Texas 2019 - 86th Regular

Texas Senate Bill SB845 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	86R5100 AJA-F
2	2	By: Hughes S.B. No. 845
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the discharge of mechanic's, contractor's, and
8	8	materialman's liens.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Subchapter A, Chapter 53, Property Code, is
11	11	amended by adding Sections 53.0001 and 53.0002 to read as follows:
12	12	Sec. 53.0001. PURPOSE. This chapter is enacted for the
13	13	protection of unpaid laborers and materialmen who are diligent in
14	14	perfecting liens in compliance with Subchapter C or K, as well as
15	15	owners of property for whom improvements have been made.
16	16	Sec. 53.0002. CONSTRUCTION. (a) This chapter is not
17	17	intended to and does not create rights against a property owner in
18	18	the absence of a valid lien that:
19	19	(1) secures a claim that has not been paid or settled;
20	20	and
21	21	(2) has not been discharged or indemnified against in
22	22	compliance with Subchapter H or I.
23	23	(b) Once a lien perfected under this chapter or the claim
24	24	secured by the lien is paid, settled, discharged, or indemnified
25	25	against in compliance with Subchapter H or I:
26	26	(1) the owner's liability is discharged and
27	27	extinguished; and
28	28	(2) if applicable, the claimant's exclusive remedy
29	29	under this chapter is by action on a bond filed in compliance with
30	30	Subchapter H or I.
31	31	SECTION 2. Section 53.021, Property Code, is amended by
32	32	adding Subsections (f) and (g) to read as follows:
33	33	(f) A person does not have a lien under this section if the
34	34	lien or the claim secured by the lien has been paid, settled,
35	35	discharged, indemnified against under Subchapter H or I, or
36	36	determined to be invalid by a final judgment of a court.
37	37	(g) If a bond and notice are filed in compliance with
38	38	Subchapter H or a bond is filed in compliance with Subchapter I, a
39	39	lien securing a claim indemnified against by the bond is discharged
40	40	for all purposes and the claimant's exclusive remedy is by action on
41	41	the bond. After the lien is discharged:
42	42	(1) any claim or cause of action arising under this
43	43	chapter, except for a claim or cause of action provided by
44	44	Subchapter H or I, is extinguished; and
45	45	(2) no claim or cause of action arising under this
46	46	chapter may be maintained against the owner.
47	47	SECTION 3. Section 53.054, Property Code, is amended by
48	48	adding Subsection (d) to read as follows:
49	49	(d) The amount of the claim stated in the affidavit may not
50	50	include the amount of any claim that has been paid, settled,
51	51	discharged, or indemnified against under Subchapter H or I. An
52	52	affidavit that violates this subsection is subject to Chapter 12,
53	53	Civil Practice and Remedies Code, and may be considered to be a
54	54	fraudulent lien for purposes of that chapter.
55	55	SECTION 4. Section 53.081, Property Code, is amended by
56	56	adding Subsection (e) to read as follows:
57	57	(e) An owner's authority to withhold funds under this
58	58	section to pay a claim terminates if the claim is paid under Section
59	59	53.083 or the claim is otherwise settled, discharged, indemnified
60	60	against under Subchapter H or I, or determined to be invalid by a
61	61	final judgment of a court.
62	62	SECTION 5. Section 53.082, Property Code, is amended to
63	63	read as follows:
64	64	Sec. 53.082. TIME FOR WHICH FUNDS ARE WITHHELD. Unless the
65	65	owner is released from liability under this subchapter by a payment
66	66	[is] made under Section 53.083 or by the claim being [is] otherwise
67	67	settled, discharged, indemnified against under Subchapter H or I,
68	68	or determined to be invalid by a final judgment of a court, the
69	69	owner shall retain the funds withheld until:
70	70	(1) the time for filing the affidavit of mechanic's
71	71	lien has passed; or
72	72	(2) if a lien affidavit has been filed, until the lien
73	73	claim has been satisfied or released.
74	74	SECTION 6. Sections 53.083(b) and (d), Property Code, are
75	75	amended to read as follows:
76	76	(b) The claimant must send a copy of the demand to the
77	77	original contractor. The original contractor may give the owner
78	78	written notice that the contractor intends to dispute the claim.
79	79	The original contractor must give the notice not later than the 30th
80	80	day after the day the original contractor [he] receives the copy of
81	81	the demand. If the original contractor does not give the owner
82	82	timely notice, the original contractor [he] is considered to have
83	83	assented to the demand and the owner shall pay the claim, to the
84	84	extent:
85	85	(1) the claim is supported by a lien perfected in
86	86	compliance with Subchapter C or K, as applicable; and
87	87	(2) the claim and the lien have not been paid, settled,
88	88	discharged, indemnified against under Subchapter H or I, or
89	89	determined to be invalid by a final judgment of a court.
90	90	(d) Unless the lien has been secured, the demand may not be
91	91	made after expiration of the time within which the claimant may
92	92	secure the lien for the claim. The demand may not be made for an
93	93	amount that exceeds the amount stated in the lien affidavit.
94	94	SECTION 7. Section 53.084, Property Code, is amended by
95	95	amending Subsection (b) and adding Subsection (c) to read as
96	96	follows:
97	97	(b) If the owner has received the notices required by
98	98	Subchapter C or K, if the lien has been secured, if the lien and the
99	99	claim secured by the lien have not been paid, settled, discharged,
100	100	or indemnified against under Subchapter H or I, and if the claim has
101	101	been reduced to final judgment, the owner is liable and the owner's
102	102	property is subject to a claim for any money paid to the original
103	103	contractor after the owner was authorized to withhold funds under
104	104	this subchapter. The owner is liable for that amount in addition to
105	105	any amount for which the owner [he] is liable under Subchapter E.
