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 move straight to filing a lien. However, you might consider sending a strong Payment Demand Letter to the Property Owner before you take the time and effort to file a lien, to see if that is enough to get you paid.
ALL SUBCONTRACTORS/SUPPLIERS: If you were not hired by the Property Owner or the Owner’s Agent, then you must serve the Property Owner and the General Contractor with a Pre-Lien Notice by the 15th of the second month, for each and every month that you provided labor or materials to the property 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 March 15; for the work done in February, you must serve the Pre-Lien Notice by no later than April 15. In other words, you have to notify the 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 March 15th (which would be the 15th of the second 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.
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 in order to preserve your right to file a lien 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 with the General Contractor allows them to withhold a percentage of your progress payments as retainage. Send the Notice to the Property Owner and the General Contractor.
