Texas Retainage Guide and FAQs

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Texas Retainage FAQs

Texas Retainage Overview

Texas Retainage Requirements


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Retainage 10% Icon
10% Retainage Limit

For work in which a mechanic’s lien may be claimed, the property owner must retain 10%.


Payment Period 30 Days Icon
30 Day Pay Period

The time period to withhold retainage is very complicated and not well defined in Texas law. It appears that 30 days after work is completed retainage must be released.


YES
PROCESS
There is a Process to Recover

Yes, specific notces and timing requirements apply to the recovery of retainage in texas.


No Escrow Icon
Not Held In Escrow

In Texas, contractors and owners do not need to hold retainage funds in a separate escrow account.

Retainage icon
Retainage Amount

For most projects, no specific maximum rate is set out.


Payment Period Icon
Pay Period

Statute is unclear, but it appears to depend on the contract. Most likely released upon completion of work under the contract.


YES
PROCESS
There is a Process to Recover

Yes, while statute is not entirely clear, a notice must be submitted to claim retainage.

Retainage serves two general purposes: (1) To provide an incentive to the contractor or subcontractor to complete the project; and (2) To give the owner some protection against problems like liens, contractual defaults, delays, and more. In most states, laws exist to regulate how the parties use the retainage concept, mostly protecting some parties against abuse of the tool from others. The following are resources, legal information, and frequently asked questions about Texas’ retainage requirements. The Texas retainage statutes are reproduced below on this page.

Texas has very complex rules and requirements surrounding retainage, just like everything else surrounding construction payment. The deadlines for notices and claims with respect to retainage in Texas are tricky, and can be modified by other parties’ actions.

For private projects, the rules that apply to a Texas Notice of Contractual Retainage can be found in § 53-057. This notice is an additional notice requirement separate from the “monthly” notices that must be given by Texas construction participants who do not have a contract directly with the property owner, and separate from actually making a claim on the retained fund. The Notice of Contractual Retainage must be given to the owner (and to the original contractor if there was no direct contractual relation between the original; contractor and the party giving notice):

“not later than the earlier of:
(1) the 30th day after the date the claimant’s agreement providing for retainage is completed, terminated, or abandoned; or
(2) the 30th day after the date the original contract is terminated or abandoned.

So, what this means is that the notice must be provided within 30 days of the end of the claimant’s work, unless the original contract was terminated or abandoned prior to that date, in which case the deadline is shortened to 30 days after the termination or abandonment of the original contract.

This is the only “preliminary” notice required for a claim of lien on the retained funds (although, note that other notices are required for a lien with respect to the other amounts due). Also note that this is a deadline, there is nothing in Texas statute that prohibits sending the Notice of Contractual Retainage at any point prior to that deadline, so it may be sent at the start of the project to make sure that the deadline does not slip by.

In order to have a lien against the retained funds, and make the owner personally liable for their payment, the claimant must give the Notice of Contractual Retainage as set forth above, and file a lien affidavit. The lien affidavit must be filed by either:

not later than the 30th day after the earlier of the date:
a) the work is completed;
b) the original contract is terminated; or
c) the original contractor abandons the project
(if the lien affidavit is solely on contractual retainage)

OR

not later than the earliest of:

(i) the 15th day of the 4th month after the claimant’s last furnishing of labor or materials (3rd month if the project was residential – yes, retainage requirements apply to residential projects, too) (ii) the 40th day after the completion date stated in an affidavit of completion provided the owner sent the claimant notice of an affidavit of completion in the time and manner required; (iii) the 40th day after the date of termination or abandonment of the original contract, if the owner sent the claimant a notice of such termination or abandonment in the time and manner required; or (iv) the 30th day after the date the owner provided the claimant with a written demand (meeting the statutory requirements) for the claimant to file the affidavit claiming a lien.

That’s a lot of tricky information to keep straight to make sure deadlines aren’t missed.

