Public works bond claims
You supplied labor or material on a school, a city, a county, or a state job in Texas, the invoice is unpaid, and the tool you would normally reach for is not there — the Property Code lien arises under a contract with the owner or the owner’s agent, trustee, receiver, contractor, or subcontractor and extends to the improvements and each lot of land necessarily connected (Tex. Prop. Code §§ 53.021, 53.022(a)), and it does not extend to abutting sidewalks, streets, and utilities that are public property (§ 53.022(b)). What the Legislature put in its place is Chapter 2253 of the Texas Government Code: a claim against the prime contractor’s statutory payment bond, issued by a corporate surety and held solely for the protection and use of payment bond beneficiaries (Tex. Gov’t Code § 2253.021(c)(1), (d)). Read the deadline twice — written notice of the claim must be mailed to the prime contractor and the surety on or before the 15th day of the third month after each month in which the claimed labor was performed or the claimed material was delivered (§ 2253.041(a), (b)).
What’s included
How it works
Tell us who owns the project — federal, state, county, city, school district, or another governmental entity — because that single fact decides which statute and which calendar govern the file. Then send the dates: which months you actually performed labor or delivered material, when delivery or performance began, whether your contract provides for retainage, when the job reached final completion, and whether your contract was with the prime contractor or with a subcontractor. The notice clock in Chapter 2253 runs off the month of the work rather than the date on your invoice, so those dates matter more here than the balance does. Send the subcontract or purchase orders, the invoices, the delivery tickets, and the correspondence. The fee is agreed before you place anything.
First we get the instrument you would actually be claiming against: the written request to the prime contractor for the bonds, the entity’s name and last known address, and the surety’s name, due within a reasonable time and not later than the 10th day after the request (Tex. Gov’t Code § 2253.024(a), (c)), and, where that goes unanswered, the affidavit route to a certified copy of the payment bond and the public work contract from the governmental entity itself (§ 2253.026). Then we read the bond against § 2253.021(c)(1) to see where you sit in the chain, and lay out every notice date the chapter imposes on that position. If a date has already passed, you hear it from us in week one rather than after a notice has gone out — and whether a passed deadline ends a particular claim is a legal question for counsel, not for us.
We assemble the sworn statement of account from your records for you to swear, and the statutory notice goes out through a licensed collection attorney by certified or registered mail to the prime contractor and the surety (Tex. Gov’t Code §§ 2253.041, 2253.048). That is the point at which the file stops being a dispute with a subcontractor and becomes a claim on an insurer’s paper, which is why the surety is worth pressing alongside the contractor. From there it is investigation, contact, and negotiation — the principals directly, in person at the place of business when the file needs it. If the claim is not paid before the 61st day after the date the notice was mailed (§ 2253.073(a)), counsel can sue the principal or the surety, jointly or severally, in a county in which any part of the work sits (§§ 2253.073(a), 2253.077). We are a collection agency, so suit, liens, and legal advice are counsel’s and never ours.
FAQ
The governing deadline is monthly rather than annual, and it is what quietly ends most of these claims. Written notice of the claim must be mailed to the prime contractor and the surety on or before the 15th day of the third month after each month in which any of the claimed labor was performed or any of the claimed material was delivered (Tex. Gov’t Code § 2253.041(a), (b)) — so a job you worked across four months carries four notices, and the oldest month expires first. If you have no direct contractual relationship with the prime contractor, you also owe the prime a separate notice on or before the 15th day of the second month after each month of labor or delivery (§ 2253.047(c)), and that one is in addition to the § 2253.041 notice rather than instead of it. A retainage claim runs on its own clock: where your contract provides for retainage, notice goes to the prime contractor and the surety on or before the 90th day after the date of final completion of the public work contract (§ 2253.046(a)).
Not against the public improvement itself. The Property Code lien arises under a contract with the owner or the owner’s agent, trustee, receiver, contractor, or subcontractor and extends to the improvements and each lot of land necessarily connected (Tex. Prop. Code §§ 53.021, 53.022(a)), and the statute says in terms that it does not extend to abutting sidewalks, streets, and utilities that are public property (§ 53.022(b)). Where a lien does exist on public work it attaches to money rather than to property: on a prime contract with a governmental entity that does not exceed $25,000 — or $50,000 where the entity is a municipality or a joint board created under Subchapter D, Chapter 22, Transportation Code — a claimant who gives the required notice has a lien on the money, bonds, or warrants due the contractor for the improvements (§ 53.231(a), (b)), and the official whose duty it is to pay must retain enough to pay the claim for which notice is given (§ 53.235). That notice goes by certified mail to the officials whose duty it is to pay the contractor and to the contractor itself (§ 53.232), not later than the 15th day of the second month following the month in which the labor was performed or the material furnished (§ 53.234). Above those contract amounts the payment bond under Chapter 2253 is the route, which is the answer on nearly anything of size.
