CHAPTER 53. MECHANIC'S, CONTRACTOR'S, OR MATERIALMAN'S LIEN - Texas Statutes

PROPERTY CODE

TITLE 5. EXEMPT PROPERTY AND LIENS

SUBTITLE B. LIENS

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

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 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.

(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.

Acts 1983, 68th Leg., p. 3533, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1997, 75th Leg., ch. 526, Sec. 2, eff.

Sept. 1, 1997; Acts 1999, 76th Leg., ch. 889, Sec. 1, eff. Sept.

1, 1999.

Sec. 53.002. MORE THAN ONE ORIGINAL CONTRACTOR. On any work

there may be more than one original contractor for purposes of

this chapter.

Acts 1983, 68th Leg., p. 3535, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 53.003. NOTICES. (a) This section applies to notices

required by Subchapters B through G and K.

(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.

Acts 1983, 68th Leg., p. 3535, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1997, 75th Leg., ch. 526, Sec. 3, eff.

Sept. 1, 1997.

SUBCHAPTER B. PERSONS ENTITLED TO LIEN; SUBJECT PROPERTY

Sec. 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.

(e) A person who performs labor as part of, or who furnishes

labor or materials for, the demolition of a structure on real

property under or by virtue of a written contract with the owner

of the property or the owner's agent, trustee, receiver,

contractor, or subcontractor has a lien on the property.

Acts 1983, 68th Leg., p. 3535, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 395, Sec. 1, eff.

Sept. 1, 1989; Acts 1989, 71st Leg., ch. 1138, Sec. 1, eff. Sept.

1, 1989; Acts 1991, 72nd Leg., ch. 16, Sec. 16.01, eff. Aug. 26,

1991; Acts 1995, 74th Leg., ch. 851, Sec. 1, 6, eff. Sept. 1,

1995; Acts 1999, 76th Leg., ch. 896, Sec. 1, eff. Sept. 1, 1999;

Acts 2003, 78th Leg., ch. 410, Sec. 1, eff. Sept. 1, 2003.

Sec. 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.

Acts 1983, 68th Leg., p. 3536, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 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).

Acts 1983, 68th Leg., p. 3536, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1995, 74th Leg., ch. 851, Sec. 2, eff.

Sept. 1, 1995.

Sec. 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.

Acts 1983, 68th Leg., p. 3536, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 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.

Acts 1983, 68th Leg., p. 3537, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 2, eff.

Sept. 1, 1989.

Sec. 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.

Acts 1983, 68th Leg., p. 3537, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 3, eff.

Sept. 1, 1989; Acts 1997, 75th Leg., ch. 526, Sec. 4, eff. Sept.

1, 1997.

SUBCHAPTER C. PROCEDURE FOR PERFECTING LIEN

Sec. 53.051. NECESSARY PROCEDURES. To perfect the lien, a

person must comply with this subchapter.

Acts 1983, 68th Leg., p. 3538, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 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.

Acts 1983, 68th Leg., p. 3538, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 4, eff.

Sept. 1, 1989; Acts 1997, 75th Leg., ch. 526, Sec. 5, eff. Sept.

1, 1997.

Sec. 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.

Acts 1983, 68th Leg., p. 3539, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 5, eff.

Sept. 1, 1989; Acts 1995, 74th Leg., ch. 851, Sec. 3, eff. Sept.

1, 1995.

Sec. 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.

Acts 1983, 68th Leg., p. 3540, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 6, eff.

Sept. 1, 1989; Acts 1997, 75th Leg., ch. 526, Sec. 6, eff. Sept.

1, 1997.

Sec. 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.

Acts 1983, 68th Leg., p. 3540, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 7, eff.

Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 48, Sec. 7, eff. Sept.

1, 1993; Acts 1997, 75th Leg., ch. 526, Sec. 7, eff. Sept. 1,

1997; Acts 1999, 76th Leg., ch. 889, Sec. 2, eff. Sept. 1, 1999.

Sec. 53.056. DERIVATIVE CLAIMANT: NOTICE TO OWNER OR ORIGINAL

CONTRACTOR. (a) Except as provided by Subchapter K, 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,

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.

Acts 1983, 68th Leg., p. 3540, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 8, eff.

Sept. 1, 1989; Acts 1997, 75th Leg., ch. 526, Sec. 8, eff. Sept.

1, 1997.

Sec. 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.

Acts 1983, 68th Leg., p. 3541, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 9, eff.

Sept. 1, 1989; Acts 1997, 75th Leg., ch. 526, Sec. 9, eff. Sept.

