Hello, I own a small trucking company that hauls material for a general contractor that has portable concrete towers, I am a sub-subcontractor as I work for a sub to the GC on a Commercial project. I bill weekly, each invoice is due in 30days. So I should be getting a check weekly now that we have been on the project for a few months. We haven't had any issues so far getting paid, however, our invoices are getting bigger and a check that I deposited this week bounced. I just want to be sure I'm proctecting my lien rights in a timely fashion. The check that bounced was to cover two weeks 8/26/20 thru 9/12/20, I believe that because some of the work was done in August that I would have to send my first notice by October 15th? is this correct? Would that be the Preliminary Notice? or an NOI?
In Texas, a monthly notice is a document that protects the right to file a mechanics lien if payment isn't made. Texas subcontractors and suppliers must send monthly notices on private construction jobs to retain lien rights. If you are a subcontractor that contracted with a party other than the direct or general contractor you must send notice by both the 15th day of the 2nd month, and the 15th day of the 3rd month following each month in which work was performed and unpaid. Considering you were unpaid for work done in August of this year, you should send notice by the 15th day of your second month following the unpaid work, therefore October 15 is likely your deadline.
For further clarification regarding preliminary notices in Texas, you can read more about Texas Monthly Notices Rules & FAQs .
Texas is home to some interesting notice rules. Preliminary notices aren't really required in Texas, but monthly notices are required. And, monthly notices are sort of like a combination of a preliminary notice and a Notice of Intent to Lien. They let the customer know that payment is still due and owing, and they work to actually preserve lien rights.
As for when a monthly notice must be sent - that depends on when the work was performed. Generally, a monthly notice must be sent based on the month when work is done but not paid for. So, if the work being noticed was for August, then the deadline would be based on the last date of August. Or, if the work was done in September, then the monthly notice deadline would run from the last date of September. When an invoice spans two months - sending monthly notices for both months might be a safe way to proceed while protecting all work.
For subcontractors hired by the GC on a commercial job, a 3rd month notice must be sent to both the owner and the GC. But, for subcontractors hired by someone other than the GC (like another subcontractor), both a 2nd month and 3rd month notice will be required. To calculate your personal deadlines, these resources will help: (1) Texas Monthly Notice Calendar 2020; and (2) How To Prepare & Send Texas Monthly Notices – Texas Notices Explained.