By: McClendon, Gattis H.B. No. 1209

A BILL TO BE ENTITLED

AN ACT

relating to construction payment trust funds and liens securing payment for certain labor, services, or material.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 53.054, Property Code, is amended by amending Subsection (a) and adding Subsections (d), (e), and (f) to read as follows:

(a) The affidavit must be signed by the person claiming the lien or by another person on the claimant's behalf and must contain substantially:

(1) a sworn statement of the amount of the claim;

(2) the name and last known address of the owner or reputed owner;

(3) a [general] statement of the [kind of] work done and materials furnished by the claimant and, for a claimant other than an original contractor, a statement of each month in which the work was done and materials furnished for which payment is requested;

(4) the name and last known address of the person by whom the claimant was employed or to whom the claimant furnished the materials or labor;

(5) the name and last known address of the original contractor;

(6) a description, legally sufficient for identification, of the property sought to be charged with the lien;

(7) the claimant's name, mailing address, and, if different, physical address; and

(8) for a claimant other than an original contractor, a statement identifying the date each notice of the claim was sent to the owner and the method by which the notice was sent.

(d) The affidavit must distinguish between materials provided and work done and state the category or types of materials provided in a manner that distinguishes between permanent fixtures and removable items.

(e) For the purposes of Subsection (d), the categories and types of materials that are considered not removable include:

(1) paint;

(2) lumber for the framing of the structure;

(3) concrete used for foundations, parking, and driveways;

(4) in-ground swimming pools;

(5) tile floors;

(6) wiring; and

(7) rough-in plumbing.

(f) For the purposes of Subsection (d), the categories and types of materials that are considered removable include:

(1) decking materials;

(2) counters;

(3) countertops;

(4) built-in appliances, including dishwashers, ovens, and ranges;

(5) carpet and pad;

(6) windows;

(7) doors;

(8) shower doors;

(9) sinks, toilets, fixtures; and

(10) draperies.

SECTION 2. Section 162.001(c), Property Code, is amended to read as follows:

(c) A fee payable to a contractor is not considered trust funds if:

(1) the [If a] contractor and property owner have entered into a written construction contract for the improvement of specific real property in this state before the commencement of construction of the improvement and the contract provides for the payment by the owner of the costs of construction and a reasonable fee specified in the contract payable to the contractor; and

(2) [,] the fee is earned as provided by the contract and paid to the contractor or disbursed from a construction account described by Section 162.006, if applicable [is not considered trust funds].

SECTION 3. Section 162.003, Property Code, is amended to read as follows:

Sec. 162.003. BENEFICIARIES OF TRUST FUNDS. (a) An artisan, laborer, mechanic, contractor, subcontractor, or materialman who labors or who furnishes labor or material for the construction or repair of an improvement on specific real property in this state is a beneficiary of any trust funds paid or received in connection with the improvement.

(b) A property owner is a beneficiary of trust funds described by Section 162.001 in connection with a residential construction contract, including funds deposited into a construction account described by Section 162.006.

SECTION 4. Section 53.054, Property Code, as amended by this Act, applies only to an affidavit filed under Section 53.052, Property Code, on or after the effective date of this Act. An affidavit filed before the effective date of this Act is governed by the law in effect immediately before the effective date of this Act, and that law is continued in effect for that purpose.

SECTION 5. The change in law made by this Act to Chapter 162, Property Code, applies only to funds that become trust funds under Section 162.001, Property Code, as amended by this Act, on or after the effective date of this Act. Funds that become trust funds before the effective date of this Act are governed by the law in effect immediately before the effective date of this Act, and that law is continued in effect for that purpose.

SECTION 6. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2009.