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AN ACT
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relating to retainage under certain construction contracts. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 53.053(e), Property Code, is amended to |
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read as follows: |
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(e) A claim for retainage accrues on the earliest of the |
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last day of the month in which all work called for by the contract |
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between the owner and the original contractor has been completed, |
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finally settled, terminated, or abandoned. |
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SECTION 2. Section 53.057, Property Code, is amended by |
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amending Subsections (a), (b), (c), and (d) and adding Subsections |
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(b-1), (f), and (g) to read as follows: |
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(a) A claimant may give notice under this section instead of |
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or in addition to notice under Section 53.056 or 53.252 if the |
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claimant is to labor, furnish labor or materials, or specially |
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fabricate materials, or has labored, furnished labor or materials, |
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or specially fabricated materials, under an agreement with an |
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original contractor or a subcontractor providing for retainage. |
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(b) The claimant must give the owner or reputed owner notice |
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of contractual [the] retainage [agreement] not later than the |
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earlier of: |
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(1) the 30th [15th] day after the date the claimant's |
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agreement providing for retainage is completed, terminated, or |
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abandoned; or |
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(2) the 30th day after the date the original contract |
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is terminated or abandoned [of the second month following the
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delivery of materials or the performance of labor by the claimant
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that first occurs after the claimant has agreed to the contractual
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retainage]. |
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(b-1) If an [the] agreement for contractual retainage is |
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with a subcontractor, the claimant must also give the notice of |
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contractual retainage [within that time] to the original contractor |
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within the period prescribed by Subsection (b). |
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(c) The notice must generally state the existence of a |
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requirement for retainage and contain: |
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(1) the name and address of the claimant; and |
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(2) if the agreement is with a subcontractor, the name |
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and address of the subcontractor [the sum to be retained;
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[(2) the due date or dates, if known; and
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[(3)
a general indication of the nature of the
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agreement]. |
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(d) The notice must be sent [by registered or certified
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mail] to the last known business or residence address of the owner |
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or reputed owner or the original contractor, as applicable. |
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(f) A claimant has a lien on, and the owner is personally |
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liable to the claimant for, the retained funds under Subchapter E if |
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the claimant: |
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(1) gives notice in accordance with this section and: |
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(A) complies with Subchapter E; or |
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(B) files an affidavit claiming a lien not later |
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than the earliest of: |
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(i) the date required for filing an |
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affidavit under Section 53.052; |
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(ii) the 40th day after the date stated in |
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an affidavit of completion as the date of completion of the work |
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under the original contract, if the owner sent the claimant notice |
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of an affidavit of completion in the time and manner required; |
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(iii) the 40th day after the date of |
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termination or abandonment of the original contract, if the owner |
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sent the claimant a notice of such termination or abandonment in the |
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time and manner required; or |
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(iv) the 30th day after the date the owner |
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sent to the claimant to the claimant's address provided in the |
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notice for contractual retainage, as required under Subsection (c), |
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a written notice of demand for the claimant to file the affidavit |
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claiming a lien; and |
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(2) gives the notice of the filed affidavit as |
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required by Section 53.055. |
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(g) The written demand under Subsection (f)(1)(B)(iv): |
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(1) must contain the owner's name and address and a |
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description, legally sufficient for identification, of the real |
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property on which the improvement is located; |
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(2) must state that the claimant must file the lien |
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affidavit not later than the 30th day after the date the demand is |
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sent; and |
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(3) is effective only for the amount of contractual |
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retainage earned by the claimant as of the day the demand was sent. |
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SECTION 3. Section 53.103, Property Code, is amended to |
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read as follows: |
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Sec. 53.103. LIEN ON RETAINED FUNDS. A claimant has a lien |
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on the retained funds if the claimant: |
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(1) sends the notices required by this chapter in the |
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time and manner required; and |
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(2) except as allowed by Section 53.057(f), files an |
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affidavit claiming a lien not later than the 30th day after the |
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earliest [earlier] of the date: |
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(A) the work is completed; |
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(B) the original contract is terminated; or |
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(C) the original contractor abandons performance |
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under the original contract. |
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SECTION 4. Section 53.105(a), Property Code, is amended to |
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read as follows: |
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(a) If the owner fails or refuses to comply with this |
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subchapter, the claimants complying with Subchapter C or this |
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subchapter [chapter] have a lien, at least to the extent of the |
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amount that should have been retained from the original contract |
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under which they are claiming, against the house, building, |
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structure, fixture, or improvement and all of its properties and |
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against the lot or lots of land necessarily connected. |
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SECTION 5. Sections 53.106(a) and (d), Property Code, are |
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amended to read as follows: |
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(a) An owner may file with the county clerk of the county in |
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which the property is located an affidavit of completion. The |
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affidavit must contain: |
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(1) the name and address of the owner; |
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(2) the name and address of the original contractor; |
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(3) a description, legally sufficient for |
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identification, of the real property on which the improvements are |
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located; |
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(4) a description of the improvements furnished under |
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the original contract; |
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(5) a statement that the improvements under the |
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original contract have been completed and the date of completion; |
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and |
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(6) a conspicuous statement that a claimant may not |
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have a lien on retained funds unless the claimant files an [the] |
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affidavit claiming a lien not later than the 40th [30th] day after |
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the date the work under the original contract is completed [of
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completion]. |
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(d) Except as provided by this subsection, an affidavit |
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filed under this section on or before the 10th day after the date of |
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completion of the improvements is prima facie evidence of the date |
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the work under the original contract is completed for purposes of |
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this subchapter and Section 53.057. If the affidavit is filed after |
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the 10th day after the date of completion, the date of completion |
