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  H.B. No. 1456
 
 
 
 
AN ACT
  relating to the waiver and release of a mechanic's, contractor's, or
  materialman's lien or payment bond claim and to the creation of a
  mechanic's, contractor's, or materialman's lien for certain
  landscaping.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 53.021(d), Property Code, is amended to
  read as follows:
         (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, contractor, subcontractor, trustee, or
  receiver has a lien on the property.
         SECTION 2.  Section 53.085(c), Property Code, is amended to
  read as follows:
         (c)  The affidavit may include:
               (1)  a waiver or release of lien rights or payment bond
  claims by the affiant that is conditioned on the receipt of actual
  payment or collection of funds when payment is made by check or
  draft, as provided by Subchapter L;
               (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.
         SECTION 3.  Chapter 53, Property Code, is amended by adding
  Subchapter L to read as follows:
  SUBCHAPTER L. WAIVER AND RELEASE OF LIEN OR PAYMENT BOND CLAIM
         Sec. 53.281.  WAIVER AND RELEASE OF LIEN OR PAYMENT BOND
  CLAIM.  (a)  Any waiver and release of a lien or payment bond claim
  under this chapter is unenforceable unless a waiver and release is
  executed and delivered in accordance with this subchapter.
         (b)  A waiver and release is effective to release the owner,
  the owner's property, the contractor, and the surety on a payment
  bond from claims and liens only if:
               (1)  the waiver and release substantially complies with
  one of the forms prescribed by Section 53.284;
               (2)  the waiver and release is signed by the claimant or
  the claimant's authorized agent and notarized; and
               (3)  in the case of a conditional release, evidence of
  payment to the claimant exists.
         Sec. 53.282.  CONDITIONS FOR WAIVER, RELEASE, OR IMPAIRMENT
  OF LIEN OR PAYMENT BOND CLAIM.  (a)  A statement purporting to
  waive, release, or otherwise adversely affect a lien or payment
  bond claim is not enforceable and does not create an estoppel or
  impairment of a lien or payment bond claim unless:
               (1)  the statement is in writing and substantially
  complies with a form prescribed by Section 53.284;
               (2)  the claimant has actually received payment in good
  and sufficient funds in full for the lien or payment bond claim; or
               (3)  the statement is:
                     (A)  in a written original contract or subcontract
  for the construction, remodel, or repair of a single-family house,
  townhouse, or duplex or for land development related to a
  single-family house, townhouse, or duplex; and
                     (B)  made before labor or materials are provided
  under the original contract or subcontract.
         (b)  The filing of a lien rendered unenforceable by a lien
  waiver under Subsection (a)(3) does not violate Section 12.002,
  Civil Practice and Remedies Code, unless:
               (1)  an owner or original contractor sends a written
  explanation of the basis for nonpayment, evidence of the
  contractual waiver of lien rights, and a notice of request for
  release of the lien to the claimant at the claimant's address stated
  in the lien affidavit; and
               (2)  the lien claimant does not release the filed lien
  affidavit on or before the 14th day after the date the owner or the
  original contractor sends the items required by Subdivision (1).
         (c)  Subsection (a)(3) does not apply to a person who
  supplies only material, and not labor, for the construction,
  remodel, or repair of a single-family house, townhouse, or duplex
  or for land development related to a single-family house,
  townhouse, or duplex.
         Sec. 53.283.  UNCONDITIONAL WAIVER AND RELEASE: PAYMENT
  REQUIRED.  A person may not require a claimant or potential claimant
  to execute an unconditional waiver and release for a progress
  payment or final payment amount unless the claimant or potential
  claimant received payment in that amount in good and sufficient
  funds.
         Sec. 53.284.  FORMS FOR WAIVER AND RELEASE OF LIEN OR PAYMENT
  BOND CLAIM.  (a)  A waiver and release given by a claimant or
  potential claimant is unenforceable unless it substantially
  complies with the applicable form described by Subsections (b)-(e).
         (b)  If a claimant or potential claimant is required to
  execute a waiver and release in exchange for or to induce the
  payment of a progress payment and is not paid in exchange for the
  waiver and release or if a single payee check or joint payee check
  is given in exchange for the waiver and release, the waiver and
  release must read:
  "CONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
  "Project ___________________
  "Job No. ___________________
         "On receipt by the signer of this document of a check from
  ________________ (maker of check) in the sum of $__________ payable
  to _____________________ (payee or payees of check) and when the
  check has been properly endorsed and has been paid by the bank on
  which it is drawn, this document becomes effective to release any
  mechanic's lien right, any right arising from a payment bond that
  complies with a state or federal statute, any common law payment
  bond right, any claim for payment, and any rights under any similar
  ordinance, rule, or statute related to claim or payment rights for
  persons in the signer's position that the signer has on the
  property of ________________ (owner) located at
  ______________________ (location) to the following extent:
  ______________________ (job description).
         "This release covers a progress payment for all labor,
