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TEXAS PROPERTY CODE
[Mechanic's Lien Statutes in effect as of August 1, 2003]
[Does not include any changes which may become effective at a later
date]

CHAPTER 53. MECHANIC'S, CONTRACTOR'S, OR MATERIALMAN'S LIEN

TABLE OF CONTENTS

SUBCHAPTER A. GENERAL PROVISIONS

§ 53.001. Definitions

§ 53.002. More Than One Original Contractor

§ 53.003. Notices"

§ 53.004. reserved for expansion

§ 53.020. reserved for expansion
SUBCHAPTER B PERSONS ENTITLED TO LIEN; SUBJECT PROPERTY

§ 53.021. Persons Entitled to Lien

§ 53.022. Property to Which Lien Extends

§ 53.023. Payment Secured by Lien

§ 53.024. Limitation on Subcontractor's Lien

§ 53.025. Limitation on Ordinary Retainage Lien

§ 53.026. Sham Contract

§ 53.027. reserved for expansion

§ 53.028. reserved for expansion
SUBCHAPTER C PROCEDURE FOR PERFECTING LIEN

§ 53.051. Necessary Procedures

§ 53.052. Filing of Affidavit

§ 53.053. Accrual of Indebtedness

§ 53.054. Contents of Affidavit

§ 53.055. Notice of Filed Affidavit

§ 53.056. Derivative Claimant: Notice to Owner or Original
Contractor

§ 53.057. Derivative Claimant: Notice for Contractual Retainage
Claim

§ 53.058. Derivative Claimant: Notice for Specially Fabricated Items

§ 53.059. Repealed by Acts 1997, 75th Leg., ch. 526, s 24, eff.
Sept. 1, 1997

§ 53.060. reserved for expansion

§ 53.080. reserved for expansion
SUBCHAPTER D FUNDS WITHHELD BY OWNER FOLLOWING NOTICE

§ 53.081. Authority to Withhold Funds for Benefit of Claimants

§ 53.082. Time for Which Funds are Withheld

§ 53.083. Payment to Claimant on Demand

§ 53.084. Owner's Liability

§ 53.085. Affidavit Required

§ 53.086. reserved for expansion

§ 53.100. reserved for expansion
SUBCHAPTER E REQUIRED RETAINAGE FOR BENEFIT OF LIEN CLAIMANTS

§ 53.101. Required Retainage

§ 53.102. Payment Secured by Retainage

§ 53.103. Lien on Retained Funds

§ 53.104. Preferences

§ 53.105. Owner's Liability for Failure to Retain

§ 53.106. Affidavit of Completion

§ 53.107. reserved for expansion

§ 53.120. reserved for expansion
SUBCHAPTER F PRIORITIES AND PREFERENCES

§ 53.121. Preference Over Other Creditors

§ 53.122. Equality of Mechanic's Liens

§ 53.123. Priority of Mechanic's Lien Over Other Liens

§ 53.124. Inception of Mechanic's Lien

§ 53.125. reserved for expansion

§ 53.150. reserved for expansion
SUBCHAPTER G RELEASE AND FORECLOSURE; ACTION ON CLAIM

§ 53.151. Enforcement of Remedies Against Money Due Original
Contractor

or Subcontractor

§ 53.152. Release of Claim or Lien

§ 53.153. Defense of Actions

§ 53.154. Foreclosure

§ 53.155. Transfer of Property Sold

§ 53.156. Costs and Attorney's Fees

§ 53.157. Discharge of Lien

§ 53.158. Period for Bringing Suit to Foreclose Lien

§ 53.159. Obligation to Furnish Information

§ 53.160. Summary Motion to Remove Invalid or Unenforceable Lien

§ 53.161. Bond Requirements After Order to Remove

§ 53.162. Revival of Removed Lien

§ 53.163. reserved for expansion

§ 53.170. reserved for expansion
SUBCHAPTER H BOND TO INDEMNIFY AGAINST LIEN

§ 53.171. Bond

§ 53.172. Bond Requirements

§ 53.173. Notice of Bond

§ 53.174. Recording of Bond and Notice

§ 53.175. Action on Bond

§ 53.176. Repealed by Acts 1989, 71st Leg., ch. 1138, s 39(2), eff.
Sept. 1, 1989

§ 53.177. reserved for expansion

§ 53.200. reserved for expansion
SUBCHAPTER I BOND TO PAY LIENS OR CLAIMS

§ 53.201. Bond

§ 53.202. Bond Requirements

§ 53.203. Recording of Bond and Contract

§ 53.204. Reliance on Record

§ 53.205. Enforceable Claims

§ 53.206. Perfection of Claim

§ 53.207. Owner's Notice of Claim to Surety

§ 53.208. Action on Bond

§ 53.209. Repealed by Acts 1989, 71st Leg., ch. 1138, s 39(3), eff.
Sept. 1, 1989

