Texas 2023 - 88th Regular

Texas House Bill HB1823 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	88R5543 MZM-D
2	2	By: Sherman, Sr. H.B. No. 1823
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to certain documents or instruments purporting to convey
8	8	real or personal property.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Sections 51.901(a), (c), (d), and (e),
11	11	Government Code, are amended to read as follows:
12	12	(a) If a clerk of the supreme court, clerk of the court of
13	13	criminal appeals, clerk of a court of appeals, district clerk,
14	14	county clerk, district and county clerk, or municipal clerk has a
15	15	reasonable basis to believe in good faith that a document or
16	16	instrument previously filed or recorded or offered or submitted for
17	17	filing or for filing and recording is fraudulent, the clerk shall:
18	18	(1) if the document is a purported judgment or other
19	19	document purporting to memorialize or evidence an act, an order, a
20	20	directive, or process of a purported court, provide written notice
21	21	of the filing, recording, or submission for filing or for filing and
22	22	recording to the stated or last known address of the person against
23	23	whom the purported judgment, act, order, directive, or process is
24	24	rendered; or
25	25	(2) if the document or instrument purports to create a
26	26	lien or assert a claim on real or personal property or an interest
27	27	in real or personal property or to convey real or personal property,
28	28	provide written notice of the filing, recording, or submission for
29	29	filing or for filing and recording to the stated or last known
30	30	address of the person named in the document or instrument as the
31	31	obligor, [or] debtor, or grantor and to any other person named as
32	32	owning any interest in the real or personal property described in
33	33	the document or instrument.
34	34	(c) For purposes of this section, a document or instrument
35	35	is presumed to be fraudulent if:
36	36	(1) the document is a purported judgment or other
37	37	document purporting to memorialize or evidence an act, an order, a
38	38	directive, or process of:
39	39	(A) a purported court or a purported judicial
40	40	entity not expressly created or established under the constitution
41	41	or the laws of this state or of the United States; or
42	42	(B) a purported judicial officer of a purported
43	43	court or purported judicial entity described by Paragraph (A);
44	44	(2) the document or instrument purports to create a
45	45	lien or assert a claim against real or personal property or an
46	46	interest in real or personal property or to convey real or personal
47	47	property and:
48	48	(A) is not a document or instrument provided for
49	49	by the constitution or laws of this state or of the United States;
50	50	(B) is not created by implied or express consent
51	51	or agreement of the obligor, debtor, or the owner of the real or
52	52	personal property or an interest in the real or personal property,
53	53	if required under the laws of this state, or by implied or express
54	54	consent or agreement of an agent, fiduciary, or other
55	55	representative of that person; or
56	56	(C) is not an equitable, constructive, or other
57	57	lien imposed by a court with jurisdiction created or established
58	58	under the constitution or laws of this state or of the United
59	59	States; or
60	60	(3) the document or instrument purports to create a
61	61	lien or assert a claim against real or personal property or an
62	62	interest in real or personal property or to convey real or personal
63	63	property and the document or instrument is filed by an inmate or on
64	64	behalf of an inmate.
65	65	(d) If a county clerk believes in good faith that a document
66	66	filed with the county clerk to create a lien or make a conveyance is
67	67	fraudulent, the clerk shall:
68	68	(1) request the assistance of the county or district
69	69	attorney to determine whether the document is fraudulent before
70	70	filing or recording the document;
71	71	(2) request that the prospective filer provide to the
72	72	county clerk additional documentation supporting the existence of
73	73	the lien or conveyance, such as a contract or other document that
74	74	contains the alleged debtor or obligor's signature or the alleged
75	75	grantor's signature, as applicable; and
76	76	(3) forward any additional documentation received to
77	77	the county or district attorney.
78	78	(e) A presumption under Subsection (c)(3) relating to a
79	79	security interest may be rebutted by providing the filing officer
80	80	in the filing office in which the document is filed or recorded the
81	81	original or a copy of a sworn and notarized document signed by the
82	82	obligor, debtor, or owner of the property designated as collateral
83	83	stating that the person entered into a security agreement with the
84	84	inmate and authorized the filing of the financing statement as
85	85	provided by Section 9.509, Business & Commerce Code.
86	86	SECTION 2. The heading to Section 51.903, Government Code,
87	87	is amended to read as follows:
88	88	Sec. 51.903. ACTION ON FRAUDULENT LIEN OR CLAIM AGAINST OR
89	89	CONVEYANCE OF [ON] PROPERTY.
