In Texas, mechanics' liens are created by constitutional right and by statute. A Constitutional Lien, which establishes a Texas Construction Lien, is available only to contractors in direct contractual privity with the owner for the improvements to the property. Statutory mechanics' liens may be asserted, similar to other states, by general contractors, subcontractors, materialmen, mechanics, or artisans. A Texas mechanics lien that is filed with regard to work performed on privately owned property attaches to and encumbers the fee simple ownership of the property.

Real estate brokers of commercial property also have Texas mechanics lien rights for unpaid commissions in the state of Texas.

It is important to understand that just because the Texas Constitution and the Texas Mechanics Lien Law (property code) establish liens for contractors and subcontractors, liens are not automatic. The protection a lien provides under the Texas lien laws can only be provided if the lien is actually filed. In Texas, construction liens are not effective against innocent purchasers of property, or against lenders, unless the construction lien is filed in the form of a lien affidavit.

For public projects, a lien against monies due the prime contractor may be filed. The Texas public mechanics lien claim is against monies due, not against the real property or improvements.

Texas lien laws are some of the most expansive in the United States in terms of who has construction lien rights. The Texas construction lien law provides broad protection for nearly everyone who provided labor, or was supplying materials or services on a Texas construction project. According to the Texas lien laws, contractors, as well as subcontractors, sub-subcontractors and suppliers who have a contract with a general contractor or a subcontractor can file a lien. Material suppliers may also file liens. The Texas mechanics lien law also states that architects, engineers and surveyors are also entitled to Texas statutory liens so long as their design is utilized in the performance of the construction work. Even real estate brokers of commercial property have construction lien rights under the Texas lien laws if their commissions are unpaid. Note that claimants that are working on Texas Homesteads must file a Homestead Affidavit of Lien, which requires its own specific information.

Texas has a few different types of pre lien notices, known as Disclosure Statements, Notice of non-payment, and a Homestead Warning. Each type of Texas prelien notice serves a different purpose, and are differentiated below. Each type of prelien notice is required to comply with Texas lien law, and to ensure that a construction lien will be valid.

On Texas residential property, the contractor has its own specific pre-lien notice, known as a Disclosure Statement. The Texas Disclosure Statement is required to be provided prior to the owner executing the contract. The Texas mechanics lien law sets for the contents of the Texas Disclosure Statement, which sets forth all of the rights and responsibilities of the owner, as well as the lien rights and payment rights of the contractor, subcontractors and suppliers. The Disclosure Statement required by the Texas lien laws on residential projects not only provide a benefit to the owner by explaining how the construction lien process works, but also provides a benefit to the contractor and subcontractors by ensuring that potential construction lien rights are secured.

For all projects, the contractor should attach a list of subcontractors and suppliers to the contract, or provide one with its first payment request. A signed periodic statement that lists the bills or expenses that the original contractor intends to pay or have been paid under its request for payment must also be provided.

If the Texas lien claimant is not the original contractor (i.e. is a subcontractor or supplier), notice of unpaid amounts, or a prelien Notice of Non-Payment, must be given directly to the owner and the original contractor. Specifically, any Texas lien claimant must file its Affidavit of Lien in accordance with Texas statute. Texas Notices of Non-payment have specific legal effects that provide enormous benefits: when payment is due and owing, providing a notice of non-payment freezes funds owned from the owner to the general contractor, essentially ensuring that the noticing subcontractors and suppliers will be paid for the work performed or materials delivered. For work performed on Homesteads, the Notice of Non-Payment must contain specific information and warnings to the homeowner.

Claimants whose contract is not with an owner, such as subcontractors or suppliers, should provide the project owner periodic written notices of the unpaid value of the claim. These notices should be issued periodically and not solely upon the completion of work. If the Texas pre-lien notices of non-payment are not provided, the mechanics lien can be invalidated even if the mechanics lien itself is filed properly.

Texas pre-lien notices of non-payment to the owner and original contractor should be issued no later than the 15th of the third month following each month in which the claimant performed all or part of its work.

In the case of lower tier claimants “e.g. sub-subcontractors”, these periodic notices should be provided to the original contractor no later than the 15th day of second month following each month of which the claimant performed all or part of its work.

Disclosure Statements and Homestead Warnings must be provided to preserve lien rights on residential and homestead projects.