1-1 By: Place (Senate Sponsor - Bivins) H.B. No. 2830
1-2 (In the Senate - Received from the House April 27, 1997;
1-3 April 29, 1997, read first time and referred to Committee on
1-4 Criminal Justice; May 16, 1997, reported favorably by the following
1-5 vote: Yeas 5, Nays 0; May 16, 1997, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to a statutory lien to secure the amount of restitution to
1-9 which a crime victim is entitled.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Article 42.21, Code of Criminal Procedure, as
1-12 added by Section 1, Chapter 997, Acts of the 74th Legislature,
1-13 Regular Session, 1995, is amended to read as follows:
1-14 Art. 42.21. Restitution liens
1-15 Sec. 1. Definitions. In this article:
1-16 (1) "Department" means the Texas Department of
1-17 Transportation.
1-18 (2) "Motor vehicle" has the meaning assigned by
1-19 Chapter 501, Transportation Code [Section 1, Certificate of Title
1-20 Act (Article 6687-1, Vernon's Texas Civil Statutes)].
1-21 (3) "State" means the State of Texas and all political
1-22 subdivisions thereof.
1-23 (4) "Victim" means a "close relative of a deceased
1-24 victim," "guardian of a victim," or "victim," as those terms are
1-25 defined by Article 56.01 of this code.
1-26 (5) "Personal property" means any property other than
1-27 real property including all tangible and intangible types of
1-28 property and including but not limited to copyrights, book rights,
1-29 movie rights, patents, and trademarks acquired by the defendant
1-30 prior to, during, and after conviction.
1-31 Sec. 2. Lien Established. (a) The victim of a criminal
1-32 offense has a restitution lien to secure the amount of restitution
1-33 to which the victim is entitled under the order of a court in a
1-34 criminal case.
1-35 (b) The state also has a restitution lien to secure the
1-36 amount of fines or costs entered against a defendant in the
1-37 judgment in a felony criminal case.
1-38 Sec. 3. Perfection. (a) Except as provided by this
1-39 section, a [A] restitution lien attaches and is perfected when an
1-40 affidavit to perfect the lien is filed in accordance with this
1-41 article.
1-42 (b) If a lien established under this article is attached to
1-43 a motor vehicle, the lien must be perfected in the manner provided
1-44 by Chapter 501, Transportation Code, and the court that entered the
1-45 order of restitution giving rise to the lien shall include in the
1-46 order a requirement that the defendant surrender to the court
1-47 evidence of current legal ownership of the motor vehicle and the
1-48 title, if applicable, against which the lien attaches. A lien
1-49 against a motor vehicle as provided by this article is not
1-50 perfected until the defendant's title to the vehicle has been
1-51 surrendered to the court and the department has issued a subsequent
1-52 title that discloses on its face the fact that the vehicle is
1-53 subject to a restitution lien established as provided by this
1-54 article.
1-55 Sec. 4. Judgment Required. An affidavit to perfect a
1-56 restitution lien may not be filed under this article until a court
1-57 has ordered restitution or entered a judgment requiring the
1-58 defendant to pay a fine or costs.
1-59 Sec. 5. Persons Who May File. The following persons may
1-60 file an affidavit to perfect a restitution lien:
1-61 (1) the attorney representing the state in a criminal
1-62 case in which a victim is determined by the court to be entitled to
1-63 restitution or in which a defendant is ordered to pay fines or
1-64 costs; or
2-1 (2) a victim in a criminal case determined by the
2-2 court to be entitled to restitution.
