Texas
Preliminary Notice-Public Works

Warning: All information contained within this data base is subject to change at any time by the various states and is not guaranteed in any way by FWM Software. Nor does FWM Software assume any liability or responsibility for its content. Please use in conjunction with advice from your attorney.

Note: This information is limited in scope and applies only to this document. Please see the general information, all forms memo, and the general information memo for this type of document, for additional information.

Document Title: Notice of Right to Lien for Furnishing Labor, Materials or Equipment and Request for Copy of Public Bond.

Scope: State of Texas, Public Works

Time Constraints: Texas does things different. A Texas Notice of Right to Lien must be served in accordance with the type of job you are performing. Failure to serve your preliminary notice in the manner listed below may negate your right to claim a lien. A new, separate notice is required for each month of service, and three notices for each month may be sent in an attempt to get paid. In the event of non-payment, your fourth notice should be a Lien Warning Notice.

1) Balance due: The claimant may elect to give the following optional notices. Where the claim arises from the debt incurred by a subcontractor, notice of the unpaid balance due the Original Contractors must be delivered no later than 15 days after the second month next following each month in which the claimant's labor or material was furnished, and alike notice to be delivered to the Public Entities And Sureties no later than the 15th day of the third month, following each month in which all or part of the claimant’s labor was performed or his materials were delivered (easier just to do it the same time as the original contractors notice). Where the claim arises from a debt incurred from the original contractor, notice must be given to the public entities and sureties, with copy to the original contractor;

2) Special Fabrication: If the claim is based on items specially fabricated, notice to the public entities and sureties must be given not later than 15 days after the second month next following receipt and acceptance of the material order, stating that the order was received and accepted together with the price. In cases where indebtedness was incurred by one other than the original contractors, the claimant must also give notice to the original contractors.

3) Retainage Notice: This is a separate notice sent at the completion or termination of a contract for retainage money held. If an agreement for retainage exists, you must give a retainage notice to the public entity within 30 days of the completion or termination of your contact with the public entity or other contractor.  The deadline to file al lien for the retainage is between 40 days (if the notice of completion is filed by the public entity) and 4 months (if no notice of completion is filed by the public entity).  Make sure you leave time enough to file your bond claim!  To complicate this right to claim, if the public entity has sent a notice to the potential claimant to file his claims, you must send the retainage notice and file your lien claim within 30 days of the public entity’s notice to you.

After the sending the retainage notice to the owner you are free to file your bond claim for the retainage amount.

DO NOT MISTAKE A BALANCE DUE NOTICE FOR A RETAINAGE NOTICE.  THEY ARE NOW TWO DIFFERENT THINGS.

In addition, an owner withholding retainage from the original contractor must pay a claim, which is not disputed by the original contractor, within 30 days after receiving a copy of the demand sent to the owner.

Information Requirements: The information required by program, what is the notice number of the preliminary notice and whether you intend to send an owner cover letter.

Form Types: Notice of the Right to Claim a Lien, Exhibits A-D (if needed) and Owner Letter (if used). When the 1st notice prints the program will also print a verification letter to the public entity.

Procedures: Enter the program data, including Additional Legal Parties or Releases for Other Companies. Copies of all of the forms (less the Owner Cover Letter) must be delivered within the time constraints listed above.

When in doubt, file your lien claim immediately.

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