1-1     By:  Solomons (Senate Sponsor - Harris)                H.B. No. 740

 1-2           (In the Senate - Received from the House May 1, 1997;

 1-3     May 2, 1997, read first time and referred to Committee on

 1-4     Jurisprudence; May 13, 1997, reported favorably by the following

 1-5     vote:  Yeas 7, Nays 0; May 13, 1997, sent to printer.)

 1-6                            A BILL TO BE ENTITLED

 1-7                                   AN ACT

 1-8     relating to mechanics', contractors', and materialmen's liens;

 1-9     providing penalties.

1-10           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-11           SECTION 1.  Section 41.001(b), Property Code, is amended to

1-12     read as follows:

1-13           (b)  Encumbrances may be properly fixed on homestead property

1-14     for:

1-15                 (1)  purchase money;

1-16                 (2)  taxes on the property;

1-17                 (3)  work and material used in constructing

1-18     improvements on the property if contracted for in writing as

1-19     provided by Sections 53.254 [53.059](a), (b), and (c);

1-20                 (4)  an owelty of partition imposed against the

1-21     entirety of the property by a court order or by a written agreement

1-22     of the parties to the partition, including a debt of one spouse in

1-23     favor of the other spouse resulting from a division or an award of

1-24     a family homestead in a divorce proceeding; or

1-25                 (5)  the refinance of a lien against a homestead,

1-26     including a federal tax lien resulting from the tax debt of both

1-27     spouses, if the homestead is a family homestead, or from the tax

1-28     debt of the owner.

1-29           SECTION 2.  Section 53.001, Property Code, is amended to read

1-30     as follows:

1-31           Sec. 53.001.  DEFINITIONS.  In this chapter:

1-32                 (1)  "Contract price" means the cost to the owner for

1-33     any part of construction or repair performed under an original

1-34     contract.

1-35                 (2)  "Improvement" includes:

1-36                       (A)  abutting sidewalks and streets and utilities

1-37     in or on those sidewalks and streets;

1-38                       (B)  clearing, grubbing, draining, or fencing of

1-39     land;

1-40                       (C)  wells, cisterns, tanks, reservoirs, or

1-41     artificial lakes or pools made for supplying or storing water;

1-42                       (D)  pumps, siphons, and windmills or other

1-43     machinery or apparatuses used for raising water for stock, domestic

1-44     use, or irrigation; and

1-45                       (E)  planting orchard trees, grubbing out

1-46     orchards and replacing trees, and pruning of orchard trees.

1-47                 (3)  "Labor" means labor used in the direct prosecution

1-48     of the work.

1-49                 (4)  "Material" means all or part of:

1-50                       (A)  the material, machinery, fixtures, or tools

1-51     incorporated into the work, consumed in the direct prosecution of

1-52     the work, or ordered and delivered for incorporation or

1-53     consumption;

1-54                       (B)  rent at a reasonable rate and actual running

1-55     repairs at a reasonable cost for construction equipment used or

1-56     reasonably required and delivered for use in the direct prosecution

1-57     of the work at the site of the construction or repair; or

1-58                       (C)  power, water, fuel, and lubricants consumed

1-59     or ordered and delivered for consumption in the direct prosecution

1-60     of the work.

1-61                 (5)  "Mechanic's lien" means the lien provided by this

1-62     chapter.

1-63                 (6)  "Original contract" means an agreement to which an

1-64     owner is a party either directly or by implication of law.

 2-1                 (7)  "Original contractor" means a person contracting

 2-2     with an owner either directly or through the owner's agent.

 2-3                 (8)  "Residence" means a single-family house, duplex,

 2-4     triplex, or quadruplex or a unit in a multiunit structure used for

 2-5     residential purposes that is:

 2-6                       (A)  owned by one or more adult persons; and

 2-7                       (B)  used or intended to be used as a dwelling by

 2-8     one of the owners.

 2-9                 (9)  "Residential construction contract" means a

2-10     contract between an owner and a contractor in which the contractor

2-11     agrees to construct or repair the owner's residence, including

2-12     improvements appurtenant to the residence.

2-13                 (10)  "Residential construction project" means a

2-14     project for the construction or repair of a new or existing

2-15     residence, including improvements appurtenant to the residence, as

2-16     provided by a residential construction contract.

2-17                 (11)  "Retainage" means an amount representing part of

2-18     a contract payment that is not required to be paid to the claimant

2-19     within the month following the month in which labor is performed,

2-20     material is furnished, or specially fabricated material is

2-21     delivered.  The term does not include retainage under Subchapter E.

2-22                 (12) [(9)]  "Specially fabricated material" means

2-23     material fabricated for use as a component of the construction or

2-24     repair so as to be reasonably unsuitable for use elsewhere.

2-25                 (13) [(10)]  "Subcontractor" means a person who has

2-26     furnished labor or materials to fulfill an obligation to an

2-27     original contractor or to a subcontractor to perform all or part of

2-28     the work required by an original contract.

2-29                 (14) [(11)]  "Work" means any part of construction or

2-30     repair performed under an original contract.

2-31           SECTION 3.  Section 53.003(a), Property Code, is amended to

2-32     read as follows:

2-33           (a)  This section applies to notices required by Subchapters

2-34     B through G and K.

2-35           SECTION 4.  Section 53.026(a), Property Code, is amended to

2-36     read as follows:

2-37           (a)  A person who labors, specially fabricates materials, or

2-38     furnishes labor or materials under a direct contractual

2-39     relationship with another person is considered to be in direct

2-40     contractual relationship with the owner and has a lien as an

2-41     original contractor, if:

2-42                 (1)  the owner contracted with the other person for the

2-43     construction or repair of a house, building, or improvements and

2-44     the owner can effectively control that person through ownership of

2-45     voting stock, interlocking directorships, or otherwise;

2-46                 (2)  the owner contracted with the other person for the

2-47     construction or repair of a house, building, or improvements and

2-48     that other person can effectively control the owner through

2-49     ownership of voting stock, interlocking directorships, or

2-50     otherwise; or

2-51                 (3) [(2)]  the owner contracted with the other person

2-52     for the construction or repair of a house, building, or

2-53     improvements and the contract was made without good faith intention

2-54     of the parties that the other person was to perform the contract.

