By Place H.B. No. 2830
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to a statutory lien to secure the amount of restitution to
1-3 which a crime victim is entitled.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Article 42.21, Code of Criminal Procedure, as
1-6 added by Section 1, Chapter 997, Acts of the 74th Legislature,
1-7 Regular Session, 1995, is amended to read as follows:
1-8 Art. 42.21. Restitution liens
1-9 Sec. 1. Definitions. In this article:
1-10 (1) "Department" means the Texas Department of
1-11 Transportation.
1-12 (2) "Motor vehicle" has the meaning assigned by
1-13 Chapter 501, Transportation Code [Section 1, Certificate of Title
1-14 Act (Article 6687-1, Vernon's Texas Civil Statutes)].
1-15 (3) "State" means the State of Texas and all political
1-16 subdivisions thereof.
1-17 (4) "Victim" means a "close relative of a deceased
1-18 victim," "guardian of a victim," or "victim," as those terms are
1-19 defined by Article 56.01 of this code.
1-20 (5) "Personal property" means any property other than
1-21 real property including all tangible and intangible types of
1-22 property and including but not limited to copyrights, book rights,
1-23 movie rights, patents, and trademarks acquired by the defendant
1-24 prior to, during, and after conviction.
2-1 Sec. 2. Lien Established. (a) The victim of a criminal
2-2 offense has a restitution lien to secure the amount of restitution
2-3 to which the victim is entitled under the order of a court in a
2-4 criminal case.
2-5 (b) The state also has a restitution lien to secure the
2-6 amount of fines or costs entered against a defendant in the
2-7 judgment in a felony criminal case.
2-8 Sec. 3. Perfection. (a) Except as provided by this
2-9 section, a [A] restitution lien attaches and is perfected when an
2-10 affidavit to perfect the lien is filed in accordance with this
2-11 article.
2-12 (b) If a lien established under this article is attached to
2-13 a motor vehicle, the lien must be perfected in the manner provided
2-14 by Chapter 501, Transportation Code, and the court that entered the
2-15 order of restitution giving rise to the lien shall include in the
2-16 order a requirement that the defendant surrender to the court
2-17 evidence of current legal ownership of the motor vehicle and the
2-18 title, if applicable, against which the lien attaches. A lien
2-19 against a motor vehicle as provided by this article is not
2-20 perfected until the defendant's title to the vehicle has been
2-21 surrendered to the court and the department has issued a subsequent
2-22 title that discloses on its face the fact that the vehicle is
2-23 subject to a restitution lien established as provided by this
2-24 article.
2-25 Sec. 4. Judgment Required. An affidavit to perfect a
2-26 restitution lien may not be filed under this article until a court
2-27 has ordered restitution or entered a judgment requiring the
3-1 defendant to pay a fine or costs.
3-2 Sec. 5. Persons Who May File. The following persons may
3-3 file an affidavit to perfect a restitution lien:
3-4 (1) the attorney representing the state in a criminal
3-5 case in which a victim is determined by the court to be entitled to
3-6 restitution or in which a defendant is ordered to pay fines or
3-7 costs; or
3-8 (2) a victim in a criminal case determined by the
3-9 court to be entitled to restitution.
3-10 Sec. 6. Affidavit. An affidavit to perfect a restitution
3-11 lien must be signed by the attorney representing the state or a
3-12 magistrate and must contain:
3-13 (1) the name and date of birth of the defendant whose
3-14 property or other interests are subject to the lien;
3-15 (2) the residence or principal place of business of
3-16 the person named in the lien, if known;
3-17 (3) the criminal proceeding giving rise to the lien,
3-18 including the name of the court, the name of the case, and the
3-19 court's file number for the case;
3-20 (4) the name and address of the attorney representing
3-21 the state and the name of the person entitled to restitution;
3-22 (5) a statement that the notice is being filed under
3-23 this article;
3-24 (6) the amount of restitution and the amount of fines
3-25 and costs the defendant has been ordered to pay by the court; [and]
3-26 (7) a statement that the amount of restitution owed at
3-27 any one time may be less than the original balance and that the
4-1 outstanding balance is reflected in the records of the clerk of the
4-2 court hearing the criminal proceeding giving rise to the lien; and
4-3 (8) the vehicle description and vehicle identification
4-4 number.
4-5 Sec. 7. Filing. (a) An affidavit to perfect a restitution
4-6 lien may be filed with:
4-7 (1) the secretary of state;
4-8 (2) the department in the manner provided by Chapter
4-9 501, Transportation Code; or
4-10 (3) the county clerk of the county in which:
4-11 (A) the crime was committed;
4-12 (B) the defendant resides; or
4-13 (C) the property is located.
4-14 (b) The uniform fee for filing and indexing and for stamping
4-15 a copy furnished by the state or victim to show the date and place
4-16 of filing is $5.
4-17 (c) The secretary of state shall deposit the filing fee in
4-18 the state treasury to the credit of the statutory filing fund
4-19 solely to defray the costs of administration of this section. The
4-20 department shall deposit the filing fee in the state treasury to
4-21 the credit of the state highway fund to be used solely to defray
4-22 the costs of administering this section.
4-23 (d) The county clerk shall immediately record the
4-24 restitution lien in the judgment records of the county. The clerk
4-25 shall note in the records the date and hour the lien is received.
4-26 (e) The secretary of state shall immediately file the
4-27 restitution lien in the security interest and financing statement
5-1 records of the secretary of state. The secretary of state shall
5-2 note in the records the date and hour the lien is received.
5-3 (f) The department shall immediately file the restitution
5-4 lien in the motor vehicle records of the department. The
5-5 department shall note in the records the date and hour the lien is
5-6 received.
