My husband and I both work as hourly employees with 1099's. Both of our payroll checks from our company bounced and the owner has claimed he is in the negative in his bank account. We are both CDL drivers that haul materials to different jobsites (including the Texas Border Patrol offices). Which lien can we put forth to get our pay? How would I go about doing it?
There is a split in the courts on this matter. Generally, Chapter 53 Mechanic's Liens are only available for labor and materials provided for the improvement of real property. Constitutional liens are only available to General Contractors engaged in providing labor and material for the improvement of real property.
While your work does relate to the improvement of real property, it is not specific to a project. Some courts have identified specific circumstances where transportation costs may be lienable. In Ivy Trucking, Inc. v. Creston Brandon Corp., the court identified three exceptions to what thecourt considered a general rule that a hauler cannot assert a mechanic’slien: “
(1) the one performing the hauling owns the materials and the cost of hauling is part of the cost of materials,
(2) the hauler participates in the work of improvement, and
(3) the hauler is hired by the agent of the owner.”
To evaluate the situation you described:
(1) You both do not own the materials you haul.
(2) You both are not on site participating in the construction outside of the haul.
(3) You both were hired by the hauler who works for someone who probably works for someone else and may work for the Owner. Your claim may be attenuated under this one.
There are several other courts who do things differently but none of them lean heavily towards allowing independently contracted truckers lien rights on the property itself.
You may still sue your boss for nonpayment. There are credit facilities he should be rotating through to cover your pay. Tell him to factor some receivables.
E. Aaron Cartwright III