2-55           SECTION 5.  Section 53.052, Property Code, is amended to read

2-56     as follows:

2-57           Sec. 53.052.  FILING OF AFFIDAVIT.  (a)  Except as provided

2-58     by Subsection (b), the [The] person claiming the lien must file an

2-59     affidavit with the county clerk of the county in which the property

2-60     is located or into which the railroad extends not later than the

2-61     15th day of the fourth calendar month after the day on which the

2-62     indebtedness accrues.

2-63           (b)  A person claiming a lien arising from a residential

2-64     construction project must file an affidavit with the county clerk

2-65     of the county in which the property is located not later than the

2-66     15th day of the third calendar month after the day on which the

2-67     indebtedness accrues.

2-68           (c)  The county clerk shall record the affidavit in records

2-69     kept for that purpose and shall index and cross-index the affidavit

 3-1     in the names of the claimant, the original contractor, and the

 3-2     owner.  Failure of the county clerk to properly record or index a

 3-3     filed affidavit does not invalidate the lien.

 3-4           SECTION 6.  Sections 53.054(a) and (b), Property Code, are

 3-5     amended to read as follows:

 3-6           (a)  The affidavit must be signed by the person claiming the

 3-7     lien or by another person on the claimant's behalf and must contain

 3-8     substantially:

 3-9                 (1)  a sworn statement of the amount of the claim[,

3-10     including the amount];

3-11                 (2)  the name and last known address of the owner or

3-12     reputed owner;

3-13                 (3)  a general statement of the kind of work done and

3-14     materials furnished by the claimant and, for a claimant other than

3-15     an original contractor, a statement of each month in which the work

3-16     was done and materials furnished for which payment is requested;

3-17                 (4)  the name and last known address of the person by

3-18     whom the claimant was employed or to whom the claimant furnished

3-19     the materials or labor;

3-20                 (5)  the name and last known address of the original

3-21     contractor;

3-22                 (6)  a description, legally sufficient for

3-23     identification, of the property sought to be charged with the lien;

3-24     [and]

3-25                 (7)  the claimant's name, mailing address, and, if

3-26     different, physical [business] address; and

3-27                 (8)  for a claimant other than an original contractor,

3-28     a statement identifying the date each notice of the claim was sent

3-29     to the owner and the method by which the notice was sent.

3-30           (b)  The claimant may attach to the affidavit a copy of any

3-31     applicable written agreement or contract and a copy of each notice

3-32     sent to the owner.

3-33           SECTION 7.  Section 53.055(a), Property Code, is amended to

3-34     read as follows:

3-35           (a)  A person who files an affidavit must send a copy of the

3-36     affidavit by registered or certified mail to the owner or reputed

3-37     owner at the owner's last known business or residence address not

3-38     later than one business day after the date the affidavit is filed

3-39     with the county clerk [the earlier of:]

3-40                 [(1)  the 10th business day after the date the person

3-41     files the affidavit; or]

3-42                 [(2)  the date the affidavit is required to be filed].

3-43           SECTION 8.  Section 53.056(a), Property Code, is amended to

3-44     read as follows:

3-45           (a)  Except as provided by Subchapter K, a [A] claimant other

3-46     than an original contractor must give the notice prescribed by this

3-47     section for the lien to be valid.

3-48           SECTION 9.  Section 53.057(a), Property Code, is amended to

3-49     read as follows:

3-50           (a)  Except as provided by Subchapter K, a [A] claimant may

3-51     give notice under this section instead of or in addition to notice

3-52     under Section 53.056 if the claimant is to labor, furnish labor or

3-53     materials, or specially fabricate materials under an agreement with

3-54     an original contractor or a subcontractor providing for retainage.

3-55           SECTION 10.  Section 53.058(a), Property Code, is amended to

3-56     read as follows:

3-57           (a)  Except as provided by Subchapter K, a [A] claimant who

3-58     specially fabricates material must give notice under this section

3-59     for the lien to be valid.

3-60           SECTION 11.  Sections 53.081(a), (b), and (d), Property Code,

3-61     are amended to read as follows:

3-62           (a)  If an owner receives notice under Section 53.056,

3-63     53.057, [or] 53.058, 53.252, or 53.253, the owner may withhold from

3-64     payments to the original contractor an amount necessary to pay the

3-65     claim for which he receives notice.

3-66           (b)  If notice is sent in a form that substantially complies

3-67     with Section 53.056 or 53.252, the owner may withhold the funds

3-68     immediately on receipt of the notice.

3-69           (d)  If notice is sent under Section 53.058, the owner may

 4-1     withhold funds immediately on receipt of the notices sent under

 4-2     Subsection (e) of that section.  If notice is sent as provided by

 4-3     Section 53.253(b), the owner may withhold funds immediately on

 4-4     receipt of the notice sent as required by Section 53.252.

 4-5           SECTION 12.  Section 53.084(b), Property Code, is amended to

 4-6     read as follows:

 4-7           (b)  If the owner has received the notices required by

 4-8     Subchapter C or K, if the lien has been secured, and if the claim

 4-9     has been reduced to final judgment, the owner is liable and the

4-10     owner's property is subject to a claim for any money paid to the

4-11     original contractor after the owner was authorized to withhold

4-12     funds under this subchapter.  The owner is liable for that amount

4-13     in addition to any amount for which he is liable under Subchapter

4-14     E.

4-15           SECTION 13.  Section 53.085, Property Code, is amended to

4-16     read as follows:

4-17           Sec. 53.085.  AFFIDAVIT REQUIRED.  (a)  Any person who

4-18     furnishes labor or materials for the construction of improvements

4-19     on real property shall, if requested and as a condition of payment

4-20     for such labor or materials, provide to the requesting party, or

4-21     the party's [its] agent, an affidavit stating that the [such]

4-22     person has paid each of the person's [his] subcontractors,

4-23     laborers, or materialmen in full for all labor and materials

4-24     provided to the person [him] for the construction.  In the event,

4-25     however, that the person has not paid each of the person's [his]

4-26     subcontractors, laborers, or materialmen in full, the person shall

4-27     state in the affidavit the amount owed and the name and, if known,

4-28     the address and telephone number of each subcontractor, laborer, or

4-29     materialman to whom the [such] payment is owed.

