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 * * * * *