By Ritter H.B. No. 3352
76R6857 PAM-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to mechanic's, contractor's, and materialman's liens.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 1(c), Chapter 87, Acts of the 56th
1-5 Legislature, Regular Session, 1959 (Article 7.19-1, Vernon's Texas
1-6 Insurance Code), is amended to read as follows:
1-7 (c) A bond that is made, given, tendered, or filed under
1-8 Chapter 53 or 62, Property Code, or Chapter 2253, Government Code,
1-9 may be executed only by a surety company that is authorized and
1-10 admitted to write surety bonds in this state. If the amount of the
1-11 bond exceeds $100,000, the surety must also:
1-12 (1) hold a certificate of authority from the United
1-13 States secretary of the treasury to qualify as a surety on
1-14 obligations permitted or required under federal law; or
1-15 (2) have obtained reinsurance for any liability in
1-16 excess of $100,000 from a reinsurer that is authorized and admitted
1-17 as a reinsurer in this state and is the holder of a certificate of
1-18 authority from the United States secretary of the treasury to
1-19 qualify as a surety or reinsurer on obligations permitted or
1-20 required under federal law.
1-21 SECTION 2. Section 28.007(b), Property Code, is amended to
1-22 read as follows:
1-23 (b) Nothing in this statute shall be interpreted to change
1-24 the rights and obligations set forth in Chapter 53 or 62, Property
2-1 Code.
2-2 SECTION 3. The heading of Chapter 53, Property Code, is
2-3 amended to read as follows:
2-4 CHAPTER 53. MECHANIC'S, CONTRACTOR'S, OR MATERIALMAN'S LIEN
2-5 ON RESIDENTIAL PROPERTY
2-6 SECTION 4. Sections 53.001(8) and (9), Property Code, are
2-7 amended to read as follows:
2-8 (8) "Residence" means a single-family house, duplex,
2-9 triplex, or quadruplex or a unit in a multiunit structure used for
2-10 residential purposes that is[:]
2-11 [(A)] owned by one or more adult persons[;] and
2-12 [(B)] used or intended to be used as a dwelling
2-13 by one of the owners. The term includes a new structure described
2-14 by this subdivision that is under construction to be sold and used
2-15 for the purposes described by this subdivision.
2-16 (9) "Residential construction contract" means a
2-17 contract between an owner and a contractor in which the contractor
2-18 agrees to [construct or] repair the owner's residence or construct
2-19 or repair[, including] improvements appurtenant to the residence.
2-20 SECTION 5. Subchapter A, Chapter 53, Property Code, is
2-21 amended by adding Section 53.004 to read as follows:
2-22 Sec. 53.004. APPLICABILITY. This chapter applies only to
2-23 real property on which a residence is located.
2-24 SECTION 6. Section 53.021(a), Property Code, is amended to
2-25 read as follows:
2-26 (a) A person has a lien if:
2-27 (1) the person labors, specially fabricates material,
3-1 or furnishes labor or materials for construction or repair in this
3-2 state of a residence or any improvements appurtenant to a
3-3 residence[:]
3-4 [(A) a house, building, or improvement;]
3-5 [(B) a levee or embankment to be erected for the
3-6 reclamation of overflow land along a river or creek; or]
3-7 [(C) a railroad]; and
3-8 (2) the person labors, specially fabricates the
3-9 material, or furnishes the labor or materials under or by virtue of
3-10 a contract with the owner or the owner's agent, trustee, receiver,
3-11 contractor, or subcontractor.
3-12 SECTION 7. Sections 53.022(a), (c), and (d), Property Code,
3-13 are amended to read as follows:
3-14 (a) The lien extends to the residence or any improvements
3-15 appurtenant to the residence [house, building, fixtures, or
3-16 improvements, the land reclaimed from overflow, or the railroad and
3-17 all of its properties, and to each lot of land necessarily
3-18 connected or reclaimed].
3-19 (c) A lien against land in a municipality [city, town, or
3-20 village] extends to each lot on which:
3-21 (1) the residence [house, building, or improvement] is
3-22 situated;
3-23 (2) any improvements appurtenant to the residence are
3-24 situated; or
3-25 (3) [on which] the labor was performed.
3-26 (d) A lien against land not in a municipality [city, town,
3-27 or village] extends to not more than 50 acres on which:
4-1 (1) the residence [house, building, or improvement] is
4-2 situated;
4-3 (2) any improvements appurtenant to the residence are
4-4 situated; or
4-5 (3) [on which] the labor was performed.
4-6 SECTION 8. Section 53.052(a), Property Code, is amended to
4-7 read as follows:
4-8 (a) Except as provided by Subsection (b), the person
4-9 claiming the lien must file an affidavit with the county clerk of
4-10 the county in which the property is located [or into which the
4-11 railroad extends] not later than the 15th day of the fourth
4-12 calendar month after the day on which the indebtedness accrues.
4-13 SECTION 9. Section 53.123(a), Property Code, is amended to
4-14 read as follows:
4-15 (a) Except as provided by this section, a mechanic's lien
4-16 attaches to the residence or any improvements appurtenant to the
4-17 residence [house, building, improvements, or railroad property] in
4-18 preference to any prior lien, encumbrance, or mortgage on the land
4-19 on which it is located, and the person enforcing the lien may have
4-20 the residence or any improvements appurtenant to the residence
4-21 [house, building, improvement, or any piece of the railroad
4-22 property] sold separately.
4-23 SECTION 10. Section 53.155, Property Code, is amended to
4-24 read as follows:
4-25 Sec. 53.155. TRANSFER OF PROPERTY SOLD. If the residence is
4-26 or any improvements appurtenant to the residence are [house,
4-27 building, improvement, or any piece of railroad property is] sold
5-1 separately, the officer making the sale shall place the purchaser
5-2 in possession. The purchaser is entitled to a reasonable time
5-3 after the date of purchase within which to remove the purchased
5-4 property.
5-5 SECTION 11. Subtitle B, Title 5, Property Code, is amended
5-6 by adding Chapter 62 to read as follows:
5-7 CHAPTER 62. MECHANIC'S, CONTRACTOR'S, OR MATERIALMAN'S
5-8 LIEN ON NONRESIDENTIAL PROPERTY
5-9 SUBCHAPTER A. GENERAL PROVISIONS
5-10 Sec. 62.001. DEFINITIONS. In this chapter:
5-11 (1) "Construction lender" means any mortgagee or
5-12 beneficiary under a deed of trust, including an assignee or
5-13 successor in interest of a mortgagee or beneficiary, who lends
5-14 funds for the cost of the construction, alteration, or repair of an
5-15 improvement.
5-16 (2) "Contract price" means the cost to the owner for
5-17 any part of construction or repair performed under an original
5-18 contract.
5-19 (3) "Improvement" includes:
5-20 (A) abutting sidewalks and streets and utilities
5-21 in or on those sidewalks and streets;
5-22 (B) clearing, grubbing, draining, or fencing of
5-23 land;
5-24 (C) wells, cisterns, tanks, reservoirs, or
5-25 artificial lakes or pools made for supplying or storing water;
5-26 (D) pumps, siphons, and windmills or other
5-27 machinery or apparatuses used for raising water for stock, domestic
6-1 use, or irrigation; and
6-2 (E) planting orchard trees, grubbing out
6-3 orchards and replacing trees, and pruning of orchard trees.
6-4 (4) "Labor" means labor used in the direct prosecution
6-5 of the work.
6-6 (5) "Material" means all or part of:
6-7 (A) the material, machinery, equipment,
6-8 fixtures, or tools incorporated into the work, consumed in the
6-9 direct prosecution of the work, or ordered and delivered for
6-10 incorporation or consumption;
6-11 (B) rent at a reasonable rate and actual running
6-12 repairs at a reasonable cost for construction equipment used or
6-13 reasonably required and delivered for use in the direct prosecution
6-14 of the work at the site of the construction or repair; or
6-15 (C) power, water, fuel, and lubricants consumed
6-16 or ordered and delivered for consumption in the direct prosecution
6-17 of the work.
6-18 (6) "Mechanic's lien" means the lien provided by this
6-19 chapter.
6-20 (7) "Original contract" means an agreement to which an
6-21 owner is a party either directly or by implication of law.
6-22 (8) "Original contractor" means a person contracting
6-23 with an owner either directly or through the owner's agent.
6-24 (9) "Owner" means a person, including a person's
6-25 successor in interest, who contracts for a building, structure, or
6-26 improvement to be constructed, altered, or repaired, whether the
6-27 interest or estate of the person is in fee simple or as a vendee
7-1 under a contract to purchase, as a lessee, or under another
7-2 interest or estate less than fee simple. If an interest or estate
7-3 in property is owned by two or more persons as community property
7-4 or is held by joint tenants or tenants-in-common, each person is
7-5 considered the owner.
7-6 (10) "Professional services" are the services
7-7 described by Title 10A, 52A, or 86, Revised Statutes, and performed
7-8 by a person registered or licensed under Title 10A, 52A, or 86,
7-9 Revised Statutes.
7-10 (11) "Residence" means a single-family house, duplex,
7-11 triplex, or quadruplex or a unit in a multiunit structure used for
7-12 residential purposes that is owned by one or more adult persons and
7-13 used or intended to be used as a dwelling by one of the owners.
7-14 The term includes a new structure described by this subdivision
7-15 that is under construction to be sold and used for the purposes
7-16 described by this subdivision.
7-17 (12) "Specially fabricated material" means material
7-18 fabricated for use as a component of the construction or repair so
7-19 as to be reasonably unsuitable for use elsewhere.
7-20 (13) "Subcontractor" means a person who has furnished
7-21 labor or materials to fulfill an obligation to an original
7-22 contractor or to a subcontractor to perform all or part of the work
7-23 required by an original contract.
7-24 (14) "Work" means any part of construction or repair
7-25 performed under an original contract.
7-26 Sec. 62.002. APPLICABILITY. This chapter applies to all
7-27 real property that is not residential property covered by Chapter
8-1 53.
8-2 Sec. 62.003. SUBSTANTIAL COMPLIANCE SUFFICIENT. This
8-3 chapter shall be liberally construed to promote the beneficial
8-4 interests and purposes of this chapter. Substantial compliance
8-5 with this chapter is sufficient to establish the validity of a lien
8-6 and to confer jurisdiction on the courts to enforce this chapter.
8-7 Sec. 62.004. NOTICES. (a) This section applies to notices
8-8 required by this chapter.
8-9 (b) Any notice or other written communication may be
8-10 delivered in person to the party entitled to receive the notice or
8-11 to that party's agent, regardless of the manner prescribed by law.
