Bill Text: TX HB1823 | 2023-2024 | 88th Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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-Introduced.html
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-Introduced.html
88R5543 MZM-D | ||
By: Sherman, Sr. | H.B. No. 1823 |
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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, [ |
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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 [ |
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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: | ||||
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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 [ |
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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, [ |
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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: | ||||
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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, [ |
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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. |