Bill not drafted by TLC or Senate E&E.
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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, Texas Code of Criminal Procedure,
1-6 as added by Section 1, Chapter 997, Acts of the 74th Legislature,
1-7 Regular Session, 1995, is amended to read as follows:
1-8 Article 42.21. Restitution liens.
1-9 Section 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 Section 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 Section 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 against
2-18 which the lien attaches. A lien against a motor vehicle as
2-19 provided by this article is not perfected until the defendant's
2-20 title to the vehicle has been surrendered to the court and the
2-21 department has issued a subsequent title that discloses on its face
2-22 the fact that the vehicle is subject to a restitution lien
2-23 established as provided by this article.
2-24 Section 4. Judgment Required. An affidavit to perfect a
2-25 restitution lien may not be filed under this article until a court
2-26 has ordered restitution or entered a judgment requiring the
2-27 defendant to pay a fine or costs.
2-28 Section 5. Persons Who May File. The following persons may
2-29 file an affidavit to perfect a restitution lien:
2-30 (1) the attorney representing the state in a criminal
3-1 case in which a victim is determined by the court to be entitled to
3-2 restitution or in which a defendant is ordered to pay fines or
3-3 costs; or
3-4 (2) a victim in a criminal case determined by the
3-5 court to be entitled to restitution.
3-6 Section 6. Affidavit. An affidavit to perfect a restitution
3-7 lien must be signed by the attorney representing the state or a
3-8 magistrate and must contain:
3-9 (1) the name and date of birth of the defendant whose
3-10 property or other interests are subject to the lien;
3-11 (2) the residence or principal place of business of
3-12 the person named in the lien, if known;
3-13 (3) the criminal proceeding giving rise to the lien,
3-14 including the name of the court, the name of the case, and the
3-15 court's file number for the case;
3-16 (4) the name and address of the attorney representing
3-17 the state and the name of the person entitled to restitution;
3-18 (5) a statement that the notice is being filed under
3-19 this article;
3-20 (6) the amount of restitution and the amount of fines
3-21 and costs the defendant has been ordered to pay by the court; and
3-22 (7) a statement that the amount of restitution owed at
3-23 any one time may be less than the original balance and that the
3-24 outstanding balance is reflected in the records of the clerk of the
3-25 court hearing the criminal proceeding giving rise to the lien.
3-26 Section 7. Filing. (a) An affidavit to perfect a
3-27 restitution lien may be filed with:
3-28 (1) the secretary of state;
3-29 (2) the department in the manner provided by Chapter
3-30 501, Transportation Code; or
4-1 (3) the county clerk of the county in which:
4-2 (A) the crime was committed;
4-3 (B) the defendant resides; or
4-4 (C) the property is located.
4-5 (b) The uniform fee for filing and indexing and for stamping
4-6 a copy furnished by the state or victim to show the date and place
4-7 of filing is $5.
4-8 (c) The secretary of state shall deposit the filing fee in
4-9 the state treasury to the credit of the statutory filing fund
4-10 solely to defray the costs of administration of this section. The
4-11 department shall deposit the filing fee in the state treasury to
4-12 the credit of the state highway fund to be used solely to defray
4-13 the costs of administering this section.
4-14 (d) The county clerk shall immediately record the
4-15 restitution lien in the judgment records of the county. The clerk
4-16 shall note in the records the date and hour the lien is received.
4-17 (e) The secretary of state shall immediately file the
4-18 restitution lien in the security interest and financing statement
4-19 records of the secretary of state. The secretary of state shall
4-20 note in the records the date and hour the lien is received.
4-21 (f) The department shall immediately file the restitution
4-22 lien in the motor vehicle records of the department. The
4-23 department shall note in the records the date and hour the lien is
4-24 received.
4-25 (g) When a restitution lien is filed, the county clerk,
4-26 secretary of state, or department shall enter the restitution lien
4-27 in an alphabetical index to the records in which the lien is filed
4-28 showing:
4-29 (1) the name of the person entitled to restitution;
4-30 (2) the name of the defendant obligated to pay
5-1 restitution, fines, or costs;
5-2 (3) the amount of the lien; and
5-3 (4) the name of the court that ordered restitution.
5-4 (h) A person who files an affidavit to perfect a restitution
5-5 lien under this article shall notify in writing the clerk of the
5-6 court entering the judgment creating the lien of all officers or
5-7 entities with which the affidavit was filed.
