Bill Text: TX HB1823 | 2023-2024 | 88th Legislature | Comm Sub

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Bill Title: Relating to certain documents or instruments purporting to convey real or personal property.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2023-05-08 - Committee report sent to Calendars [HB1823 Detail]

Download: Texas-2023-HB1823-Comm_Sub.html

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88R5543 MZM-D
By: Sherman, Sr. H.B. No. 1823

A BILL TO BE ENTITLED
AN ACT
relating to certain documents or instruments purporting to convey
real or personal property.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 51.901(a), (c), (d), and (e),
Government Code, are amended to read as follows:
(a) If a clerk of the supreme court, clerk of the court of
criminal appeals, clerk of a court of appeals, district clerk,
county clerk, district and county clerk, or municipal clerk has a
reasonable basis to believe in good faith that a document or
instrument previously filed or recorded or offered or submitted for
filing or for filing and recording is fraudulent, the clerk shall:
(1) if the document is a purported judgment or other
document purporting to memorialize or evidence an act, an order, a
directive, or process of a purported court, provide written notice
of the filing, recording, or submission for filing or for filing and
recording to the stated or last known address of the person against
whom the purported judgment, act, order, directive, or process is
rendered; or
(2) if the document or instrument purports to create a
lien or assert a claim on real or personal property or an interest
in real or personal property or to convey real or personal property,
provide written notice of the filing, recording, or submission for
filing or for filing and recording to the stated or last known
address of the person named in the document or instrument as the
obligor, [or] debtor, or grantor and to any other person named as
owning any interest in the real or personal property described in
the document or instrument.
(c) For purposes of this section, a document or instrument
is presumed to be fraudulent if:
(1) the document is a purported judgment or other
document purporting to memorialize or evidence an act, an order, a
directive, or process of:
(A) a purported court or a purported judicial
entity not expressly created or established under the constitution
or the laws of this state or of the United States; or
(B) a purported judicial officer of a purported
court or purported judicial entity described by Paragraph (A);
(2) the document or instrument purports to create a
lien or assert a claim against real or personal property or an
interest in real or personal property or to convey real or personal
property and:
(A) is not a document or instrument provided for
by the constitution or laws of this state or of the United States;
(B) is not created by implied or express consent
or agreement of the obligor, debtor, or the owner of the real or
personal property or an interest in the real or personal property,
if required under the laws of this state, or by implied or express
consent or agreement of an agent, fiduciary, or other
representative of that person; or
(C) is not an equitable, constructive, or other
lien imposed by a court with jurisdiction created or established
under the constitution or laws of this state or of the United
States; or
(3) the document or instrument purports to create a
lien or assert a claim against real or personal property or an
interest in real or personal property or to convey real or personal
property and the document or instrument is filed by an inmate or on
behalf of an inmate.
(d) If a county clerk believes in good faith that a document
filed with the county clerk to create a lien or make a conveyance is
fraudulent, the clerk shall:
(1) request the assistance of the county or district
attorney to determine whether the document is fraudulent before
filing or recording the document;
(2) request that the prospective filer provide to the
county clerk additional documentation supporting the existence of
the lien or conveyance, such as a contract or other document that
contains the alleged debtor or obligor's signature or the alleged
grantor's signature, as applicable; and
(3) forward any additional documentation received to
the county or district attorney.
(e) A presumption under Subsection (c)(3) relating to a
security interest may be rebutted by providing the filing officer
in the filing office in which the document is filed or recorded the
original or a copy of a sworn and notarized document signed by the
obligor, debtor, or owner of the property designated as collateral
stating that the person entered into a security agreement with the
inmate and authorized the filing of the financing statement as
provided by Section 9.509, Business & Commerce Code.
SECTION 2. The heading to Section 51.903, Government Code,
is amended to read as follows:
Sec. 51.903. ACTION ON FRAUDULENT LIEN OR CLAIM AGAINST OR
CONVEYANCE OF [ON] PROPERTY.
SECTION 3. Sections 51.903(a), (e), and (g), Government
Code, are amended to read as follows:
(a) A person who is the purported debtor or obligor or who
owns real or personal property or an interest in real or personal
property and who has reason to believe that the document purporting
to create a lien or assert a claim against the real or personal
property or an interest in the real or personal property or to
convey the real or personal property previously filed or submitted
for filing and recording is fraudulent may complete and file with
the district clerk a motion, verified by affidavit by a completed
form for ordinary certificate of acknowledgment, of the same type
described by Section 121.007, Civil Practice and Remedies Code,
that contains, at a minimum, the information in the following
suggested form:
MISC. DOCKET NO. ______
In Re: A Purported In the ______ Judicial District
Lien or Claim Against In and For ___________________
or Conveyance By
(Name of Purported County, Texas
Debtor or Grantor)
Motion for Judicial Review of Documentation or Instrument
Purporting to Create a Lien or Claim or Make a Conveyance
Now Comes (name) and files this motion requesting a judicial