§ 53.210. Claims in Excess of Bond Amount

§ 53.211. Attempted Compliance

§ 53.212. reserved for expansion

§ 53.230. reserved for expansion
SUBCHAPTER J LIEN ON MONEY DUE PUBLIC WORKS CONTRACTOR

§ 53.231. Lien

§ 53.232. To Whom Notice Given; Manner

§ 53.233. Contents of Notice

§ 53.234. Time for Notice

§ 53.235. Official to Retain Funds

§ 53.236. Bond for Release of Lien

§ 53.237. Bond Requirements

§ 53.238. Notice of Bond

§ 53.239. Action on Bond

§ 53.240. Repealed by Acts 1989, 71st Leg., ch. 1138, s 39(4), eff.
Sept. 1, 1989
SUBCHAPTER K RESIDENTIAL CONSTRUCTION PROJECTS

§ 53.251. Procedures for Residential Construction Projects

§ 53.252. Derivative Claimant: Notice to Owner or Original
Contractor

§ 53.253. Derivative Claimant: Notice for Specially Fabricated Items

§ 53.254. Homestead

§ 53.255. Disclosure Statement Required for Residential Construction
Contract

§ 53.256. List of Subcontractors and Suppliers

§ 53.257. Provisions Related to Closing of Loan for Construction of
Improvements

§ 53.258. Disbursements of Funds

§ 53.259. Final Bills-Paid Affidavit Required

§ 53.260. Conveyance to Contractor Not Required

CHAPTER 53. MECHANIC'S, CONTRACTOR'S, OR MATERIALMAN'S LIEN

SUBCHAPTER A. GENERAL PROVISIONS

§ 53.001. Definitions

In this chapter:

(1) "Contract price" means the cost to the owner for any part of
construction or repair performed under an original contract.

(2) "Improvement" includes:

(A) abutting sidewalks and streets and utilities in or on those
sidewalks and streets;

(B) clearing, grubbing, draining, or fencing of land;

(C) wells, cisterns, tanks, reservoirs, or artificial lakes or pools
made for supplying or storing water;

(D) pumps, siphons, and windmills or other machinery or apparatuses
used for raising water for stock, domestic use, or irrigation; and

(E) planting orchard trees, grubbing out orchards and replacing
trees, and pruning of orchard trees.

(3) "Labor" means labor used in the direct prosecution of the work.

(4) "Material" means all or part of:

(A) the material, machinery, fixtures, or tools incorporated into
the work, consumed in the direct prosecution of the work, or ordered
and delivered for incorporation or consumption;

(B) rent at a reasonable rate and actual running repairs at a
reasonable cost for construction equipment used or reasonably
required and delivered for use in the direct prosecution of the work
at the site of the construction or repair; or

(C) power, water, fuel, and lubricants consumed or ordered and
delivered for consumption in the direct prosecution of the work.

(5) "Mechanic's lien" means the lien provided by this chapter.

(6) "Original contract" means an agreement to which an owner is a
party either directly or by implication of law.

(7) "Original contractor" means a person contracting with an owner
either directly or through the owner's agent.

(8) "Residence" means a single-family house, duplex, triplex, or
quadruplex or a unit in a multiunit structure used for residential
purposes that is:

(A) owned by one or more adult persons; and (B) used or intended to
be used as a dwelling by one of the owners.

(9) "Residential construction contract" means a contract between an
owner and a contractor in which the contractor agrees to construct
or repair the owner's residence, including improvements appurtenant
to the residence.

(10) "Residential construction project" means a project for the
construction or repair of a new or existing residence, including
improvements appurtenant to the residence, as provided by a
residential construction contract.

(11) "Retainage" means an amount representing part of a contract
payment that is not required to be paid to the claimant within the
month following the month in which labor is performed, material is
furnished, or specially fabricated material is delivered. The term
does not include retainage under Subchapter E. [FN1]

(12) "Specially fabricated material" means material fabricated for
use as a component of the construction or repair so as to be
reasonably unsuitable for use elsewhere.

(13) "Subcontractor" means a person who has furnished labor or
materials to fulfill an obligation to an original contractor or to a
subcontractor to perform all or part of the work required by an
original contract.

(14) "Work" means any part of construction or repair performed under
an original contract.

