I filed a lien for a water mitigation job and the response form the customers attorney is that it must be removed because it is invalid since mitigation is not a repair. Is this true?
Whether "mitigation" is a repair depends on the work that was performed. The definition of "work" under Texas Property Code section 53.001(14) is:
(14) "Work" means any part of construction or repair performed under an original contract.
But you have another perhaps more challenging problem.
If the property is the owner's homestead (meaning that the owner owns the property and lives there) then your contract with the owner would have to satisfy the requirements of Texas Property Code sections 53.254, et seq., which requires specified homestead lien warnings, signing by husband and wife, and recordation in the county property records.
You really should retain a construction attorney to review and evaluate your legal position based on the contract and pertinent documents. The right to be entitled to file a mechanic's lien is set out in Texas Property Code Chapter 53, and you really need to make sure that if you file a lien, you have properly and appropriately done so.
Filing an invalid lien could subject you to liability under the Texas Fraudulent Lien Act, and you could be liable for statutory damages of $10,000, or actual damages, whichever is greater, plus attorney's fees. Facing such a claim would add insult to injury.
Good luck.
First and foremost, mechanics liens are challenged all the time, that doesn't necessarily mean the claim is invalid.
However, the question of "lienability" will ultimately depend on the specific type of services rendered to your customer. Texas statutes don't provide too much guidance on this issue, as the persons entitled to liens are defined as a party who labors, specially fabricates materials, or furnishes labor or materials for the construction or repair.
That being said, the general rule is that lien rights are available to those who have provided some sort of permanent improvement to the property. So in terms of water mitigation, if the work performed included services that specifically repair or alter the physical structure, then the work would be seemingly lienable. However, if the work performed didn't permanently or fundamentally improve the building, then a lien may not be appropriate.
You may want to reach out to a local TX construction attorney to review the scope of work provided to determine how to proceed and respond to your customer's attorney.