4-30           (b)  The seller of any real property shall, upon request by

4-31     the purchaser or the purchaser's [its] agent prior to closing of

4-32     the purchase of the [such] real property, provide to the [such]

4-33     purchaser or the purchaser's [its] agent, a written affidavit

4-34     stating that the seller has paid each of the seller's [his]

4-35     contractors, laborers, or materialmen in full for all labor and

4-36     materials provided to the seller through the date specified in the

4-37     affidavit for any construction of improvements on the real property

4-38     and that  the seller is not indebted to any person, firm, or

4-39     corporation by reason of any such construction through the date

4-40     specified in the affidavit.  In the event that the seller has not

4-41     paid each of the seller's [his] contractors, laborers, or

4-42     materialmen in full for labor and material provided through the

4-43     date specified in the affidavit, the seller shall state in the

4-44     affidavit the amount owed and the name and, if known, the address

4-45     and telephone number of each  contractor, laborer, or materialman

4-46     to whom the [such] payment is owed.

4-47           (c)  The affidavit may include:

4-48                 (1)  a waiver or release of lien rights by the affiant

4-49     that is conditioned on the receipt of actual payment or collection

4-50     of funds when payment is made by check or draft;

4-51                 (2)  a warranty or representation that certain bills or

4-52     classes of bills will be paid by the affiant from funds paid in

4-53     reliance on the affidavit; and

4-54                 (3)  an indemnification by the affiant for any loss or

4-55     expense resulting from false or incorrect information in the

4-56     affidavit.

4-57           (d)  A person, including a seller, commits an offense if the

4-58     person intentionally, knowingly, or recklessly makes a false or

4-59     misleading statement in an affidavit under this section.  An

4-60     offense under this section is a [Class A] misdemeanor.  A person

4-61     adjudged guilty of an offense under this section shall be punished

4-62     by a fine not to exceed $4,000 or confinement in jail for a term

4-63     not to exceed one year or both a fine and confinement.  A person

4-64     may not receive community supervision for the offense.

4-65           (e)  A person signing an affidavit under this section is

4-66     personally liable for any loss or damage resulting from any false

4-67     or incorrect information in the affidavit.

4-68           SECTION 14.  Sections 53.106(b), (c), and (d), Property Code,

4-69     are amended to read as follows:

 5-1           (b)  A copy of the affidavit must be sent by certified or

 5-2     registered mail to the original contractor not later than the [10th

 5-3     day after the] date the affidavit is filed and to each claimant who

 5-4     sends a notice of lien liability to the owner under Section 53.056,

 5-5     53.057, [or] 53.058, 53.252, or 53.253 not later than the date the

 5-6     affidavit is filed or the 10th day after the date the owner

 5-7     receives the notice of lien liability [or after the date the

 5-8     affidavit is filed], whichever is later.

 5-9           (c)  A copy of the affidavit must also be sent to each person

5-10     who furnishes labor or materials for the property and who furnishes

5-11     the owner with a written request for the copy.  The owner must

5-12     furnish the copy to the person not later than the date the

5-13     affidavit is filed or the 10th day after the date the request is

5-14     received [or after the date the affidavit is filed], whichever is

5-15     later.

5-16           (d)  Except as provided by this subsection, an [An] affidavit

5-17     filed under this section on or before the 10th day after the date

5-18     of completion of the improvements is prima facie evidence of the

5-19     date the work under the original contract is completed for purposes

5-20     of this subchapter.  If the affidavit is filed after the 10th day

5-21     after the date of completion, the date of completion for purposes

5-22     of this subchapter is the date the affidavit is filed.  This

5-23     subsection does not apply to a person to whom the affidavit was not

5-24     sent as required by this section.

5-25           SECTION 15.  Section 53.157, Property Code, is amended to

5-26     read as follows:

5-27           Sec. 53.157.  DISCHARGE OF LIEN.  A mechanic's lien or

5-28     affidavit claiming a mechanic's lien filed under Section 53.052 may

5-29     be discharged of record by:

5-30                 (1)  recording a lien release signed by the claimant

5-31     under Section 53.152;

5-32                 (2)  failing to institute suit to foreclose the lien in

5-33     the county in which the property is located within the period

5-34     prescribed by Section 53.158, 53.175, or 53.208;

5-35                 (3)  recording the original or certified copy of a

5-36     final judgment or decree of a court of competent jurisdiction

5-37     providing for the discharge;

5-38                 (4)  filing the bond and[,] notice[, and return] in

5-39     compliance with Subchapter H; [or]

5-40                 (5)  filing the bond in compliance with Subchapter I;

5-41     or

5-42                 (6)  recording a certified copy of the order removing

5-43     the lien under Section 53.160 and a certificate from the clerk of

5-44     the court that states that no bond or deposit as described by

5-45     Section 53.161 was filed by the claimant within 30 days after the

5-46     date the order was entered.

5-47           SECTION 16.  Section 53.158, Property Code, is amended to

5-48     read as follows:

5-49           Sec. 53.158.  PERIOD FOR BRINGING SUIT TO FORECLOSE LIEN.

5-50     (a) Except as provided by Subsection (b), suit [Suit] must be

5-51     brought to foreclose the lien within two years after the date of

5-52     filing the lien affidavit under Section 53.052 or within one year

5-53     after completion of the work under the original contract under

5-54     which the lien is claimed, whichever is later.

5-55           (b)  For a claim arising from a residential construction

5-56     project, suit must be brought to foreclose the lien not later than

5-57     the first anniversary of the date the lien affidavit is filed under

5-58     Section 53.052.

5-59           SECTION 17.  Subchapter G, Chapter 53, Property Code, is

5-60     amended by adding Sections 53.160, 53.161, and 53.162 to read as

5-61     follows:

5-62           Sec. 53.160.  SUMMARY MOTION TO REMOVE INVALID OR

5-63     UNENFORCEABLE LIEN.  (a)  In a suit brought to foreclose a lien or

5-64     to declare a claim or lien invalid or unenforceable, a party

5-65     objecting to the validity or enforceability of the claim or lien

5-66     may file a motion to remove the claim or lien.  The motion must be

5-67     verified and state the legal and factual basis for objecting to the

5-68     validity or enforceability of the claim or lien.  The motion may be

5-69     accompanied by supporting affidavits.