(15) "Completion" of an original contract means the actual
completion of the work, including any extras or change orders
reasonably required or contemplated under the original contract,
other than warranty work or replacement or repair of the work
performed under the contract.
§ 53.002. More Than One Original Contractor

On any work there may be more than one original contractor for
purposes of this chapter.

§ 53.003. Notices

(a) This section applies to notices required by Subchapters B
through G and K. [FN1]

(b) Any notice or other written communication may be delivered in
person to the party entitled to the notice or to that party's agent,
regardless of the manner prescribed by law.

(c) If notice is sent by registered or certified mail, deposit or
mailing of the notice in the United States mail in the form required
constitutes compliance with the notice requirement. This subsection
does not apply if the law requires receipt of the notice by the
person to whom it is directed.

(d) If a written notice is received by the person entitled to
receive it, the method by which the notice was delivered is
immaterial.
[Sections 53.004 to 53.020 reserved for expansion]

SUBCHAPTER B PERSONS ENTITLED TO LIEN; SUBJECT PROPERTY

§ 53.021. Persons Entitled to Lien

(a) A person has a lien if:

(1) the person labors, specially fabricates material, or furnishes
labor or materials for construction or repair in this state of:

(A) a house, building, or improvement;

(B) a levee or embankment to be erected for the reclamation of
overflow land along a river or creek; or

(C) a railroad; and

(2) the person labors, specially fabricates the material, or
furnishes the labor or materials under or by virtue of a contract
with the owner or the owner's agent, trustee, receiver, contractor,
or subcontractor.

(b) A person who specially fabricates material has a lien even if
the material is not delivered.

(c) An architect, engineer, or surveyor who prepares a plan or plat
under or by virtue of a written contract with the owner or the
owner's agent, trustee, or receiver in connection with the actual or
proposed design, construction, or repair of improvements on real
property or the location of the boundaries of real property has a
lien on the property.

(d) A person who provides labor, plant material, or other supplies
for the installation of landscaping for a house, building, or
improvement, including the construction of a retention pond,
retaining wall, berm, irrigation system, fountain, or other similar
installation, under or by virtue of a written contract with the
owner or the owner's agent, trustee, or receiver has a lien on the
property.
§ 53.022. Property to Which Lien Extends

(a) The lien extends to the house, building, fixtures, or
improvements, the land reclaimed from overflow, or the railroad and
all of its properties, and to each lot of land necessarily connected
or reclaimed.

(b) The lien does not extend to abutting sidewalks, streets, and
utilities that are public property.

(c) A lien against land in a city, town, or village extends to each
lot on which the house, building, or improvement is situated or on
which the labor was performed.

(d) A lien against land not in a city, town, or village extends to
not more than 50 acres on which the house, building, or improvement
is situated or on which the labor was performed.
§ 53.023. Payment Secured by Lien

The lien secures payment for:

(1) the labor done or material furnished for the construction or
repair;

(2) the specially fabricated material, even if the material has not
been delivered or incorporated into the construction or repair, less
its fair salvage value; or

(3) the preparation of a plan or plat by an architect, engineer, or
surveyor in accordance with Section 53.021(c).
§ 53.024. Limitation on Subcontractor's Lien

The amount of a lien claimed by a subcontractor may not exceed:

(1) an amount equal to the proportion of the total subcontract price
that the sum of the labor performed, materials furnished, materials
specially fabricated, reasonable overhead costs incurred, and
proportionate profit margin bears to the total subcontract price;
minus

(2) the sum of previous payments received by the claimant on the
subcontract.
§ 53.025. Limitation on Ordinary Retainage Lien

A lien for retainage is valid only for the amount specified to be
retained in the contract, including any amendments to the contract,
between the claimant and the original contractor or between the
claimant and a subcontractor.
§ 53.026. Sham Contract

(a) A person who labors, specially fabricates materials, or
furnishes labor or materials under a direct contractual relationship
with another person is considered to be in direct contractual
relationship with the owner and has a lien as an original
contractor, if:

(1) the owner contracted with the other person for the construction
or repair of a house, building, or improvements and the owner can
effectively control that person through ownership of voting stock,
interlocking directorships, or otherwise;

(2) the owner contracted with the other person for the construction
or repair of a house, building, or improvements and that other
person can effectively control the owner through ownership of voting
stock, interlocking directorships, or otherwise; or

(3) the owner contracted with the other person for the construction
or repair of a house, building, or improvements and the contract was
made without good faith intention of the parties that the other
person was to perform the contract.