  services, equipment, or materials furnished to the property or to
  __________________ (person with whom signer contracted) as
  indicated in the attached statement(s) or progress payment
  request(s), except for unpaid retention, pending modifications and
  changes, or other items furnished.
         "Before any recipient of this document relies on this
  document, the recipient should verify evidence of payment to the
  signer.
         "The signer warrants that the signer has already paid or will
  use the funds received from this progress payment to promptly pay in
  full all of the signer's laborers, subcontractors, materialmen, and
  suppliers for all work, materials, equipment, or services provided
  for or to the above referenced project in regard to the attached
  statement(s) or progress payment request(s).
         "Date ____________________________
         "_________________________________ (Company name)
         "By ______________________________ (Signature)
         "_________________________________ (Title)"
         (c)  If a claimant or potential claimant is required to
  execute an unconditional waiver and release to prove the receipt of
  good and sufficient funds for a progress payment and the claimant or
  potential claimant asserts in the waiver and release that the
  claimant or potential claimant has been paid the progress payment,
  the waiver and release must:
               (1)  contain a notice at the top of the document,
  printed in bold type at least as large as the largest type used in
  the document, but not smaller than 10-point type, that reads:
  "NOTICE:
         "This document waives rights unconditionally and states that
  you have been paid for giving up those rights. It is prohibited for
  a person to require you to sign this document if you have not been
  paid the payment amount set forth below.  If you have not been paid,
  use a conditional release form."; and
               (2)  below the notice, read:
  "UNCONDITIONAL WAIVER AND RELEASE ON PROGRESS PAYMENT
  "Project ___________________
  "Job No. ___________________
         "The signer of this document has been paid and has received a
  progress payment in the sum of $___________ for all labor,
  services, equipment, or materials furnished to the property or to
  _____________________ (person with whom signer contracted) on the
  property of _______________________ (owner) located at
  ______________________ (location) to the following extent:  
  ______________________ (job description).  The signer therefore
  waives and releases any mechanic's lien right, any right arising
  from a payment bond that complies with a state or federal statute,
  any common law payment bond right, any claim for payment, and any
  rights under any similar ordinance, rule, or statute related to
  claim or payment rights for persons in the signer's position that
  the signer has on the above referenced project to the following
  extent:
         "This release covers a progress payment for all labor,
  services, equipment, or materials furnished to the property or to
  __________________ (person with whom signer contracted) as
  indicated in the attached statement(s) or progress payment
  request(s), except for unpaid retention, pending modifications and
  changes, or other items furnished.
         "The signer warrants that the signer has already paid or will
  use the funds received from this progress payment to promptly pay in
  full all of the signer's laborers, subcontractors, materialmen, and
  suppliers for all work, materials, equipment, or services provided
  for or to the above referenced project in regard to the attached
  statement(s) or progress payment request(s).
         "Date ____________________________
         "_________________________________ (Company name)
         "By ______________________________ (Signature)
         "_________________________________ (Title)"
         (d)  If a claimant or potential claimant is required to
  execute a waiver and release in exchange for or to induce the
  payment of a final payment and is not paid in good and sufficient
  funds in exchange for the waiver and release or if a single payee
  check or joint payee check is given in exchange for the waiver and
  release, the waiver and release must read:
  "CONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
  "Project ___________________
  "Job No. ___________________
         "On receipt by the signer of this document of a check from
  ________________ (maker of check) in the sum of $____________
  payable to _____________________ (payee or payees of check) and
  when the check has been properly endorsed and has been paid by the
  bank on which it is drawn, this document becomes effective to
  release any mechanic's lien right, any right arising from a payment
  bond that complies with a state or federal statute, any common law
  payment bond right, any claim for payment, and any rights under any
  similar ordinance, rule, or statute related to claim or payment
  rights for persons in the signer's position that the signer has on
  the property of _____________________ (owner) located at
  ______________________ (location) to the following extent:  
  ______________________ (job description).
         "This release covers the final payment to the signer for all
  labor, services, equipment, or materials furnished to the property
  or to __________________ (person with whom signer contracted).
         "Before any recipient of this document relies on this
  document, the recipient should verify evidence of payment to the
  signer.
         "The signer warrants that the signer has already paid or will
  use the funds received from this final payment to promptly pay in