2-3 Sec. 6. Affidavit. An affidavit to perfect a restitution
2-4 lien must be signed by the attorney representing the state or a
2-5 magistrate and must contain:
2-6 (1) the name and date of birth of the defendant whose
2-7 property or other interests are subject to the lien;
2-8 (2) the residence or principal place of business of
2-9 the person named in the lien, if known;
2-10 (3) the criminal proceeding giving rise to the lien,
2-11 including the name of the court, the name of the case, and the
2-12 court's file number for the case;
2-13 (4) the name and address of the attorney representing
2-14 the state and the name of the person entitled to restitution;
2-15 (5) a statement that the notice is being filed under
2-16 this article;
2-17 (6) the amount of restitution and the amount of fines
2-18 and costs the defendant has been ordered to pay by the court; [and]
2-19 (7) a statement that the amount of restitution owed at
2-20 any one time may be less than the original balance and that the
2-21 outstanding balance is reflected in the records of the clerk of the
2-22 court hearing the criminal proceeding giving rise to the lien; and
2-23 (8) the vehicle description and vehicle identification
2-24 number.
2-25 Sec. 7. Filing. (a) An affidavit to perfect a restitution
2-26 lien may be filed with:
2-27 (1) the secretary of state;
2-28 (2) the department in the manner provided by Chapter
2-29 501, Transportation Code; or
2-30 (3) the county clerk of the county in which:
2-31 (A) the crime was committed;
2-32 (B) the defendant resides; or
2-33 (C) the property is located.
2-34 (b) The uniform fee for filing and indexing and for stamping
2-35 a copy furnished by the state or victim to show the date and place
2-36 of filing is $5.
2-37 (c) The secretary of state shall deposit the filing fee in
2-38 the state treasury to the credit of the statutory filing fund
2-39 solely to defray the costs of administration of this section. The
2-40 department shall deposit the filing fee in the state treasury to
2-41 the credit of the state highway fund to be used solely to defray
2-42 the costs of administering this section.
2-43 (d) The county clerk shall immediately record the
2-44 restitution lien in the judgment records of the county. The clerk
2-45 shall note in the records the date and hour the lien is received.
2-46 (e) The secretary of state shall immediately file the
2-47 restitution lien in the security interest and financing statement
2-48 records of the secretary of state. The secretary of state shall
2-49 note in the records the date and hour the lien is received.
2-50 (f) The department shall immediately file the restitution
2-51 lien in the motor vehicle records of the department. The
2-52 department shall note in the records the date and hour the lien is
2-53 received.
2-54 (g) When a restitution lien is filed, the county clerk[,] or
2-55 secretary of state[, or department] shall enter the restitution
2-56 lien in an alphabetical index to the records in which the lien is
2-57 filed showing:
2-58 (1) the name of the person entitled to restitution;
2-59 (2) the name of the defendant obligated to pay
2-60 restitution, fines, or costs;
2-61 (3) the amount of the lien; and
2-62 (4) the name of the court that ordered restitution.
2-63 (h) A person who files an affidavit to perfect a restitution
2-64 lien under this article shall notify in writing the clerk of the
2-65 court entering the judgment creating the lien of all officers or
2-66 entities with which the affidavit was filed.
2-67 Sec. 8. Subject Property. A restitution lien extends to:
2-68 (1) any interest of the defendant in real property
2-69 whether then owned or after-acquired located in a county in which
3-1 the lien is perfected by the filing of an affidavit with the county
3-2 clerk;
3-3 (2) any interest of the defendant in tangible or
3-4 intangible personal property whether then owned or after-acquired
3-5 other than a motor vehicle if the lien is perfected by the filing
3-6 of the affidavit with the secretary of state; or
3-7 (3) any interest of the defendant in a motor vehicle
3-8 whether then owned or after-acquired if the lien is perfected by
3-9 the filing of the affidavit with the department.