(b) In this section, "owner" does not include a person who has or
claims a security interest only.
[Sections 53.027 to 53.050 reserved for expansion]

SUBCHAPTER C PROCEDURE FOR PERFECTING LIEN

§ 53.051. Necessary Procedures

To perfect the lien, a person must comply with this subchapter.
§ 53.052. Filing of Affidavit

(a) Except as provided by Subsection (b), the person claiming the
lien must file an affidavit with the county clerk of the county in
which the property is located or into which the railroad extends not
later than the 15th day of the fourth calendar month after the day
on which the indebtedness accrues.

(b) A person claiming a lien arising from a residential construction
project must file an affidavit with the county clerk of the county
in which the property is located not later than the 15th day of the
third calendar month after the day on which the indebtedness
accrues.

(c) The county clerk shall record the affidavit in records kept for
that purpose and shall index and cross-index the affidavit in the
names of the claimant, the original contractor, and the owner.
Failure of the county clerk to properly record or index a filed
affidavit does not invalidate the lien.
§ 53.053. Accrual of Indebtedness

(a) For purposes of Section 53.052, indebtedness accrues on a
contract under which a plan or plat is prepared, labor was
performed, materials furnished, or specially fabricated materials
are to be furnished in accordance with this section.

(b) Indebtedness to an original contractor accrues:

(1) on the last day of the month in which a written declaration by
the original contractor or the owner is received by the other party
to the original contract stating that the original contract has been
terminated; or

(2) on the last day of the month in which the original contract has
been completed, finally settled, or abandoned.

(c) Indebtedness to a subcontractor, or to any person not covered by
Subsection (b) or (d), who has furnished labor or material to an
original contractor or to another subcontractor accrues on the last
day of the last month in which the labor was performed or the
material furnished.

(d) Indebtedness for specially fabricated material accrues:

(1) on the last day of the last month in which materials were
delivered;

(2) on the last day of the last month in which delivery of the last
of the material would normally have been required at the job site;
or

(3) on the last day of the month of any material breach or
termination of the original contract by the owner or contractor or
of the subcontract under which the specially fabricated material was
furnished.

(e) A claim for retainage accrues on the last day of the month in
which all work called for by the contract between the owner and the
original contractor has been completed, finally settled, or
abandoned.
§ 53.054. Contents of Affidavit

(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.

(b) The claimant may attach to the affidavit a copy of any
applicable written agreement or contract and a copy of each notice
sent to the owner.

(c) The affidavit is not required to set forth individual items of
work done or material furnished or specially fabricated.

The affidavit may use any abbreviations or symbols customary in the
trade.
§ 53.055. Notice of Filed Affidavit

(a) A person who files an affidavit must send a copy of the
affidavit by registered or certified mail to the owner or reputed
owner at the owner's last known business or residence address not
later than the fifth day after the date the affidavit is filed with
the county clerk.

(b) If the person is not an original contractor, the person must
also send a copy of the affidavit to the original contractor at the
original contractor's last known business or residence address
within the same period.
§ 53.056. Derivative Claimant: Notice to Owner or Original
Contractor

(a) Except as provided by Subchapter K, [FN1] a claimant other than
an original contractor must give the notice prescribed by this
section for the lien to be valid.

(b) If the lien claim arises from a debt incurred by a
subcontractor, the claimant must give to the original contractor
written notice of the unpaid balance. The claimant must give the
notice not later than the 15th day of the second month following
each month in which all or part of the claimant's labor was
performed or material delivered. The claimant must give the same
notice to the owner or reputed owner and the original contractor not
later than the 15th day of the third month following each month in
which all or part of the claimant's labor was performed or material
or specially fabricated material was delivered.

(c) If the lien claim arises from a debt incurred by the original
contractor, the claimant must give notice to the owner or reputed
owner, with a copy to the original contractor, in accordance with
Subsection (b).

(d) To authorize the owner to withhold funds under Subchapter D,
[FN2] the notice to the owner must state that if the claim remains
unpaid, the owner may be personally liable and the owner's property
may be subjected to a lien unless:

(1) the owner withholds payments from the contractor for payment of
the claim; or

(2) the claim is otherwise paid or settled.

(e) The notice must be sent by registered or certified mail and must
be addressed to the owner or reputed owner or the original
contractor, as applicable, at his last known business or residence
address.

(f) A copy of the statement or billing in the usual and customary
form is sufficient as notice under this section.
§ 53.057. Derivative Claimant: Notice for Contractual Retainage
Claim

(a) A claimant may give notice under this section instead of or in
addition to notice under Section 53.056 or 53.252 if the claimant is
to labor, furnish labor or materials, or specially fabricate
materials under an agreement with an original contractor or a
subcontractor providing for retainage.