 6-1           (b)  The grounds for objecting to the validity or

 6-2     enforceability of the claim or lien for purposes of the motion are

 6-3     limited to the following:

 6-4                 (1)  notice of claim was not furnished to the owner or

 6-5     original contractor as required by Section 53.056, 53.057, 53.058,

 6-6     53.252, or 53.253;

 6-7                 (2)  an affidavit claiming a lien failed to comply with

 6-8     Section 53.054 or was not filed as required by Section 53.052;

 6-9                 (3)  notice of the filed affidavit was not furnished to

6-10     the owner or original contractor as required by Section 53.055;

6-11                 (4)  the owner complied with the requirements of

6-12     Section 53.101 and paid the retainage and all other funds owed to

6-13     the original contractor before:

6-14                       (A)  the claimant perfected the lien claim; and

6-15                       (B)  the owner received a notice of the claim as

6-16     required by this chapter;

6-17                 (5)  all funds subject to the notice of a claim to the

6-18     owner and the perfection of a claim against the statutory retainage

6-19     have been deposited in the registry of the court and the owner has

6-20     no additional liability to the claimant;

6-21                 (6)  when the lien affidavit was filed on homestead

6-22     property:

6-23                       (A)  no contract was executed or filed as

6-24     required by Section 53.254;

6-25                       (B)  the affidavit claiming a lien failed to

6-26     contain the notice as required by Section 53.254; or

6-27                       (C)  the notice of the claim failed to include

6-28     the statement required by Section 53.254; and

6-29                 (7)  the claimant executed a valid and enforceable

6-30     waiver or release of the claim or lien claimed in the affidavit.

6-31           (c)  The claimant is not required to file a response.  The

6-32     claimant and any other party that has appeared in the proceeding

6-33     must be notified by at least 21 days before the date of the hearing

6-34     on the motion.  A motion may not be heard before the 21st day after

6-35     the date the claimant answers or appears in the proceeding.

6-36           (d)  At the hearing on the motion, the burden is on:

6-37                 (1)  the claimant to prove that the notice of claim and

6-38     affidavit of lien were furnished to the owner and original

6-39     contractor as required by this chapter; and

6-40                 (2)  the movant to establish that the lien should be

6-41     removed for any other ground authorized by this section.

6-42           (e)  The court shall promptly determine a motion to remove a

6-43     claim or lien under this section.  If the court determines that the

6-44     movant is not entitled to remove the lien, the court shall enter an

6-45     order denying the motion.  If the court determines that the movant

6-46     is entitled to remove the lien, the court shall enter an order

6-47     removing the lien claimed in the lien affidavit.   A party to the

6-48     proceeding may not file an interlocutory appeal from the court's

6-49     order.

6-50           (f)  Any admissible evidence offered at the hearing may be

6-51     admitted in the trial of the case.  The court's order under

6-52     Subsection (e) is not admissible as evidence in determining the

6-53     validity and enforceability of the claim or lien.

6-54           Sec. 53.161.  BOND REQUIREMENTS AFTER ORDER TO REMOVE.  (a)

6-55     In the order removing a lien, the court shall set the amount of

6-56     security that the claimant may provide in order to stay the removal

6-57     of the claim or lien.  The sum must be an amount that the court

6-58     determines is a reasonable estimate of the costs and attorney's

6-59     fees the movant is likely to incur in the proceeding to determine

6-60     the validity or enforceability of the lien.  The sum may not exceed

6-61     the amount of the lien claim.

6-62           (b)  The court shall stay the order removing the lien if the

6-63     claimant files a bond or a deposit in lieu of a bond in the amount

6-64     set in the order with the clerk of the court not later than the

6-65     30th day after the date the order is entered by the court unless,

6-66     for good cause, the court orders a later date for filing the bond

6-67     or the deposit in lieu of a bond.  If the court fails to set the

6-68     amount of the security required, the amount required is the amount

6-69     of the lien claim.

 7-1           (c)  The bond must be:

 7-2                 (1)  executed by a corporate surety authorized to do

 7-3     business in this state and licensed by this state to execute bonds

 7-4     as surety; and

 7-5                 (2)  conditioned on the claimant's payment of any final

 7-6     judgment rendered against the claimant in the proceeding for

 7-7     attorney's fees and costs to the movant under Section 53.156.

 7-8           (d)  In lieu of filing a bond, the claimant may deposit in

 7-9     the amount set by the court for the surety bond:

7-10                 (1)  cash;

7-11                 (2)  a negotiable obligation of the federal government

7-12     or a federal agency; or

7-13                 (3)  a negotiable obligation of a financial institution

7-14     chartered by the federal or state government that is insured by the

7-15     federal government or a federal agency.

7-16           (e)  A deposit made under Subsection (d) must be conditioned

7-17     in the same manner as a surety bond.  Any interest accrued on the

7-18     deposit amount is a part of the deposit.

7-19           (f)  If the claimant fails to file the bond or the deposit in

7-20     lieu of the bond in compliance with this section, the owner may

7-21     file:

7-22                 (1)  a certified copy of the order; and

7-23                 (2)  a certificate from the clerk of the court stating

7-24     that:

7-25                       (A)  no bond or deposit in lieu of the bond was

7-26     filed within 30 days after the date the order was entered by the

7-27     court; and

7-28                       (B)  no order staying the order to remove the

7-29     lien was entered by the court.

7-30           (g)  The claim or lien is removed and extinguished as to a

7-31     creditor or subsequent purchaser for valuable consideration who

7-32     obtains an interest in the property after the certified copy of the

7-33     order and certificate of the clerk of the court are filed with the

7-34     county clerk.  The removal of the lien does not constitute a

7-35     release of the liability of the owner, if any, to the claimant.

7-36           Sec. 53.162.  REVIVAL OF REMOVED LIEN.  (a)  If an order

7-37     removing the lien is not stayed as provided by Section 53.161 and

7-38     the claimant later obtains a final judgment in the suit

7-39     establishing the validity and ordering the foreclosure of the lien,

7-40     the claimant may file a certified copy of the final judgment with

7-41     the county clerk.

7-42           (b)  The filed judgment revives the lien, and the claimant

7-43     may foreclose the lien.

7-44           (c)  A lien revived under this section is void as to a

7-45     creditor or subsequent purchaser for valuable consideration who

7-46     obtained an interest in the property:

7-47                 (1)  after the order removing the lien and the

7-48     certificate from the clerk of the court was filed with the county

7-49     clerk; and

7-50                 (2)  before the final judgment reviving the lien was

7-51     filed with the county clerk.

