Securing a Mechanic's and Materialman's Lien in Texas

    To secure a mechanic’s and materialman’s oil and gas lien in Texas, the service or material provider must file an affidavit with the county clerk in the county in which the property is located. Timeliness of the filing and the completeness of the affidavit are key.    Timeliness.  The affidavit must be filed no later than six months after the date the indebtedness accrued. For purposes of the lien statute, indebtedness accrues:for labor performed by the day or week – at the end of the week in which the labor was performed.for materials or services – on the last date the materials or services were furnished.
All materials or services furnished for a single leasehold interest, land or well are deemed to be furnished under a single contract unless more than six months lapse between furnishing of materials or services.    A failure to file an affidavit within the required six month period makes a mechanic’s and materialman’s lien unenforceable. A prudent service or materials provider should be diligent in keeping records as to the dates on which materials or services were first provided and the dates on which the services were completed or the last materials provided.    If a mineral subcontractor wants to secure a mechanic’s and materialman’s lien, before filing an affidavit with the county, the mineral subcontractor must send written notice to the mineral property owner. The notice must be sent at least ten days before filing the affidavit. The notice to the mineral property owner must include:the name of the person indebted to the subcontractor;the amount of the debt; anda description of the land, leasehold, pipeline or right-of-way involved.Upon receipt of a notice from a subcontractor, the mineral property owner can withhold further payment to the contractor until the subcontractor receives payment for the amounts due.    A mineral property owner is not liable for more than the amount the owner agreed to pay in its contract with the mineral contractor, regardless of the amount claimed by mineral subcontractors. So, if a mineral property owner has already paid the contractor the full contracted for amount, a mineral subcontractor cannot obtain a mechanic’s and materialman’s lien.             Completeness. An affidavit must include:a jurat (the notary must certify that the contents of the affidavit are sworn to and affirmed by the signatory to the affidavit);the name of the mineral property owner;the name and address of the lien claimant;the dates on which the services or materials were furnished;a description of the land, leasehold, pipeline or right-of-way for which services or materials were furnished (the description does not have to satisfy the statute of frauds); andan itemized list of the amount claim.An affidavit filed by a subcontractor must also include the name of the person for whom the labor or materials were furnished and a statement that the subcontractor timely delivered written notice to the mineral property owner.            A properly completed affidavit gives enough information about the amount claimed so that the mineral property owner and other lien creditors can determine the correctness of the claim. So, just specifying an aggregate amount owed is generally insufficient. The itemization must include enough detail to determine which lease or well the service or materials affected and should also include the dates on which the services or materials were provided. Thompson & Knight LLPDebra J. Villarreal