1, 1997; Acts 1999, 76th Leg., ch. 889, Sec. 3, eff. Sept. 1,

1999.

Sec. 53.058. DERIVATIVE CLAIMANT: NOTICE FOR SPECIALLY

FABRICATED ITEMS. (a) Except as provided by Subchapter K, 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.

Acts 1983, 68th Leg., p. 3542, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 10, eff.

Sept. 1, 1989; Acts 1997, 75th Leg., ch. 526, Sec. 10, eff. Sept.

1, 1997.

SUBCHAPTER D. FUNDS WITHHELD BY OWNER FOLLOWING NOTICE

Sec. 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.

Acts 1983, 68th Leg., p. 3543, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 12, eff.

Sept. 1, 1989; Acts 1997, 75th Leg., ch. 526, Sec. 11, eff. Sept.

1, 1997.

Sec. 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, 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.

Acts 1983, 68th Leg., p. 3544, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 13, eff.

Sept. 1, 1989.

Sec. 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.

Acts 1983, 68th Leg., p. 3544, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 53.084. OWNER'S LIABILITY. (a) Except for the amount

required to be retained under Subchapter E, 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 or K, 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.

Acts 1983, 68th Leg., p. 3545, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1997, 75th Leg., ch. 526, Sec. 12, eff.

Sept. 1, 1997.

Sec. 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.

Added by Acts 1987, 70th Leg., ch. 578, Sec. 1, eff. Aug. 31,

1987. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 14, eff.

Sept. 1, 1989; Acts 1997, 75th Leg., ch. 526, Sec. 13, eff. Sept.

1, 1997.

SUBCHAPTER E. REQUIRED RETAINAGE FOR BENEFIT OF LIEN CLAIMANTS

Sec. 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.

Acts 1983, 68th Leg., p. 3545, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 15, eff.

Sept. 1, 1989.

Sec. 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.

Acts 1983, 68th Leg., p. 3545, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 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 earlier of the date:

(A) the work is completed;

(B) the original contract is terminated; or

(C) the original contractor abandons performance under the

original contract.

Acts 1983, 68th Leg., p. 3545, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Amended by:

Acts 2005, 79th Leg., Ch.

1003, Sec. 1, eff. September 1, 2005.

Sec. 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.

Acts 1983, 68th Leg., p. 3546, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 16, eff.

Sept. 1, 1989.

Sec. 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.

Acts 1983, 68th Leg., p. 3546, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 2, Sec. 13.02, eff.

Aug. 28, 1989; Acts 1989, 71st Leg., ch. 1138, Sec. 17, eff.

Sept. 1, 1989.

Sec. 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, Sec. 12, eff.

Sept. 1, 1999.

Added by Acts 1989, 71st Leg., ch. 1138, Sec. 18, eff. Sept. 1,

1989. Amended by Acts 1997, 75th Leg., ch. 526, Sec. 14, eff.

Sept. 1, 1997; Acts 1999, 76th Leg., ch. 889, Sec. 12, eff. Sept.

1, 1999.

Sec. 53.107. NOTICE RELATING TO TERMINATION OF WORK OR

ABANDONMENT OF PERFORMANCE BY ORIGINAL CONTRACTOR OR OWNER. (a)

Not later than the 10th day after the date an original contract

is terminated or the original contractor abandons performance

under the original contract, the owner shall give notice to each

subcontractor who, before the date of termination or abandonment,

has:

(1) given notice to the owner as provided by Section 53.056,

53.057, or 53.058; or

(2) sent to the owner by certified or registered mail a written

request for notice of termination or abandonment.

(b) The notice 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 general description of the improvements agreed to be

furnished under the original contract;

(5) a statement that the original contract has been terminated

or that performance under the contract has been abandoned;

(6) the date of the termination or abandonment; and

(7) a conspicuous statement that a claimant may not have a lien

on the retained funds unless the claimant files an affidavit

claiming a lien not later than the 30th day after the date of the

termination or abandonment.

(c) A notice sent in compliance with this section on or before

the 10th day after the date of termination or abandonment is

prima facie evidence of the date the original contract was

terminated or work was abandoned for purposes of this subchapter.

(d) A subcontractor who fails to file a lien affidavit in the

time prescribed by Section 53.103(2) has a lien to the extent

authorized under this subchapter if:

(1) the subcontractor otherwise complies with this chapter; and

(2) the owner did not provide the subcontractor notice as

required by this section.

(e) This section does not apply to a residential construction

project.

Added by Acts 2005, 79th Leg., Ch.

1003, Sec. 2, eff. September 1, 2005.