Broken down a bit more simply:

  • If the claim is on retainage only the affidavit of lien may be filed 30 days after the job is done (unless the original contractor was terminated or abandoned the project, in which case the deadline is shorted to 30 days from that date).
  • Otherwise, the affidavit of lien must be filed by the general lien filing deadline (unless an affidavit of completion, notice of termination or abandonment, or a demand to file affidavit of lien is provided to the claimant).

Texas Retainage Frequently Asked Questions

Texas Retainage Private Projects FAQs

Does Texas limit the amount of retainage that can be withheld from a contractor?

For work in which a mechanics lien may be claimed, the property owner must retain 10%.

How long can a party withhold retainage in Texas?

The time period to withhold retainage is very complicated and not well defined in Texas law. It appears that 30 days after work is completed retainage must be released.

Does Texas require retained funds be deposited in a special account? Can securities be substituted for retainage?

This is not specified for private projects in the Texas retainage statute.

How can I make a claim to recover retainage in Texas?

When claiming retainage, the claimant must give the owner notice of contractual retainage no later than the earlier of: the 30th day after the date the claimant’s agreement providing for retainage is completed, terminated, or abandoned OR the 30th day after the date the original contract is terminated or abandoned. If an owner is required to send a notice to a subcontractor and fails to send the notice, the subcontractor is not required to comply to claim retainage and may claim a lien by filing a lien affidavit.

Is there a specific notice required to recover retainage in Texas?

On or before the 10th day of the termination or abandonment of an original contract, the owner shall give notice to each subcontractor who, before the date of termination or abandonment, has: given notice to the owner provided by this statute or sent to the owner by certified or registered mail a written request for notice of termination or abandonment.

Also, see previous question.

Texas Retainage Public Projects FAQs

Does Texas limit the amount of retainage that can be withheld from a contractor?

For most projects, no specific maximum rate is set out.  Claim for retainage in § 2253.076, however, “A claim for retainage in a notice under this subchapter is not valid for an amount greater than the amount of retainage specified in the public work contract between the payment bond beneficiary and the prime contractor or between the payment bond beneficiary and the subcontractor. A claim for retainage is never valid for an amount greater than 10 percent of the amount of that contract.”

How long can a party withhold retainage in Texas?

Statute is unclear but it appears to depend on contractual provisions. Most likely released upon completion of work under the contract.

Does Texas require retained funds be deposited in a special account? Can securities be substituted for retainage?

For all contract in which retainage is more than 5% (excepting those under $400,000), the retainage must be placed in an interest bearing account.

How can I make a claim to recover retainage in Texas?

Must submit a notice to claim retainage. Statute not clear.

Is there a specific notice required to recover retainage in Texas?

See above.

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Texas Retainage
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Texas Retainage Statute FAQs

Getting informed about prompt payment laws is important. An examination of Texas’ retainage laws, the rules and regulations related to the amount and timing of allowable retained payments, is important to know your rights and responsibilities as a party on a construction project. Texas’ specific laws can be found in: Tex. Prop. Code Ann. § 53.101, § 2252.032 and§ 2252.03; and are reproduced below.

Retainage Statute on Private Projects

§ 53.101: Retainage

(a) During the progress of work under an original contract for which a mechanic’s lien may be claimed and for 30 days after the work is completed, the owner shall retain:

(1) 10 percent of the contract price of the work to the owner; or

(2) 10 percent of the value of the work, measured by the proportion that the work done bears to the work to be done, using the contract price or, if there is no contract price, using the reasonable value of the completed work.

(b) In this section, “owner” includes the owner’s agent, trustee, or receiver.

Retainage Statute on Public Projects

§2252.032: Retainage

A governmental entity shall:

(1) deposit in an interest-bearing account the retainage of a public works contract that provides for retainage of more than five percent of the periodic contract payment; and

(2) pay the interest earned on the retainage to the prime contractor on completion of the contract.

§2252.033: Exemptions

This subchapter does not apply to:

(1) a public works contract executed before August 31, 1981;

(2) a public works contract in which the total contract price estimate at the time of execution of the contract is less than $ 400,000; or

(3) a public works contract made by the Texas Department of Transportation under Subchapter A, Chapter 223, Transportation Code.

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