7-52           SECTION 18.  Section 53.171, Property Code, is amended by

7-53     adding Subsection (c) to read as follows:

7-54           (c)  A mechanic's lien claim against an owner's property is

7-55     discharged after:

7-56                 (1)  a bond that complies with Section 53.172 is filed;

7-57                 (2)  the notice of the bond is issued as provided by

7-58     Section 53.173; and

7-59                 (3)  the bond and notice are recorded as provided by

7-60     Section 53.174.

7-61           SECTION 19.  Sections 53.173(c) and (d), Property Code, are

7-62     amended to read as follows:

7-63           (c)  The notice must [may] be served on each obligee by

7-64     mailing [having] a copy of the notice and the bond [delivered] to

7-65     the obligee by certified United States mail, return receipt

7-66     requested, addressed to the claimant at the address stated in the

7-67     lien affidavit for the obligee [any means authorized for the

7-68     service of an original petition under the Texas Rules of Civil

7-69     Procedure].

 8-1           (d)  If the claimant's lien affidavit does not state the

 8-2     claimant's address, the notice is not required to be mailed to the

 8-3     claimant [The original notice shall be returned to the office of

 8-4     the county clerk, and the person making service of copies shall

 8-5     make an oath on the back of the copies showing on whom and on what

 8-6     date the copies were served].

 8-7           SECTION 20.  Section 53.174, Property Code, is amended to

 8-8     read as follows:

 8-9           Sec. 53.174.  RECORDING OF BOND AND NOTICE.  (a)  The county

8-10     clerk shall record the bond, the notice, and a certificate of

8-11     mailing [return] in the real property records.

8-12           (b)  In acquiring an interest in or insuring title to real

8-13     property, a purchaser, insurer of title, or lender may rely on and

8-14     is absolutely protected by the record of the bond and the[,]

8-15     notice[, and return] to the same extent as if the lien claimant had

8-16     filed a release of lien in the real property records.

8-17           SECTION 21.  Section 53.175(b), Property Code, is amended to

8-18     read as follows:

8-19           (b)  The bond is not exhausted by one action against it.

8-20     Each named obligee or assignee of an obligee may maintain a

8-21     separate suit on the bond in any court of jurisdiction in the

8-22     county in which the real property is located.

8-23           SECTION 22.  Section 53.201(a), Property Code, is amended to

8-24     read as follows:

8-25           (a)  An original contractor who has a written contract with

8-26     the owner may furnish at any time a bond for the benefit of

8-27     claimants.

8-28           SECTION 23.  Chapter 53, Property Code, is amended by adding

8-29     Subchapter K to read as follows:

8-30               SUBCHAPTER K. RESIDENTIAL CONSTRUCTION PROJECTS

8-31           Sec. 53.251.  PROCEDURES FOR RESIDENTIAL CONSTRUCTION

8-32     PROJECTS.  (a)  This subchapter applies only to residential

8-33     construction projects.

8-34           (b)  A person must comply with this subchapter in addition to

8-35     the other applicable provisions of this chapter to perfect a lien

8-36     that arises from a claim resulting from a residential construction

8-37     project.

8-38           Sec. 53.252.  DERIVATIVE CLAIMANT: NOTICE TO OWNER OR

8-39     ORIGINAL CONTRACTOR.  (a)  A claimant other than an original

8-40     contractor must give the notice prescribed by this section for the

8-41     lien to be valid.  If the property that is the subject of the lien

8-42     is a homestead, the notice must also comply with Section 53.254.

8-43           (b)  The claimant must give to the owner or reputed owner and

8-44     the original contractor written notice of the unpaid balance.  The

8-45     claimant must give the notice not later than the 15th day of the

8-46     second month following each month in which all or part of the

8-47     claimant's labor was performed or material or specially fabricated

8-48     material was delivered.

8-49           (c)  To authorize the owner to withhold funds under

8-50     Subchapter D, the notice to the owner must state that if the claim

8-51     remains unpaid, the owner may be personally liable and the owner's

8-52     property may be subjected to a lien unless:

8-53                 (1)  the owner withholds payments from the contractor

8-54     for payment of the claim; or

8-55                 (2)  the claim is otherwise paid or settled.

8-56           (d)  The notice must be sent by registered or certified mail

8-57     and must be addressed to the owner or reputed owner and the

8-58     original contractor, as applicable, at the person's last known

8-59     business or residence address.

8-60           (e)  A copy of the statement or billing in the usual and

8-61     customary form is sufficient as notice under this section.

8-62           Sec. 53.253.  DERIVATIVE CLAIMANT:  NOTICE FOR SPECIALLY

8-63     FABRICATED ITEMS.  (a)   If specially fabricated materials have not

8-64     been delivered to the property or incorporated in the residential

8-65     construction project, the claimant who specially fabricates

8-66     material for incorporation in the residential construction project

8-67     must give notice under this section for the lien to be valid.

8-68           (b)  Once the specially fabricated materials have been

8-69     delivered, the claimant must give notice under Section 53.252.

 9-1           (c)  The claimant must give the owner or reputed owner notice

 9-2     not later than the 15th day of the second month after the month in

 9-3     which the claimant receives and accepts the order for the material.

 9-4     If the indebtedness is incurred by a person other than the original

 9-5     contractor, the claimant must also give notice within that time to

 9-6     the original contractor.

 9-7           (d)  The notice must contain:

 9-8                 (1)  a statement that the order has been received and

 9-9     accepted; and

9-10                 (2)  the price of the order.

9-11           (e)  The notice must be sent by registered or certified mail

9-12     to the last known business or residence address of the owner or the

9-13     reputed owner or the original contractor, as applicable.

9-14           (f)  The lien of a claimant who accepts an order but fails to

9-15     give notice under this section is valid as to delivered items if

9-16     the claimant has given notice under Section 53.252.

9-17           Sec. 53.254.  HOMESTEAD.  (a)  To fix a lien on a homestead,

9-18     the person who is to furnish material or perform labor and the

9-19     owner must execute a written contract setting forth the terms of

9-20     the agreement.

9-21           (b)  The contract must be executed before the material is

9-22     furnished or the labor is performed.

9-23           (c)  If the owner is married, the contract must be signed by

9-24     both spouses.