5-8 Section 8. Subject Property. A restitution lien extends to:
5-9 (1) any interest of the defendant in real property
5-10 whether then owned or after-acquired located in a county in which
5-11 the lien is perfected by the filing of an affidavit with the county
5-12 clerk;
5-13 (2) any interest of the defendant in tangible or
5-14 intangible personal property whether then owned or after-acquired
5-15 other than a motor vehicle if the lien is perfected by the filing
5-16 of the affidavit with the secretary of state; or
5-17 (3) any interest of the defendant in a motor vehicle
5-18 whether then owned or after-acquired if the lien is perfected by
5-19 the filing of the affidavit with the department.
5-20 Section 9. Priority. The perfection of a restitution lien
5-21 under this article is notice of the claim to all persons dealing
5-22 with the defendant or the property identified in the affidavit
5-23 perfecting the lien. Without regard to whether perfected before or
5-24 after the perfection of a restitution lien filed and perfected
5-25 under this article, a perfected real estate mortgage lien, a
5-26 vendor's lien, a purchase money security interest, a lien on a
5-27 motor vehicle perfected as provided by Chapter 501, Transportation
5-28 Code, or a worker's lien perfected in the manner provided by law is
5-29 superior and prior to a restitution lien filed and perfected under
5-30 this article. Except as provided by this article, a [A] perfected
6-1 lien in favor of a victim is superior and prior to a lien perfected
6-2 by the state under this article, and the perfected lien in favor of
6-3 the state is superior and prior to the claim or interest of any
6-4 other person, other than:
6-5 (1) a person who acquires a valid lien or security
6-6 interest perfected before the perfection of the restitution lien
6-7 [or a valid lien or security interest secured by a vendor's lien];
6-8 (2) a bona fide purchaser who acquires an interest in
6-9 the property, if personal property, before the filing of the
6-10 restitution lien, to the extent that the purchaser gives value; or
6-11 (3) a bona fide purchaser for value who acquires and
6-12 files for record an interest in the property, if real property,
6-13 before the perfection of the restitution lien.
6-14 Section 10. Payment. The clerk or other agency receiving a
6-15 payment from a defendant ordered to pay restitution shall make
6-16 payments to the person having an interest in the restitution lien
6-17 on a schedule of not less than quarterly payments as determined by
6-18 the clerk or agency.
6-19 Section 11. Foreclosure. If a defendant fails to timely
6-20 make a payment required by the order of the court entering the
6-21 judgment creating the restitution lien, the person having an
6-22 interest in the lien may file suit in a court of competent
6-23 jurisdiction to foreclose the lien. If the defendant cures the
6-24 default on or before the 20th day after the date the suit is filed
6-25 and pays the person who files the suit costs of court and
6-26 reasonable attorney's fees, the court may dismiss the suit without
6-27 prejudice to the person. The person may refile the suit against
6-28 the defendant if the defendant subsequently defaults.
6-29 Section 12. Expiration; Records. (a) A restitution lien
6-30 expires on the 10th anniversary of the date the lien was filed or
7-1 on the date the defendant satisfies the judgment creating the lien,
7-2 whichever occurs first. The person having an interest in the lien
7-3 may refile the lien before the date the lien expires. A lien that
7-4 is refiled expires on the 10th anniversary of the date the lien was
7-5 refiled or the date the defendant satisfies the judgment creating
7-6 the lien, whichever occurs first.
7-7 (b) Failure to execute or foreclose the restitution lien
7-8 does not cause dormancy of the lien.
7-9 (c) The clerk of the court entering the judgment creating
7-10 the restitution lien shall maintain a record of the outstanding
7-11 balance of restitution, fines, or costs owed. If the defendant
7-12 satisfies the judgment, the clerk shall immediately execute and
7-13 file for record a release of the restitution lien with all officers
7-14 or entities with which the affidavit perfecting the lien was filed,
7-15 as indicated by the notice received by the clerk under Section 7(h)
7-16 of this article, unless a release was executed and filed by the
7-17 person who filed the affidavit to perfect the lien.
7-18 (d) A partial release of a lien as to specific property may
7-19 be executed by the attorney representing the state or a magistrate
7-20 who signs an affidavit described by Section 6 of this article on
7-21 payment of a sum determined to represent the defendant's interest
7-22 in any property to which the lien may attach.
7-23 SECTION 2. The procedures and provisions of this Act that
7-24 relate to the establishment of a restitution lien against a motor
7-25 vehicle do not apply until all counties have implemented the Texas
7-26 Department of Transportation automated registration and title
7-27 system.
7-28 SECTION 3. The importance of this legislation and the
7-29 crowded condition of the calendars in both houses create an
7-30 emergency and an imperative public necessity that the
8-1 constitutional rule requiring bills to be read on three several
8-2 days in each house be suspended, and this rule is hereby suspended,
8-3 and that this Act take effect and be in force from and after its
8-4 passage, and it is so enacted.