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Does an engineer professionals right to a Constitutional Lien where there is no written contract?

TexasDesign Professional

Hello, this has to do with a Texas engineer client who performed design services for a subdivision structure, and has not been paid. The engineer does not have a written agreement and in any event failed to timely file an affidavit claiming a potential mechanics lien. For purposes of this and any future work he may do, would you please tell me if this engineer has a Constitutional lien? We are told he does by Construction lawyers he has informally talked to, but I cannot find any authority clearly stating this, without a formal written contract (he has many, many emails confirming the work which might be construed as a writing, but for purposes of this question we just need to know his basis without a formal contract for purposes of a Texas constitutional lien). Any feedback and authority you can site will be greatly appreciated. Thank you!

1 reply

Oct 15, 2019
Texas constitutional liens don't really have a lot of rules, unlike statutory mechanics liens in the state. Section 37 of the Texas Constitution, which creates the right to a constitutional lien, reads as follows (in its entirety): "Mechanics, artisans and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens." So, there isn't a lot to work with when trying to suss out whether an engineer might be included, there. Still - considering traditional, statutory lien rights are available to design professionals (like engineers), it makes sense that constitutional liens may be available to them, too. Regarding the inexistence of a formal contract... As you mention in your question - a series of emails exchanged may well create a contract and may serve as "writings". So, the distinction between a formal agreement and an agreement created through emails might not be as bright of a line as it seems. Regardless - Texas' provisions creating constitutional liens don't mention anything in the way of a written contract. So, Bottom line Texas doesn't provide a lot of background information on the requirements for a constitutional lien. So, it's possible that a claimant might have the right to a constitutional lien even where there isn't a formal written contract. And, while it isn't crystal clear as to whether engineers are entitled to constitutional liens, there's a strong chance that that's the case.
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