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for purposes of this subchapter and Section 53.057 is the date the |
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affidavit is filed. This subsection does not apply to a person to |
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whom the affidavit was not sent as required by this section. |
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SECTION 6. Sections 53.107(b) and (d), Property Code, are |
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amended to read as follows: |
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(b) The notice must contain: |
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(1) the name and address of the owner; |
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(2) the name and address of the original contractor; |
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(3) a description, legally sufficient for |
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identification, of the real property on which the improvements are |
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located; |
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(4) a general description of the improvements agreed |
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to be furnished under the original contract; |
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(5) a statement that the original contract has been |
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terminated or that performance under the contract has been |
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abandoned; |
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(6) the date of the termination or abandonment; and |
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(7) a conspicuous statement that a claimant may not |
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have a lien on the retained funds unless the claimant files an |
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affidavit claiming a lien not later than the 40th [30th] day after |
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the date of the termination or abandonment. |
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(d) If an owner is required to send a notice to a [A] |
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subcontractor under this section and fails to send the notice, the |
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subcontractor is not required to comply with Section 53.057 to |
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claim retainage and may claim a lien by filing a lien affidavit as |
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prescribed by Section 53.052 [who fails to file a lien affidavit in
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the time prescribed by Section 53.103(2) has a lien to the extent
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authorized under this subchapter if:
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[(1)
the subcontractor otherwise complies with this
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chapter; and
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[(2)
the owner did not provide the subcontractor
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notice as required by this section]. |
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SECTION 7. Section 53.159, Property Code, is amended by |
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amending Subsections (a) and (b) and adding Subsection (g) to read |
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as follows: |
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(a) An owner, on written request, shall furnish the |
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following information within a reasonable time, but not later than |
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the 10th day after the date the request is received, to any person |
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furnishing labor or materials for the project: |
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(1) a description of the real property being improved |
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legally sufficient to identify it; |
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(2) whether there is a surety bond and if so, the name |
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and last known address of the surety and a copy of the bond; [and] |
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(3) whether there are any prior recorded liens or |
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security interests on the real property being improved and if so, |
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the name and address of the person having the lien or security |
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interest; and |
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(4) the date on which the original contract for the |
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project was executed. |
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(b) An original contractor, on written request by a person |
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who furnished work under the original contract, shall furnish to |
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the person the following information within a reasonable time, but |
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not later than the 10th day after the date the request is received: |
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(1) the name and last known address of the person to |
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whom the original contractor furnished labor or materials for the |
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construction project; [and] |
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(2) whether the original contractor has furnished or |
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has been furnished a payment bond for any of the work on the |
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construction project and if so, the name and last known address of |
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the surety and a copy of the bond; and |
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(3) the date on which the original contract for the |
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project was executed. |
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(g) A subcontractor who does not receive information |
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requested under Subsection (a)(4) within the period prescribed by |
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Subsection (a) is not required to comply with Section 53.057 and may |
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perfect a lien for retainage by filing a lien affidavit under |
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Section 53.052. This subsection expires September 1, 2013. |
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SECTION 8. Section 53.160(b), Property Code, is amended to |
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read as follows: |
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(b) The grounds for objecting to the validity or |
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enforceability of the claim or lien for purposes of the motion are |
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limited to the following: |
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(1) notice of claim was not furnished to the owner or |
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original contractor as required by Section 53.056, 53.057, 53.058, |
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53.252, or 53.253; |
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(2) an affidavit claiming a lien failed to comply with |
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Section 53.054 or was not filed as required by Section 53.052; |
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(3) notice of the filed affidavit was not furnished to |
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the owner or original contractor as required by Section 53.055; |
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(4) the deadlines for perfecting a lien claim for |
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retainage under this chapter have expired and the owner complied |
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with the requirements of Section 53.101 and paid the retainage and |
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all other funds owed to the original contractor before: |
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(A) the claimant perfected the lien claim; and |
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(B) the owner received a notice of the claim as |
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required by this chapter; |
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(5) all funds subject to the notice of a claim to the |
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owner and a notice regarding the [perfection of a claim against the
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statutory] retainage have been deposited in the registry of the |
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court and the owner has no additional liability to the claimant; |
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(6) when the lien affidavit was filed on homestead |
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property: |
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(A) no contract was executed or filed as required |
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by Section 53.254; |
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(B) the affidavit claiming a lien failed to |
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contain the notice as required by Section 53.254; or |
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(C) the notice of the claim failed to include the |
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statement required by Section 53.254; and |
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(7) the claimant executed a valid and enforceable |
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waiver or release of the claim or lien claimed in the affidavit. |
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SECTION 9. Chapter 53, Property Code, as amended by this |
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Act, applies only to a lien claim for labor or materials furnished |
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under a subcontract where the original contract was entered into on |
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or after the effective date of this Act. A lien claim for labor or |
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materials furnished under a subcontract where the original contract |
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was entered into before the effective date of this Act is governed |
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by the law in effect immediately before the effective date of this |
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Act, and that law is continued in effect for that purpose. |
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SECTION 10. This Act takes effect September 1, 2011. |
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______________________________ |
______________________________ |
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President of the Senate |
Speaker of the House |
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I certify that H.B. No. 1390 was passed by the House on May 2, |
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2011, by the following vote: Yeas 139, Nays 7, 1 present, not |
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voting. |
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______________________________ |
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Chief Clerk of the House |
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I certify that H.B. No. 1390 was passed by the Senate on May |
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16, 2011, by the following vote: Yeas 31, Nays 0. |
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______________________________ |
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Secretary of the Senate |
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APPROVED: _____________________ |
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Date |
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_____________________ |
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Governor |