8-12 (c) If notice is sent by registered or certified mail,
8-13 addressed to the person entitled to receive the notice at the
8-14 person's residence or business address, deposit or mailing of the
8-15 notice in the United States mail in the form required constitutes
8-16 compliance with the notice requirement.
8-17 (d) If notice is personally delivered to the person entitled
8-18 to receive the notice, the notice may be delivered by a private
8-19 delivery company. Delivery under this subsection is complete at
8-20 the time the person receives the notice.
8-21 (e) If a written notice is received by the person entitled
8-22 to receive it, the method by which the notice is delivered is
8-23 immaterial.
8-24 (f) All notices shall be mailed or delivered prepaid.
8-25 Sec. 62.005. MORE THAN ONE ORIGINAL CONTRACTOR; ORIGINAL
8-26 CONTRACT. (a) On any work there may be more than one original
8-27 contractor for purposes of this chapter.
9-1 (b) This chapter does not affect the terms of a contract
9-2 between the owner and the original contractor relating to the
9-3 amount, manner, or time of payment of the contract price.
9-4 Sec. 62.006. OWNER'S LIABILITY. (a) An owner is liable for
9-5 payment in full for all labor, materials, or professional services
9-6 furnished or to be furnished for the owner's property.
9-7 (b) A claimant may establish and foreclose a lien under this
9-8 chapter for unpaid labor, materials, or professional services as
9-9 provided by this chapter.
9-10 Sec. 62.007. AGENT. A person who is, in whole or in part,
9-11 in charge or control of contracting for the construction,
9-12 alteration, or repair of any building, structure, or improvement is
9-13 the agent of the owner for the purposes of this chapter, and the
9-14 owner is liable for the reasonable value of labor or materials
9-15 furnished to the owner's agent.
9-16 Sec. 62.008. ATTORNEY'S FEES. In any action brought under
9-17 this chapter, the court shall award costs, any interest provided
9-18 for by law, and reasonable attorney's fees.
9-19 (Sections 62.009-62.020 reserved for expansion
9-20 SUBCHAPTER B. NOTICE OF COMMENCEMENT
9-21 Sec. 62.021. NOTICE OF COMMENCEMENT. (a) Except for an
9-22 original contract for the construction of a house, building,
9-23 structure, or improvement that exceeds $5,000, an owner or the
9-24 owner's authorized agent shall:
9-25 (1) record a notice of commencement in the office of
9-26 the county clerk of the county in which the property is located;
9-27 and
10-1 (2) post a certified copy of the notice or a notarized
10-2 document stating that the notice has been filed with a copy of the
10-3 notice attached.
10-4 (b) The notice of commencement must be recorded and posted
10-5 as required by Subsection (a) before work commences or before work
10-6 commences to complete any improvement after a default, termination,
10-7 abandonment, or cessation of work. This requirement applies
10-8 regardless of whether a project is covered by a payment bond that
10-9 complies with this chapter.
10-10 (c) The notice of commencement must contain the following
10-11 information:
10-12 (1) a legal description of the property and the street
10-13 address of the property or, if no street address is available,
10-14 additional information sufficient to describe the physical location
10-15 of the property;
10-16 (2) a general description of the improvement;
10-17 (3) the name and address of the owner and a
10-18 description of the owner's interest in the property;
10-19 (4) the name and address of the person who owns fee
10-20 simple title to the property, if different from the owner;
10-21 (5) the name and address of the contractor;
10-22 (6) the name and address of the surety on the payment
10-23 bond established under this chapter, if any, and the amount of the
10-24 bond;
10-25 (7) the name and address of any person making a loan
10-26 for the construction of the improvements; and
10-27 (8) the name and address of a person in this state,
11-1 other than the owner, who is designated by the owner as the person
11-2 on whom notices or other documents may be served under this
11-3 chapter.
11-4 (d) If the owner designates another person on whom notices
11-5 or other documents may be served, the failure by a claimant to
11-6 serve a notice or document on the person designated does not
11-7 invalidate an otherwise valid notice or lien.
11-8 (e) If the contract between the owner and a contractor named
11-9 in the notice of commencement provides for a period for completion
11-10 of the construction of the improvement that is longer than one
11-11 year, the notice of commencement must state that the notice is
11-12 effective for the applicable period.
11-13 (f) A notice of commencement must read substantially similar
11-14 to the following:
11-15 Permit No. _____
11-16 Issued by ______
11-17 NOTICE OF COMMENCEMENT
11-18 State of Texas
11-19 County of _________________
11-20 The undersigned hereby gives notice that
11-21 improvements will be made to certain real property, and
11-22 in accordance with Chapter 62, Property Code, the
11-23 following information is provided in this notice of
11-24 commencement.
11-25 1. Description of property _____________________
11-26 2. General description of improvement___________
11-27 _________________________________________________
12-1 3. Owner information:
12-2 a. Name and address ______________________
12-3 b. Interest in property __________________
12-4 _______________________________________
12-5 c. Name and address of person who owns fee
12-6 simple title (if other than owner)
12-7 _______________________________________
12-8 4. Contractor:
12-9 a. Name and address ______________________
12-10 _______________________________________
12-11 b. Phone number __________________________
12-12 c. Fax number ____________________________
12-13 (optional, if service by fax is
12-14 acceptable)
12-15 5. Surety:
12-16 a. Name and address ______________________
12-17 _______________________________________
12-18 b. Phone number __________________________
12-19 c. Fax number ____________________________
12-20 (optional, if service by fax is
12-21 acceptable)
12-22 d. Amount of bond $_______________________
12-23 6. Lender:
12-24 a. Name and address ______________________
12-25 _______________________________________
12-26 b. Phone number __________________________
12-27 c. Fax number ____________________________
13-1 (optional, if service by fax is
13-2 acceptable)
13-3 7. Each person in this state designated by owner
13-4 for service of notices or other documents:
13-5 a. Name and address ______________________
13-6 _______________________________________
13-7 b. Phone number __________________________
13-8 c. Fax number ____________________________
13-9 (optional, if service by fax is
13-10 acceptable)
13-11 8. Expiration date of notice of commencement
13-12 _________________________________________________
13-13 ____________________________ (Signature of owner)
13-14 Sworn to and subscribed before me this ______ day
13-15 of ____, (year) by ___________________________ (name of
13-16 person making statement).
13-17 ____________________________ (Signature and seal
13-18 of Notary Public--State of Texas)
13-19 (g) A copy of any bond provided must be attached at the time
13-20 the notice of commencement is filed.
13-21 (h) The notice of commencement is effective on the date the
13-22 notice is filed in the county clerk's office as provided by this
13-23 section.
13-24 (i) The owner must sign the notice of commencement. The
13-25 owner may not authorize another person to sign on the owner's
13-26 behalf.
13-27 Sec. 62.022. FAILURE TO BEGIN WORK. If the construction,
14-1 alteration, or repair of the improvement described in the notice of
14-2 commencement does not begin within 90 days after the date the
14-3 notice is recorded, the notice is void.
14-4 Sec. 62.023. NOTICE OF COMMENCEMENT NOT A LIEN. The
14-5 recording or posting of a notice of commencement does not
14-6 constitute a lien or encumbrance on real property. The notice of
14-7 commencement provides constructive notice that a claim for a lien
14-8 under this chapter may be recorded and may take priority over other
14-9 liens as provided by this chapter.
14-10 Sec. 62.024. EXPIRATION. Unless otherwise provided in the
14-11 notice of commencement, including an amended notice of
14-12 commencement, a notice of commencement is not effective after the
14-13 first anniversary of the date the notice of commencement is
14-14 recorded against:
14-15 (1) a conveyance, transfer, or mortgage of or lien on
14-16 the real property described in the notice; or
14-17 (2) a creditor or subsequent purchaser for a valuable
14-18 consideration.
14-19 Sec. 62.025. LENDER'S OBLIGATION. (a) Before disbursing
14-20 any construction funds to an owner or contractor, a construction
14-21 lender must record the notice of commencement in the office of the
14-22 county clerk of the county in which the property is located if the
14-23 owner has not filed the notice of commencement as required by
14-24 Section 62.021. The construction lender is not required to post a
14-25 certified copy of the notice at the construction site.
14-26 (b) If a construction lender fails to record the notice of
14-27 commencement as required by this section, the lender is liable to
15-1 the owner for all damages sustained by the owner as a result of the
15-2 failure to record the notice.
15-3 (c) A construction lender who records a notice of
15-4 commencement shall designate itself, in addition to others, as a
15-5 party entitled to receive copies of notices required to be provided
15-6 to the owner.
15-7 (d) This section does not give any person other than the
15-8 owner a claim or right of action against a construction lender for
15-9 failure to record a notice of commencement.
15-10 (Sections 62.026-62.050 reserved for expansion
15-11 SUBCHAPTER C. PRELIMINARY 45-DAY NOTICE
15-12 Sec. 62.051. PRELIMINARY 45-DAY NOTICE. (a) Except for a
15-13 person performing labor for wages, each person who furnishes labor,
15-14 materials, or professional services for which a lien may be claimed
15-15 under this chapter shall provide the owner or reputed owner, the
15-16 original contractor or reputed contractor, the construction lender,
15-17 if any, or reputed construction lender, if any, and the person with
15-18 whom the claimant has contracted for the purchase of the labor,
15-19 materials, or professional services with a written preliminary
15-20 45-day notice as prescribed by this section. A lien is not valid
15-21 unless the notice prescribed by this section is provided.
15-22 (b) A person claiming a lien under this chapter shall
15-23 provide the preliminary 45-day notice not later than the 45th day
15-24 after the date the claimant first furnishes labor, materials, or
15-25 professional services to the property. The notice may be provided
15-26 before the date the claimant first furnishes labor, materials, or
15-27 professional services.
16-1 (c) The notice must contain the following information:
16-2 (1) a general description of the labor, materials, or
16-3 professional services furnished or to be furnished;
16-4 (2) an estimate of the total price for the labor,
16-5 materials, or professional services;
16-6 (3) the name and address of the person furnishing the
16-7 labor, materials, or professional services;
16-8 (4) the name of the person who contracted for the
16-9 purchase of the labor, materials, or professional services;
16-10 (5) the contract price or, if the contract is not for
16-11 a set amount, a description of the mechanism described by the
16-12 contract to determine the amount to be paid under the contract;
16-13 (6) a description of the property sufficient to
16-14 identify the property, including a legal description, subdivision
16-15 plat, or street address; and
16-16 (7) the disclosures as provided by Subsection (d).
