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.