By: Harris S.B. No. 1768
(In the Senate - Filed March 11, 2005; March 30, 2005, read
first time and referred to Committee on Jurisprudence; May 2, 2005,
reported adversely, with favorable Committee Substitute by the
following vote: Yeas 4, Nays 0; May 2, 2005, sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 1768 By: Gallegos
A BILL TO BE ENTITLED
AN ACT
relating to the attachment of a judgment lien to homestead
property.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 52.001, Property Code, is amended to
read as follows:
Sec. 52.001. ESTABLISHMENT OF LIEN. Except as provided by
Sections [Section] 52.0011 or 52.0012, a first or subsequent
abstract of judgment, when it is recorded and indexed in accordance
with this chapter, if the judgment is not then dormant, constitutes
a lien on and attaches to any [the] real property of the defendant,
other than real property exempt from seizure or forced sale under
Chapter 41, the Texas Constitution, or any other law, that is
located in the county in which the abstract is recorded and indexed,
including real property acquired after such recording and indexing.
SECTION 2. Subchapter A, Chapter 52, Property Code, is
amended by adding Section 52.0012 to read as follows:
Sec. 52.0012. RELEASE OF RECORD OF LIEN ON HOMESTEAD
PROPERTY. (a) In this section:
(1) "Homestead" has the meaning assigned by Section
41.002.
(2) "Judgment debtor" and "judgment creditor" have the
meanings assigned by Section 31.008(h), Civil Practice and Remedies
Code.
(b) A judgment debtor may, at any time, file an affidavit in
the real property records of the county in which the judgment
debtor's homestead is located that substantially complies with
Subsection (f).
(c) Subject to Subsection (d) and except as provided by
Subsection (e), an affidavit filed under Subsection (b) serves as a
release of record of a judgment lien established under this
chapter.
(d) A bona fide purchaser or a mortgagee for value or a
successor or assign of a bona fide purchaser or mortgagee for value
may rely conclusively on an affidavit filed under Subsection (b) if
included with the affidavit is evidence that:
(1) the judgment debtor sent a letter and a copy of the
affidavit, without attachments and before execution of the
affidavit, notifying the judgment creditor of the affidavit and the
judgment debtor's intent to file the affidavit; and
(2) the letter and the affidavit were sent by
registered or certified mail, return receipt requested, 16 or more
days before the affidavit was filed to:
(A) the judgment creditor's last known address;
(B) the address appearing in the judgment
creditor's pleadings in the action in which the judgment was
rendered or another court record, if that address is different from
the judgment creditor's last known address;
(C) the address of the judgment creditor's last
known attorney as shown in those pleadings or another court record;
and
(D) the address of the judgment creditor's last
known attorney as shown in the records of the State Bar of Texas, if
that address is different from the address of the attorney as shown
in those pleadings or another court record.
(e) An affidavit filed under Subsection (b) does not serve
as release of record of a judgment lien established under this
chapter with respect to a purchaser or mortgagee of real property
that acquires the purchaser's or mortgagee's interest from the
judgment debtor after the judgment creditor files a contradicting
affidavit in the real property records of the county in which the
real property is located asserting that:
(1) the affidavit filed by the judgment debtor under
Subsection (b) is untrue; or
(2) another reason exists as to why the judgment lien
attaches to the judgment debtor's property.
(f) An affidavit filed under Subsection (b) must be in
substantially the following form:
HOMESTEAD AFFIDAVIT AS RELEASE OF JUDGMENT LIEN
Before me, the undersigned authority, on this day personally
appeared __________ ("Affiant(s)") (insert name of one or more
affiants) who, being first duly sworn, upon oath states:
(1) My/our name is/are __________ (insert name of
Affiant(s)). I/we own the following described land ("Land"):
(describe the property claimed as homestead)
(2) This affidavit is made for the purpose of
effecting a release of that judgment lien recorded in __________
(refer to recording information of judgment lien) ("Judgment Lien")
as to the Land.
(3) The Land includes as its purpose use for a home for
Affiant(s) and is the homestead of Affiant(s), as homestead is
defined in Section 41.002, Property Code. The Land does not exceed:
(A) 10 acres of land, if used for the purposes of
an urban home or as both an urban home and a place to exercise a
calling or business; or
(B) 200 acres for a family or 100 acres for a
single, adult person not otherwise entitled to a homestead, if used
for the purposes of a rural home.
(4) Attached to this affidavit is evidence that:
(A) Affiant(s) sent a letter and a copy of this
affidavit, without attachments and before execution of the
affidavit, notifying the judgment creditor in the Judgment Lien of
this affidavit and the Affiant(s)' intent to file for record this
affidavit; and
(B) the letter and this affidavit were sent by
registered or certified mail, return receipt requested, 16 or more
days before this affidavit was filed to:
(i) the judgment creditor's last known
address;
(ii) the address appearing in the judgment
creditor's pleadings in the action in which the judgment was
rendered or another court record, if that address is different from
the judgment creditor's last known address;
(iii) the address of the judgment
creditor's last known attorney as shown in those pleadings or
another court record; and
(iv) the address of the judgment creditor's
last known attorney as shown in the records of the State Bar of
Texas, if that address is different from the address of the attorney
as shown in those pleadings or another court record.
(5) This affidavit serves as a release of the Judgment
Lien as to the Land in accordance with Section 52.0012, Property
Code.
Signed on this _____ day of __________, _____.
____________________
____________________
(Signature of Affiant(s))
State of __________
County of __________
SWORN TO AND SUBSCRIBED before me on the _________ day of
__________, 20___.
My commission expires:
______________________
_______________________________
Notary Public, State of Texas
Notary's printed name:
________________________________
SECTION 3. The change in law made by this Act applies only
to an abstract of judgment lien recorded and indexed on or after the
effective date of this Act. An abstract of judgment lien that is
recorded and indexed before the effective date of this Act is
governed by the law in effect immediately before that date, and that
law is continued in effect for that purpose.
SECTION 4. This Act takes effect September 1, 2005.
* * * * *