16-17 (d) The preliminary 45-day notice must read substantially
16-18 similar to the following:
16-19 PRELIMINARY 45-DAY LIEN NOTICE
16-20 In accordance with Chapter 62, Property Code,
16-21 this notice is not a lien and is not a reflection on
16-22 the integrity of any contractor or subcontractor.
16-23 This preliminary lien notice has been
16-24 completed by (name and address of claimant)
16-25 __________________________________________________
16-26 Date _____________________________________________
16-27 By _______________________________________________
17-1 Address _________________________________________
17-2 The name and address of the owner or reputed
17-3 owner is ______________________________________________
17-4 The name and address of the original contractor
17-5 is ____________________________________________________
17-6 You are hereby notified that the claimant has
17-7 furnished or will furnish labor, materials, or
17-8 professional services of the following general
17-9 description: __________________________________________
17-10 The name and address of any
17-11 lender or reputed lender, including an assignee,
17-12 is ____________________________________________________
17-13 The construction, alteration, or repair is
17-14 or will be provided for the building, structure,
17-15 or improvement located at ___________________________
17-16 and situated on the real property located
17-17 in ______________ County, Texas, described as follows:
17-18 _______________________________________________________
17-19 The name and address of the
17-20 person with whom the claimant has contracted
17-21 is ____________________________________________________
17-22 Check all applicable:
17-23 (____) The contract is for a fixed estimated
17-24 amount and the estimate of the total price of the
17-25 labor, materials, or professional services, or tools
17-26 furnished or to be furnished, is $______________.
17-27 (____) The contract is for a variable amount or
18-1 it is for a fixed and variable amount. The variable
18-2 amount is computed based on the following
18-3 mechanism: ______________________________. As of this
18-4 date, the estimated amount for purposes of this notice
18-5 is $_________, but this amount may change.
18-6 (The following statement must be printed in
18-7 10-point boldfaced type.)
18-8 NOTICE TO PROPERTY OWNER
18-9 If bills are not paid in full for the labor,
18-10 materials, or professional services furnished, or to be
18-11 furnished, the person to whom payment is owed may claim
18-12 a mechanic's lien against all or part of your property
18-13 and is entitled to foreclose on all or part of your
18-14 property to recover the amount due. To protect
18-15 yourself against this consequence you should:
18-16 1. require your contractor to furnish a
18-17 conditional waiver and release as provided by Chapter
18-18 62, Property Code, signed by the person giving you this
18-19 notice before you make any payment to your contractor.
18-20 2. require your contractor to furnish an
18-21 unconditional waiver and release as provided by Chapter
18-22 62, Property Code, signed by the person giving you this
18-23 notice after you make a payment to your contractor.
18-24 3. use any similar method or device that is
18-25 appropriate under the circumstances.
18-26 (The following language must be printed in a type
18-27 at least as large as the largest type used in the
19-1 document:)
19-2 Not later than the 10th day after the date this
19-3 preliminary 45-day notice is received by the owner or
19-4 other interested party, the recipient shall:
19-5 (1) furnish all information necessary to
19-6 correct any inaccuracies in the notice or forfeit the
19-7 right to claim any inaccuracy of that information as a
19-8 defense to a claim under this chapter; and
19-9 (2) provide to the person who has given
19-10 the preliminary 45-day notice a copy of the payment
19-11 bond, if any payment bond has been recorded in
19-12 compliance with Chapter 62, Property Code, including
19-13 the name and address of the surety company and bonding
19-14 agent providing the payment bond.
19-15 If the owner or other interested party fails to
19-16 provide the bond information within the 10-day period,
19-17 the claimant shall retain any rights that the claimant
19-18 would be precluded or prejudiced from asserting in a
19-19 claim against the bond if the loss of the right is a
19-20 direct result of the owner's or other interested
19-21 party's failure to provide the bond information.
19-22 Date __________________________
19-23 _______________________________ (Company name)
19-24 By ____________________________ (Signature)
19-25 _______________________________ (Title)
19-26 Acknowledgment of receipt of
19-27 preliminary 45-day notice
20-1 This acknowledges receipt on _________________
20-2 (insert date) of a copy of the preliminary 45-day
20-3 notice at ______________________ (insert address).
20-4 Date ____________ (Date this acknowledgment is
20-5 executed)
20-6 ___________________________________ (Signature of
20-7 person acknowledging receipt, with title if
20-8 acknowledgment is made on behalf of another person)
20-9 Sec. 62.052. ADDITIONAL OR AMENDED PRELIMINARY 45-DAY
20-10 NOTICE. (a) If labor, materials, or professional services are
20-11 furnished to property by a person who does not provide a
20-12 preliminary 45-day notice as required by Section 62.051, the person
20-13 is not precluded from giving a preliminary 45-day notice as
20-14 prescribed by this subchapter after furnishing additional labor,
20-15 materials, or professional services to the property. The person
20-16 may claim a lien only for the labor, materials, or professional
20-17 services furnished during the 45 days before the date the notice is
20-18 provided.
20-19 (b) A person required by this subchapter to give notice to
20-20 the owner, to an original contractor, to the construction lender,
20-21 if any, and to the person with whom the claimant has contracted is
20-22 required to provide the notice only once to the owner, to the
20-23 original contractor, to the construction lender, if any, and to the
20-24 person with whom the claimant has contracted with respect to all
20-25 labor, materials, or professional services furnished or to be
20-26 furnished for the building, structure, or improvement, unless the
20-27 total price for the labor, materials, or professional services
21-1 furnished or to be furnished exceeds by 30 percent or more the
21-2 estimated total price in the preliminary 45-day notice. If the
21-3 total price for the labor, materials, or professional services
21-4 exceeds by 30 percent or more the estimated total price in the
21-5 preliminary 45-day notice and the labor, materials, or professional
21-6 services are furnished under multiple contracts with multiple
21-7 subcontractors, the person required to give a preliminary 45-day
21-8 notice is not required to provide additional notice.
21-9 (c) If a notice contains a general description of the labor,
21-10 materials, or professional services furnished up to the date of
21-11 notice as required by Section 62.051(c), the notice is not
21-12 defective because, after the date of the notice, the person giving
21-13 notice furnishes labor, materials, or professional services that
21-14 are not within the scope of the general description or the total
21-15 price of which exceeds by no more than 30 percent the estimated
21-16 total price in the notice. If a person giving the notice furnishes
21-17 or expects to furnish labor, materials, or professional services
21-18 the total price of which exceeds by more than 30 percent the
21-19 estimated total price in the original notice, the person shall give
21-20 an additional or amended notice for the labor, materials, or
21-21 professional services furnished or to be furnished. The failure to
21-22 give an additional or amended notice does not invalidate any
21-23 previous notice.
21-24 Sec. 62.053. OBLIGATION TO PROVIDE INFORMATION. (a) A
21-25 person or the person's agent who intends to file a preliminary
21-26 45-day notice may request information relating to the property from
21-27 the owner, contractor, construction lender, or other interested
22-1 party. The request must identify the person requesting the
22-2 information, the person's address, the property, and the general
22-3 nature of the person's labor, materials, or professional services
22-4 to which the preliminary 45-day notice applies.
22-5 (b) Not later than the 10th day after the date the owner,
22-6 contractor, construction lender, or other interested party receives
22-7 a request for information under this section or receives a
22-8 preliminary 45-day notice, the recipient shall furnish the person
22-9 requesting the information or providing the notice a written
22-10 statement containing the following information:
22-11 (1) a description of the property sufficient to
22-12 identify the property, including a legal description, subdivision
22-13 plat, or street address;
22-14 (2) the name and address of the owner or reputed
22-15 owner;
22-16 (3) the name and address of the original contractor or
22-17 reputed contractor;
22-18 (4) the name and address of the construction lender,
22-19 if any, or reputed construction lender; and
22-20 (5) if any payment bond has been recorded under this
22-21 chapter, a copy of the bond and the name and address of the surety
22-22 company and bonding agent, if any, providing the payment bond.
22-23 (c) Failure of the owner, contractor, construction lender,
22-24 or other interested party to furnish the information required by
22-25 this section does not excuse any claimant from timely providing a
22-26 preliminary 45-day notice.
22-27 (d) An owner, contractor, construction lender, or other
23-1 interested party who fails to provide information as required by
23-2 this section may not raise as a defense to a claim any inaccuracy
23-3 of the information in a preliminary 45-day notice that would have
23-4 been accurate if the information had been provided.
23-5 Sec. 62.054. OBLIGATION TO CORRECT INFORMATION. (a) If the
23-6 information is received by the claimant after the claimant has
23-7 given a preliminary 45-day notice and the information contained in
23-8 the preliminary 45-day notice is inaccurate, the claimant shall
23-9 provide an amended preliminary 45-day notice in the manner provided
23-10 by this section not later than the 30th day after the date the
23-11 information is received.
23-12 (b) The amended preliminary 45-day notice is considered to
23-13 be provided on the date the original preliminary 45-day notice was
23-14 provided, except that the amended preliminary 45-day notice is
23-15 effective only for work performed, materials supplied, or
23-16 professional services rendered 45 days before the date of the
23-17 amended preliminary 45-day notice or the date the original
23-18 preliminary 45-day notice was provided to the owner, whichever
23-19 occurs first.
23-20 (c) If a payment bond has been recorded under this chapter
23-21 and the owner or other interested party fails to furnish a copy of
23-22 the bond and the other information as required by this subchapter,
23-23 the claimant shall retain any rights that the claimant would be
23-24 precluded or prejudiced from asserting in a claim against the bond
23-25 if the loss of a right is a direct result of the owner's or other
23-26 interested party's failure to provide the bond or other
23-27 information.
24-1 Sec. 62.055. PROOF OF SERVICE OF NOTICE. (a) A person
24-2 required to provide a preliminary 45-day notice shall provide proof
24-3 that the notice was provided as prescribed by this subchapter by
24-4 producing an acknowledgment of receipt of the notice that reads
24-5 substantially similar to the following:
24-6 ACKNOWLEDGMENT OF RECEIPT OF PRELIMINARY 45-DAY NOTICE
24-7 This acknowledges receipt on ____________________
24-8 (insert date) of a copy of the preliminary 45-day
24-9 notice at ________________________________ (insert
24-10 address).
