1-1 By: Bivins S.B. No. 494 1-2 (In the Senate - Filed February 7, 1995; February 8, 1995, 1-3 read first time and referred to Committee on Criminal Justice; 1-4 April 7, 1995, reported adversely, with favorable Committee 1-5 Substitute by the following vote: Yeas 6, Nays 0; April 7, 1995, 1-6 sent to printer.) 1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 494 By: Harris 1-8 A BILL TO BE ENTITLED 1-9 AN ACT 1-10 relating to the imposition of a lien on certain persons convicted 1-11 of criminal offenses to secure payment of restitution, fines, or 1-12 costs. 1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-14 SECTION 1. Chapter 42, Code of Criminal Procedure, is 1-15 amended by adding Article 42.21 to read as follows: 1-16 Art. 42.21. RESTITUTION LIENS 1-17 Sec. 1. DEFINITIONS. In this article: 1-18 (1) "Department" means the Texas Department of 1-19 Transportation. 1-20 (2) "Motor vehicle" has the meaning assigned by 1-21 Section 1, Certificate of Title Act (Article 6687-1, Vernon's Texas 1-22 Civil Statutes). 1-23 (3) "State" means the State of Texas and all political 1-24 subdivisions thereof. 1-25 (4) "Victim" means a natural person who has suffered 1-26 personal harm, financial damage, or loss as a result of a criminal 1-27 act. 1-28 (5) "Personal property" means any property other than 1-29 real property including all tangible and intangible types of 1-30 property and including but not limited to copyrights, book rights, 1-31 movie rights, patents, and trademarks acquired by the defendant 1-32 prior to, during, and after conviction. 1-33 Sec. 2. LIEN ESTABLISHED. (a) The victim of a criminal 1-34 offense has a restitution lien to secure the amount of restitution 1-35 to which the victim is entitled under the order of a court in a 1-36 criminal case. 1-37 (b) The state also has a restitution lien to secure the 1-38 amount of fines or costs entered against a defendant in the 1-39 judgment in a criminal case. 1-40 Sec. 3. PERFECTION. A restitution lien is perfected when an 1-41 affidavit to perfect the lien is filed in accordance with this 1-42 article. 1-43 Sec. 4. JUDGMENT REQUIRED. An affidavit to perfect a 1-44 restitution lien may not be filed under this article until a court 1-45 has ordered restitution or entered a judgment requiring the 1-46 defendant to pay a fine or costs. 1-47 Sec. 5. PERSONS WHO MAY FILE. The following persons may 1-48 file an affidavit to perfect a restitution lien: 1-49 (1) the attorney representing the state in a criminal 1-50 case in which a victim is determined by the court to be entitled to 1-51 restitution or in which a defendant is ordered to pay fines or 1-52 costs; or 1-53 (2) a victim in a criminal case determined by the 1-54 court to be entitled to restitution. 1-55 Sec. 6. AFFIDAVIT. An affidavit to perfect a restitution 1-56 lien must be signed by the attorney representing the state or a 1-57 magistrate and must contain: 1-58 (1) the name and date of birth of the defendant whose 1-59 property or other interests are subject to the lien; 1-60 (2) the residence or principal place of business of 1-61 the person named in the lien, if known; 1-62 (3) the criminal proceeding giving rise to the lien, 1-63 including the name of the court, the name of the case, and the 1-64 court's file number for the case; 1-65 (4) the name and address of the attorney representing 1-66 the state and the name of the person entitled to restitution; 1-67 (5) a statement that the notice is being filed under 1-68 this article; 2-1 (6) the amount of restitution and the amount of fines 2-2 and costs the defendant has been ordered to pay by the court; and 2-3 (7) a statement that the amount of restitution owed at 2-4 any one time may be less than the original balance and that the 2-5 outstanding balance is reflected in the records of the clerk of the 2-6 court hearing the criminal proceeding giving rise to the lien. 2-7 Sec. 7. FILING. (a) An affidavit to perfect a restitution 2-8 lien may be filed with: 2-9 (1) the secretary of state; 2-10 (2) the department; or 2-11 (3) the county clerk of the county in which: 2-12 (A) the crime was committed; 2-13 (B) the defendant resides; or 2-14 (C) the property is located. 2-15 (b) The uniform fee for filing and indexing and for stamping 2-16 a copy furnished by the state or victim to show the date and place 2-17 of filing is $5. 2-18 (c) The secretary of state shall deposit the filing fee in 2-19 the state treasury to the credit of the statutory filing fund 2-20 solely to defray the costs of administration of this section. The 2-21 department shall deposit the filing fee in the state treasury to 2-22 the credit of the general revenue fund. The county clerk shall 2-23 deposit the fee in the county treasury. 2-24 (d) The county clerk shall immediately record the 2-25 restitution lien in the judgment records of the county. The clerk 2-26 shall note in the records the date and hour the lien is received. 2-27 (e) The secretary of state shall immediately file the 2-28 restitution lien in the security interest and financing statement 2-29 records of the secretary of state. The secretary of state shall 2-30 note in the records the date and hour the lien is received. 