106	106	(c) The owner's cumulative liability under this section and
107	107	Subchapter E on any claim does not exceed the amount of the claim
108	108	stated in the affidavit perfecting the lien that has been reduced to
109	109	final judgment.
110	110	SECTION 8. Section 53.103, Property Code, is amended to
111	111	read as follows:
112	112	Sec. 53.103. LIEN ON RETAINED FUNDS. (a) Except as
113	113	provided by this section, a [A] claimant has a lien on the retained
114	114	funds if the claimant:
115	115	(1) sends the notices required by this chapter in the
116	116	time and manner required; and
117	117	(2) except as allowed by Section 53.057(f), files an
118	118	affidavit claiming a lien not later than the 30th day after the
119	119	earliest of the date:
120	120	(A) the work is completed;
121	121	(B) the original contract is terminated; or
122	122	(C) the original contractor abandons performance
123	123	under the original contract.
124	124	(b) A claimant does not have a lien on the retained funds if
125	125	the lien or the claim secured by the lien has been paid, settled,
126	126	discharged, indemnified against under Subchapter H or I, or
127	127	determined to be invalid by a final judgment of a court.
128	128	(c) If a bond and notice are filed in compliance with
129	129	Subchapter H or a bond is filed in compliance with Subchapter I, a
130	130	lien on retained funds securing a claim indemnified against by the
131	131	bond is discharged for all purposes and the claimant's exclusive
132	132	remedy is by action on the bond. The claimant is not entitled to
133	133	recover more than the claimant would be entitled to recover under
134	134	Section 53.104 if the lien had not been discharged.
135	135	(d) No claim or cause of action may be maintained against
136	136	the owner on the retained funds after the lien is discharged as
137	137	described by Subsection (c).
138	138	SECTION 9. Section 53.104, Property Code, is amended to
139	139	read as follows:
140	140	Sec. 53.104. PREFERENCES. (a) Individual artisans and
141	141	mechanics are entitled to a preference to the retained funds or a
142	142	bond indemnifying against their respective liens, as applicable,
143	143	and shall share proportionately to the extent of their claims for
144	144	wages and fringe benefits earned.
145	145	(b) After payment of artisans and mechanics who are entitled
146	146	to a preference under Subsection (a), other participating claimants
147	147	share proportionately in the balance of the retained funds or the
148	148	bond indemnifying against their respective liens, as applicable.
149	149	SECTION 10. Section 53.105, Property Code, is amended to
150	150	read as follows:
151	151	Sec. 53.105. OWNER'S LIABILITY FOR FAILURE TO RETAIN. (a)
152	152	Except as provided by Subsection (a-1), if [If] the owner fails or
153	153	refuses to comply with this subchapter, the claimants complying
154	154	with Subchapter C or this subchapter have a lien, at least to the
155	155	extent of the amount that should have been retained from the
156	156	original contract under which they are claiming, against the house,
157	157	building, structure, fixture, or improvement and all of its
158	158	properties and against the lot or lots of land necessarily
159	159	connected.
160	160	(a-1) If the lien has been indemnified against under
161	161	Subchapter H or I, claimants complying with Subchapter C or this
162	162	subchapter do not have a lien under Subsection (a) and the
163	163	claimants' exclusive remedy is by action on the bond indemnifying
164	164	against their respective liens, at least to the extent of the amount
165	165	that should have been retained from the original contract under
166	166	which they are claiming.
167	167	(b) The claimants share the lien under Subsection (a)
168	168	proportionately in accordance with the preference provided by
169	169	Section 53.104. If the lien has been indemnified against under
170	170	Subchapter H or I, a claimant may not recover more on the bond than
171	171	the claimant would be entitled to recover under Section 53.104 if
172	172	the lien had not been discharged.
173	173	SECTION 11. Section 53.157, Property Code, is amended to
174	174	read as follows:
175	175	Sec. 53.157. DISCHARGE OF LIEN. (a) A mechanic's lien or
176	176	affidavit claiming a mechanic's lien filed under Section 53.052 may
177	177	be discharged of record by:
178	178	(1) recording a lien release signed by the claimant
179	179	under Section 53.152;
180	180	(2) failing to institute suit to foreclose the lien in
181	181	the county in which the property is located within the period
182	182	prescribed by Section 53.158, 53.175, or 53.208;
183	183	(3) recording the original or certified copy of a
184	184	final judgment or decree of a court of competent jurisdiction
185	185	providing for the discharge;
186	186	(4) filing the bond and notice in compliance with
187	187	Subchapter H;
188	188	(5) filing the bond in compliance with Subchapter I;
189	189	or
190	190	(6) recording a certified copy of the order removing
191	191	the lien under Section 53.160 and a certificate from the clerk of
192	192	the court that states that no bond or deposit as described by
193	193	Section 53.161 was filed by the claimant within 30 days after the
194	194	date the order was entered.
195	195	(b) With respect to any claim for compensation against an
196	196	owner existing solely by virtue of a mechanic's lien or affidavit
197	197	claiming a mechanic's lien filed under Section 53.052 that has been
198	198	discharged of record as provided by this section:
199	199	(1) the owner is discharged from liability on the
200	200	claim; and
201	201	(2) no claim or cause of action arising under this
202	202	chapter may be maintained against the owner after the lien is
203	203	discharged.
204	204	SECTION 12. The change in law made by this Act applies only
205	205	to an original contract entered into on or after the effective date
206	206	of this Act. An original contract entered into before the effective
207	207	date of this Act is governed by the law as it existed immediately
208	208	before the effective date of this Act, and that law is continued in
209	209	effect for that purpose.
210	210	SECTION 13. This Act takes effect September 1, 2019.