determination of the status of documentation or an instrument
purporting to create [an interest in real or personal property or] a
lien or assert a claim on real or personal property or an interest
in real or personal property or to convey real or personal property
filed in the office of the Clerk of (county name) County, Texas, and
in support of the motion would show the court as follows:
I.
(Name), movant herein, is the purported obligor or debtor or
person who owns the real or personal property or the interest in
real or personal property described in the documentation or
instrument.
II.
On (date), in the exercise of the county clerk's official
duties as County Clerk of (county name) County, Texas, the county
clerk received and filed and recorded the documentation or
instrument attached hereto and containing (number) pages. Said
documentation or instrument purports to have created a lien or
asserted a claim on real or personal property or an interest in real
or personal property against, or to have made a conveyance of
property by, one (name of purported debtor or grantor).
III.
Movant alleges that the documentation or instrument attached
hereto is fraudulent, as defined by Section 51.901(c)(2),
Government Code, and that the documentation or instrument should
therefore not be accorded lien or conveyance status.
IV.
Movant attests that assertions herein are true and correct.
V.
Movant does not request the court to make a finding as to any
underlying claim of the parties involved and acknowledges that this
motion does not seek to invalidate a legitimate lien, claim, or
conveyance. Movant further acknowledges that movant may be subject
to sanctions, as provided by Chapter 10, Civil Practice and
Remedies Code, if this motion is determined to be frivolous.
PRAYER
Movant requests the court to review the attached
documentation or instrument and enter an order determining whether
it should be accorded lien or conveyance status, together with such
other orders as the court deems appropriate.
Respectfully submitted,
_________________________
(Signature and typed name and address)
(e) After reviewing the documentation or instrument
attached to a motion under this section, the district judge shall
enter an appropriate finding of fact and conclusion of law, which
must be filed and indexed in the same class of records in which the
subject documentation or instrument was originally filed. A copy
of the finding of fact and conclusion of law shall be sent, by first
class mail, to the movant and to the person who filed the fraudulent
lien, [or] claim, or conveyance at the last known address of each
person within seven days of the date that the finding of fact and
conclusion of law is issued by the judge.
(g) A suggested form order appropriate to comply with this
section is as follows:
MISC. DOCKET NO. ______
In Re: A Purported In the ______ Judicial District
Lien or Claim Against In and For ___________________
or Conveyance By
(Name of Purported County, Texas
Debtor or Grantor)
Judicial Finding of Fact and Conclusion of Law Regarding a
Documentation or Instrument Purporting to Create a Lien or Claim or
Make a Conveyance
On the (number) day of (month), (year), in the above entitled
and numbered cause, this court reviewed a motion, verified by
affidavit, of (name) and the documentation or instrument attached
thereto. No testimony was taken from any party, nor was there any
notice of the court's review, the court having made the
determination that a decision could be made solely on review of the
documentation or instrument under the authority vested in the court
under Subchapter J, Chapter 51, Government Code.
The court finds as follows (only an item checked and
initialed is a valid court ruling):
_______ The documentation or instrument attached to the motion
herein IS asserted against real or personal property or an interest
in real or personal property and:
(1) IS provided for by specific state or federal
statutes or constitutional provisions;
(2) IS created by implied or express consent or
agreement of the obligor, debtor, or the owner of the real or
personal property or an interest in the real or personal property,
if required under the laws of this state, or by consent of an agent,
fiduciary, or other representative of that person; or
(3) IS an equitable, constructive, or other lien
imposed by a court of competent jurisdiction created or established
under the constitution or laws of this state or of the United
States.
_______ The documentation or instrument attached to the motion
herein:
(1) IS NOT provided for by specific state or federal
statutes or constitutional provisions;
(2) IS NOT created by implied or express consent or
agreement of the obligor, debtor, or the owner of the real or
personal property or an interest in the real or personal property,
if required under the law of this state or by implied or express
consent or agreement of an agent, fiduciary, or other
representative of that person;
(3) IS NOT an equitable, constructive, or other lien
imposed by a court of competent jurisdiction created by or
established under the constitution or laws of this state or the
United States; or
(4) IS NOT asserted against real or personal property
or an interest in real or personal property. There is no valid
lien, [or] claim, or conveyance created by this documentation or
instrument.
This court makes no finding as to any underlying claims of the
parties involved, and expressly limits its finding of fact and
conclusion of law to the review of a ministerial act. The county
clerk shall file this finding of fact and conclusion of law in the
same class of records as the subject documentation or instrument
was originally filed, and the court directs the county clerk to
index it using the same names that were used in indexing the subject
documentation or instrument.
SIGNED ON THIS THE ________ DAY OF ____________________.
_______________________________
DISTRICT JUDGE
________ JUDICIAL DISTRICT
_____________ COUNTY, TEXAS
SECTION 4. Sections 51.901 and 51.903, Government Code, as
amended by this Act, apply with respect to a document or instrument
filed or submitted for filing before, on, or after the effective
date of this Act.
SECTION 5. This Act takes effect September 1, 2023.