2-31 (f) The department shall immediately file the restitution 2-32 lien in the motor vehicle records of the department. The 2-33 department shall note in the records the date and hour the lien is 2-34 received. 2-35 (g) When a restitution lien is filed, the county clerk, 2-36 secretary of state, or department shall enter the restitution lien 2-37 in an alphabetical index to the records in which the lien is filed 2-38 showing: 2-39 (1) the name of the person entitled to restitution; 2-40 (2) the name of the defendant obligated to pay 2-41 restitution, fines, or costs; 2-42 (3) the amount of the lien; and 2-43 (4) the name of the court that ordered restitution. 2-44 (h) A person who files an affidavit to perfect a restitution 2-45 lien under this article shall notify in writing the clerk of the 2-46 court entering the judgment creating the lien of all officers or 2-47 entities with which the affidavit was filed. 2-48 Sec. 8. SUBJECT PROPERTY. A restitution lien extends to: 2-49 (1) any interest of the defendant in real property 2-50 located in a county in which the lien is perfected by the filing of 2-51 an affidavit with the county clerk; 2-52 (2) any interest of the defendant in tangible or 2-53 intangible personal property whether then owned or after-acquired 2-54 other than a motor vehicle if the lien is perfected by the filing 2-55 of the affidavit with the secretary of state; or 2-56 (3) any interest of the defendant in a motor vehicle 2-57 if the lien is perfected by the filing of the affidavit with the 2-58 department. 2-59 Sec. 9. PRIORITY. The perfection of a restitution lien 2-60 under this article is notice of the claim to all persons dealing 2-61 with the defendant or the property identified in the affidavit 2-62 perfecting the lien. A perfected lien in favor of a victim is 2-63 superior and prior to a lien perfected by the state under this 2-64 article, and the perfected lien in favor of the state is superior 2-65 and prior to the claim or interest of any other person, other than: 2-66 (1) a person who possesses a valid lien or security 2-67 interest perfected before the perfection of the restitution lien; 2-68 (2) a bona fide purchaser who acquires an interest in 2-69 the property, if personal property, before the filing of the 2-70 restitution lien, to the extent that the purchaser gives value; or 3-1 (3) a bona fide purchaser who acquires and records an 3-2 interest in the property, if real property, before the perfection 3-3 of the restitution lien, to the extent that the purchaser gives 3-4 value. 3-5 Sec. 10. PAYMENT. The clerk or other agency receiving a 3-6 payment from a defendant ordered to pay restitution shall make 3-7 payments to the person having an interest in the restitution lien 3-8 on a schedule of not less than quarterly payments as determined by 3-9 the clerk or agency. 3-10 Sec. 11. FORECLOSURE. If a defendant fails to timely make a 3-11 payment required by the order of the court entering the judgment 3-12 creating the restitution lien, the person having an interest in the 3-13 lien may file suit in a court of competent jurisdiction to 3-14 foreclose the lien. If the defendant cures the default on or 3-15 before the 20th day after the date the suit is filed and pays the 3-16 person who files the suit costs of court and reasonable attorney's 3-17 fees, the court may dismiss the suit without prejudice to the 3-18 person. The person may refile the suit against the defendant if 3-19 the defendant subsequently defaults. 3-20 Sec. 12. EXPIRATION; RECORDS. (a) A restitution lien 3-21 expires on the 10th anniversary of the date the lien was filed or 3-22 on the date the defendant satisfies the judgment creating the lien, 3-23 whichever occurs first. The person having an interest in the lien 3-24 may refile the lien before the date the lien expires. A lien that 3-25 is refiled expires on the 10th anniversary of the date the lien was 3-26 refiled or the date the defendant satisfies the judgment creating 3-27 the lien, whichever occurs first. 3-28 (b) Failure to execute or foreclose the restitution lien 3-29 does not cause dormancy of the lien. 3-30 (c) The clerk of the court entering the judgment creating 3-31 the restitution lien shall maintain a record of the outstanding 3-32 balance of restitution, fines, or costs owed. If the defendant 3-33 satisfies the judgment, the clerk shall immediately notify in 3-34 writing all officers or entities with which the affidavit 3-35 perfecting the lien was filed, as indicated by the notice received 3-36 by the clerk under Section 7(h) of this article. 3-37 SECTION 2. A restitution lien arises only from a judgment in 3-38 a criminal case entered on or after the effective date of this Act. 3-39 SECTION 3. This Act takes effect September 1, 1996. 3-40 SECTION 4. The importance of this legislation and the 3-41 crowded condition of the calendars in both houses create an 3-42 emergency and an imperative public necessity that the 3-43 constitutional rule requiring bills to be read on three several 3-44 days in each house be suspended, and this rule is hereby suspended. 3-45 * * * * *