SUBCHAPTER F. PRIORITIES AND PREFERENCES

Sec. 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.

Acts 1983, 68th Leg., p. 3546, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 53.122. EQUALITY OF MECHANIC'S LIENS. (a) Except as

provided by Subchapter E 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.

Acts 1983, 68th Leg., p. 3546, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1995, 74th Leg., ch. 851, Sec. 4, eff.

Sept. 1, 1995.

Sec. 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.

Acts 1983, 68th Leg., p. 3547, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 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), (d), or (e) 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),

(d), or (e) with respect to other mechanic's liens is determined

by the date of recording. A lien created under Section 53.021(c),

(d), or (e) 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.

Acts 1983, 68th Leg., p. 3547, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 19, eff.

Sept. 1, 1989; Acts 1995, 74th Leg., ch. 851, Sec. 5, eff. Sept.

1, 1995; Acts 1999, 76th Leg., ch. 896, Sec. 2, eff. Sept. 1,

1999; Acts 2003, 78th Leg., ch. 410, Sec. 2, eff. Sept. 1, 2003.

SUBCHAPTER G. RELEASE AND FORECLOSURE; ACTION ON CLAIM

Sec. 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.

Acts 1983, 68th Leg., p. 3548, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 20, eff.

Sept. 1, 1989.

Sec. 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.

Acts 1983, 68th Leg., p. 3548, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 21, eff.

Sept. 1, 1989.

Sec. 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.

Acts 1983, 68th Leg., p. 3548, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 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.

Acts 1983, 68th Leg., p. 3549, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 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.

Acts 1983, 68th Leg., p. 3549, ch. 576, Sec. 1, eff. Jan. 1,

1984.

Sec. 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 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.

Added by Acts 1984, 68th Leg., 2nd C.S., ch. 18, Sec. 4(a), eff.

Oct. 2, 1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 22,

eff. Sept. 1, 1989.

Sec. 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;

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

(6) recording a certified copy of the order removing the lien

under Section 53.160 and a certificate from the clerk of the

court that states that no bond or deposit as described by Section

53.161 was filed by the claimant within 30 days after the date

the order was entered.

Added by Acts 1989, 71st Leg., ch. 1138, Sec. 23, eff. Sept. 1,

1989. Amended by Acts 1997, 75th Leg., ch. 526, Sec. 15, eff.

Sept. 1, 1997.

Sec. 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.

Added by Acts 1989, 71st Leg., ch. 1138, Sec. 23, eff. Sept. 1,

1989. Amended by Acts 1997, 75th Leg., ch. 526, Sec. 16, eff.

Sept. 1, 1997; Acts 1999, 76th Leg., ch. 889, Sec. 4, eff. Sept.

1, 1999.

Sec. 53.159. OBLIGATION TO FURNISH INFORMATION. (a) An owner,

on written request, shall furnish the following information

within a reasonable time, but not later than the 10th day after

the date the request is received, to any person furnishing labor

or materials for the project:

(1) a description of the real property being improved legally

sufficient to identify it;

(2) whether there is a surety bond and if so, the name and last

known address of the surety and a copy of the bond; and

(3) whether there are any prior recorded liens or security

interests on the real property being improved and if so, the name

and address of the person having the lien or security interest.

(b) An original contractor, on written request by a person who

furnished work under the original contract, shall furnish to the

person the following information within a reasonable time, but

not later than the 10th day after the date the request is

received:

(1) the name and last known address of the person to whom the

original contractor furnished labor or materials for the

construction project; and

(2) whether the original contractor has furnished or has been

furnished a payment bond for any of the work on the construction

project and if so, the name and last known address of the surety

and a copy of the bond.

(c) A subcontractor, on written request by an owner of the

property being improved, the original contractor, a surety on a

bond covering the original contract, or any person furnishing

work under the subcontract, shall furnish to the person the

following information within a reasonable time, but not later

than the 10th day after the date the request is received:

(1) the name and last known address of each person from whom the

subcontractor purchased labor or materials for the construction

project, other than those materials that were furnished to the

project from the subcontractor's inventory;

(2) the name and last known address of each person to whom the

subcontractor furnished labor or materials for the construction

project; and

(3) whether the subcontractor has furnished or has been

furnished a payment bond for any of the work on the construction

project and if so, the name and last known address of the surety

and a copy of the bond.

(d) Not later than the 30th day after the date a written request

is received from the owner, the contractor under whom a claim of

lien or under whom a bond is made, or a surety on a bond on which

a claim is made, a claimant for a lien or under a bond shall

furnish to the requesting person a copy of any applicable written

agreement, purchase order, or contract and any billing,

statement, or payment request of the claimant reflecting the

amount claimed and the work performed by the claimant for which

the claim is made. If requested, the claimant shall provide the

estimated amount due for each calendar month in which the

claimant has performed labor or furnished materials.