(b) The claimant must give the owner or reputed owner notice of the
retainage agreement not later than the 15th day of the second month
following the delivery of materials or the performance of labor by
the claimant that first occurs after the claimant has agreed to the
contractual retainage. If the agreement is with a subcontractor, the
claimant must also give notice within that time to the original
contractor.

(c) The notice must contain:

(1) the sum to be retained;

(2) the due date or dates, if known; and

(3) a general indication of the nature of the agreement.

(d) The notice must be sent by registered or certified mail to the
last known business or residence address of the owner or reputed
owner or the original contractor, as applicable.

(e) If a claimant gives notice under this section and Section 53.055
or, if the claim relates to a residential construction project,
under this section and Section 53.252, the claimant is not required
to give any other notice as to the retainage.
§ 53.058. Derivative Claimant: Notice for Specially Fabricated Items

(a) Except as provided by Subchapter K, [FN1] a claimant who
specially fabricates material must give notice under this section
for the lien to be valid.

(b) The claimant must give the owner or reputed owner notice not
later than the 15th day of the second month after the month in which
the claimant receives and accepts the order for the material. If the
indebtedness is incurred by a person other than the original
contractor, the claimant must also give notice within that time to
the original contractor.

(c) The notice must contain:

(1) a statement that the order has been received and accepted; and

(2) the price of the order.

(d) The notice must be sent by registered or certified mail to the
last known business or residence address of the owner or the reputed
owner or the original contractor, as applicable.
(e) In addition to notice under this section, the claimant must give
notice under Section 53.056 if delivery has been made or if the
normal delivery time for the job has passed.

(f) The lien of a claimant who accepts an order but fails to give
notice under this section is valid as to delivered items if the
claimant has given notice under Section 53.056.

(g) If a retainage agreement consists in whole or part of an
obligation to furnish specially fabricated materials and the
claimant has given notice under Section 53.057, the claimant is not
required to give notice under this section.
§ 53.059. Repealed by Acts 1997, 75th Leg., ch. 526, § 24, eff.
Sept. 1, 1997

[Sections 53.060 to 53.080 reserved for expansion]

SUBCHAPTER D FUNDS WITHHELD BY OWNER FOLLOWING NOTICE

§ 53.081. Authority to Withhold Funds for Benefit of Claimants

(a) If an owner receives notice under Section 53.056, 53.057,
53.058, 53.252, or 53.253, the owner may withhold from payments to
the original contractor an amount necessary to pay the claim for
which he receives notice.

(b) If notice is sent in a form that substantially complies with
Section 53.056 or 53.252, the owner may withhold the funds
immediately on receipt of the notice.

(c) If notice is sent under Section 53.057, the owner may withhold
funds immediately on receipt of a copy of the claimant's affidavit
prepared in accordance with Sections 53.052 through 53.055.

(d) If notice is sent under Section 53.058, the owner may withhold
funds immediately on receipt of the notices sent under Subsection
(e) of that section. If notice is sent as provided by Section 53.253
(b), the owner may withhold funds immediately on receipt of the
notice sent as required by Section 53.252.
§ 53.082. Time for Which Funds are Withheld

Unless payment is made under Section 53.083 or the claim is
otherwise settled, discharged, indemnified against under Subchapter
H or I, [FN1] or determined to be invalid by a final judgment of a
court, the owner shall retain the funds withheld until:

(1) the time for filing the affidavit of mechanic's lien has passed;
or

(2) if a lien affidavit has been filed, until the lien claim has
been satisfied or released.
§ 53.083. Payment to Claimant on Demand

(a) The claimant may make written demand for payment of the claim to
an owner authorized to withhold funds under this subchapter. The
demand must give notice to the owner that all or part of the claim
has accrued under Section 53.053 or is past due according to the
agreement between the parties.

(b) The claimant must send a copy of the demand to the original
contractor. The original contractor may give the owner written
notice that the contractor intends to dispute the claim. The
original contractor must give the notice not later than the 30th day
after the day he receives the copy of the demand. If the original
contractor does not give the owner timely notice, he is considered
to have assented to the demand and the owner shall pay the claim.

(c) The claimant's demand may accompany the original notice of
nonpayment or of a past-due claim and may be stamped or written in
legible form on the face of the notice.

(d) Unless the lien has been secured, the demand may not be made
after expiration of the time within which the claimant may secure
the lien for the claim.
§ 53.084. Owner's Liability

(a) Except for the amount required to be retained under Subchapter
E, [FN1] the owner is not liable for any amount paid to the original
contractor before the owner is authorized to withhold funds under
this subchapter.

