Texas Mechanic’s Lien

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Below is an overview of the preliminary steps for filing a mechanic’s lien in the state of Texas.

COMMERCIAL:

  • Upfront Notice: There is no commercial upfront notice sent in Texas by BICA.
  • Follow-up Notice (if not paid):
    • Notice to Original Contractor (Second Month Notice):
      • Required by the 15th of the second month following each month in which labor or material was supplied for which payment has not been received.
      • For example, if materials were delivered in April, this notice must be sent by June 15th (the 15th of the 2nd month after April) if the April charges have not been paid.
      • If further labor or deliveries are done in May, then this notice must be sent again by July 15th, if May deliveries have not been paid (unless the 3rd Month Notice is being sent).
      • BICA will send an email several days before the due date each month as a reminder.
      • This notice is available on the BICA member portal.
      • It should be requested each month it is required.
    • Notice to Owner and Original Contractor (Third Month Notice):
      • This notice is required by the 15th of the third month following each month in which some labor or material was supplied for which payment has not been received.
      • For example, if materials were delivered in April, this notice must be sent by July 15th (the 15th of the 3rd month after April) if the April charges have not been paid.
      • If further labor or deliveries are done in May, then this notice must be sent again by August 15th, if May deliveries have not been paid. And so on for subsequent months.
      • Some companies choose to send this notice to the owner and original contractor on the 15th of the second month and continue to use this notice as long as there is an unpaid balance.
      • BICA will send an email several days before the due date each month as a reminder.
      • This notice is available on the BICA member portal.
      • It should be requested each month it is required.

RESIDENTIAL:

  • Upfront Notice: There is no public upfront notice sent in Texas by BICA.
  • Follow-up Notice (if not paid):
    • Residential Notice to Owner and Original Contractor:
      • This notice is required by the 15th of the second month following each month in which labor or material was supplied for which payment has not been received.
      • For example, if materials were delivered in April, this notice must be sent by June 15th (the 15th of the 2nd month after April) if the April charges have not been paid.
      • If further labor or deliveries are done in May, then this notice must be sent again by July 15th, if May deliveries have not been paid. And so on for subsequent months.
      • BICA will send an email several days before the due date each month as a reminder.
      • This notice is available on the BICA member portal.
      • It should be requested each month it is required.

PUBLIC:

  • Upfront Notice: There is no public upfront notice sent in Texas by BICA.
  • Follow-up Notice (if not paid):
    • Notice to Original Contractor (Second Month Notice):
      • If not paid, this notice is required by the 15th of the second month following each month in which some labor or material was supplied.
      • For example, if materials were delivered in April, this notice must be sent by June 15th (the 15th of the 2nd month after April) if the April charges have not been paid.
      • If further labor or deliveries are done in May, then this notice must be sent again by July 15th, if May deliveries have not been paid (unless the 3rd Month Notice is being sent).
      • BICA will send an email several days before the due date each month as a reminder.
      • This notice is available on the BICA member portal.
      • It should be requested each month it is required.
    • Notice to Original Contractor and Surety (Third Month Notice):
      • If not paid, this notice is required by the 15th of the third month following each month in which some labor or material was supplied.
      • For example, if materials were delivered in April, this notice must be sent by July 15th (the 15th of the 3rd month after April) if the April charges have not been paid.
      • If further labor or deliveries are done in May, then this notice must be sent again by August 15th, if May deliveries have not been paid. And so on for subsequent months.
      • Some companies choose to send this notice to the owner and original contractor on the 15th of the second month and continue to use this notice as long as there is an unpaid balance.
      • This notice must be accompanied by a “sworn statement of account”.
        • This can be done by faxing or emailing BICA invoices or other statement of account that covers the amounts owed.
        • BICA will execute a notarized statement on your behalf.
      • BICA will send an email several days before the due date each month as a reminder.
      • This notice is available on the BICA member portal.
      • It should be requested each month it is required.
    • If No Bond:
      • If Bond Was Required But Not Obtained:
        • If the governmental entity fails to obtain from a prime contractor a payment bond (where one is required), the governmental entity is subject to the same liability that a surety would have had with a bond.
        • A lien can be claimed against money not yet paid to the prime contractor.
        • In this situation, the normal public 3rd month notice (with invoices) should be sent to the governmental entity, as if the governmental entity were the surety.
      • If No Bond Required: (contract amount under $25,000 or $50,000 depending on the governmental entity)
        • To claim a lien on money still due to the contractor, a notice must be sent to the governmental entity and contractor by the 15th day of the second month following the month in which any labor was performed or materials delivered.
        • A sworn statement must be included. BICA will send the same notarized statement sent with the usual 3rd month public notice.

USUAL SEQUENCE:

Normally, what occurs is the following:

  1. Delivery is made.
  2. By the 15th of the 2nd month after the delivery month, the Second Month Notice is sent
  3. Next month, if still not paid or delivery continues, the Third Month Notice is sent by the 15th of the next month.
  4. As delivery continues, the Third Month Notice is sent by the 15th of each subsequent month
    • Note: For Residential jobs, the 2nd Month and 3rd Month notices are the same.
  5. After final delivery, if still not paid after the final Third Month Notice is sent, a Lien Affidavit must be filed by the 15th of the Fourth month after the month in which final delivery occurred.
  6. So the sequence is Delivery à 2nd Month Notice à 3rd Month Notice à Repeat 3rd Month Notice as you continue to deliver à Lien Affidavit by 4th Month after final delivery.

SPECIALTY NOTICES:

  • (Commercial & Residential) Notice of Contractual Retainage:
    • A Notice of Contract Retainage can be sent within 30 days after completion or termination of your subcontract.
    • This allows you to a file a lien affidavit against the contract retainage amounts.
    • This notice is available on the BICA member portal.
  • (Public) Notice of Contractual Retainage:
    • This allows you to recover Retainage via suit on the payment bond.
    • This notice is required within 90 days after final completion of the public work contract.
    • This notice must be accompanied by a “sworn statement of account”.
      • This can be done by faxing or emailing BICA invoices or other statement of account that covers the amounts owed.
      • BICA will execute a notarized statement on your behalf.
    • This notice is available on the BICA member portal.
  • Notice of Specially Fabricated Items:
    • This notice protects you if you have fabricated an item specially for this job (such as a sign) that cannot be used elsewhere.
    • This notice protects your lien rights on this material, even if the order is cancelled before delivery.
    • This notice must be delivered before the 15th of the 2nd month in which the fabricator receives and accepts the order for the material.
    • This notice is available on the BICA member portal.

Throughout our site you can find more resources on the process of filing mechanic’s liens and preliminary notices. You can visit this page for more information. If you’re ready to get started, be sure to reach out to us on our contact page, or call us at (800) 722-2422.

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