(e) If a person from whom information is requested does not have

a direct contractual relationship on the project with the person

requesting the information, the person from whom information is

requested, other than a claimant requested to furnish information

under Subsection (d), may require payment of the actual costs,

not to exceed $25, in furnishing the requested information.

(f) A person, other than a claimant requested to furnish

information under Subsection (d), who fails to furnish

information as required by this section is liable to the

requesting person for that person's reasonable and necessary

costs incurred in procuring the requested information.

Added by Acts 1989, 71st Leg., ch. 1138, Sec. 23, eff. Sept. 1,

1989.

Sec. 53.160. SUMMARY MOTION TO REMOVE INVALID OR UNENFORCEABLE

LIEN. (a) In a suit brought to foreclose a lien or to declare a

claim or lien invalid or unenforceable, a party objecting to the

validity or enforceability of the claim or lien may file a motion

to remove the claim or lien. The motion must be verified and

state the legal and factual basis for objecting to the validity

or enforceability of the claim or lien. The motion may be

accompanied by supporting affidavits.

(b) The grounds for objecting to the validity or enforceability

of the claim or lien for purposes of the motion are limited to

the following:

(1) notice of claim was not furnished to the owner or original

contractor as required by Section 53.056, 53.057, 53.058, 53.252,

or 53.253;

(2) an affidavit claiming a lien failed to comply with Section

53.054 or was not filed as required by Section 53.052;

(3) notice of the filed affidavit was not furnished to the owner

or original contractor as required by Section 53.055;

(4) the owner complied with the requirements of Section 53.101

and paid the retainage and all other funds owed to the original

contractor before:

(A) the claimant perfected the lien claim; and

(B) the owner received a notice of the claim as required by this

chapter;

(5) all funds subject to the notice of a claim to the owner and

the perfection of a claim against the statutory retainage have

been deposited in the registry of the court and the owner has no

additional liability to the claimant;

(6) when the lien affidavit was filed on homestead property:

(A) no contract was executed or filed as required by Section

53.254;

(B) the affidavit claiming a lien failed to contain the notice

as required by Section 53.254; or

(C) the notice of the claim failed to include the statement

required by Section 53.254; and

(7) the claimant executed a valid and enforceable waiver or

release of the claim or lien claimed in the affidavit.

(c) The claimant is not required to file a response. The

claimant and any other party that has appeared in the proceeding

must be notified by at least 21 days before the date of the

hearing on the motion. A motion may not be heard before the 21st

day after the date the claimant answers or appears in the

proceeding.

(d) At the hearing on the motion, the burden is on:

(1) the claimant to prove that the notice of claim and affidavit

of lien were furnished to the owner and original contractor as

required by this chapter; and

(2) the movant to establish that the lien should be removed for

any other ground authorized by this section.

(e) The court shall promptly determine a motion to remove a

claim or lien under this section. If the court determines that

the movant is not entitled to remove the lien, the court shall

enter an order denying the motion. If the court determines that

the movant is entitled to remove the lien, the court shall enter

an order removing the lien claimed in the lien affidavit. A party

to the proceeding may not file an interlocutory appeal from the

court's order.

(f) Any admissible evidence offered at the hearing may be

admitted in the trial of the case. The court's order under

Subsection (e) is not admissible as evidence in determining the

validity and enforceability of the claim or lien.

Added by Acts 1997, 75th Leg., ch. 526, Sec. 17, eff. Sept. 1,

1997.

Sec. 53.161. BOND REQUIREMENTS AFTER ORDER TO REMOVE. (a) In

the order removing a lien, the court shall set the amount of

security that the claimant may provide in order to stay the

removal of the claim or lien. The sum must be an amount that the

court determines is a reasonable estimate of the costs and

attorney's fees the movant is likely to incur in the proceeding

to determine the validity or enforceability of the lien. The sum

may not exceed the amount of the lien claim.

(b) The court shall stay the order removing the lien if the

claimant files a bond or a deposit in lieu of a bond in the

amount set in the order with the clerk of the court not later

than the 30th day after the date the order is entered by the

court unless, for good cause, the court orders a later date for

filing the bond or the deposit in lieu of a bond. If the court

fails to set the amount of the security required, the amount

required is the amount of the lien claim.