No, and the mix-up is expensive. The Miller Act is federal only: it reaches contracts of more than $100,000 awarded for the construction, alteration, or repair of any public building or public work of the Federal Government (40 U.S.C. § 3131(b)). A Texas city, county, school district, or state project runs under Chapter 2253 of the Government Code instead, and the two calendars are genuinely different rather than merely differently worded. On a federal job a claimant with a direct contract with a subcontractor but none with the prime must give the prime written notice within 90 days after the day it last performed labor or supplied material (40 U.S.C. § 3133(b)(2)), may sue on the payment bond if it has not been paid in full within 90 days after that day (§ 3133(b)(1)), and must bring the action no later than one year after it (§ 3133(b)(4)); in Texas the one-year bar runs from the date the notice was mailed, not from your last day on site (Tex. Gov’t Code § 2253.078(b)). Tell us which kind of owner it is when you place the file, because that fact changes every date on it.
Usually yes, with an extra notice and one limit worth knowing about early. The payment bond is solely for the protection and use of payment bond beneficiaries who have a direct contractual relationship with the prime contractor or a subcontractor to supply public work labor or material (Tex. Gov’t Code § 2253.021(c)(1)) — that language is where the line sits, and whether a particular position in the chain falls inside it is a question for counsel rather than for us. Because you have no direct contract with the prime, you must mail the prime written notice of the claim on or before the 15th day of the second month after each month in which the labor was performed or the material delivered, and a copy of the statement you sent your subcontractor is sufficient for that notice (§ 2253.047(c)). You still owe the § 2253.041 notice to the prime contractor and the surety on its own later deadline. If your subcontract provides for retainage, you also owe the prime written notice of that on or before the 15th day of the second month after the month in which delivery of the material or performance of the labor began (§ 2253.047(b)) — a deadline near the start of the job rather than the end, and the one people learn about too late.
Not necessarily, and it can be the stronger version of the claim. A governmental entity that makes a public work contract must require a payment bond if the contract is in excess of $25,000, or in excess of $50,000 if the entity is a municipality or a joint board created under Subchapter D, Chapter 22, Transportation Code (Tex. Gov’t Code § 2253.021(a)(2)). If the entity failed to obtain the payment bond the statute required, it is liable to the same extent a surety would have been had the bond been issued and obtained, and a payment bond beneficiary is entitled to a lien on money due the prime contractor in the same manner and to the same extent as if the contract were subject to Subchapter J, Chapter 53, Property Code (§ 2253.027(a)). The only notice a beneficiary is required to give the entity in that situation is notice provided in the same manner described by Subchapter C, provided as if the entity were a surety (§ 2253.027(b)) — so the dates still govern, which is why we check them first rather than last. Whether a given project was required to carry a bond, and whether one was obtained, is a records question, and we can work it before you commit to anything.
There is a floor and a ceiling, and on a Texas public job both are measured from your mailing. A payment bond beneficiary may sue the principal or the surety, jointly or severally, on the payment bond if the claim is not paid before the 61st day after the date the notice for the claim is mailed (Tex. Gov’t Code § 2253.073(a)), and suit is barred after the first anniversary of the date the notice was mailed (§ 2253.078(b)) — so a notice sent late narrows the window at both ends. The performance bond is a different instrument on a different clock: suit on it is barred after the first anniversary of the date of final completion, abandonment, or termination of the public work contract (§ 2253.078(a)), and that bond is solely for the protection of the state or the governmental entity awarding the contract rather than for yours (§ 2253.021(b)(1)). Suit under the chapter is brought in a court in a county in which any part of the public work is located (§ 2253.077), for the unpaid balance of the claim and reasonable attorney fees (§ 2253.073(b)), and the court may award costs and reasonable attorney fees it finds equitable in a proceeding to enforce a claim or to declare any part of one invalid (§ 2253.074). Any suit is counsel’s work and not ours.
Form is not a formality here. The notice must be sent by certified or registered mail (Tex. Gov’t Code § 2253.048(a)), addressed to the prime contractor at its residence or last known business address (§ 2253.048(b)) and to the surety at the address stated on the bond or an attachment to it, the address on file with the Texas Department of Insurance, or any other address allowed by law (§ 2253.048(c)). It must be accompanied by a sworn statement of account stating in substance that the amount claimed is just and correct and that all just and lawful offsets, payments, and credits known to the affiant have been allowed (§ 2253.041(c)), and that statement must include any retainage on the account that has not become due under your contract (§ 2253.041(d)). We assemble the statement out of your records, but the oath is yours to swear rather than ours, and it is worth treating seriously: a person commits an offense by wilfully filing a false and fraudulent claim under the chapter, subject to the penalty for false swearing (§ 2253.079). It is also why we will not pad a figure to leave room for negotiation.
We are a commercial collection agency and not a law firm, and on a bond file that line matters more than usual. Our work is the claim itself: obtaining the payment bond and the public work contract, reconstructing the job month by month so every statutory date is on a calendar before it passes, assembling the account statement, investigating the prime contractor and its principals, pressing the contractor and the surety together, and negotiating. Drafting the statutory notice, asserting a lien, filing suit, and advising you on whether a deadline has already run are legal work, and they go through licensed collection attorneys — nationwide through a network of licensed collection attorneys. Texas licenses no collection agencies, so there is no agency license to show you; what there is instead is more than 25 years on commercial claims, more than $250 million recovered across more than 10,000 accounts, and a fee that is agreed before you place anything.
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