24-11 Date: _______________ (Date this acknowledgment
24-12 is executed)
24-13 ____________________________ (Signature of person
24-14 acknowledging receipt, with title if acknowledgment is
24-15 made on behalf of another person)
24-16 (b) If a person to whom the notice is served fails to
24-17 complete the acknowledgment or fails to complete and return the
24-18 acknowledgment within 30 days from the date of mailing, proof of
24-19 service may be provided by an affidavit of the person sending the
24-20 notice, showing the time, place, and manner of mailing and stating
24-21 the facts demonstrating that the service was made as prescribed by
24-22 this subchapter. The affidavit must state the name and address of
24-23 the person to whom a copy of the preliminary 45-day notice was sent
24-24 and, if appropriate, the title or capacity in which the person was
24-25 given the notice. If the mailing was by certified or registered
24-26 mail, the receipt of certification or registration must be attached
24-27 to the affidavit. If service was made by personal service or a
25-1 private delivery company, the receipt supplied by the person making
25-2 personal service or the acknowledgment from the delivery company
25-3 stating that the delivery was made must be attached to the
25-4 affidavit.
25-5 (Sections 62.056-62.080 reserved for expansion
25-6 SUBCHAPTER D. PERSONS ENTITLED TO LIEN; SUBJECT PROPERTY
25-7 Sec. 62.081. PERSONS ENTITLED TO LIEN. (a) A person has a
25-8 lien if:
25-9 (1) the person labors, specially fabricates material,
25-10 or furnishes labor, materials, or professional services for
25-11 construction, alteration, or repair in this state of:
25-12 (A) a house, building, or improvement;
25-13 (B) a levee or embankment to be erected for the
25-14 reclamation of overflow land along a river or creek; or
25-15 (C) a railroad; and
25-16 (2) the person labors, specially fabricates the
25-17 material, furnishes labor or materials, or provides professional
25-18 services under or by virtue of a contract with the owner or the
25-19 owner's agent, trustee, receiver, contractor, or subcontractor.
25-20 (b) A person who specially fabricates material has a lien
25-21 even if the material is not delivered.
25-22 (c) A person who provides professional services, but who
25-23 does not hold a certificate of license or registration under Title
25-24 10A, 52A, or 86, Revised Statutes, may not claim a lien under this
25-25 chapter.
25-26 Sec. 62.082. PROPERTY TO WHICH LIEN EXTENDS. (a) The lien
25-27 extends to the house, building, fixtures, or improvements, the land
26-1 reclaimed from overflow, or the railroad and all of its properties,
26-2 and to each lot of land necessarily connected or reclaimed.
26-3 (b) The lien does not extend to abutting sidewalks, streets,
26-4 and utilities that are public property.
26-5 (c) A lien against land in a municipality extends to each
26-6 lot on which the house, building, or improvement is situated or on
26-7 which the labor was performed.
26-8 (d) A lien against land not in a municipality extends to not
26-9 more than 50 acres on which the house, building, or improvement is
26-10 situated or on which the labor was performed.
26-11 Sec. 62.083. PAYMENT SECURED BY LIEN. The lien secures
26-12 payment for:
26-13 (1) the labor performed or materials furnished for the
26-14 construction, alteration, or repair;
26-15 (2) the specially fabricated material, even if the
26-16 material has not been delivered or incorporated into the
26-17 construction, alteration, or repair; or
26-18 (3) the professional services provided.
26-19 Sec. 62.084. SHAM CONTRACT. (a) A person who labors,
26-20 specially fabricates materials, or furnishes labor, materials, or
26-21 professional services under a direct contractual relationship with
26-22 another person is considered to be in direct contractual
26-23 relationship with the owner and has a lien as an original
26-24 contractor, if:
26-25 (1) the owner contracted with the other person for the
26-26 construction or repair of a house, a building, or improvements and
26-27 the owner can effectively control that person through ownership of
27-1 voting stock, interlocking directorships, or otherwise;
27-2 (2) the owner contracted with the other person for the
27-3 construction or repair of a house, a building, or improvements and
27-4 that other person can effectively control the owner through
27-5 ownership of voting stock, interlocking directorships, or
27-6 otherwise; or
27-7 (3) the owner contracted with the other person for the
27-8 construction or repair of a house, a building, or improvements and
27-9 the contract was made without good faith intention of the parties
27-10 that the other person was to perform the contract.
27-11 (b) In this section, "owner" does not include a person who
27-12 has or claims a security interest only.
27-13 (Sections 62.085-62.100 reserved for expansion
27-14 SUBCHAPTER E. WAIVER OF LIEN
27-15 Sec. 62.101. WAIVER OF LIEN. (a) An owner or contractor by
27-16 any term of its contract, or otherwise, may not waive or impair the
27-17 claims or liens of other persons whether with or without notice
27-18 except by written consent as prescribed by this subchapter. Any
27-19 term of the contract to that effect is void.
27-20 (b) Any written consent to a waiver given by any person is
27-21 unenforceable unless the person executes and delivers a waiver and
27-22 release as prescribed by this subchapter.
27-23 (c) The waiver and release is effective to release the
27-24 property for the benefit of the owner, the construction lender, the
27-25 contractor, and the surety on a payment bond from claims and liens
27-26 only if:
27-27 (1) the waiver and release follows substantially one
28-1 of the forms prescribed by this subchapter;
28-2 (2) the waiver is signed by the claimant or the
28-3 claimant's authorized agent; and
28-4 (3) in the case of a conditional release, there is
28-5 evidence of payment to the claimant.
28-6 (d) Evidence of payment may be by the claimant's endorsement
28-7 on a single or joint payee check that is paid by the bank on which
28-8 it is drawn or by written acknowledgment of payment given by the
28-9 claimant.
28-10 Sec. 62.102. CONDITIONS FOR WAIVER, RELEASE, OR IMPAIRMENT
28-11 OF CLAIM. (a) An oral or written statement purporting to waive,
28-12 release, or otherwise adversely affect a claim is not enforceable
28-13 and does not create an estoppel or impairment of a claim unless the
28-14 written waiver and release complies with this subchapter or the
28-15 claimant has actually received payment in full for the claim.
28-16 (b) This section does not affect the enforceability of an
28-17 accord and satisfaction regarding a bona fide dispute or any
28-18 agreement made in settlement of an action pending in any court if
28-19 the accord and satisfaction or agreement and settlement make
28-20 specific reference to the mechanic's lien or bond claims.
28-21 Sec. 62.103. PRESCRIBED FORMS FOR WAIVER AND RELEASE OF
28-22 CLAIM. The waiver and release given by any claimant is
28-23 unenforceable unless it substantially follows the forms provided in
28-24 Subdivisions (1)-(4) in the respective situations.
28-25 (1) If the claimant is required to execute a waiver
28-26 and release in exchange for or to induce the payment of a progress
28-27 payment and the claimant is not paid in exchange for the waiver and
29-1 release or a single payee check or joint payee check is given in
29-2 exchange for the waiver and release, the waiver and release must
29-3 read substantially similar to the following:
29-4 CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
29-5 Project ___________________
29-6 Job No. ___________________
29-7 On receipt by the undersigned of a check
29-8 from ________________ (maker of check) in the
29-9 sum of $__________ (amount of check) payable
29-10 to _____________________ (payee or payees of
29-11 check) and when the check has been properly endorsed
29-12 and has been paid by the bank on which it is drawn,
29-13 this document becomes effective to release any
29-14 mechanic's lien, any state or federal statutory bond
29-15 right, any private bond right, any claim for payment,
29-16 and any rights under any similar ordinance, rule, or
29-17 statute related to claim or payment rights for persons
29-18 in the undersigned's position that the undersigned
29-19 has on the property of ________________ (owner)
29-20 located at ______________________ (location) to
29-21 the following extent ______________________ (job
29-22 description).
29-23 This release covers a progress payment for all
29-24 labor, services, equipment, or materials furnished to
29-25 the property or to __________________, (person with
29-26 whom undersigned contracted) on or before ____________
29-27 (date) and does not cover any retention, pending
30-1 modifications and changes, or items furnished on,
30-2 before, or after that date. Retention and pending
30-3 modifications and changes furnished on or before the
30-4 above date total ______________.
30-5 Before any recipient of this document relies on
30-6 this document, the recipient should verify evidence of
30-7 payment to the undersigned.
30-8 The undersigned warrants that the undersigned
30-9 either has already paid or will use the funds received
30-10 from this progress payment to promptly pay in full all
30-11 of the undersigned's laborers, subcontractors,
30-12 materialmen, and suppliers for all work, materials,
30-13 equipment, or services provided for or to the above
30-14 referenced project up to the date of this waiver.
30-15 Date ____________________________
30-16 _________________________________ (Company name)
30-17 By ______________________________ (Signature)
30-18 _________________________________ (Title)
30-19 (2) If the claimant is required to execute a waiver
30-20 and release in exchange for or in order to induce the payment of a
30-21 progress payment and the claimant asserts in the waiver that the
30-22 claimant has been paid the progress payment, the waiver and release
30-23 must read substantially similar to the following:
30-24 UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
30-25 Project ___________________
30-26 Job No. ___________________
30-27 The undersigned has been paid and has received
31-1 a progress payment in the sum of $___________ for
31-2 all labor, services, equipment, or material furnished
31-3 to the property or to _____________________ (person
31-4 with whom undersigned contracted) on the
31-5 property of _______________________ (owner) located
31-6 at ______________________ to the following
31-7 extent ______________________ (job description) and
31-8 does hereby release any mechanic's lien, any state or
31-9 federal statutory bond right, any private bond right,
31-10 any claim for payment, and any rights under any similar
31-11 ordinance, rule, or statute related to claim or payment
31-12 rights for persons in the undersigned's position that
31-13 the undersigned has on the above referenced project to
31-14 the following extent.
31-15 This release covers a progress payment for all
31-16 labor, services, equipment, or materials furnished to
31-17 the property or to __________________, (person with
31-18 whom undersigned contracted) on or before ____________
31-19 (date) and does not cover any retention, pending
31-20 modifications and changes, or items furnished on,
31-21 before, or after that date. Retention and pending
31-22 modifications and changes furnished on or before the
31-23 above date total _____________.
31-24 The undersigned warrants that the undersigned
31-25 either has already paid or will use the funds received
31-26 from this progress payment to promptly pay in full all
31-27 of the undersigned's laborers, subcontractors,
32-1 materialmen, and suppliers for all work, materials,
32-2 equipment, or services provided for or to the above
32-3 referenced project up to the date of this waiver.
32-4 Date ____________________________
32-5 _________________________________ (Company name)
32-6 By ______________________________ (Signature)
32-7 _________________________________ (Title)
32-8 (Each unconditional waiver must contain the
32-9 following language printed in a type at least as large
32-10 as the largest type used in the document:)
32-11 NOTICE:
32-12 This document waives rights unconditionally and
32-13 states that you have been paid for giving up those
32-14 rights. This document is enforceable against you if
32-15 you sign it, even if you have not been paid. If you
32-16 have not been paid, use a conditional release form.
32-17 (3) If the claimant is required to execute a waiver
32-18 and release in exchange for or in order to induce payment of a
32-19 final payment and the claimant is not paid in exchange for the
32-20 waiver and release or a single payee check or joint payee check is
32-21 given in exchange for the waiver and release, the waiver and
32-22 release must read substantially similar to the following:
32-23 CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
32-24 Project ___________________
32-25 Job No. ___________________
32-26 On receipt by the undersigned of a check
32-27 from ________________ (maker of check) in the sum
33-1 of $____________ payable to _____________________
33-2 (payee or payees of check) and when the check has been
33-3 properly endorsed and has been paid by the bank on
33-4 which it is drawn, this document becomes effective to
33-5 release any mechanic's lien, any state or federal
33-6 statutory bond right, any private bond right, any
33-7 claim for payment, and any rights under any
33-8 similar ordinance, rule, or statute related to
33-9 claim or payment rights for persons in the
33-10 undersigned's position, the undersigned has on the
33-11 property of _____________________ (owner) located
33-12 at ______________________ to the following
33-13 extent ______________________ (job description).
33-14 This release covers the final payment to
33-15 the undersigned for all labor, services,
33-16 equipment, or materials furnished to the
33-17 property or to __________________, (person with
33-18 whom undersigned contracted) except for disputed
33-19 claims in the amount of $_________.
33-20 Before any recipient of this document relies on
33-21 the document, the recipient should verify evidence of
33-22 payment to the undersigned.
33-23 The undersigned warrants that the undersigned
33-24 either has already paid or will use the funds received
33-25 from this final payment to promptly pay in full all of
33-26 the undersigned's laborers, subcontractors,
33-27 materialmen, and suppliers for all work, materials,
34-1 equipment, or services provided for or to the above
34-2 referenced project up to the date of this waiver.
34-3 Date ____________________________
34-4 _________________________________ (Company name)
34-5 By ______________________________ (Signature)
34-6 _________________________________ (Title)
34-7 (4) If the claimant is required to execute a waiver
34-8 and release in exchange for or in order to induce payment of a
34-9 final payment and the claimant asserts in the waiver that the
34-10 claimant has been paid the final payment, the waiver and release
34-11 must read substantially similar to the following:
34-12 UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
34-13 Project ___________________
34-14 Job No. ___________________
34-15 The undersigned has been paid in full for all
34-16 labor, services, equipment, or materials furnished to
34-17 the property or to ___________________, (person
34-18 with whom undersigned contracted) on the
34-19 property of ______________________ (owner) located
34-20 at ______________________ to the following
34-21 extent ______________________ (job description) and
34-22 does hereby waive and release any right to a mechanic's
34-23 lien, any state or federal statutory bond right, any
34-24 private bond right, any claim for payment, and any
34-25 rights under any similar ordinance, rule, or statute
34-26 related to claim or payment rights for persons in the
34-27 undersigned's position, except for disputed claims for
35-1 extra work in the amount of $_________.
35-2 The undersigned warrants that the undersigned
35-3 either has already paid or will use the funds received
35-4 from this final payment to promptly pay in full all of
35-5 the undersigned's laborers, subcontractors,
35-6 materialmen, and suppliers for all work, materials,
35-7 equipment, or services provided for or to the above
35-8 referenced project.
35-9 Date ____________________________
35-10 _________________________________ (Company name)
35-11 By ______________________________ (Signature)
35-12 _________________________________ (Title)
35-13 (Each unconditional waiver must contain the
35-14 following language printed in a type at least as large
35-15 as the largest type used in the document:)
35-16 NOTICE:
35-17 This document waives rights unconditionally and
35-18 states that you have been paid for giving up those
35-19 rights. This document is enforceable against you if
35-20 you sign it, even if you have not been paid. If you
35-21 have not been paid, use a conditional release form.
35-22 Sec. 62.104. PUBLIC POLICY. (a) Notwithstanding any other
35-23 law and except as provided by Section 62.103, any contract,
35-24 agreement, or understanding waiving the right to file or enforce
35-25 any lien or claim created under this chapter is void as against
35-26 public policy.
35-27 (b) This section does not apply to a written agreement to
36-1 subordinate, release, or satisfy all or part of a lien claimed
36-2 after a notice of lien has been filed.
36-3 (Sections 62.105-62.120 reserved for expansion
36-4 SUBCHAPTER F. PROCEDURE TO PERFECT LIEN
36-5 Sec. 62.121. PROCEDURE TO PERFECT LIEN. (a) To perfect a
36-6 lien provided by this chapter, a person claiming a lien under this
36-7 chapter must execute a notice and claim of lien as provided by this
36-8 section.
36-9 (b) The person claiming a lien must make duplicate copies of
36-10 the notice and claim of lien and record one copy with the county
36-11 clerk of the county in which the property is located on or before
36-12 the 120th day after the date a building, structure, or improvement,
36-13 or an alteration or repair of a building, structure, or
36-14 improvement, is completed or, if a notice of completion has been
36-15 recorded, on or before the 60th day after the date the notice is
36-16 recorded. Within a reasonable time after recording the notice and
36-17 claim of lien, the person claiming a lien shall serve the remaining
36-18 copy on the owner of the building, structure, or improvement if the
36-19 owner can be found in the county.
36-20 (c) The notice and claim of lien must be made under oath by
36-21 the claimant or a person with knowledge of the facts and must
36-22 contain:
36-23 (1) the legal description of the property to be
36-24 charged with a lien;
36-25 (2) the name of the owner or reputed owner of the
36-26 property, if known, and the name of the person by whom the claimant
36-27 was employed or to whom the claimant furnished materials;
37-1 (3) a general statement of the type of work done and
37-2 materials furnished by the claimant and, for a claimant other than
37-3 an original contractor, the amounts owed for the work and
37-4 materials;
37-5 (4) a copy of the contract;
37-6 (5) a statement of the claimant's demand, after
37-7 deducting credits and offsets;
37-8 (6) a statement of the date of completion of the
37-9 building, structure, or improvement, or any alteration or repair of
37-10 the building, structure, or improvement; and
37-11 (7) a statement of the date the preliminary 45-day
37-12 notice was given and a copy of the preliminary 45-day notice,
37-13 including the proof of mailing.
37-14 (d) For the purposes of this section, "completion" means the
37-15 earliest of the following dates or events:
37-16 (1) the 30th day after the date of the final
37-17 inspection and written final acceptance by the governmental body
37-18 that issued the building permit for the building, structure, or
37-19 improvement;
37-20 (2) if no building permit is issued or if the
37-21 governmental body that issued the building permit for the building,
37-22 structure, or improvement does not issue final inspections and
37-23 written final acceptances, the last date on which any labor,
37-24 materials, or professional services were furnished to the property;
37-25 or
37-26 (3) termination of the original contract, abandonment
37-27 of the project, or cessation of labor for a period of 60
38-1 consecutive days, unless the cessation of labor is due to a strike,
38-2 shortage of materials, or act of nature.
38-3 Sec. 62.122. NOTICE OF COMPLETION. (a) A notice of
38-4 completion is a written notice that the owner or the owner's agent
38-5 may record at any time after completing the construction.
38-6 (b) A notice of completion executed and delivered as
38-7 prescribed by this section establishes the completion date for
38-8 purposes of this subchapter.
38-9 (c) A notice of completion must be signed and verified by
38-10 the owner or the owner's agent and must contain the following
38-11 information:
38-12 (1) the name and address of the owner;
38-13 (2) the nature of the interest or estate in the
38-14 property owned;
38-15 (3) the legal description of the property and the
38-16 street address;
38-17 (4) the name of the original contractor, if any;
38-18 (5) the name and address of each predecessor in
38-19 interest if the property was transferred after the beginning of the
38-20 work or improvement;
38-21 (6) the nature of the improvements to the real
38-22 property; and
38-23 (7) the date of completion.
38-24 (d) The notice of completion must read substantially similar
38-25 to the following:
38-26 NOTICE OF COMPLETION
38-27 Notice is hereby given that:
39-1 1. The undersigned is owner of the interest or
39-2 estate stated below in the property described below, or
39-3 the undersigned is the owner's agent.
39-4 2. The full name of the undersigned
39-5 is ____________________________________.
39-6 3. The full address of the undersigned
39-7 is ____________________________________.
39-8 4. The nature of the interest or estate of
39-9 the owner is: In Fee Simple. _______________. (if
39-10 other than fee simple, strike "In Fee Simple" and
39-11 insert, for example, "Purchaser Under Contract of
39-12 Purchase" or "Lessee")
39-13 5. The full name and address of each person, if
39-14 any, who holds an interest or estate with the
39-15 undersigned, including a joint tenant or a
39-16 tenant-in-common, is:
39-17 Name Address
39-18 _______________________ ________________________
39-19 _______________________ ________________________
39-20 _______________________ ________________________
39-21 6. The full name and address of each predecessor
39-22 in interest of the undersigned, if the property was
39-23 transferred after the beginning of the work or
39-24 improvement, is:
39-25 Name Address
39-26 _______________________ ________________________
39-27 _______________________ ________________________
40-1 _______________________ ________________________
40-2 7. The nature of the improvements to the real
40-3 property is _______________________________.
40-4 8. The work or improvement on the property
40-5 described was completed in accordance with the
40-6 definition of "completion" in Section 62.121, Property
40-7 Code. (Fill in the appropriate completion date as
40-8 defined in Section 62.121, Property Code:)
40-9 (a)-Date ______________________ (30 days
40-10 after written final acceptance by governmental body)
40-11 (b)-Date ______________________ (60 days
40-12 after cessation of labor)
40-13 (c)-Date ______________________ (last date
40-14 on which any labor, materials, machinery, equipment, or
40-15 tools were furnished to the property)
40-16 9. The name of the original contractor, if any,
40-17 for the work or improvement is _________________.
40-18 (if no contractor, insert "none")
40-19 10. The street address of the property
40-20 is ____________________________________. (include both
40-21 address and city with zip code)
40-22 11. The legal description of property described
40-23 above is __________________________________. (attach
40-24 exhibit if necessary)
40-25 Verification
40-26 I, the undersigned, certify that I am the owner,
40-27 the owner's agent for the property, or another
41-1 interested party in the property described in the above
41-2 notice, or I certify that I am the original contractor
41-3 of the improvements to the real property described in
41-4 the above notice. I have read the foregoing notice and
41-5 know and understand the contents. The facts stated are
41-6 true and correct. I declare under penalty of perjury
41-7 that the foregoing is true and correct.