(b) If the owner has received the notices required by Subchapter C
[FN2] or K, [FN3] if the lien has been secured, and if the claim has
been reduced to final judgment, the owner is liable and the owner's
property is subject to a claim for any money paid to the original
contractor after the owner was authorized to withhold funds under
this subchapter. The owner is liable for that amount in addition to
any amount for which he is liable under Subchapter E.
§ 53.085. Affidavit Required

(a) Any person who furnishes labor or materials for the construction
of improvements on real property shall, if requested and as a
condition of payment for such labor or materials, provide to the
requesting party, or the party's agent, an affidavit stating that
the person has paid each of the person's subcontractors, laborers,
or materialmen in full for all labor and materials provided to the
person for the construction. In the event, however, that the person
has not paid each of the person's subcontractors, laborers, or
materialmen in full, the person shall state in the affidavit the
amount owed and the name and, if known, the address and telephone
number of each subcontractor, laborer, or materialman to whom the
payment is owed.

(b) The seller of any real property shall, upon request by the
purchaser or the purchaser's agent prior to closing of the purchase
of the real property, provide to the purchaser or the purchaser's
agent, a written affidavit stating that the seller has paid each of
the seller's contractors, laborers, or materialmen in full for all
labor and materials provided to the seller through the date
specified in the affidavit for any construction of improvements on
the real property and that the seller is not indebted to any person,
firm, or corporation by reason of any such construction through the
date specified in the affidavit. In the event that the seller has
not paid each of the seller's contractors, laborers, or materialmen
in full for labor and material provided through the date specified
in the affidavit, the seller shall state in the affidavit the amount
owed and the name and, if known, the address and telephone number of
each contractor, laborer, or materialman to whom the payment is
owed.

(c) The affidavit may include:

(1) a waiver or release of lien rights by the affiant that is
conditioned on the receipt of actual payment or collection of funds
when payment is made by check or draft;

(2) a warranty or representation that certain bills or classes of
bills will be paid by the affiant from funds paid in reliance on the
affidavit; and

(3) an indemnification by the affiant for any loss or expense
resulting from false or incorrect information in the affidavit.

(d) A person, including a seller, commits an offense if the person
intentionally, knowingly, or recklessly makes a false or misleading
statement in an affidavit under this section. An offense under this
section is a misdemeanor. A person adjudged guilty of an offense
under this section shall be punished by a fine not to exceed $4,000
or confinement in jail for a term not to exceed one year or both a
fine and confinement. A person may not receive community supervision
for the offense.

(e) A person signing an affidavit under this section is personally
liable for any loss or damage resulting from any false or incorrect
information in the affidavit.
[Sections 53.086 to 53.100 reserved for expansion]

SUBCHAPTER E REQUIRED RETAINAGE FOR BENEFIT OF LIEN CLAIMANTS

§ 53.101. Required Retainage

(a) During the progress of work under an original contract for which
a mechanic's lien may be claimed and for 30 days after the work is
completed, the owner shall retain:

(1) 10 percent of the contract price of the work to the owner; or

(2) 10 percent of the value of the work, measured by the proportion
that the work done bears to the work to be done, using the contract
price or, if there is no contract price, using the reasonable value
of the completed work.

(b) In this section, "owner" includes the owner's agent, trustee, or
receiver.
§ 53.102. Payment Secured by Retainage

The retained funds secure the payment of artisans and mechanics who
perform labor or service and the payment of other persons who
furnish material, material and labor, or specially fabricated
material for any contractor, subcontractor, agent, or receiver in
the performance of the work.
§ 53.103. Lien on Retained Funds

A claimant has a lien on the retained funds if the claimant:

(1) sends the notices required by this chapter in the time and
manner required; and

(2) files an affidavit claiming a lien not later than the 30th day
after the work is completed.
§ 53.104. Preferences

(a) Individual artisans and mechanics are entitled to a preference
to the retained funds and shall share proportionately to the extent
of their claims for wages and fringe benefits earned.

(b) After payment of artisans and mechanics who are entitled to a
preference under Subsection (a), other participating claimants share
proportionately in the balance of the retained funds.
§ 53.105. Owner's Liability for Failure to Retain

(a) If the owner fails or refuses to comply with this subchapter,
the claimants complying with this chapter have a lien, at least to
the extent of the amount that should have been retained from the
original contract under which they are claiming, against the house,
building, structure, fixture, or improvement and all of its
properties and against the lot or lots of land necessarily
connected.

