Tex. Code Crim. Proc. art. 42.22

Current with legislation from the 2023 Regular and Special Sessions signed by the Governor as of November 21, 2023.

Section 42.22 - Restitution Liens

Sec. 1. DEFINITIONS. In this article:

(1) "Department" means the Texas Department of Motor Vehicles.

(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 56A.001; 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.

Sec. 2. LIEN ESTABLISHED.

(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.

Sec. 3. PERFECTION.

(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.

Sec. 4. JUDGMENT REQUIRED. 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.

Sec. 5. PERSONS WHO MAY FILE. 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.

Sec. 6. AFFIDAVIT. 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.

Sec. 7. FILING.

(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.

Sec. 8. SUBJECT PROPERTY. 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.

Sec. 9. PRIORITY. 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.

Sec. 10. PAYMENT. 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.

Sec. 11. FORECLOSURE. 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.

Sec. 12. EXPIRATION; RECORDS.

(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.

Tex. Code Crim. Proc. § 42.22

Amended by Acts 2019, Texas Acts of the 86th Leg.- Regular Session, ch. TBD,Sec. 2.16, eff. 1/1/2021.

Amended by Acts 2009, 81st Leg., R.S., Ch. 933, Sec. 3B.01, eff. 9/1/2009.

Amended by Acts 2005, 79th Leg., Ch. 1008, Sec. 2.02, eff. 9/1/2005.

Amended by Acts 1997, 75th Leg., ch. 1118, Sec. 1, eff. 9/1/1997. Renumbered from Vernon's Ann.C.C.P. art. 42.21 by Acts 1997, 75th Leg., ch. 165, Sec. 31.01(12), eff. 9/1/1997. Sec. 2(b) amended by Acts 1999, 76th Leg., ch. 295, Sec. 2, eff. 9/1/1999; Sec. 1(4) amended by Acts 2001, 77th Leg., ch. 1334, Sec. 1, eff. 9/1/2001; Sec. 2(b) amended by Acts 2001, 77th Leg., ch. 1334, Sec. 2, eff. 9/1/2001; Sec. 2(b) amended by Acts 2003, 78th Leg., ch. 1300, Sec. 2, eff. 9/1/2003.

Added by Acts 1995, 74th Leg., ch. 997, Sec. 1, eff. 9/1/1996.