  full all of the signer's laborers, subcontractors, materialmen, and
  suppliers for all work, materials, equipment, or services provided
  for or to the above referenced project up to the date of this waiver
  and release.
         "Date ____________________________
         "_________________________________ (Company name)
         "By ______________________________ (Signature)
         "_________________________________ (Title)"
         (e)  If a claimant or potential claimant is required to
  execute an unconditional waiver and release to prove the receipt of
  good and sufficient funds for a final payment and the claimant or
  potential claimant asserts in the waiver and release that the
  claimant or potential claimant has been paid the final payment, the
  waiver and release must:
               (1)  contain a notice at the top of the document,
  printed in bold type at least as large as the largest type used in
  the document, but not smaller than 10-point type, that reads:
  "NOTICE:
         "This document waives rights unconditionally and states that
  you have been paid for giving up those rights. It is prohibited for
  a person to require you to sign this document if you have not been
  paid the payment amount set forth below.  If you have not been paid,
  use a conditional release form."; and
               (2)  below the notice, read:
  "UNCONDITIONAL WAIVER AND RELEASE ON FINAL PAYMENT
  "Project ___________________
  "Job No. ___________________
         "The signer of this document has been paid in full for all
  labor, services, equipment, or materials furnished to the property
  or to ___________________ (person with whom signer contracted) on
  the property of ______________________ (owner) located at
  ______________________ (location) to the following extent:
  ______________________ (job description).  The signer therefore
  waives and releases any mechanic's lien right, any right arising
  from a payment bond that complies with a state or federal statute,
  any common law payment bond right, any claim for payment, and any
  rights under any similar ordinance, rule, or statute related to
  claim or payment rights for persons in the signer's position.
         "The signer warrants that the signer has already paid or will
  use the funds received from this final payment to promptly pay in
  full all of the signer's laborers, subcontractors, materialmen, and
  suppliers for all work, materials, equipment, or services provided
  for or to the above referenced project up to the date of this waiver
  and release.
         "Date ____________________________
         "_________________________________ (Company name)
         "By ______________________________ (Signature)
         "_________________________________ (Title)"
         Sec. 53.285.  ATTEMPTED COMPLIANCE. (a) A waiver or release
  shall be construed to comply with this subchapter and is
  enforceable in the same manner as a waiver and release under this
  subchapter if the waiver or release:
               (1)  is furnished in attempted compliance with this
  subchapter; or
               (2)  evidences by its terms intent to comply with this
  subchapter.
         (b)  Any provision in any waiver or release furnished in
  attempted compliance with this subchapter that expands or restricts
  the rights or liabilities provided under this subchapter shall be
  disregarded and the provisions of this subchapter shall be read
  into that waiver or release.
         (c)  This section expires August 31, 2012.
         Sec. 53.286.  PUBLIC POLICY. Notwithstanding any other law
  and except as provided by Section 53.282, any contract, agreement,
  or understanding purporting to waive the right to file or enforce
  any lien or claim created under this chapter is void as against
  public policy.
         Sec. 53.287.  CERTAIN AGREEMENTS EXEMPT.  This subchapter
  does not apply to a written agreement to subordinate, release,
  waive, or satisfy all or part of a lien or bond claim in:
               (1)  an accord and satisfaction of an identified
  dispute;
               (2)  an agreement concerning an action pending in any
  court or arbitration proceeding; or
               (3)  an agreement that is executed after an affidavit
  claiming the lien has been filed or the bond claim has been made.
         SECTION 4.  Section 53.021(d), Property Code, as amended by
  this Act, applies only to a lien claim arising under or by virtue of
  a contract entered into on or after the effective date of this Act.
  A lien claim arising under or by virtue of a contract entered into
  before the effective date of this Act is governed by the law
  applicable to the claim immediately before the effective date of
  this Act, and that law is continued in effect for that purpose.
         SECTION 5.  Section 53.085(c), Property Code, as amended by
  this Act, and Subchapter L, Chapter 53, Property Code, as added by
  this Act, apply only to a contract executed on or after January 1,
  2012.  A contract executed before January 1, 2012, is covered by the
  law applicable to the contract immediately before the effective
  date of this Act, and the former law is continued in effect for that
  purpose.
         SECTION 6.  This Act takes effect January 1, 2012.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 1456 was passed by the House on May 5,
  2011, by the following vote:  Yeas 145, Nays 0, 2 present, not
  voting.
 
  ______________________________
  Chief Clerk of the House   
 
 
         I certify that H.B. No. 1456 was passed by the Senate on May
  24, 2011, by the following vote:  Yeas 31, Nays 0
  .
 
  ______________________________
  Secretary of the Senate    
  APPROVED:  _____________________
                     Date          
   
            _____________________
                   Governor