3-10 Sec. 9. Priority. The perfection of a restitution lien
3-11 under this article is notice of the claim to all persons dealing
3-12 with the defendant or the property identified in the affidavit
3-13 perfecting the lien. Without regard to whether perfected before or
3-14 after the perfection of a restitution lien filed and perfected
3-15 under this article, a perfected real estate mortgage lien, a
3-16 vendor's lien, a purchase money security interest, a chattel paper
3-17 security interest, a lien on a motor vehicle perfected as provided
3-18 by Chapter 501, Transportation Code, or a worker's lien perfected
3-19 in the manner provided by law is superior and prior to a
3-20 restitution lien filed and perfected under this article. Except as
3-21 provided by this article, a [A] perfected lien in favor of a victim
3-22 is superior and prior to a lien perfected by the state under this
3-23 article, and the perfected lien in favor of the state is superior
3-24 and prior to the claim or interest of any other person, other than:
3-25 (1) a person who acquires a valid lien or security
3-26 interest perfected before the perfection of the restitution lien
3-27 [or a valid lien or security interest secured by a vendor's lien];
3-28 (2) a bona fide purchaser who acquires an interest in
3-29 the property, if personal property, before the filing of the
3-30 restitution lien, to the extent that the purchaser gives value; or
3-31 (3) a bona fide purchaser for value who acquires and
3-32 files for record an interest in the property, if real property,
3-33 before the perfection of the restitution lien.
3-34 Sec. 10. Payment. The clerk [or other agency] receiving a
3-35 payment from a defendant ordered to pay restitution shall make
3-36 payments to the person having an interest in the restitution lien
3-37 on a schedule of not less than quarterly payments as determined by
3-38 the clerk or agency.
3-39 Sec. 11. Foreclosure. If a defendant fails to timely make a
3-40 payment required by the order of the court entering the judgment
3-41 creating the restitution lien, the person having an interest in the
3-42 lien may file suit in a court of competent jurisdiction to
3-43 foreclose the lien. If the defendant cures the default on or
3-44 before the 20th day after the date the suit is filed and pays the
3-45 person who files the suit costs of court and reasonable attorney's
3-46 fees, the court may dismiss the suit without prejudice to the
3-47 person. The person may refile the suit against the defendant if
3-48 the defendant subsequently defaults.
3-49 Sec. 12. Expiration; Records. (a) A restitution lien
3-50 expires on the 10th anniversary of the date the lien was filed or
3-51 on the date the defendant satisfies the judgment creating the lien,
3-52 whichever occurs first. The person having an interest in the lien
3-53 may refile the lien before the date the lien expires. A lien that
3-54 is refiled expires on the 10th anniversary of the date the lien was
3-55 refiled or the date the defendant satisfies the judgment creating
3-56 the lien, whichever occurs first.
3-57 (b) Failure to execute or foreclose the restitution lien
3-58 does not cause dormancy of the lien.
3-59 (c) The clerk of the court entering the judgment creating
3-60 the restitution lien shall maintain a record of the outstanding
3-61 balance of restitution, fines, or costs owed. If the defendant
3-62 satisfies the judgment, the clerk shall immediately execute and
3-63 file for record a release of the restitution lien with all officers
3-64 or entities with which the affidavit perfecting the lien was filed,
3-65 as indicated by the notice received by the clerk under Section 7(h)
3-66 of this article, unless a release was executed and filed by the
3-67 person who filed the affidavit to perfect the lien.
3-68 (d) A partial release of a lien as to specific property may
3-69 be executed by the attorney representing the state or a magistrate
4-1 who signs an affidavit described by Section 6 of this article on
4-2 payment of a sum determined to represent the defendant's interest
4-3 in any property to which the lien may attach.
4-4 SECTION 2. The procedures and provisions of this Act that
4-5 relate to the establishment of a restitution lien against a motor
4-6 vehicle do not apply until all counties have implemented the Texas
4-7 Department of Transportation automated registration and title
4-8 system.
4-9 SECTION 3. The importance of this legislation and the
4-10 crowded condition of the calendars in both houses create an
4-11 emergency and an imperative public necessity that the
4-12 constitutional rule requiring bills to be read on three several
4-13 days in each house be suspended, and this rule is hereby suspended,
4-14 and that this Act take effect and be in force from and after its
4-15 passage, and it is so enacted.
4-16 * * * * *