Texas construction liens and bond claims: Chapter 53 deadlines after the 2022 rewrite, and McGregor Act claims on public work

Texas lien law used to be known for its maze of month-counting notices. House Bill 2237, effective January 1, 2022, simplified it: one notice form for unpaid work, one for retainage, statutory forms throughout and shorter suit deadlines. The deadlines still count by month, and they're strict. Miss one and the lien is gone. This guide covers Property Code chapter 53 for private work and Government Code chapter 2253 (the McGregor Act) for public work. It is a summary, not legal advice.

Who is who

An original contractor has a contract directly with the owner. Everyone further down the chain (subcontractors, sub-subs, suppliers) is a derivative claimant and has to send notices the original contractor doesn't. Residential construction projects get shorter deadlines than commercial ones.

Notices for subcontractors and suppliers

• Notice of claim for unpaid labor or materials (§ 53.056). Send it to the owner or reputed owner and to the original contractor. On commercial projects, the deadline is the 15th day of the third month after the month the labor or materials were provided. On residential projects, it's the 15th day of the second month. The statute prints the required form, which begins "WARNING: This notice is provided to preserve lien rights."
• Notice of claim for unpaid retainage (§ 53.057). If retainage isn't already covered by an earlier notice, send this one no later than the earlier of 30 days after your own contract is completed, terminated or abandoned, or 30 days after the original contract is terminated or abandoned.

Section 53.003 governs delivery. Notices can be delivered in person, by certified mail, or by any traceable private delivery service that can confirm receipt. A deadline that falls on a weekend or legal holiday moves to the next business day.

Filing the lien affidavit

Under § 53.052, an original contractor files the affidavit with the county clerk by the 15th day of the fourth month after the month its work was completed, terminated or abandoned. On residential projects the deadline is the 15th day of the third month. A derivative claimant files by the 15th day of the fourth month after the month it last provided labor or materials, or the third month on residential projects. Retainage claims have their own timing.

Within five days after filing, send a copy of the affidavit to the owner. Derivative claimants also send a copy to the original contractor (§ 53.055).

Suit to foreclose

Suit must be filed by the first anniversary of the last day you could have filed the lien affidavit (§ 53.158). The owner and claimant can agree in writing to extend that to two years from filing, but the agreement has to be recorded before the original period runs out. The 2022 rewrite repealed the old two-year period for commercial projects.

Public work: no liens, bond claims instead

You can't lien public property in Texas, so the McGregor Act gives you a claim on the prime contractor's payment bond. Under § 2253.021, a governmental entity must require a performance bond on public work contracts over $100,000. It must require a payment bond on contracts over $25,000, or over $50,000 when the owner is a municipality or certain joint airport boards. TxDOT and other state work falls under this chapter.

• Notice to the prime and surety (§ 2253.041): mail by the 15th day of the third month after each month in which the claimed labor was performed or material delivered. Include a sworn statement of account.
• Second-tier claimants (§ 2253.047): if you contracted with a subcontractor rather than the prime, earlier notices apply. Mail notice of each unpaid month's claim to the prime by the 15th day of the second month. If your contract provides for retainage, also mail a retainage notice by the 15th day of the second month after you began work.
• Suit: a payment bond suit must be filed by the first anniversary of the date the claim notice was mailed (§ 2253.078).

Practical habits

• Calendar the 15th of the second and third months after each billing month on every job, then send notices routinely rather than only when you're worried.
• Ask for the payment bond and the owner's legal name before you start, so notices go to the right parties.
• Use the statutory forms word for word.