Texas Code of Criminal Procedure - Article 42.22. Restitution Liens
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Art. 42.22. RESTITUTION LIENS.
Definitions
Sec. 1. In this article:
(1) "Department" means the Texas Department of
Transportation.
(2) "Motor vehicle" has the meaning assigned by Chapter 501,
Transportation Code.
(3) "State" means the State of Texas and all political
subdivisions thereof.
(4) "Victim" means:
(A) a "close relative of a deceased victim," "guardian of a
victim," or "victim," as those terms are defined by Article 56.01 of
this code; or
(B) an individual who suffers damages as a result of another
committing an offense under Section 38.04, Penal Code, in which the
defendant used a motor vehicle while the defendant was in flight.
(5) "Personal property" means any property other than real
property including all tangible and intangible types of property
and including but not limited to copyrights, book rights, movie
rights, patents, and trademarks acquired by the defendant prior to,
during, and after conviction.
Lien Established
Sec. 2. (a) The victim of a criminal offense has a restitution
lien to secure the amount of restitution to which the victim is
entitled under the order of a court in a criminal case.
(b) The state also has a restitution lien to secure the:
(1) amount of fines or costs entered against a defendant in
the judgment in a felony criminal case;
(2) amount of reimbursement for costs of:
(A) confinement ordered under Article 42.038; or
(B) notice provided under Article 62.056 or 62.201; and
(3) amount of damages incurred by the state as a result of
the commission of an offense under Section 38.04, Penal Code, in
which the defendant used a motor vehicle while the defendant was in
flight.
Perfection
Sec. 3. (a) Except as provided by this section, a restitution
lien attaches and is perfected when an affidavit to perfect the lien
is filed in accordance with this article.
(b) If a lien established under this article is attached to
a motor vehicle, the lien must be perfected in the manner provided
by Chapter 501, Transportation Code, and the court that entered the
order of restitution giving rise to the lien shall include in the
order a requirement that the defendant surrender to the court
evidence of current legal ownership of the motor vehicle and the
title, if applicable, against which the lien attaches. A lien
against a motor vehicle as provided by this article is not perfected
until the defendant's title to the vehicle has been surrendered to
the court and the department has issued a subsequent title that
discloses on its face the fact that the vehicle is subject to a
restitution lien established as provided by this article.
Judgment Required
Sec. 4. An affidavit to perfect a restitution lien may not be
filed under this article until a court has ordered restitution or
entered a judgment requiring the defendant to pay a fine or costs.
Persons Who May File
Sec. 5. The following persons may file an affidavit to
perfect a restitution lien:
(1) the attorney representing the state in a criminal case
in which a victim is determined by the court to be entitled to
restitution or in which a defendant is ordered to pay fines or
costs; or
(2) a victim in a criminal case determined by the court to be
entitled to restitution.
Affidavit
Sec. 6. An affidavit to perfect a restitution lien must be
signed by the attorney representing the state or a magistrate and
must contain:
(1) the name and date of birth of the defendant whose
property or other interests are subject to the lien;
(2) the residence or principal place of business of the
person named in the lien, if known;
(3) the criminal proceeding giving rise to the lien,
including the name of the court, the name of the case, and the
court's file number for the case;
(4) the name and address of the attorney representing the
state and the name of the person entitled to restitution;
(5) a statement that the notice is being filed under this
article;
(6) the amount of restitution and the amount of fines and
costs the defendant has been ordered to pay by the court;
(7) a statement that the amount of restitution owed at any
one time may be less than the original balance and that the
outstanding balance is reflected in the records of the clerk of the
court hearing the criminal proceeding giving rise to the lien; and
(8) the vehicle description and vehicle identification
number.
Filing
Sec. 7. (a) An affidavit to perfect a restitution lien may be
filed with:
(1) the secretary of state;
(2) the department in the manner provided by Chapter 501,
Transportation Code; or
(3) the county clerk of the county in which:
(A) the crime was committed;
(B) the defendant resides; or
(C) the property is located.
(b) The uniform fee for filing and indexing and for stamping
a copy furnished by the state or victim to show the date and place of
filing is $5.
(c) The secretary of state shall deposit the filing fee in
the state treasury to the credit of the statutory filing fund solely
to defray the costs of administration of this section. The
department shall deposit the filing fee in the state treasury to the
credit of the state highway fund to be used solely to defray the
costs of administering this section.
(d) The county clerk shall immediately record the
restitution lien in the judgment records of the county. The clerk
shall note in the records the date and hour the lien is received.
(e) The secretary of state shall immediately file the
restitution lien in the security interest and financing statement
records of the secretary of state. The secretary of state shall
note in the records the date and hour the lien is received.
(f) The department shall immediately file the restitution
lien in the motor vehicle records of the department. The department
shall note in the records the date and hour the lien is received.
(g) When a restitution lien is filed, the county clerk or
secretary of state shall enter the restitution lien in an
alphabetical index to the records in which the lien is filed
showing:
(1) the name of the person entitled to restitution;
(2) the name of the defendant obligated to pay restitution,
fines, or costs;
(3) the amount of the lien; and
(4) the name of the court that ordered restitution.
