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Can I file a Mechanics lien or a Texas Constitutional Lien?

TexasMechanics LienPayment DisputesRecovery OptionsRight to Lien

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?

2 replies

May 12, 2021

Hello,

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
214.789.1354
Aaron@EACLawyer.com

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May 13, 2021
This question is subject to the answers to important questions to be properly answered, Frankly it is impossible to properly answer based on what you say. We begin with the fact that your question contains a contradiction. On one hand you say you are hourly employees. On the other hand you use 1099’s. A 1099 is used by independent contractors, not employees. Essentially both you and the employer could be in violation of the tax laws. This depends on whether you provide your service to more than one company plus some other factors such as control, etc. Depending on some factors, you could be an independent contractor and filing a 1099 is OK. If, though, you provide your service to only one company, which is what you indicate by referring to the company as your employer, you are probably an employee, not an independent contractor. Can you file a lien of any kind? Yes. If you are an independent contractor, you need to decide if you are a general contractor or a subcontractor. If you are a general contractor you can file either or both a M&M lien or a Constitutional lien. If you are a subcontractor you can file an M&M lien if you already followed the proper notice procedures. If you are an employee you can possibly file a lien for wages. Incidentally, in the future, you need to determine whether you are an employee or an independent contractor and handle your taxes appropriately. Remember that many employers improperly classify their employees as independent contractors to save money at the expense of the US treasury and avoid other obligations to employees.. Just one more caveat. You say you make deliveries to Texas Border Patrol offices. Those are probably government and you cannot get a lien on government property. You would need to pursue the bond if there is any. Again, as I mentioned at the beginning, this question cannot be properly answered without extensive further information.
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