41-8 Executed on ______________________ (date) at
41-9 ________________ (place where signed), Texas
41-10 _______________________________ (print name)
41-11 _______________________ (personal signature)
41-12 ____________________________________ (title)
41-13 (Acknowledgment)
41-14 (Each notice of completion must contain the
41-15 following language printed in a type at least as large
41-16 as the largest type used in the document:)
41-17 To shorten the lien period under Section 62.121,
41-18 Property Code, a copy of the notice of completion and a
41-19 written statement of the date of recording of the
41-20 notice and the county clerk's record location
41-21 information shall be provided by the owner to the
41-22 original contractor and all persons from whom the
41-23 person recording this notice has previously received a
41-24 preliminary 45-day notice as prescribed by Subchapter
41-25 C, Chapter 62, Property Code, in accordance with
41-26 Section 62.004, Property Code.
41-27 Notice: Receipt of a notice of completion may
42-1 alter the time you have to perfect a lien in accordance
42-2 with Section 62.121, Property Code.
42-3 (e) If the property is owned by more than one person, a
42-4 notice of completion signed by fewer than all the owners must
42-5 include the name and address of each owner. If the notice of
42-6 completion is signed by a successor in interest, the notice must
42-7 include the name and address of each person who transferred the
42-8 property to the successor in interest.
42-9 (f) The person executing the notice of completion shall
42-10 record the notice in the office of the county clerk of the county
42-11 in which the property is located. The county clerk shall index the
42-12 notice of completion under the index classification in which
42-13 mechanic's liens are recorded.
42-14 (g) If a notice of completion is recorded, the person
42-15 recording the notice, not later than the 15th day after the date
42-16 the notice is recorded, shall serve a copy of the notice of
42-17 completion and a written statement of the date of recording of the
42-18 notice and the county clerk's record location information on the
42-19 original contractor and all persons from whom the owner has
42-20 previously received a preliminary 45-day notice. If the owner or
42-21 the owner's agent fails to provide the information within the
42-22 period prescribed by this subsection, the person may, not later
42-23 than the 120th day after the date of completion as defined by
42-24 Section 62.121, perfect a lien under this chapter.
42-25 Sec. 62.123. DUTY OF OWNER OF PROPERTY TO WITHHOLD PAYMENT
42-26 TO ORIGINAL CONTRACTOR. On service of the notice and claim of
42-27 lien, the owner shall retain, out of the amount due or to become
43-1 due the original contractor, the value of the labor or material
43-2 furnished as shown by the notice and claim of lien. The owner
43-3 shall furnish to the original contractor a copy of the notice and
43-4 claim of lien. If the contractor, within 10 days after the date
43-5 of receiving the copy, does not give the owner a written notice
43-6 that the contractor intends to dispute the claim, the contractor is
43-7 presumed to assent to the demand, and the owner shall pay the claim
43-8 when the claim becomes due.
43-9 (Sections 62.124-62.150 reserved for expansion
43-10 SUBCHAPTER G. STOP NOTICES
43-11 Sec. 62.151. STOP NOTICE AND BONDED STOP NOTICE. (a) The
43-12 purpose of a stop notice or bonded stop notice is to give notice to
43-13 an owner or construction lender that labor or materials have been
43-14 furnished and the person providing the notice has not been paid for
43-15 the labor or materials. The right to file a notice under this
43-16 subchapter is independent and cumulative of other rights prescribed
43-17 by this chapter.
43-18 (b) A stop notice must be in writing, be signed and verified
43-19 by the claimant or the claimant's agent, and state in general terms
43-20 the following information:
43-21 (1) the kind of labor, services, equipment, or
43-22 materials furnished or agreed to be furnished by the claimant;
43-23 (2) the name of the person by whom the claimant was
43-24 employed or to whom the claimant furnished the labor, services,
43-25 equipment, or materials;
43-26 (3) the estimated amount in value of the labor,
43-27 services, equipment, or materials furnished and the full amount in
44-1 value of the labor, services, equipment, or materials agreed to be
44-2 furnished; and
44-3 (4) the name and address of the claimant.
44-4 (c) A bonded stop notice is a stop notice provided to a
44-5 construction lender that is accompanied by a bond that:
44-6 (1) provides good and sufficient sureties in a penal
44-7 sum equal to 125 percent of the amount of the claim; and
44-8 (2) is conditioned that if the defendant recovers a
44-9 judgment in an action brought on a verified claim or on the lien
44-10 filed by the claimant, the claimant will pay:
44-11 (A) all costs that may be awarded against the
44-12 owner, original contractor, or construction lender; and
44-13 (B) all damages that the owner, original
44-14 contractor, or construction lender may sustain by reason of the
44-15 equitable garnishment effected by the claim or by reason of the
44-16 lien, not exceeding the sum specified in the bond.
44-17 (d) A stop notice or bonded stop notice is not invalid by
44-18 reason of any defect in form if the notice is sufficient to
44-19 substantially inform the owner of the information required.
44-20 Sec. 62.152. PERSON ENTITLED TO PROVIDE STOP NOTICE;
44-21 CONDITIONS FOR SERVICE. (a) Any person, other than the original
44-22 contractor, who labors, specifically fabricates material, or
44-23 furnishes labor or materials for construction may provide a stop
44-24 notice to the owner.
44-25 (b) Any person, including the original contractor, who
44-26 labors, specifically fabricates material, or furnishes labor or
44-27 materials for construction may provide a stop notice or bonded stop
45-1 notice to the construction lender.
45-2 (c) Service of a stop notice or a bonded stop notice is
45-3 effective only if the claimant:
45-4 (1) has provided the preliminary 45-day notice as
45-5 provided by Subchapter C;
45-6 (2) provides the stop notice or the bonded stop notice
45-7 before the expiration of the period within which the claimant's
45-8 claim of lien must be recorded under Subchapter F; and
45-9 (3) in the case of a construction lender, provides the
45-10 bonded stop notice to the manager or other responsible officer or
45-11 person at the office of the construction lender.
45-12 (d) If a bonded stop notice is delivered or sent to an
45-13 institution or organization with branch offices, the bonded stop
45-14 notice is not effective unless the notice is delivered to the
45-15 office or branch administering or holding the construction funds.
45-16 (e) Any person described by Subsection (a) who fails to
45-17 provide a stop notice after a written demand for a stop notice is
45-18 received from the owner forfeits the right to a mechanic's lien.
45-19 Sec. 62.153. EFFECT OF STOP NOTICE AND BONDED STOP NOTICE.
45-20 (a) Except as provided by this section, a construction lender may,
45-21 and on receipt of a bonded stop notice shall, withhold from the
45-22 borrower or other person to whom the lender or the owner is
45-23 obligated to make payments or advances out of the construction
45-24 funds sufficient funds to pay the claim and any lien that is
45-25 recorded. On receipt of a stop notice or bonded stop notice:
45-26 (1) the construction lender shall withhold funds
45-27 relating to a bonded stop notice filed by an original contractor,
46-1 regardless of whether a payment bond has previously been recorded
46-2 in the office of the county clerk of the county in which the
46-3 property is located;
46-4 (2) the construction lender shall withhold funds
46-5 relating to a bonded stop notice filed by any person described by
46-6 Section 62.152, unless a payment bond has been previously recorded
46-7 in the office of the county clerk of the county in which the
46-8 property is located;
46-9 (3) if a payment bond has been previously recorded,
46-10 the construction lender may withhold funds relating to the bonded
46-11 stop notice or stop notice; and
46-12 (4) if the claimant makes a written request for notice
46-13 of the construction lender's decision to withhold funds under
46-14 Subdivision (2) or (3), the lender shall furnish the claimant a
46-15 copy of the bond not later than the 30th day after the date the
46-16 lender makes a decision.
46-17 (b) A construction lender is not liable for the failure to
46-18 furnish a copy of the bond under Subsection (a)(4) if:
46-19 (1) the failure was not intentional and resulted from
46-20 a bona fide error;
46-21 (2) the lender maintains reasonable procedures to
46-22 avoid such an error; and
46-23 (3) the error was corrected not later than the 20th
46-24 day after the date the violation was discovered.
46-25 (c) If a stop notice or bonded stop notice is filed by the
46-26 original contractor or by a subcontractor, the original contractor
46-27 or subcontractor is entitled to recover on the stop notice or
47-1 bonded stop notice only the net amount due the original contractor
47-2 or subcontractor after deducting the stop notice claims of each
47-3 subcontractor or material supplier who has filed a bonded stop
47-4 notice based on work furnished on behalf of the original contractor
47-5 or the subcontractor.
47-6 (d) A construction lender is not required to withhold more
47-7 than the net amount due under a bonded stop notice.
47-8 Notwithstanding any other provision, a construction lender is not
47-9 liable for the failure to withhold more than the net amount on
47-10 receipt of a bonded stop notice.
47-11 (e) On receipt of a stop notice, the owner shall withhold
47-12 sufficient funds to pay a claim and any lien recorded from the
47-13 original contractor or from any person acting under the original
47-14 contractor's authority and to whom labor or materials have been
47-15 furnished or agreed to be furnished, unless a payment bond has been
47-16 recorded as provided by this chapter.
47-17 (f) If the owner does not withhold funds because a payment
47-18 bond has been previously recorded, the owner shall give a written
47-19 notice not later than the 30th day after the date the stop notice
47-20 is received to the claimant at the address shown in the stop notice
47-21 that states that the bond has been recorded and that is accompanied
47-22 by a copy of the bond.
47-23 Sec. 62.154. PRIORITIES. (a) An assignment by the owner or
47-24 contractor of construction loan funds, whether made before or after
47-25 a stop notice or bonded stop notice is provided to a construction
47-26 lender, does not take priority over the stop notice or bonded stop
47-27 notice, and the assignment has no effect on the right of a claimant
48-1 who provides the stop notice or bonded stop notice.
48-2 (b) If the funds withheld or required to be withheld under a
48-3 stop notice or bonded stop notice are insufficient to pay in full
48-4 the claims of each person providing the notices, the funds shall be
48-5 distributed among the claimants in the same ratio that their
48-6 respective claims bear to the aggregate of all claims. This pro
48-7 rata distribution shall be made among the persons entitled to share
48-8 in the funds without regard to the order of time in which the
48-9 respective notices were provided or the respective actions were
48-10 commenced.
48-11 (c) A person who intentionally provides a false stop notice
48-12 or bonded stop notice or who intentionally includes in the notice
48-13 labor, services, equipment, or materials not furnished for the
48-14 property described in the notice forfeits all rights to participate
48-15 in the pro rata distribution of the funds.