(c) The bond must be:

(1) executed by a corporate surety authorized to do business in

this state and licensed by this state to execute bonds as surety;

and

(2) conditioned on the claimant's payment of any final judgment

rendered against the claimant in the proceeding for attorney's

fees and costs to the movant under Section 53.156.

(d) In lieu of filing a bond, the claimant may deposit in the

amount set by the court for the surety bond:

(1) cash;

(2) a negotiable obligation of the federal government or a

federal agency; or

(3) a negotiable obligation of a financial institution chartered

by the federal or state government that is insured by the federal

government or a federal agency.

(e) A deposit made under Subsection (d) must be conditioned in

the same manner as a surety bond. Any interest accrued on the

deposit amount is a part of the deposit.

(f) If the claimant fails to file the bond or the deposit in

lieu of the bond in compliance with this section, the owner may

file:

(1) a certified copy of the order; and

(2) a certificate from the clerk of the court stating that:

(A) no bond or deposit in lieu of the bond was filed within 30

days after the date the order was entered by the court; and

(B) no order staying the order to remove the lien was entered by

the court.

(g) The claim or lien is removed and extinguished as to a

creditor or subsequent purchaser for valuable consideration who

obtains an interest in the property after the certified copy of

the order and certificate of the clerk of the court are filed

with the county clerk. The removal of the lien does not

constitute a release of the liability of the owner, if any, to

the claimant.

Added by Acts 1997, 75th Leg., ch. 526, Sec. 17, eff. Sept. 1,

1997.

Sec. 53.162. REVIVAL OF REMOVED LIEN. (a) If an order removing

the lien is not stayed as provided by Section 53.161 and the

claimant later obtains a final judgment in the suit establishing

the validity and ordering the foreclosure of the lien, the

claimant may file a certified copy of the final judgment with the

county clerk.

(b) The filed judgment revives the lien, and the claimant may

foreclose the lien.

(c) A lien revived under this section is void as to a creditor

or subsequent purchaser for valuable consideration who obtained

an interest in the property:

(1) after the order removing the lien and the certificate from

the clerk of the court was filed with the county clerk; and

(2) before the final judgment reviving the lien was filed with

the county clerk.

Added by Acts 1997, 75th Leg., ch. 526, Sec. 17, eff. Sept. 1,

1997.

SUBCHAPTER H. BOND TO INDEMNIFY AGAINST LIEN

Sec. 53.171. BOND. (a) If a lien, other than a lien granted by

the owner in a written contract, is fixed or is attempted to be

fixed by a recorded instrument under this chapter, any person may

file a bond to indemnify against the lien.

(b) The bond shall be filed with the county clerk of the county

in which the property subject to the lien is located.

(c) A mechanic's lien claim against an owner's property is

discharged after:

(1) a bond that complies with Section 53.172 is filed;

(2) the notice of the bond is issued as provided by Section

53.173; and

(3) the bond and notice are recorded as provided by Section

53.174.

Acts 1983, 68th Leg., p. 3549, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 24, 39(1),

eff. Sept. 1, 1989; Acts 1997, 75th Leg., ch. 526, Sec. 18, eff.

Sept. 1, 1997.

Sec. 53.172. BOND REQUIREMENTS. The bond must:

(1) describe the property on which the liens are claimed;

(2) refer to each lien claimed in a manner sufficient to

identify it;

(3) be in an amount that is double the amount of the liens

referred to in the bond unless the total amount claimed in the

liens exceeds $40,000, in which case the bond must be in an

amount that is the greater of 1-1/2 times the amount of the liens

or the sum of $40,000 and the amount of the liens;

(4) be payable to the parties claiming the liens;

(5) be executed by:

(A) the party filing the bond as principal; and

(B) a corporate surety authorized and admitted to do business

under the law in this state and licensed by this state to execute

the bond as surety, subject to Section 1, Chapter 87, Acts of the

56th Legislature, Regular Session, 1959 (Article 7.19-1, Vernon's

Texas Insurance Code); and

(6) be conditioned substantially that the principal and sureties

will pay to the named obligees or to their assignees the amount

that the named obligees would have been entitled to recover if

their claims had been proved to be valid and enforceable liens on

the property.

Acts 1983, 68th Leg., p. 3549, ch. 576, Sec. 1, eff. Jan. 1,

1984. Amended by Acts 1989, 71st Leg., ch. 1138, Sec. 25, eff.

Sept. 1, 1989; Acts 1997, 75th Leg., ch. 1132, Sec. 2, eff. Sept.

1, 1997.

Sec. 53.173. NOTICE OF BOND. (a) After the bond is filed, the

county clerk shall issue notice of the bond to all named

obli