(b) The claimants share the lien proportionately in accordance with
the preference provided by Section 53.104.
§ 53.106. Affidavit of Completion

(a) An owner may file with the county clerk of the county in which
the property is located an affidavit of completion. The affidavit
must contain:

(1) the name and address of the owner;

(2) the name and address of the original contractor;

(3) a description, legally sufficient for identification, of the
real property on which the improvements are located;

(4) a description of the improvements furnished under the original
contract;

(5) a statement that the improvements under the original contract
have been completed and the date of completion; and

(6) a conspicuous statement that a claimant may not have a lien on
retained funds unless the claimant files the affidavit claiming a
lien not later than the 30th day after the date of completion.

(b) A copy of the affidavit must be sent by certified or registered
mail to the original contractor not later than the date the
affidavit is filed and to each claimant who sends a notice of lien
liability to the owner under Section 53.056, 53.057, 53.058, 53.252,
or 53.253 not later than the date the affidavit is filed or the 10th
day after the date the owner receives the notice of lien liability,
whichever is later.

(c) A copy of the affidavit must also be sent to each person who
furnishes labor or materials for the property and who furnishes the
owner with a written request for the copy. The owner must furnish
the copy to the person not later than the date the affidavit is
filed or the 10th day after the date the request is received,
whichever is later.

(d) Except as provided by this subsection, an affidavit filed under
this section on or before the 10th day after the date of completion
of the improvements is prima facie evidence of the date the work
under the original contract is completed for purposes of this
subchapter. If the affidavit is filed after the 10th day after the
date of completion, the date of completion for purposes of this
subchapter is the date the affidavit is filed. This subsection does
not apply to a person to whom the affidavit was not sent as required
by this section.

(e) Repealed by Acts 1999, 76th Leg., ch. 889, § 12, eff. Sept. 1,
1999.
[Sections 53.107 to 53.120 reserved for expansion]

SUBCHAPTER F PRIORITIES AND PREFERENCES

§ 53.121. Preference Over Other Creditors

All subcontractors, laborers, and materialmen who have a mechanic's
lien have preference over other creditors of the original
contractor.
§ 53.122. Equality of Mechanic's Liens

(a) Except as provided by Subchapter E [FN1] and Section 53.124(e),
perfected mechanic's liens are on equal footing without reference to
the date of filing the affidavit claiming the lien.

(b) If the proceeds of a foreclosure sale of property are
insufficient to discharge all mechanic's liens against the property,
the proceeds shall be paid pro rata on the perfected mechanic's
liens on which suit is brought.

(c) This chapter does not affect the contract between the owner and
the original contractor as to the amount, manner, or time of payment
of the contract price.
§ 53.123. Priority of Mechanic's Lien Over Other Liens

(a) Except as provided by this section, a mechanic's lien attaches
to the house, building, improvements, or railroad property in
preference to any prior lien, encumbrance, or mortgage on the land
on which it is located, and the person enforcing the lien may have
the house, building, improvement, or any piece of the railroad
property sold separately.

(b) The mechanic's lien does not affect any lien, encumbrance, or
mortgage on the land or improvement at the time of the inception of
the mechanic's lien, and the holder of the lien, encumbrance, or
mortgage need not be made a party to a suit to foreclose the
mechanic's lien.
§ 53.124. Inception of Mechanic's Lien

(a) Except as provided by Subsection (e), for purposes of Section
53.123, the time of inception of a mechanic's lien is the
commencement of construction of improvements or delivery of
materials to the land on which the improvements are to be located
and on which the materials are to be used.

(b) The construction or materials under Subsection (a) must be
visible from inspection of the land on which the improvements are
being made.

(c) An owner and original contractor may jointly file an affidavit
of commencement with the county clerk of the county in which the
land is located not later than the 30th day after the date of actual
commencement of construction of the improvements or delivery of
materials to the land. The affidavit must contain:

(1) the name and address of the owner;

(2) the name and address of each original contractor, known at the
time to the owner, that is furnishing labor, service, or materials
for the construction of the improvements;

(3) a description, legally sufficient for identification, of the
property being improved;

(4) the date the work actually commenced; and

(5) a general description of the improvement.

(d) An affidavit filed in compliance with this section is prima
facie evidence of the date of the commencement of the improvement
described in the affidavit. The time of inception of a mechanic's
lien arising from work described in an affidavit of commencement is
the date of commencement of the work stated in the affidavit.

