in an alphabetical index to the records in which the lien is filed
4-9 showing:
4-10 (1) the name of the person entitled to restitution;
4-11 (2) the name of the defendant obligated to pay
4-12 restitution, fines, or costs;
4-13 (3) the amount of the lien; and
4-14 (4) the name of the court that ordered restitution.
4-15 (h) A person who files an affidavit to perfect a restitution
4-16 lien under this article shall notify in writing the clerk of the
4-17 court entering the judgment creating the lien of all officers or
4-18 entities with which the affidavit was filed.
4-19 Sec. 8. SUBJECT PROPERTY. A restitution lien extends to:
4-20 (1) any interest of the defendant in real property
4-21 located in a county in which the lien is perfected by the filing of
4-22 an affidavit with the county clerk;
4-23 (2) any interest of the defendant in personal property
4-24 other than a motor vehicle if the lien is perfected by the filing
4-25 of the affidavit with the secretary of state; or
4-26 (3) any interest of the defendant in a motor vehicle
4-27 if the lien is perfected by the filing of the affidavit with the
5-1 department.
5-2 Sec. 9. PRIORITY. The perfection of a restitution lien
5-3 under this article is notice of the claim to all persons dealing
5-4 with the defendant or the property identified in the affidavit
5-5 perfecting the lien. A perfected lien in favor of a victim is
5-6 superior and prior to a lien perfected by the state under this
5-7 article, and the perfected lien in favor of the state is superior
5-8 and prior to the claim or interest of any other person, other than:
5-9 (1) a person who possesses a valid lien, or security
5-10 interest, perfected before the perfection of the restitution lien;
5-11 (2) a bona fide purchaser who acquires an interest in
5-12 the property, if personal property, before the filing of the
5-13 restitution lien, to the extent that the purchaser gives value; or
5-14 (3) a bona fide purchaser who acquires and records an
5-15 interest in the property, if real property, before the perfection
5-16 of the restitution lien, to the extent that the purchaser gives
5-17 value.
5-18 Sec. 10. PAYMENT. The clerk or other agency receiving a
5-19 payment from a defendant ordered to pay restitution shall make
5-20 payments to the person having an interest in the restitution lien
5-21 on a schedule of not less than quarterly payments as determined by
5-22 the clerk or agency.
5-23 Sec. 11. FORECLOSURE. If a defendant fails to timely make a
5-24 payment required by the order of the court entering the judgment
5-25 creating the restitution lien, the person having an interest in the
5-26 lien may file suit in a court of competent jurisdiction to
5-27 foreclose the lien. If the defendant cures the default on or
6-1 before the 20th day after the date the suit is filed and pays the
6-2 person who files the suit costs of court and reasonable attorney's
6-3 fees, the court may dismiss the suit without prejudice to the
6-4 person. The person may refile the suit against the defendant if
6-5 the defendant subsequently defaults.
6-6 Sec. 12. EXPIRATION; RECORDS. (a) A restitution lien
6-7 expires on the 10th anniversary of the date the lien was filed or
6-8 on the date the defendant satisfies the judgment creating the lien,
6-9 whichever occurs first. The person having an interest in the lien
6-10 may refile the lien before the date the lien expires. A lien that
6-11 is refiled expires on the 10th anniversary of the date the lien was
6-12 refiled or the date the defendant satisfies the judgment creating
6-13 the lien, whichever occurs first.
6-14 (b) The failure to execute or foreclose the restitution lien
6-15 does not cause dormancy of the lien.
6-16 (c) The clerk of the court entering the judgment creating
6-17 the restitution lien shall maintain a record of the outstanding
6-18 balance of restitution, fines, or costs owed. If the defendant
6-19 satisfies the judgment, the clerk shall immediately notify all
6-20 officers or entities with which the affidavit perfecting the lien
6-21 was filed, as indicated by the notice received by the clerk under
6-22 Section 7(h) of this article.
6-23 SECTION 2. A restitution lien arises only from a judgment in
6-24 a criminal case entered on or after the effective date of this Act.
6-25 SECTION 3. This Act takes effect September 1, 1995.
6-26 SECTION 4. The importance of this legislation and the
6-27 crowded condition of the calendars in both houses create an
7-1 emergency and an imperative public necessity that the
7-2 constitutional rule requiring bills to be read on three several
7-3 days in each house be suspended, and this rule is hereby suspended.