Private Works — Suit Deadline and Lis Pendens
Under Texas law, a mechanic lien claimant must file suit to foreclose the mechanic's lien within the statutory deadline and must also file a Lis Pendens Notice. For original contractors, suit must be filed within 1 year after the mechanic lien affidavit is filed. For derivative claimants, suit must be filed within 1 year after the last day the mechanic lien could have been filed (the end of the mechanic lien filing period).
The Lis Pendens is a notice filed in the county real property records informing third parties that litigation affecting the property is pending. Failure to file a Lis Pendens may affect the mechanic lien's priority against subsequent purchasers. Both the suit and the Lis Pendens must be timely filed to preserve the claimant's mechanic lien rights.
Constitutional Mechanic Lien vs. Statutory Mechanic Lien
Texas is one of the few states that provides both a constitutional and a statutory mechanic's lien. The constitutional mechanic lien under Article XVI, Section 37 of the Texas Constitution provides mechanic lien rights to mechanics, artisans, and materialmen. The statutory mechanic lien under Property Code Chapter 53 provides the procedural framework for perfecting and enforcing the mechanic lien.
Original contractors who fail to perfect a statutory mechanic lien may still have rights under the constitutional mechanic lien, which has different (and generally more flexible) requirements. However, derivative claimants generally must rely on the statutory mechanic lien framework. The interplay between constitutional and statutory mechanic lien rights is a unique feature of Texas construction law.
Public Works — Payment Bond Claims (Government Code Chapter 2253)
Texas Government Code Chapter 2253 requires payment bonds on public works contracts exceeding $100,000. The bond provides protection for subcontractors and material suppliers who are not paid for work on government projects.
First-tier subcontractors (those in direct contract with the prime contractor) may make a claim against the payment bond without serving any preliminary notice. Second-tier claimants (those without a direct contract with the prime contractor) must have served the required notice by the 15th day of the 2nd month after each month in which labor or materials were provided.
Public Works — Bond Claim Suit Deadline
Claims on the payment bond must be filed with the governmental entity. Suit on the bond must be filed no earlier than the 61st day after the claim is filed and no later than the 1st anniversary of the date the claim was filed. If the bond does not specify a different deadline, claimants should adhere to the statutory timeline under Government Code Chapter 2253.
Claimants must exhaust all retainage and contract balance remedies before making a claim against the payment bond surety. The governmental entity may withhold retainage as additional security for unpaid claims.
No Mechanic Lien on Public Property
As with all states, Texas does not permit the filing of mechanic's liens on public property. Subcontractors and material suppliers working on public works projects must rely on the payment bond required under Government Code Chapter 2253 as their remedy for non-payment.
Claimants on public works projects should ensure they understand and comply with all notice and claim deadlines. National Lien & Bond assists claimants in navigating both private and public works mechanic lien and bond claim procedures across Texas.
Frequently Asked Questions
What is the deadline to file a mechanic lien enforcement suit in Texas?
For original contractors, suit must be filed within 1 year after the mechanic lien affidavit is filed. For derivative claimants, suit must be filed within 1 year after the last day the mechanic lien could have been filed. A Lis Pendens Notice must also be filed in the county real property records.
What is a Lis Pendens in Texas?
A Lis Pendens is a notice filed in the county real property records informing third parties that litigation affecting the property is pending. It must be filed in conjunction with the foreclosure suit to preserve the mechanic lien's priority against subsequent purchasers.
What is the difference between a constitutional and statutory mechanic lien in Texas?
Texas provides both a constitutional mechanic lien (Article XVI, Section 37) and a statutory mechanic lien (Property Code Chapter 53). The constitutional mechanic lien has more flexible requirements and may be available to original contractors who fail to perfect a statutory mechanic lien. Derivative claimants generally must rely on the statutory mechanic lien framework.
What is the minimum payment bond on Texas public works projects?
Texas Government Code Chapter 2253 requires payment bonds on public works contracts exceeding $100,000. The bond amount is typically set at 100% of the contract amount to protect subcontractors and material suppliers from non-payment.
What is the deadline to file suit on a Texas public works payment bond?
Suit on the payment bond must be filed no earlier than the 61st day after the claim is filed with the governmental entity and no later than the 1st anniversary of the date the claim was filed, under Government Code Chapter 2253.
Related Texas Resources
Explore other critical compliance areas for Texas construction mechanic lien law.
Notice Requirements
Notice of Claim for derivative claimants, retainage notice deadlines, homestead contract requirements, and monthly notice obligations
Mechanic Lien Deadlines
Mechanic Lien affidavit filing deadlines for original contractors and derivative claimants on non-residential, residential, and homestead properties
Texas Overview
Return to the main Texas construction mechanic lien law page