(h) A person who files an affidavit to perfect a restitution
lien under this article shall notify in writing the clerk of the
court entering the judgment creating the lien of all officers or
entities with which the affidavit was filed.
Subject Property
Sec. 8. A restitution lien extends to:
(1) any interest of the defendant in real property whether
then owned or after-acquired located in a county in which the lien
is perfected by the filing of an affidavit with the county clerk;
(2) any interest of the defendant in tangible or intangible
personal property whether then owned or after-acquired other than a
motor vehicle if the lien is perfected by the filing of the
affidavit with the secretary of state; or
(3) any interest of the defendant in a motor vehicle whether
then owned or after-acquired if the lien is perfected by the filing
of the affidavit with the department.
Priority
Sec. 9. The perfection of a restitution lien under this
article is notice of the claim to all persons dealing with the
defendant or the property identified in the affidavit perfecting
the lien. Without regard to whether perfected before or after the
perfection of a restitution lien filed and perfected under this
article, a perfected real estate mortgage lien, a vendor's lien, a
purchase money security interest, a chattel paper security
interest, a lien on a motor vehicle perfected as provided by Chapter
501, Transportation Code, or a worker's lien perfected in the
manner provided by law is superior and prior to a restitution lien
filed and perfected under this article. Except as provided by this
article, a perfected lien in favor of a victim is superior and prior
to a lien perfected by the state under this article, and the
perfected lien in favor of the state is superior and prior to the
claim or interest of any other person, other than:
(1) a person who acquires a valid lien or security interest
perfected before the perfection of the restitution lien;
(2) a bona fide purchaser who acquires an interest in the
property, if personal property, before the filing of the
restitution lien, to the extent that the purchaser gives value; or
(3) a bona fide purchaser for value who acquires and files
for record an interest in the property, if real property, before the
perfection of the restitution lien.
Payment
Sec. 10. The clerk receiving a payment from a defendant
ordered to pay restitution shall make payments to the person having
an interest in the restitution lien on a schedule of not less than
quarterly payments as determined by the clerk or agency.
Foreclosure
Sec. 11. If a defendant fails to timely make a payment
required by the order of the court entering the judgment creating
the restitution lien, the person having an interest in the lien may
file suit in a court of competent jurisdiction to foreclose the
lien. If the defendant cures the default on or before the 20th day
after the date the suit is filed and pays the person who files the
suit costs of court and reasonable attorney's fees, the court may
dismiss the suit without prejudice to the person. The person may
refile the suit against the defendant if the defendant subsequently
defaults.
Expiration; Records
Sec. 12. (a) A restitution lien expires on the 10th
anniversary of the date the lien was filed or on the date the
defendant satisfies the judgment creating the lien, whichever
occurs first. The person having an interest in the lien may refile
the lien before the date the lien expires. A lien that is refiled
expires on the 10th anniversary of the date the lien was refiled or
the date the defendant satisfies the judgment creating the lien,
whichever occurs first.
(b) Failure to execute or foreclose the restitution lien
does not cause dormancy of the lien.
(c) The clerk of the court entering the judgment creating
the restitution lien shall maintain a record of the outstanding
balance of restitution, fines, or costs owed. If the defendant
satisfies the judgment, the clerk shall immediately execute and
file for record a release of the restitution lien with all officers
or entities with which the affidavit perfecting the lien was filed,
as indicated by the notice received by the clerk under Section 7(h)
of this article, unless a release was executed and filed by the
person who filed the affidavit to perfect the lien.
(d) A partial release of a lien as to specific property may
be executed by the attorney representing the state or a magistrate
who signs an affidavit described by Section 6 of this article on
payment of a sum determined to represent the defendant's interest
in any property to which the lien may attach.
Added by Acts 1995, 74th Leg., ch. 997, Sec. 1, eff. Sept. 1, 1996.
Amended by Acts 1997, 75th Leg., ch. 1118, Sec. 1, eff. Sept. 1,
1997. Renumbered from Vernon's Ann.C.C.P. art. 42.21 by Acts 1997,
75th Leg., ch. 165, Sec. 31.01(12), eff. Sept. 1, 1997. Sec. 2(b)
amended by Acts 1999, 76th Leg., ch. 295, Sec. 2, eff. Sept. 1,
1999; Sec. 1(4) amended by Acts 2001, 77th Leg., ch. 1334, Sec. 1,
eff. Sept. 1, 2001; Sec. 2(b) amended by Acts 2001, 77th Leg., ch.
1334, Sec. 2, eff. Sept. 1, 2001; Sec. 2(b) amended by Acts 2003,
78th Leg., ch. 1300, Sec. 2, eff. Sept. 1, 2003; Sec. 2(b) amended
by Acts 2005, 79th Leg., ch. 1008, Sec. 2.02, eff. Sept. 1, 2005.
Article: 42.151 42.152 42.16 42.17 42.19 42.20 42.21 42.22 42.23 43.01 43.02 43.03 43.04 43.05 43.06
Last modified: August 11, 2007
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