90	90	SECTION 3. Sections 51.903(a), (e), and (g), Government
91	91	Code, are amended to read as follows:
92	92	(a) A person who is the purported debtor or obligor or who
93	93	owns real or personal property or an interest in real or personal
94	94	property and who has reason to believe that the document purporting
95	95	to create a lien or assert a claim against the real or personal
96	96	property or an interest in the real or personal property or to
97	97	convey the real or personal property previously filed or submitted
98	98	for filing and recording is fraudulent may complete and file with
99	99	the district clerk a motion, verified by affidavit by a completed
100	100	form for ordinary certificate of acknowledgment, of the same type
101	101	described by Section 121.007, Civil Practice and Remedies Code,
102	102	that contains, at a minimum, the information in the following
103	103	suggested form:
104	104	MISC. DOCKET NO. ______ MISC. DOCKET NO. ______
105	105	MISC. DOCKET NO. ______
106	106	In Re: A Purported In the ______ Judicial District In Re: A Purported In the ______ Judicial District
107	107	In Re: A Purported In the ______ Judicial District
108	108	Lien or Claim Against In and For ___________________ Lien or Claim Against In and For ___________________
109	109	Lien or Claim Against In and For ___________________
110	110	or Conveyance By or Conveyance By
111	111	or Conveyance By
112	112	(Name of Purported County, Texas (Name of Purported County, Texas
113	113	(Name of Purported County, Texas
114	114	Debtor or Grantor) Debtor or Grantor)
115	115	Debtor or Grantor)
116	116	Motion for Judicial Review of Documentation or Instrument
117	117	Purporting to Create a Lien or Claim or Make a Conveyance
118	118	Now Comes (name) and files this motion requesting a judicial
119	119	determination of the status of documentation or an instrument
120	120	purporting to create [an interest in real or personal property or] a
121	121	lien or assert a claim on real or personal property or an interest
122	122	in real or personal property or to convey real or personal property
123	123	filed in the office of the Clerk of (county name) County, Texas, and
124	124	in support of the motion would show the court as follows:
125	125	I.
126	126	(Name), movant herein, is the purported obligor or debtor or
127	127	person who owns the real or personal property or the interest in
128	128	real or personal property described in the documentation or
129	129	instrument.
130	130	II.
131	131	On (date), in the exercise of the county clerk's official
132	132	duties as County Clerk of (county name) County, Texas, the county
133	133	clerk received and filed and recorded the documentation or
134	134	instrument attached hereto and containing (number) pages. Said
135	135	documentation or instrument purports to have created a lien or
136	136	asserted a claim on real or personal property or an interest in real
137	137	or personal property against, or to have made a conveyance of
138	138	property by, one (name of purported debtor or grantor).
139	139	III.
140	140	Movant alleges that the documentation or instrument attached
141	141	hereto is fraudulent, as defined by Section 51.901(c)(2),
142	142	Government Code, and that the documentation or instrument should
143	143	therefore not be accorded lien or conveyance status.
144	144	IV.
145	145	Movant attests that assertions herein are true and correct.
146	146	V.
147	147	Movant does not request the court to make a finding as to any
148	148	underlying claim of the parties involved and acknowledges that this
149	149	motion does not seek to invalidate a legitimate lien, claim, or
150	150	conveyance. Movant further acknowledges that movant may be subject
151	151	to sanctions, as provided by Chapter 10, Civil Practice and
152	152	Remedies Code, if this motion is determined to be frivolous.
153	153	PRAYER
154	154	Movant requests the court to review the attached
155	155	documentation or instrument and enter an order determining whether
156	156	it should be accorded lien or conveyance status, together with such
157	157	other orders as the court deems appropriate.
158	158	Respectfully submitted,
159	159	_________________________
160	160	(Signature and typed name and address)
161	161	(e) After reviewing the documentation or instrument
162	162	attached to a motion under this section, the district judge shall
163	163	enter an appropriate finding of fact and conclusion of law, which
164	164	must be filed and indexed in the same class of records in which the
165	165	subject documentation or instrument was originally filed. A copy
166	166	of the finding of fact and conclusion of law shall be sent, by first
167	167	class mail, to the movant and to the person who filed the fraudulent
168	168	lien, [or] claim, or conveyance at the last known address of each
169	169	person within seven days of the date that the finding of fact and
170	170	conclusion of law is issued by the judge.
