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                               * * * * *