It depends upon who hired you.
PRIME CONTRACTORS/GENERAL CONTRACTORS (those hired by the Property Owner or Owner’s Agent): If you were hired by the Property Owner or the Owner’s Agent, then you are not required to serve or file any Pre-Lien Notices before filing your lien. You can go straight to filing a lien against the property. However, you might consider sending a strong Payment Demand Letter before you take the time and effort to file a lien to see if that is enough to get you paid.
FIRST-TIER SUBCONTRACTORS/SUPPLIERS (those hired by the General Contractor): If you were hired by the project General Contractor (or a Contractor who was hired by the Property Owner on a commercial property), then you must serve the Property Owner and the General Contractor with a Pre-Lien Notice by no later than the 15th of the third month, for each and every month that you provided labor or materials to the project and have not been paid.
Example
If you provided labor/materials in January and February and were not paid, then for the work done in January, you must serve a Pre-Lien Notice by no later than April 15; for the work done in February, you must serve the Pre-Lien Notice by no later than May 15. In other words, you have to notify the Property Owner for each and every month payment has not been made.
Inside Tip
In the above example, you could serve just one Notice (combining both months) as long as the Notice is sent before April 15th (which would be the 15th of the third month for the work performed in January). Keep in mind you can always serve a Notice early (as long as payment is due), just don’t serve it late.
SECOND-TIER SUBCONTRACTORS/SUPPLIERS (those hired by a Subcontractor): If you were hired by a Subcontractor then you must serve a Pre-Lien Notice on the General Contractor by the 15th of the second month, for each and every month that you provide labor and materials to the property and have not been paid. Additionally, like a first-tier Subcontractor, you must also serve the Property Owner and the General Contractor with a Pre-Lien Notice by the 15th of the third month, for each and every month that you provided labor/materials to the project and have not been paid.
Example
If you provided labor/materials in January and were not paid, then for the work done in January, you must serve the first Pre-Lien Notice by no later than March 15 and the second Pre-Lien Notice by April 15. See the Inside Tip below for combining these Notices into one Notice.
Inside Tip 1
You may combine the Second and Third Month Notices into one Notice by sending it to the Property Owner and the General Contractor by the 15th of the second month from providing the labor/materials and by including the special “fund trapping” language that is included in the Third Month Notice.
Inside Tip 2
Although you are not required to serve the Subcontractor who hired you with these Notices, you should anyway. If the Subcontractor is aware of your intentions to file a lien and does not want you to do so, sending the Notice to the Subcontractor may increase your odds of getting paid without filing the lien.
Practice Pointer
The Texas Property Code treats monthly withheld retainage as a failure to pay and as such, like unpaid progress payments, you must provide the above statutory Notices, for each month retainage is withheld, in order to preserve your right to file a lien at the completion of the project for unpaid retainage. You can avoid sending the monthly Notices if you send your first Notice by the 15th of the second month from when you first provide labor and materials to the project, and inform the Property Owner that your contract allows the General Contractor to withhold a percentage of the payment as retainage. Send the Notice to the Property Owner and the General Contractor.