9-25           (d)  If the contract is made by an original contractor, the

9-26     contract inures to the benefit of all persons who labor or furnish

9-27     material for the original contractor.

9-28           (e)  The contract must be filed with the county clerk of the

9-29     county in which the homestead is located.  The county clerk shall

9-30     record the contract in records kept for that purpose.

9-31           (f)  An affidavit for lien filed under this subchapter that

9-32     relates to a homestead must contain the following notice

9-33     conspicuously printed, stamped, or typed in a size equal to at

9-34     least 10-point boldface or the computer equivalent, at the top of

9-35     the page:

9-36           "NOTICE:  THIS IS NOT A LIEN.  THIS IS ONLY AN AFFIDAVIT

9-37     CLAIMING A LIEN."

9-38           (g)  For the lien on a homestead to be valid, the notice

9-39     required to be given to the owner under Section 53.252 must include

9-40     or have attached the following statement:

9-41           "If a subcontractor or supplier who furnishes materials or

9-42     performs labor for construction of improvements on your property is

9-43     not paid, your property may be subject to a lien for the unpaid

9-44     amount if:

9-45                 (1)  after receiving notice of the unpaid claim from

9-46     the claimant, you fail to withhold payment to your contractor that

9-47     is sufficient to cover the unpaid claim until the dispute is

9-48     resolved; or

9-49                 (2)  during construction and for 30 days after

9-50     completion of construction, you fail to retain 10 percent of the

9-51     contract price or 10 percent of the value of the work performed by

9-52     your contractor.

9-53           "If you have complied with the law regarding the 10 percent

9-54     retainage and you have withheld payment to the contractor

9-55     sufficient to cover any written notice of claim and have paid that

9-56     amount, if any, to the claimant, any lien claim filed on your

9-57     property by a subcontractor or supplier, other than a person who

9-58     contracted directly with you, will not be a valid lien on your

9-59     property.  In addition, except for the required 10 percent

9-60     retainage, you are not liable to a subcontractor or supplier for

9-61     any amount paid to your contractor before you received written

9-62     notice of the claim."

9-63           Sec. 53.255.  DISCLOSURE STATEMENT REQUIRED FOR RESIDENTIAL

9-64     CONSTRUCTION CONTRACT.  (a)  Before a residential construction

9-65     contract is executed by the owner, the original contractor shall

9-66     deliver to the owner a disclosure statement described by this

9-67     section.

9-68           (b)  The disclosure statement must read substantially similar

9-69     to the following:

 10-1          "KNOW YOUR RIGHTS AND RESPONSIBILITIES UNDER THE LAW.  You

 10-2    are about to enter into a transaction to build a new home or

 10-3    remodel existing residential property.  Texas law requires your

 10-4    contractor to provide you with this brief overview of some of your

 10-5    rights, responsibilities, and risks in this transaction.

 10-6          "CONVEYANCE TO CONTRACTOR PROHIBITED.  Your contractor may

 10-7    not require you to convey your real property to your contractor as

 10-8    a condition to the agreement for the construction of improvements

 10-9    on your property.

10-10          "KNOW YOUR CONTRACTOR.  Before you enter into your agreement

10-11    for the construction of improvements to your real property, make

10-12    sure that you have investigated your contractor.  Obtain and verify

10-13    references from other people who have used the contractor for the

10-14    type and size of construction project on your property.

10-15          "GET IT IN WRITING.  Make sure that you have a written

10-16    agreement with your contractor that includes:  (1) a description of

10-17    the work the contractor is to perform; (2) the required or

10-18    estimated time for completion of the work; (3) the cost of the work

10-19    or how the cost will be determined; and (4) the procedure and

10-20    method of payment, including provisions for statutory retainage and

10-21    conditions for final payment.  If your contractor made a promise,

10-22    warranty, or representation to you concerning the work the

10-23    contractor is to perform, make sure that promise, warranty, or

10-24    representation is specified in the written agreement.  An oral

10-25    promise that is not included in the written agreement may not be

10-26    enforceable under Texas law.

10-27          "READ BEFORE YOU SIGN.  Do not sign any document before you

10-28    have read and understood it.  NEVER SIGN A DOCUMENT THAT INCLUDES

10-29    AN UNTRUE STATEMENT.  Take your time in reviewing documents.  If

10-30    you borrow money from a lender to pay for the improvements, you are

10-31    entitled to have the loan closing documents furnished to you for

10-32    review at least one business day before the closing.  Do not waive

10-33    this requirement unless a bona fide emergency or another good cause

10-34    exists, and make sure you understand the documents before you sign

10-35    them.  If you fail to comply with the terms of the documents, you

10-36    could lose your property.  You are entitled to have your own

10-37    attorney review any documents.  If you have any question about the

10-38    meaning of a document, consult an attorney.

10-39          "GET A LIST OF SUBCONTRACTORS AND SUPPLIERS.  Before

10-40    construction commences, your contractor is required to provide you

10-41    with a list of the subcontractors and suppliers the contractor

10-42    intends to use on your project.  Your contractor is required to

10-43    supply updated information on any subcontractors and suppliers

10-44    added after the list is provided.

10-45          "MONITOR THE WORK.  Lenders and governmental authorities may

10-46    inspect the work in progress from time to time for their own

10-47    purposes.  These inspections are not intended as quality control

10-48    inspections.  Quality control is a matter for you and your

10-49    contractor.  To ensure that your home is being constructed in

10-50    accordance with your wishes and specifications, you should inspect

10-51    the work yourself or have your own independent inspector review the

10-52    work in progress.

10-53          "MONITOR PAYMENTS.  If you use a lender, your lender is

10-54    required to provide you with a periodic statement showing the money

10-55    disbursed by the lender from the proceeds of your loan.  Your

10-56    contractor is also required to furnish you with a statement at

10-57    least once each month of money disbursed to subcontractors and

10-58    suppliers for this project.  Review these statements and make sure

10-59    that the money is being properly disbursed.