48-16 Sec. 62.155. RELEASE OF STOP NOTICE OR BONDED STOP NOTICE.
48-17 If the owner, the construction lender, or any original contractor
48-18 or subcontractor disputes the accuracy or validity of a stop notice
48-19 or bonded stop notice, that person may file with the person on whom
48-20 the notice was served a bond executed by a good and sufficient
48-21 surety in a penal sum equal to 125 percent of the amount stated in
48-22 the notice and conditioned for the payment of any sum not exceeding
48-23 the penal obligation of the bond, including the amount of the claim
48-24 and the costs of enforcing the claim. When the bond is filed, the
48-25 funds withheld under the stop notice or bonded stop notice shall be
48-26 released.
48-27 Sec. 62.156. ENFORCEMENT OF RIGHTS ARISING FROM STOP NOTICE
49-1 AND BONDED STOP NOTICE. (a) An action against the owner or
49-2 construction lender to enforce payment of the claim stated in the
49-3 stop notice or bonded stop notice may be commenced at any time
49-4 after the 10th day after the date the owner or construction lender
49-5 receives the notice. If no action is taken to enforce payment of
49-6 the claim on or before the second anniversary of the date of
49-7 service, the notice is no longer effective and the funds shall be
49-8 paid or delivered to the contractor or other person to whom the
49-9 funds are due. Notice of any enforcement action shall be provided
49-10 not later then the fifth day after the date the action is filed to
49-11 the same persons and in the same manner as provided for service of
49-12 a stop notice or bonded stop notice.
49-13 (b) A stop notice or bonded stop notice is no longer
49-14 effective and the funds withheld shall be paid or delivered to the
49-15 person to whom the funds are due if:
49-16 (1) an action to enforce the stop notice or bonded
49-17 stop notice is dismissed, unless the dismissal is without
49-18 prejudice; or
49-19 (2) a judgment is rendered against the claimant.
49-20 (c) Each person who has provided a stop notice or bonded
49-21 stop notice may join in the same action. If separate actions are
49-22 filed, the court first acquiring jurisdiction may consolidate the
49-23 actions. On the motion of the owner or construction lender, the
49-24 court shall require all claimants to the funds withheld under a
49-25 stop notice or bonded stop notice to be interpleaded in one action.
49-26 (Sections 62.157-62.180 reserved for expansion
49-27 SUBCHAPTER H. PRIORITY AND PREFERENCE
50-1 Sec. 62.181. PREFERENCE OVER OTHER CREDITORS. All
50-2 subcontractors, laborers, materialmen, or professional service
50-3 providers who have a mechanic's lien have preference over other
50-4 creditors of the original contractor.
50-5 Sec. 62.182. EQUALITY OF LIENS. (a) The liens provided
50-6 under this chapter are on an equal footing without reference to the
50-7 date of recording of the notice and claim of lien and without
50-8 reference to the time of performance of the work or labor or the
50-9 furnishing of materials or professional services.
50-10 (b) If the proceeds of a foreclosure sale of property are
50-11 insufficient to discharge all mechanic's liens against the
50-12 property, the proceeds shall be paid pro rata on the perfected
50-13 mechanic's liens on which suit is brought.
50-14 Sec. 62.183. PRIORITY OF MECHANIC'S LIENS OVER OTHER LIENS.
50-15 (a) Except as provided by this section, a mechanic's lien attaches
50-16 to the house, building, improvements, or railroad property in
50-17 preference to any prior lien, encumbrance, or mortgage on the
50-18 property on which it is located, and the person enforcing the lien
50-19 may have the house, building, improvement, or any piece of the
50-20 railroad property sold separately.
50-21 (b) The mechanic's lien does not affect any lien,
50-22 encumbrance, or mortgage on the property or improvement at the time
50-23 of the inception of the mechanic's lien, and the holder of the
50-24 lien, encumbrance, or mortgage need not be made a party to a suit
50-25 to foreclose the mechanic's lien.
50-26 (c) For purposes of this section, the time of inception of a
50-27 mechanic's lien is the commencement of construction of improvements
51-1 or delivery of materials to the property on which the improvements
51-2 are to be located and on which the materials are to be used.
51-3 (Sections 62.184-62.200 reserved for expansion
51-4 SUBCHAPTER I. RELEASE AND FORECLOSURE
51-5 Sec. 62.201. ENFORCEMENT OF REMEDIES AGAINST MONEY DUE
51-6 ORIGINAL CONTRACTOR OR SUBCONTRACTOR. (a) A creditor of an
51-7 original contractor may not collect, enforce a security interest
51-8 against, garnish, or levy execution on the money due the original
51-9 contractor or the contractor's surety from the owner, and a
51-10 creditor of a subcontractor may not collect, enforce a security
51-11 interest against, garnish, or levy execution on the money due the
51-12 subcontractor, to the prejudice of the subcontractors, mechanics,
51-13 laborers, materialmen, or their sureties.
51-14 (b) A surety issuing a payment bond or performance bond in
51-15 connection with the improvements has a priority claim over other
51-16 creditors of its principal to contract funds to the extent of any
51-17 loss it suffers or incurs. That priority does not excuse the
51-18 surety from paying any obligations that it may have under its
51-19 payment bonds.
51-20 Sec. 62.202. RELEASE OF CLAIM OR LIEN. (a) When a debt for
51-21 labor, materials, or professional services is satisfied or paid by
51-22 collected funds, the person who furnished the labor, materials, or
51-23 professional services shall, not later than the 10th day after the
51-24 date of receipt of a written request, furnish to the requesting
51-25 person a release of the indebtedness and any lien claimed, to the
51-26 extent of the indebtedness paid. An owner, the original
51-27 contractor, or any person making the payment may request the
52-1 release.
52-2 (b) A release of lien must be in a form that would permit it
52-3 to be filed of record.
52-4 Sec. 62.203. DUTY OF CONTRACTOR TO DEFEND ACTION; RIGHTS OF
52-5 OWNER AGAINST CONTRACTOR. (a) When a lien is recorded or notice
52-6 given by any person other than a contractor, the contractor shall
52-7 defend the action.
52-8 (b) During pendency of the action, the owner may withhold
52-9 the amount in dispute and, if judgment on the lien is rendered, the
52-10 owner may deduct, from any amount due or to become due from the
52-11 owner to the contractor, the amount of the judgment and costs.
52-12 (c) If the owner has settled with the contractor in full, or
52-13 if the amount is not due the contractor, the owner may recover from
52-14 the contractor the amount paid by the owner and for which the
52-15 contractor is liable.
52-16 Sec. 62.204. CONSOLIDATION OF ACTIONS; INTERVENTION. (a)
52-17 Claimants who do not contest the claims of each other may join as
52-18 plaintiffs, and when separate actions are commenced the court may
52-19 consolidate the actions.
52-20 (b) Claimants who fail or refuse to join in the action shall
52-21 be made defendants.
52-22 (c) Claimants who are not involved in the action may, at any
52-23 time before final hearing, intervene in the action.
52-24 Sec. 62.205. FORECLOSURE. A lien under this chapter may be
52-25 foreclosed only on judgment of a court foreclosing the lien and
52-26 ordering the sale of the property subject to the lien.
52-27 Sec. 62.206. LIMITATION OF ACTION TO FORECLOSE LIEN. A lien
53-1 under this chapter expires on the second anniversary of the date
53-2 the lien is recorded, unless an action is brought within that
53-3 period to foreclose the lien. If a claimant is made a defendant to
53-4 an action brought by another claimant, the filing of an answer or
53-5 cross-claim asserting the lien during the two-year period
53-6 prescribed by this section is considered commencement of an action
53-7 within the meaning of this section.
53-8 Sec. 62.207. RIGHT OF CLAIMANT TO HAVE LAND AND IMPROVEMENTS
53-9 SOLD TOGETHER OR SEPARATELY. (a) A person enforcing a lien under
53-10 this chapter may have the land and improvements sold together, or
53-11 the person may have the improvements sold separately if the
53-12 improvements can be removed without material injury to the
53-13 remaining property.
53-14 (b) If the improvements are sold separately, the officer
53-15 making the sale shall place the purchaser in possession. The
53-16 purchaser is entitled to a reasonable time after the date of the
53-17 purchase within which to remove the purchased property.
53-18 Sec. 62.208. DISCHARGE OF LIEN. A mechanic's lien or
53-19 affidavit claiming a mechanic's lien filed under this chapter may
53-20 be discharged of record by:
53-21 (1) recording a lien release signed by the claimant
53-22 under Section 62.202;
53-23 (2) failing to institute suit to foreclose the lien in
53-24 the county in which the property is located within the period
53-25 prescribed by this chapter;
53-26 (3) recording the original or certified copy of a
53-27 final judgment or decree of a court providing for the discharge; or
54-1 (4) filing the bond and notice in compliance with
54-2 Subchapter J.
54-3 (Sections 62.209-62.230 reserved for expansion
54-4 SUBCHAPTER J. BOND TO INDEMNIFY AGAINST LIEN
54-5 Sec. 62.231. BOND. (a) If a lien, other than a lien
54-6 granted by the owner in a written contract, is fixed or is
54-7 attempted to be fixed by a recorded instrument under this chapter,
54-8 any person may file a bond to indemnify against the lien.
54-9 (b) The bond shall be filed with the county clerk of the
54-10 county in which the property subject to the lien is located.
54-11 (c) A mechanic's lien claim against an owner's property is
54-12 discharged after:
54-13 (1) a bond that complies with Section 62.232 is filed;
54-14 (2) the notice of the bond is issued as provided by
54-15 Section 62.233; and
54-16 (3) the bond and notice are recorded as provided by
54-17 Section 62.234.
54-18 Sec. 62.232. BOND REQUIREMENTS. The bond must:
54-19 (1) describe the property on which the liens are
54-20 claimed;
54-21 (2) refer to each lien claimed in a manner sufficient
54-22 to identify it;
54-23 (3) be in an amount that is double the amount of the
54-24 liens referred to in the bond unless the total amount claimed in
54-25 the liens exceeds $100,000, in which case the bond must be in an
54-26 amount that is the greater of 1-1/2 times the amount of the liens
54-27 or the sum of $100,000 and the amount of the liens;
55-1 (4) be payable to the parties claiming the liens;
55-2 (5) be executed by:
55-3 (A) the party filing the bond as principal; and
55-4 (B) a corporate surety authorized and admitted
55-5 to do business under the law in this state and licensed by this
55-6 state to execute the bond as surety, subject to Section 1, Chapter
55-7 87, Acts of the 56th Legislature, Regular Session, 1959 (Article
55-8 7.19-1, Vernon's Texas Insurance Code); and
55-9 (6) be conditioned substantially that the principal
55-10 and sureties will pay to the named obligees or to their assignees
55-11 the amount that the named obligees would have been entitled to
55-12 recover if their claims had been proved to be valid and enforceable
55-13 liens on the property.
