AEZ C.S.H.B. 2830 75(R)BILL ANALYSIS CRIMINAL JURISPRUDENCE C.S.H.B. 2830 By: Place 4-09-97 Committee Report (Substituted) BACKGROUND In 1995 the Legislature added Article 42.21 to the Code of Criminal Procedure (Section 1, Chapter 997, Acts of the 74th Legislature, Regular Session, 1995). The purpose of this article is to provide a mechanism for the attachment of a lien against certain property of a person who has been found guilty of a crime and whose punishment includes either the requirement that he or she make restitution to the victim of the crime for which he or she has been convicted, or pay a fine to the state, or both. The lien is in favor of the victim (in the case of restitution) or the state (in the case of a lien to secure payment of a fine.)The lien may be attached to real or personal property owned by the defendant or subsequently acquired by the defendant. As currently configured, Article 42.21 has caused the following unintended consequences: (1) it does not provide a mechanism for the giving of adequate notice of the existence or amount of the lien when attached to a motor vehicle; (2) it creates a conflict with the lien perfection provisions of the Transportation Code with respect to the attachment of the lien to a motor vehicle; (3) it creates confusion as to the priority of liens; 4) it doesn't provide adequate protection for a bona fide purchaser for value; (5) by apparently requiring that a lien be discharged "immediately" it provides a unenforceable mechanism for discharge of the lien. PURPOSE HB 2830, as proposed, would correct the unintended consequences created by the enactment of Article 42.21, Code of Criminal Procedure. It would accomplish this by: (1)establishing an express procedure applicable to the perfection of the lien when it is attached to a motor vehicle, upgrading the procedures applicable to providing notice of the existence of the lien when attached to a motor vehicle, and by conditioning application of the article to motor vehicles on the adoption of the TxDOT Registration and Title System by all counties; and (2) providing expressly that the restitution lien is inferior to a perfected real estate mortgage lien, a vendor's lien, a purchase money security interest, a lien on a motor vehicle perfected under Chapter 501, Transportation Code and a worker's lien perfected in the manner provided by law. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1.Article 42.21, Code of Criminal Procedure, RESTITUTION LIENS, is amended in Sec. 1 DEFINITIONS by amending the definition of "motor vehicle" reflecting the 1995 codification of the cited civil statute into the Transportation Code. Sec 3 PERFECTION is amended by providing an express procedure applicable to the perfection of a restitution lien attached to a motor vehicle. The defendant who is ordered to make restitution is required to surrender the title to the vehicle against which the lien is attached. Sec. 6 AFFIDAVIT is amended by adding a new subdivision (8) requiring that if the lien is being attached to a motor vehicle, the affidavit must include the vehicle description and vehicle identification number. Sec. 7 (g), FILING, is amended by removing TxDot from the list of agencies that must maintain a list of restitution liens in alphabetical order. Sec. 9 PRIORITY is amended by clarifying the priority of liens. It establishes that a perfected real estate mortgage lien, a vendor's lien, a purchase money security interest, a chattel paper security interest, a lien on a motor vehicle or a workers lien are superior to a restitution lien under this article. In subdivision 1, removes a reference to a vendor's lien. SECTION 2.The procedures and provisions of this Act relating to the establishment of a restitution lien against a motor vehicle do not apply until all counties have implemented TxDot automated registration and title system. SECTION 3.Emergency Clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The original bill states that the defendant surrender to the court evidence of current legal ownership of the motor vehicle against which a lien attaches. The substitute adds the title, if applicable. The substitute adds that an affidavit must contain the vehicle description and vehicle identification number. The substitute adds "chattel paper security interest" to the list of liens superior to restitution liens. The substitute deletes the department from the list of who shall enter the restitution lien in an alphabetical index to the records where the lien is filed. Under payment the substitute says the clerk is the one who receives a payment from a defendant ordered to make restitution. The original bill had included the agency.