10-60          "CLAIMS BY SUBCONTRACTORS AND SUPPLIERS.  Under Texas law, if

10-61    a subcontractor or supplier who furnishes labor or materials for

10-62    the construction of improvements on your property is not paid, you

10-63    may become liable and your property may be subject to a lien for

10-64    the unpaid amount, even if you have not contracted directly with

10-65    the subcontractor or supplier.  To avoid liability, you should take

10-66    the following actions:

10-67                (1)  If you receive a written notice from a

10-68    subcontractor or supplier, you should  withhold payment from your

10-69    contractor for the amount of the claim stated in the notice until

 11-1    the dispute between your contractor and the subcontractor or

 11-2    supplier is resolved.  If your lender is disbursing money directly

 11-3    to your contractor, you should immediately provide a copy of the

 11-4    notice to your lender and instruct the lender to withhold payment

 11-5    in the amount of the claim stated in the notice.  If you continue

 11-6    to pay the contractor after receiving the written notice without

 11-7    withholding the amount of the claim, you may be liable and your

 11-8    property may be subject to a lien for the amount you failed to

 11-9    withhold.

11-10                (2)  During construction and for 30 days after final

11-11    completion, termination, or abandonment of the contract by the

11-12    contractor, you should withhold or cause your lender to withhold 10

11-13    percent of the amount of payments made for the work performed by

11-14    your contractor.  This is sometimes referred to as 'statutory

11-15    retainage.'  If you fail to withhold the 10 percent for at least 30

11-16    days after final completion, termination, or abandonment of the

11-17    contract by the contractor and if a valid claim is timely made by a

11-18    claimant, you may be personally liable and your property may be

11-19    subject to a lien up to the amount that you failed to withhold.

11-20          "If a claim is not paid within a certain time period, the

11-21    claimant is required to file a mechanic's lien affidavit in the

11-22    real property records in the county where the property is located.

11-23    A mechanic's lien affidavit is not a lien on your property, but the

11-24    filing of the affidavit could result in a court imposing a lien on

11-25    your property if the claimant is successful in litigation to

11-26    enforce the lien claim.

11-27          "SOME CLAIMS MAY NOT BE VALID.  When you receive a written

11-28    notice of a claim or when a mechanic's lien affidavit is filed on

11-29    your property, you should know your legal rights and

11-30    responsibilities regarding the claim.  Not all claims are valid.  A

11-31    notice of a claim by a subcontractor or supplier is required to be

11-32    sent, and the mechanic's lien affidavit is required to be filed,

11-33    within strict time periods.  The notice and the affidavit must

11-34    contain certain information.  All claimants may not fully comply

11-35    with the legal requirements to collect on a claim.   If you have

11-36    paid the contractor in full before receiving a notice of a claim

11-37    and have fully complied with the law regarding statutory retainage,

11-38    you may not be liable for that claim.  Accordingly, you should

11-39    consult your attorney when you receive a written notice of a claim

11-40    to determine the true extent of your liability or potential

11-41    liability for that claim.

11-42          "OBTAIN A LIEN RELEASE AND A BILLS-PAID AFFIDAVIT.  When you

11-43    receive a notice of claim, do not release withheld funds without

11-44    obtaining a signed and notarized release of lien and claim from the

11-45    claimant.  You can also reduce the risk of having a claim filed by

11-46    a subcontractor or supplier by requiring as a condition of each

11-47    payment made by you or your lender that your contractor furnish you

11-48    with an affidavit stating that all bills have been paid.  Under

11-49    Texas law, on final completion of the work and before final

11-50    payment, the contractor is required to furnish you with an

11-51    affidavit stating that all bills have been paid.  If the contractor

11-52    discloses any unpaid bill in the affidavit, you should withhold

11-53    payment in the amount of the unpaid bill until you receive a waiver

11-54    of lien or release from that subcontractor or supplier.

11-55          "OBTAIN TITLE INSURANCE PROTECTION.  You may be able to

11-56    obtain a title insurance policy to insure that the title to your

11-57    property and the existing improvements on your property are free

11-58    from liens claimed by subcontractors and suppliers.  If your policy

11-59    is issued before the improvements are completed and covers the

11-60    value of the improvements to be completed, you should obtain, on

11-61    the completion of the improvements and as a condition of your final

11-62    payment, a 'completion of improvements' policy endorsement.  This

11-63    endorsement will protect your property from liens claimed by

11-64    subcontractors and suppliers that may arise from the date the

11-65    original title policy is issued to the date of the endorsement."

11-66          (c)  The failure of a contractor to comply with this section

11-67    does not invalidate a lien under this chapter, a contract lien, or

11-68    a deed of trust.

11-69          Sec. 53.256.  LIST OF SUBCONTRACTORS AND SUPPLIERS.  (a)  For

 12-1    the construction of improvements under a residential construction

 12-2    contract, the original contractor must attach to the disclosure

 12-3    statement required by Section 53.255 or furnish to the owner before

 12-4    the commencement of construction a written list that identifies by

 12-5    name, address, and telephone number each subcontractor and supplier

 12-6    the contractor intends to use in the work to be performed.  The

 12-7    contractor shall provide the owner with an updated list of

 12-8    subcontractors and suppliers not later than the 15th day after the

 12-9    date a subcontractor or supplier is added or deleted.

12-10          (b)  The list must contain the following notice conspicuously

12-11    printed, stamped, or typed in a size equal to at least 10-point

12-12    boldface or the computer equivalent:

12-13          "NOTICE:  THIS LIST OF SUBCONTRACTORS AND SUPPLIERS MAY NOT

12-14    BE A FINAL LISTING.  THE CONTRACTOR IS REQUIRED BY LAW TO SUPPLY

12-15    UPDATED INFORMATION, AS THE INFORMATION BECOMES AVAILABLE, FOR EACH

12-16    SUBCONTRACTOR OR SUPPLIER USED IN THE WORK PERFORMED ON YOUR

12-17    RESIDENCE."

12-18          (c)  The failure of a contractor to comply with this section

12-19    does not invalidate a lien under this chapter, a contract lien, or

12-20    a deed of trust.

12-21          Sec. 53.257.  PROVISIONS RELATED TO CLOSING OF LOAN FOR

12-22    CONSTRUCTION OF IMPROVEMENTS.  (a)  If the owner is obtaining

12-23    third-party financing for the construction of improvements under a

12-24    residential construction contract, the lender shall deliver to the

12-25    owner all documentation relating to the closing of the loan not

12-26    later than one business day before the date of the closing. If a

12-27    bona fide emergency or another good cause exists and the lender

12-28    obtains the written consent of the owner, the lender may provide

12-29    the documentation to the owner or the lender may modify previously

12-30    provided documentation on the date of closing.