55-14 Sec. 62.233. NOTICE OF BOND. (a) After the bond is filed,
55-15 the county clerk shall issue notice of the bond to all named
55-16 obligees.
55-17 (b) A copy of the bond must be attached to the notice.
55-18 (c) The notice must be served in accordance with Section
55-19 62.004 on each obligee by sending a copy of the notice and the bond
55-20 to the obligee, addressed to the claimant at the address stated in
55-21 the lien affidavit for the obligee.
55-22 (d) If the claimant's lien affidavit does not state the
55-23 claimant's address, the notice is not required to be sent to the
55-24 claimant.
55-25 Sec. 62.234. RECORDING OF BOND AND NOTICE. (a) The county
55-26 clerk shall record the bond, the notice, and a certificate of
55-27 mailing in the real property records.
56-1 (b) In acquiring an interest in or insuring title to real
56-2 property, a purchaser, insurer of title, or lender may rely on and
56-3 is absolutely protected by the record of the bond and the notice to
56-4 the same extent as if the lien claimant had filed a release of lien
56-5 in the real property records.
56-6 Sec. 62.235. ACTION ON BOND. (a) A party making or holding
56-7 a lien claim may not sue on the bond later than two years after the
56-8 date the notice is served.
56-9 (b) The bond is not exhausted by one action against it.
56-10 Each named obligee or assignee of an obligee may maintain a
56-11 separate suit on the bond in any court of jurisdiction in the
56-12 county in which the real property is located.
56-13 (Sections 62.236-62.250 reserved for expansion
56-14 SUBCHAPTER K. BOND TO PAY LIENS OR CLAIMS
56-15 Sec. 62.251. BOND. An original contractor who has a written
56-16 contract with the owner may furnish at any time a bond for the
56-17 benefit of claimants.
56-18 Sec. 62.252. BOND REQUIREMENTS. The bond must:
56-19 (1) be in a penal sum at least equal to the total of
56-20 the original contract amount;
56-21 (2) be in favor of the owner;
56-22 (3) have the written approval of the owner endorsed on
56-23 it;
56-24 (4) be executed by:
56-25 (A) the original contractor as principal; and
56-26 (B) a corporate surety authorized and admitted
56-27 to do business in this state and licensed by this state to execute
57-1 bonds as surety, subject to Section 1, Chapter 87, Acts of the 56th
57-2 Legislature, Regular Session, 1959 (Article 7.19-1, Vernon's Texas
57-3 Insurance Code); and
57-4 (5) be conditioned on prompt payment for all labor,
57-5 subcontracts, materials, specially fabricated materials, and normal
57-6 and usual extras not exceeding 15 percent of the contract price.
57-7 Sec. 62.253. RECORDING OF BOND AND CONTRACT. (a) The bond
57-8 and the contract between the original contractor and the owner
57-9 shall be filed with the county clerk of the county in which is
57-10 located all or part of the owner's property on which the
57-11 construction, alteration, or repair is being performed or is to be
57-12 performed. A memorandum of the contract or a copy of the contract
57-13 may be substituted for the original.
57-14 (b) The plans, specifications, and general conditions of the
57-15 contract are not required to be filed.
57-16 (c) The county clerk shall record the bond and place the
57-17 contract on file in the clerk's office and shall index and
57-18 cross-index both in the names of the original contractor and the
57-19 owner in records kept for that purpose.
57-20 (d) On request and payment of a reasonable fee, the county
57-21 clerk shall furnish a copy of the bond and contract to any person.
57-22 (e) In any court of this state or in the United States, a
57-23 copy of the bond and contract certified by the county clerk
57-24 constitutes prima facie evidence of the contents, execution,
57-25 delivery, and filing of the originals.
57-26 Sec. 62.254. ACTION ON BOND. (a) A claimant may sue the
57-27 principal and surety on the bond either jointly or severally.
58-1 (b) The claimant may sue for the amount of the claim and
58-2 court costs.
58-3 (c) The suit must be brought in the county in which the
58-4 property being improved is located not later than the second
58-5 anniversary of the date the project is completed.
58-6 (d) If the bond is recorded at the time the lien is filed,
58-7 the claimant must sue on the bond not later than the second
58-8 anniversary of the date the claimant's claim is perfected. If the
58-9 bond is not recorded at the time the lien is filed, the claimant
58-10 must sue on the bond not later than the second anniversary of the
58-11 date the claim is perfected.
58-12 Sec. 62.255. CLAIMS IN EXCESS OF BOND AMOUNT. If valid
58-13 claims against the bond exceed the penal sum of the bond, each
58-14 claimant is entitled to a pro rata share of the penal sum.
58-15 Sec. 62.256. ATTEMPTED COMPLIANCE. (a) A bond shall be
58-16 construed to comply with this subchapter, and the rights and
58-17 remedies on the bond are enforceable in the same manner as on other
58-18 bonds under this subchapter, if the bond:
58-19 (1) is furnished and filed in attempted compliance
58-20 with this subchapter; or
58-21 (2) evidences by its terms intent to comply with this
58-22 subchapter.
58-23 (b) Any provision in any payment bond furnished or filed in
58-24 attempted compliance with this subchapter that expands or restricts
58-25 the rights or liabilities provided under this chapter shall be
58-26 disregarded and the provisions of this subchapter shall be read
58-27 into that bond.
59-1 (Sections 62.257-62.280 reserved for expansion
59-2 SUBCHAPTER L. LIEN ON MONEY DUE PUBLIC WORKS CONTRACTOR
59-3 Sec. 62.281. LIEN ON MONEY DUE PUBLIC WORKS CONTRACTOR. A
59-4 person who furnishes material or labor to a contractor under an
59-5 original contract that does not exceed $25,000 and that is for
59-6 public improvements in this state and who gives notice required by
59-7 this subchapter has a lien on the money, bonds, or warrants due the
59-8 contractor for the improvements.
59-9 Sec. 62.282. PERSONS TO WHOM NOTICE GIVEN. The lien
59-10 claimant must send written notice of the claim to:
59-11 (1) the officials of the state, county, municipality,
59-12 school district, or other public entity whose duty it is to pay the
59-13 contractor; and
59-14 (2) the contractor at the contractor's last known
59-15 business or residence address.
59-16 Sec. 62.283. CONTENTS OF NOTICE. (a) Whether based on
59-17 written or oral agreement, the notice must contain:
59-18 (1) the amount claimed;
59-19 (2) the name of the party to whom the materials were
59-20 delivered or for whom the labor was performed;
59-21 (3) the dates and place of delivery or performance;
59-22 (4) a description reasonably sufficient to identify
59-23 the materials delivered or labor performed and the amount due;
59-24 (5) a description reasonably sufficient to identify
59-25 the project for which the material was delivered or the labor
59-26 performed; and
59-27 (6) the claimant's business address.
60-1 (b) The notice must be accompanied by a statement under oath
60-2 that the amount claimed is just and correct and that all payments,
60-3 lawful offsets, and credits known to the affiant have been allowed.
60-4 Sec. 62.284. PREREQUISITE; TIME FOR NOTICE. (a) A lien
60-5 claimant must comply with the preliminary 45-day notice requirement
60-6 prescribed by Subchapter C.
60-7 (b) The lien claimant must give a lien notice not later than
60-8 the 15th day of the second month following the month in which the
60-9 labor was performed or the material furnished.
60-10 Sec. 62.285. OFFICIAL TO RETAIN FUNDS. A public official
60-11 who receives the notice may not pay all of the money, bonds, or
60-12 warrants due the contractor, but shall retain enough to pay the
60-13 claim for which notice is given.
60-14 Sec. 62.286. BOND FOR RELEASE OF LIEN. (a) If a claim is
60-15 filed attempting to fix a lien under this subchapter, the
60-16 contractor against whom the claim is made may file a bond with the
60-17 officials of the state, county, municipality, school district, or
60-18 other public entity whose duty it is to pay the money, bonds, or
60-19 warrants to the contractor.
60-20 (b) If the bond is approved by the proper official, its
60-21 filing releases and discharges all liens fixed or attempted to be
60-22 fixed by the filing of a claim, and the appropriate officials shall
60-23 pay the money, bonds, or warrants to the contractor or the
60-24 contractor's assignee.
60-25 Sec. 62.287. BOND REQUIREMENTS. The bond must be:
60-26 (1) in an amount double the amount of the claims
60-27 filed;
61-1 (2) payable to the claimants;
61-2 (3) executed by:
61-3 (A) the party filing the bond as principal; and
61-4 (B) a corporate surety authorized, admitted to
61-5 do business, and licensed by the law of this state to execute the
61-6 bond as surety; and
61-7 (4) conditioned that:
61-8 (A) the principal and surety will pay to the
61-9 obligees named or to their assignees the amount of the claims or
61-10 the portions of the claims proved to be liens under this
61-11 subchapter; and
61-12 (B) the principal and surety will pay all court
61-13 costs adjudged against the principal in actions brought by a
61-14 claimant on the bond.
61-15 Sec. 62.288. NOTICE OF BOND. The official with whom the
61-16 bond is filed shall send an exact copy of the bond to all claimants
61-17 in accordance with Section 62.004.
61-18 Sec. 62.289. ACTION ON BOND. (a) A claimant must sue on
61-19 the bond not later than the first anniversary of the date the bond
61-20 is filed.
61-21 (b) The bond is not exhausted by one action on it. Each
61-22 obligee or obligee's assignee may maintain a separate suit on the
61-23 bond in any court of jurisdiction.
61-24 SECTION 12. (a) This Act takes effect January 1, 2000.
61-25 (b) The changes in law made by this Act apply only to a
61-26 construction contract entered into on or after January 1, 2000, and
61-27 funds received under a construction contract entered into on or
62-1 after January 1, 2000. A construction contract entered into before
62-2 January 1, 2000, or funds received under a construction contract
62-3 entered into before January 1, 2000, are governed by the law as it
62-4 existed immediately before January 1, 2000, and that law is
62-5 continued in effect for that purpose.
62-6 SECTION 13. The importance of this legislation and the
62-7 crowded condition of the calendars in both houses create an
62-8 emergency and an imperative public necessity that the
62-9 constitutional rule requiring bills to be read on three several
62-10 days in each house be suspended, and this rule is hereby suspended.