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.

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