5-7 (g) When a restitution lien is filed, the county clerk[,] or
5-8 secretary of state[, or department] shall enter the restitution
5-9 lien in an alphabetical index to the records in which the lien is
5-10 filed showing:
5-11 (1) the name of the person entitled to restitution;
5-12 (2) the name of the defendant obligated to pay
5-13 restitution, fines, or costs;
5-14 (3) the amount of the lien; and
5-15 (4) the name of the court that ordered restitution.
5-16 (h) A person who files an affidavit to perfect a restitution
5-17 lien under this article shall notify in writing the clerk of the
5-18 court entering the judgment creating the lien of all officers or
5-19 entities with which the affidavit was filed.
5-20 Sec. 8. Subject Property. A restitution lien extends to:
5-21 (1) any interest of the defendant in real property
5-22 whether then owned or after-acquired located in a county in which
5-23 the lien is perfected by the filing of an affidavit with the county
5-24 clerk;
5-25 (2) any interest of the defendant in tangible or
5-26 intangible personal property whether then owned or after-acquired
5-27 other than a motor vehicle if the lien is perfected by the filing
6-1 of the affidavit with the secretary of state; or
6-2 (3) any interest of the defendant in a motor vehicle
6-3 whether then owned or after-acquired if the lien is perfected by
6-4 the filing of the affidavit with the department.
6-5 Sec. 9. Priority. The perfection of a restitution lien
6-6 under this article is notice of the claim to all persons dealing
6-7 with the defendant or the property identified in the affidavit
6-8 perfecting the lien. Without regard to whether perfected before or
6-9 after the perfection of a restitution lien filed and perfected
6-10 under this article, a perfected real estate mortgage lien, a
6-11 vendor's lien, a purchase money security interest, a chattel paper
6-12 security interest, a lien on a motor vehicle perfected as provided
6-13 by Chapter 501, Transportation Code, or a worker's lien perfected
6-14 in the manner provided by law is superior and prior to a
6-15 restitution lien filed and perfected under this article. Except as
6-16 provided by this article, a [A] perfected lien in favor of a victim
6-17 is superior and prior to a lien perfected by the state under this
6-18 article, and the perfected lien in favor of the state is superior
6-19 and prior to the claim or interest of any other person, other than:
6-20 (1) a person who acquires a valid lien or security
6-21 interest perfected before the perfection of the restitution lien
6-22 [or a valid lien or security interest secured by a vendor's lien];
6-23 (2) a bona fide purchaser who acquires an interest in
6-24 the property, if personal property, before the filing of the
6-25 restitution lien, to the extent that the purchaser gives value; or
6-26 (3) a bona fide purchaser for value who acquires and
6-27 files for record an interest in the property, if real property,
7-1 before the perfection of the restitution lien.
7-2 Sec. 10. Payment. The clerk [or other agency] receiving a
7-3 payment from a defendant ordered to pay restitution shall make
7-4 payments to the person having an interest in the restitution lien
7-5 on a schedule of not less than quarterly payments as determined by
7-6 the clerk or agency.
7-7 Sec. 11. Foreclosure. If a defendant fails to timely make a
7-8 payment required by the order of the court entering the judgment
7-9 creating the restitution lien, the person having an interest in the
7-10 lien may file suit in a court of competent jurisdiction to
7-11 foreclose the lien. If the defendant cures the default on or
7-12 before the 20th day after the date the suit is filed and pays the
7-13 person who files the suit costs of court and reasonable attorney's
7-14 fees, the court may dismiss the suit without prejudice to the
7-15 person. The person may refile the suit against the defendant if
7-16 the defendant subsequently defaults.
7-17 Sec. 12. Expiration; Records. (a) A restitution lien
7-18 expires on the 10th anniversary of the date the lien was filed or
7-19 on the date the defendant satisfies the judgment creating the lien,
7-20 whichever occurs first. The person having an interest in the lien
7-21 may refile the lien before the date the lien expires. A lien that
7-22 is refiled expires on the 10th anniversary of the date the lien was
7-23 refiled or the date the defendant satisfies the judgment creating
7-24 the lien, whichever occurs first.
7-25 (b) Failure to execute or foreclose the restitution lien
7-26 does not cause dormancy of the lien.
7-27 (c) The clerk of the court entering the judgment creating
8-1 the restitution lien shall maintain a record of the outstanding
8-2 balance of restitution, fines, or costs owed. If the defendant
8-3 satisfies the judgment, the clerk shall immediately execute and
8-4 file for record a release of the restitution lien with all officers
8-5 or entities with which the affidavit perfecting the lien was filed,
8-6 as indicated by the notice received by the clerk under Section 7(h)
8-7 of this article, unless a release was executed and filed by the
8-8 person who filed the affidavit to perfect the lien.
8-9 (d) A partial release of a lien as to specific property may
8-10 be executed by the attorney representing the state or a magistrate
8-11 who signs an affidavit described by Section 6 of this article on
8-12 payment of a sum determined to represent the defendant's interest
8-13 in any property to which the lien may attach.
8-14 SECTION 2. The procedures and provisions of this Act that
8-15 relate to the establishment of a restitution lien against a motor
8-16 vehicle do not apply until all counties have implemented the Texas
8-17 Department of Transportation automated registration and title
8-18 system.
8-19 SECTION 3. The importance of this legislation and the
8-20 crowded condition of the calendars in both houses create an
8-21 emergency and an imperative public necessity that the
8-22 constitutional rule requiring bills to be read on three several
8-23 days in each house be suspended, and this rule is hereby suspended,
8-24 and that this Act take effect and be in force from and after its
8-25 passage, and it is so enacted.