12-31          (b)  The lender shall provide to the owner the disclosure

12-32    statement described by Section 53.255(b).  The disclosure statement

12-33    must be provided to the owner before the date of closing.  If a

12-34    bona fide emergency or another good cause exists and the lender

12-35    obtains the written consent of the owner, the lender may provide

12-36    the disclosure statement at the closing.  The lender shall retain a

12-37    signed and dated copy of the disclosure statement with the closing

12-38    documents.

12-39          (c)  The failure of a lender to comply with this section does

12-40    not invalidate a lien under this chapter, a contract lien, or a

12-41    deed of trust.

12-42          Sec. 53.258.  DISBURSEMENTS OF FUNDS.  (a)  For the

12-43    construction of improvements under a residential construction

12-44    contract, the original contractor shall provide to the owner a

12-45    signed periodic statement that lists the bills or expenses that the

12-46    original contractor represents will be paid or that have been paid

12-47    and for which the original contractor is requesting payment.  The

12-48    original contractor is not required to include in the statement the

12-49    bills or expenses for which the original contractor has obtained a

12-50    valid lien release or waiver from the subcontractor or supplier to

12-51    whom the bills or expenses are owed if the statement includes a

12-52    written representation that the balance of any funds that are not

12-53    itemized in the statement will be paid to:

12-54                (1)  the subcontractor or supplier who provided the

12-55    lien release or waiver; or

12-56                (2)  the original contractor as reimbursement for

12-57    expenses incurred, profit, or overhead.

12-58          (b)  If the owner finances the construction of improvements

12-59    through a third party that advances loan proceeds directly to the

12-60    original contractor, the lender shall:

12-61                (1)  obtain from the original contractor the signed

12-62    periodic statement required by Subsection (a) that covers the funds

12-63    for which the original contractor is requesting payment; and

12-64                (2)  provide to the owner a statement of funds

12-65    disbursed by the lender since the last statement was provided to

12-66    the owner.

12-67          (c)  The lender shall provide to the owner the lender's

12-68    disbursement statement and the disbursement statement the lender

12-69    obtained from the contractor before the lender disburses the funds

 13-1    to the original contractor.  The disbursement statements may be

 13-2    provided in any manner agreed to by the lender and the owner.

 13-3          (d)  The lender is not responsible for the accuracy of the

 13-4    information contained in the disbursement statement obtained from

 13-5    the original contractor.

 13-6          (e)  The failure of a lender to comply with this section does

 13-7    not invalidate a lien under this chapter, a contract lien, or a

 13-8    deed of trust.

 13-9          (f)  A person commits an offense if the person intentionally,

13-10    knowingly, or recklessly provides false or misleading information

13-11    in a disbursement statement required under this section.  An

13-12    offense under this section is a misdemeanor.  A person adjudged

13-13    guilty of an offense under this section shall be punished by a fine

13-14    not to exceed $4,000 or confinement in jail for a term not to

13-15    exceed one year or both a fine and confinement.  A person may not

13-16    receive community supervision for the offense.

13-17          Sec. 53.259.  FINAL BILLS-PAID AFFIDAVIT REQUIRED.  (a)  As a

13-18    condition of final payment under a residential construction

13-19    contract, the original contractor shall, at the time the final

13-20    payment is tendered, execute and deliver to the owner, or the

13-21    owner's agent, an affidavit stating that the original contractor

13-22    has paid each person in full for all labor and materials used in

13-23    the construction of improvements on the real property.  If the

13-24    original contractor has not paid each person in full, the original

13-25    contractor shall state in the affidavit the amount owed and the

13-26    name and, if known, the address and telephone number of each person

13-27    to whom a payment is owed.

13-28          (b)  The seller of any real property on which a structure of

13-29    not more than four units is constructed and that is intended as the

13-30    principal place of residence for the purchaser shall, at the

13-31    closing of the purchase of the real property, execute and deliver

13-32    to the purchaser, or the purchaser's agent, an affidavit stating

13-33    that the seller has paid each person in full for all labor and

13-34    materials used in the construction of improvements on the real

13-35    property and that the seller is not indebted to any person by

13-36    reason of any construction.  In the event that the seller has not

13-37    paid each person in full, the seller shall state in the affidavit

13-38    the amount owed and the name and, if known, the address and

13-39    telephone number of each person to whom a payment is owed.

13-40          (c)  A person commits an offense if the person intentionally,

13-41    knowingly, or recklessly makes a false or misleading statement in

13-42    an affidavit under this section.  An offense under this section is

13-43    a misdemeanor.  A person adjudged guilty of an offense under this

13-44    section shall be punished by a fine not to exceed $4,000 or

13-45    confinement in jail for a term not to exceed one year or both a

13-46    fine and confinement.  A person may not receive community

13-47    supervision for the offense.

13-48          (d)  A person signing an affidavit under this section is

13-49    personally liable for any loss or damage resulting from any false

13-50    or incorrect information in the affidavit.

13-51          Sec. 53.260.  CONVEYANCE TO CONTRACTOR PROHIBITED.  An

13-52    original contractor may not require an owner of real property to

13-53    convey the real property to the original contractor or an entity

13-54    controlled by the original contractor as a condition to the

13-55    performance of the residential construction contract for

13-56    improvements to the real property.

13-57          SECTION 24.  Section 53.059, Property Code, is repealed.

13-58          SECTION 25.  (a)  This Act takes effect September 1, 1997.

13-59          (b)  The changes in law made by this Act apply only to

13-60    matters relating to or claims arising under an original contract,

13-61    as that term is defined by Section 53.001, Property Code, that is

13-62    entered into on or after September 1, 1997.  Matters relating to or

13-63    claims arising under an original contract, as that term is defined

13-64    by Section 53.001, Property Code, that was entered into before

13-65    September 1, 1997, are governed by the law as it existed on the

13-66    date the original contract was entered into, and the former law is

13-67    continued in effect for that purpose.

13-68          SECTION 26.  The importance of this legislation and the

13-69    crowded condition of the calendars in both houses create an

 14-1    emergency and an imperative public necessity that the

 14-2    constitutional rule requiring bills to be read on three several

 14-3    days in each house be suspended, and this rule is hereby suspended.

 14-4                                 * * * * *