171	171	(g) A suggested form order appropriate to comply with this
172	172	section is as follows:
173	173	MISC. DOCKET NO. ______ MISC. DOCKET NO. ______
174	174	MISC. DOCKET NO. ______
175	175	In Re: A Purported In the ______ Judicial District In Re: A Purported In the ______ Judicial District
176	176	In Re: A Purported In the ______ Judicial District
177	177	Lien or Claim Against In and For ___________________ Lien or Claim Against In and For ___________________
178	178	Lien or Claim Against In and For ___________________
179	179	or Conveyance By or Conveyance By
180	180	or Conveyance By
181	181	(Name of Purported County, Texas (Name of Purported County, Texas
182	182	(Name of Purported County, Texas
183	183	Debtor or Grantor) Debtor or Grantor)
184	184	Debtor or Grantor)
185	185	Judicial Finding of Fact and Conclusion of Law Regarding a
186	186	Documentation or Instrument Purporting to Create a Lien or Claim or
187	187	Make a Conveyance
188	188	On the (number) day of (month), (year), in the above entitled
189	189	and numbered cause, this court reviewed a motion, verified by
190	190	affidavit, of (name) and the documentation or instrument attached
191	191	thereto. No testimony was taken from any party, nor was there any
192	192	notice of the court's review, the court having made the
193	193	determination that a decision could be made solely on review of the
194	194	documentation or instrument under the authority vested in the court
195	195	under Subchapter J, Chapter 51, Government Code.
196	196	The court finds as follows (only an item checked and
197	197	initialed is a valid court ruling):
198	198	_______ The documentation or instrument attached to the motion
199	199	herein IS asserted against real or personal property or an interest
200	200	in real or personal property and:
201	201	(1) IS provided for by specific state or federal
202	202	statutes or constitutional provisions;
203	203	(2) IS created by implied or express consent or
204	204	agreement of the obligor, debtor, or the owner of the real or
205	205	personal property or an interest in the real or personal property,
206	206	if required under the laws of this state, or by consent of an agent,
207	207	fiduciary, or other representative of that person; or
208	208	(3) IS an equitable, constructive, or other lien
209	209	imposed by a court of competent jurisdiction created or established
210	210	under the constitution or laws of this state or of the United
211	211	States.
212	212	_______ The documentation or instrument attached to the motion
213	213	herein:
214	214	(1) IS NOT provided for by specific state or federal
215	215	statutes or constitutional provisions;
216	216	(2) IS NOT created by implied or express consent or
217	217	agreement of the obligor, debtor, or the owner of the real or
218	218	personal property or an interest in the real or personal property,
219	219	if required under the law of this state or by implied or express
220	220	consent or agreement of an agent, fiduciary, or other
221	221	representative of that person;
222	222	(3) IS NOT an equitable, constructive, or other lien
223	223	imposed by a court of competent jurisdiction created by or
224	224	established under the constitution or laws of this state or the
225	225	United States; or
226	226	(4) IS NOT asserted against real or personal property
227	227	or an interest in real or personal property. There is no valid
228	228	lien, [or] claim, or conveyance created by this documentation or
229	229	instrument.
230	230	This court makes no finding as to any underlying claims of the
231	231	parties involved, and expressly limits its finding of fact and
232	232	conclusion of law to the review of a ministerial act. The county
233	233	clerk shall file this finding of fact and conclusion of law in the
234	234	same class of records as the subject documentation or instrument
235	235	was originally filed, and the court directs the county clerk to
236	236	index it using the same names that were used in indexing the subject
237	237	documentation or instrument.
238	238	SIGNED ON THIS THE ________ DAY OF ____________________.
239	239	_______________________________
240	240	DISTRICT JUDGE
241	241	________ JUDICIAL DISTRICT
242	242	_____________ COUNTY, TEXAS
243	243	SECTION 4. Sections 51.901 and 51.903, Government Code, as
244	244	amended by this Act, apply with respect to a document or instrument
245	245	filed or submitted for filing before, on, or after the effective
246	246	date of this Act.
247	247	SECTION 5. This Act takes effect September 1, 2023.
248	248
249	249	MISC. DOCKET NO. ______
250	250
251	251	In Re: A Purported In the ______ Judicial District
252	252
253	253	Lien or Claim Against In and For ___________________
254	254
255	255	or Conveyance By
256	256
257	257	(Name of Purported County, Texas
258	258
259	259	Debtor or Grantor)
260	260
261	261	MISC. DOCKET NO. ______
262	262
263	263	In Re: A Purported In the ______ Judicial District
264	264
265	265	Lien or Claim Against In and For ___________________
266	266
267	267	or Conveyance By
268	268
269	269	(Name of Purported County, Texas
270	270
271	271	Debtor or Grantor)