H.B. No. 396
AN ACT
relating to expunction of a notice of lis pendens.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 12.007, Property Code, is amended by
adding Subsection (d) to read as follows:
(d) Not later than the third day after the date a person
files a notice for record under this section, the person must serve
a copy of the notice on each party to the action who has an interest
in the real property affected by the notice.
SECTION 2. Chapter 12, Property Code, is amended by adding
Section 12.0071 to read as follows:
Sec. 12.0071. MOTION TO EXPUNGE LIS PENDENS. (a) A party to
an action in connection with which a notice of lis pendens has been
filed may:
(1) apply to the court to expunge the notice; and
(2) file evidence, including declarations, with the
motion to expunge the notice.
(b) The court may:
(1) permit evidence on the motion to be received in the
form of oral testimony; and
(2) make any orders the court considers just to
provide for discovery by a party affected by the motion.
(c) The court shall order the notice of lis pendens expunged
if the court determines that:
(1) the pleading on which the notice is based does not
contain a real property claim;
(2) the claimant fails to establish by a preponderance
of the evidence the probable validity of the real property claim; or
(3) the person who filed the notice for record did not
serve a copy of the notice on each party entitled to a copy under
Section 12.007(d).
(d) Notice of a motion to expunge under Subsection (a) must
be served on each affected party on or before the 20th day before
the date of the hearing on the motion.
(e) The court shall rule on the motion for expunction based
on the affidavits and counteraffidavits on file and on any other
proof the court allows.
(f) After a certified copy of an order expunging a notice of
lis pendens has been recorded, the notice of lis pendens and any
information derived from the notice:
(1) does not:
(A) constitute constructive or actual notice of
any matter contained in the notice or of any matter relating to the
proceeding;
(B) create any duty of inquiry in a person with
respect to the property described in the notice; or
(C) affect the validity of a conveyance to a
purchaser for value or of a mortgage to a lender for value; and
(2) is not enforceable against a purchaser or lender
described by Subdivision (1)(C), regardless of whether the
purchaser or lender knew of the lis pendens action.
(g) The court in its discretion may require that the party
prevailing in the expunction hearing submit an undertaking to the
court in an amount determined by the court.
SECTION 3. The change in law made by this Act applies only
to a lis pendens filed on or after the effective date of this Act. A
lis pendens filed 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, 2009.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 396 was passed by the House on April
9, 2009, by the following vote: Yeas 148, Nays 0, 1 present, not
voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 396 was passed by the Senate on May
21, 2009, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor