Texas Affidavit of Commencement
FAQs & Guide

No. In Texas, an Affidavit of Commencement is a voluntary document that the owner and GC may “jointly” file. While there is no specific requirement that the Affidavit of Commencement be filed, there are benefits that can be gained from choosing to make the filing.

For most lien claimants, the filing of an Affidavit of Commencement provides a hard start date for the project, and the date of commencement of the work of improvement stated in the affidavit provides the time of inception of a mechanics lien arising from the work for priority purposes.

Since the Texas Affidavit of Commencement is a voluntary document, it doesn’t need to be filed at all. However, if it is filed, there is a specific deadline by which the filing must occur. According to § 53-124(c) an Affidavit of Commencement must be filed no later than “the 30th day after the date of actual commencement of construction of the improvements or delivery of materials to the land.”

In some cases, materials can be delivered some time in advance of the actual beginning of the project – when that occurs it may be that the Affidavit of Commencement is required to be filed (if that choice is made) before the project starts. In these situations, it is worth considering whether filing an Affidavit of Commencement would be beneficial, or would set a priority date prior to when it would be desired.

In Texas, an Affidavit of Commencement must be filed with the county clerk of the county in which the land is located. A handy list of contact information for every county clerk’s office in Texas (all 254 of them!) can be found here.

Every county can have different and very specific rules for how construction notice documents should be filed. These requirements are strict and include the number of inches your document margins need to be, the size of the paper you need to use, the font (and color), cover pages, etc., so it’s a good idea to check with the county clerk prior to attempting recordation of an Affidavit of Commencement.

There is certain specific information required to be included on a Texas Affidavit of Commencement in order for the notice to be effective. This information includes:

1. the name and address of the owner;
2. the name and address of each original contractor, known at the time to the owner, that is furnishing labor, service, or materials for the construction of the improvements;
3. a description, legally sufficient for identification, of the property being improved;
4. the date the work actually commenced; and
5. a general description of the improvement.

No. Texas does not recognize the position of a party designated by the owner to receive notices on their behalf. All required TX notices that must be sent to the owner, must actually be sent to the owner – not some other party chosen by the owner to receive notice.

No.

Texas law is silent with respect to providing Affidavit of Commencement information or copies of the affidavit itself to sub-tier participants on the project. Not only is no specific notice to sub-tier participants required, but the affidavit is also not required to be posted at the job site. Accordingly, if lower tiered parties need to access this document they can find it (if it exists) at the County Clerk’s office.

No. Texas statutes do not specifically set forth the time period for which an Affidavit of Commencement is effective, or when or if such document expires.

Most likely.

While the statutory requirements of a Texas Affidavit of Commencement set forth by Texas Property Code Section 53.124 do not specifically mention the requirement of notarization with respect to a Texas Affidavit of Commencement, the name “affidavit” seems to require that the document be confirmed by oath or affirmation, which would generally require a notary. And, given Texas’s generally far-reaching notary requirements (even requiring notarization for lien waivers) it would be best to get the document notarized for filing.

No. There is no specific requirement to release or otherwise terminate a Texas Affidavit of Commencement. However, as a recorded document, it is likely possible, even if not required, to file an additional document to “cancel” the filed affidavit.

No. If the Property Owner or GC files an Affidavit of Commencement it has no effect on any other preliminary notice or lien requirements – it just sets the time period for the inception of any subsequent mechanics lien for priority purposes.