(e) The time of inception of a lien that is created under Section
53.021(c) or (d) is the date of recording of an affidavit of lien
under Section 53.052. The priority of a lien claimed by a person
entitled to a lien under Section 53.021(c) or (d) with respect to
other mechanic's liens is determined by the date of recording. A
lien created under Section 53.021(c) or (d) is not valid or
enforceable against a grantee or purchaser who acquires an interest
in the real property before the time of inception of the lien.
[Sections 53.125 to 53.150 reserved for expansion]

SUBCHAPTER G RELEASE AND FORECLOSURE; ACTION ON CLAIM TEXAS PROPERTY

§ 53.151. Enforcement of Remedies Against Money Due Original
Contractor or Subcontractor

(a) A creditor of an original contractor may not collect, enforce a
security interest against, garnish, or levy execution on the money
due the original contractor or the contractor's surety from the
owner, and a creditor of a subcontractor may not collect, enforce a
security interest against, garnish, or levy execution on the money
due the subcontractor, to the prejudice of the subcontractors,
mechanics, laborers, materialmen, or their sureties.

(b) A surety issuing a payment bond or performance bond in
connection with the improvements has a priority claim over other
creditors of its principal to contract funds to the extent of any
loss it suffers or incurs. That priority does not excuse the surety
from paying any obligations that it may have under its payment
bonds.
§ 53.152. Release of Claim or Lien

(a) When a debt for labor or materials is satisfied or paid by
collected funds, the person who furnished the labor or materials
shall, not later than the 10th day after the date of receipt of a
written request, furnish to the requesting person a release of the
indebtedness and any lien claimed, to the extent of the indebtedness
paid. An owner, the original contractor, or any person making the
payment may request the release.

(b) A release of lien must be in a form that would permit it to be
filed of record.
§ 53.153. Defense of Actions

(a) If an affidavit claiming a mechanic's lien is filed by a person
other than the original contractor, the original contractor shall
defend at his own expense a suit brought on the claim.

(b) If the suit results in judgment on the lien against the owner or
the owner's property, the owner is entitled to deduct the amount of
the judgment and costs from any amount due the original contractor.
If the owner has settled with the original contractor in full, the
owner is entitled to recover from the original contractor any amount
paid for which the original contractor was originally liable.
§ 53.154. Foreclosure

A mechanic's lien may be foreclosed only on judgment of a court of
competent jurisdiction foreclosing the lien and ordering the sale of
the property subject to the lien.
§ 53.155. Transfer of Property Sold

If the house, building, improvement, or any piece of railroad
property is sold separately, the officer making the sale shall place
the purchaser in possession. The purchaser is entitled to a
reasonable time after the date of purchase within which to remove
the purchased property.
§ 53.156. Costs and Attorney's Fees

In any proceeding to foreclose a lien or to enforce a claim against
a bond issued under Subchapter H, I, or J [FN1] or in any proceeding
to declare that any lien or claim is invalid or unenforceable in
whole or in part, the court may award costs and reasonable
attorney's fees as are equitable and just.
§ 53.157. Discharge of Lien

A mechanic's lien or affidavit claiming a mechanic's lien filed
under Section 53.052 may be discharged of record by:

(1) recording a lien release signed by the claimant under Section
53.152;

(2) failing to institute suit to foreclose the lien in the county in
which the property is located within the period prescribed by
Section 53.158, 53.175, or 53.208;

(3) recording the original or certified copy of a final judgment or
decree of a court of competent jurisdiction providing for the
discharge;

(4) filing the bond and notice in compliance with Subchapter H;
[FN1]

(5) filing the bond in compliance with Subchapter I; [FN2] or

§ 53.158. Period for Bringing Suit to Foreclose Lien

(a) Except as provided by Subsection (b), suit must be brought to
foreclose the lien within two years after the last day a claimant
may file the lien affidavit under Section 53.052 or within one year
after completion, termination, or abandonment of the work under the
original contract under which the lien is claimed, whichever is
later.

(b) For a claim arising from a residential construction project,
suit must be brought to foreclose the lien within one year after the
last day a claimant may file a lien affidavit under Section 53.052
or within one year after completion, termination, or abandonment of
the work under the original contract under which the lien is
claimed, whichever is later.

On 3/15/05, v wrote:
> Have you checked the revised
> codes? Joisey is two years. Used to
> be 20. With the option to renew the
> lien in the twenyfirst year. Then
> it ran till paid.
>
>
> On 3/15/05, roosta wrote:
>> On 3/15/05, Curmudgeon wrote:
>>> Perhaps someone can pitch in if
> there is some peculiarity in
>>> Texas law. The general rule is
> that mechanics liens expire
>>> after one year if they are not
> foreclosed. In other words,
>>> you can't just sit on it. You
> either foreclose or lose the
>>> lien.
>>
> http://www.capitol.state.tx.us/statu
> tes/pr.toc.htm
>> PROPERTY CODE
>> Title 5
>> CHAPTER 53. MECHANIC'S,
> CONTRACTOR'S, OR MATERIALMAN'S LIEN