
Opinion issued April 3, 2008










In The
Court of Appeals
For The
First District of Texas



NO. 01-05-00746-CV



GUSTAVO ARIAS D/B/A GUS TRUCKING SERVICE, Appellant

V.

BROOKSTONE, L.P. AND LIBERTY MUTUAL INSURANCE COMPANY,
Appellees

and

SITE WORK GROUP, INC., Appellant

V.

GUSTAVO ARIAS D/B/A GUS TRUCKING SERVICE, Appellee

and


BROOKSTONE, L.P., Appellant

V.

SITE WORK GROUP, INC., Appellee



On Appeal from the 190th District Court
Harris County, Texas
Trial Court Cause No. 2003-54015



OPINION DISSENTING FROM DENIAL OF REHEARING
	Our December 20, 2007 opinion interpreting section 53.055 of the Property
Code holds that a person claiming a mechanic's, contractor's, and materialman's lien
against property may satisfy the requirements of the section by sending a copy of the
lien affidavit to the owner of the property at any time before the lien is filed with the
county clerk or within five days thereafter.  See Tex. Prop. Code Ann. § 53.055
(Vernon 2007) ("Notice of Filed Affidavit").  In their motion for rehearing, appellees
Brookstone, L.P. and Liberty Mutual Insurance Company argue that section 53.055
is designed to give notice of the date of filing of the lien, that "notice" of filing sent
prior to the filing cannot give notice of the actual filing, and that our holding upsets
a carefully articulated statutory scheme and is incorrect.  I agree with appellees, and,
therefore, I respectfully dissent from denial of rehearing.  
	Property Code section 53.055(a) states:
	A person who files an affidavit must send a copy of the affidavit by
registered or certified mail to the owner or reputed owner at the owner's
last known business or residence address not later than the fifth day after
the date the affidavit is filed with the county clerk.
Tex. Prop. Code Ann. § 53.055(a) (Vernon 2007) (emphasis added).
	Despite the plain language of section 53.055 stating that a person who files a
lien affidavit must send a copy . . . to the owner of the property against which the lien
has been filed "not later than the fifth day after the date the affidavit is filed with the
county clerk," and despite the title, "Notice of Filed Affidavit,'" our December 12,
2007 opinion holds that the person filing the lien can comply with the notice statute
by simply sending a copy of the lien affidavit at any time before the lien is filed so
long as the copy of the affidavit is sent not later than five days after the lien is
actually filed.  Such an interpretation gives no notice of the actual date of filing of the
lien.  In other words, it contravenes the very purpose of the statute, which is to give
notice.  It also contravenes the plain language of the statute and its title.  Thus, I
disagree with our December 20, 2007 holding.
	I likewise agree with appellees' reasoning in their motion for rehearing and
disagree with the reasoning by which we reached the December 20, 2007 holding. 
In reaching our conclusion in that opinion, we distinguished and effectively overruled
a prior opinion of this Court, Cabintree, Inc. v. Schneider, 728 S.W.2d 395, 397 (Tex.
App.--Houston [1st Dist.] 1986, writ ref'd), which construed a previous version of
section 53.055, article 5453(1) of the Texas Revised Civil Statutes.  At the time
Cabintree was decided, section 53.055 provided that a person who filed an affidavit
"must send two copies of the affidavit by registered or certified mail to the owner,"
but it set no deadline for compliance with the section.  See Cabintree, 728 S.W.2d at
396.  We noted that the then current version of section 53.055 was silent as to when
the notice must be sent, but we followed the rule of construction that when prior law
has merely been recodified without substantive revision, as the Texas Property Code
was in 1984, the wording and context of the prior law is controlling.  Id. at 397; see
also Tex. Prop. Code Ann. § 1.001 (Vernon 1984) (classifying Texas Property Code
as non-substantive revision of Texas Revised Civil Statutes).  We held that "the
notice of filed affidavit must be sent to the owner within the same period applicable
to the filing of the affidavit," stating, "The purpose of § 53.055 is to ensure that the
owner receives actual notice that an affidavit has been filed against his property so
that he will be able to take steps to protect himself.  This purpose is frustrated if the
notice is not sent in a timely manner."  Id. at 396-97.  
	In our December 20, 2007 opinion in this case, we repudiated not only the
holding but the reasoning in Cabintree, stating "Our prior analysis in Cabintree,
based on the text of former article 5453(1), is no longer a permissible means of
statutory construction, and we decline to follow the dicta from Cabintree that notice
must be given after the lien affidavit has been filed."  Arias v. Brookstone, 01-05-00746-CV, 2007 WL 4465517, at *3 (Tex. App.--Houston [1st Dist.] Dec. 20, 2007,
no pet. h.).  Citing Fleming Foods of Texas, Inc. v. Rylander, 6 S.W.3d 278 (Tex.
1999), as authority, we stated that "courts may not look back to the former text of a
statute which has been 'nonsubstantively' codified if the current text is direct and
unambiguous."  Arias, 2007 WL 4465517, at *3.   
	Appellees argue that our December 20 opinion misconstrues Fleming Foods. 
I agree.  In Fleming Foods, the Texas Supreme Court held that an express change in
the terms of a statute by the Legislature upon recodification overrides contrary
language in the prior version of the statute regardless of a general provision in the
Code stating that recodification is not intended to make substantive changes in the
law.  See 6 S.W.3d at 283-84.  The supreme court explained:
		Under the Code Construction Act, see Tex. Gov't Code §§
311.001-.032, . . . courts may consider prior law, the circumstances
under which the law was enacted, and legislative history among other
matters to aid them in construing a code provision "whether or not the
statute is considered ambiguous on its face," Tex. Gov't Code Ann. §
311.203.  But prior law and legislative history cannot be used to alter or
disregard the express terms of a code provision when its meaning is
clear from the code when considered in its entirety, unless there is an
error such as a typographical one.  Nor can the Code Construction Act's
directive to the Legislative Council to refrain from changing the sense,
meaning, or effect of a previous statute, see id. § 323.007(b), be used as
a basis to alter the express terms of a code that the Legislature enacts as
law, even when the Council's language does change the prior, repealed
law.

6 S.W.3d at 283-84.  The court then instructed that the Legislature's general
statement that "no substantive change in the law is intended" by recodification "must
be considered with the clear, specific language used" in the recodified sections.  Id.
at 284.  
	In my view, our December 20, 2007 opinion erroneously interprets Fleming
Foods as holding that "courts may not look back to the former text of a statute which
has been 'nonsubstantively' codified if the current text is direct and unambiguous." 
Arias, 2007 WL 4465517, at *3.  The opinion then goes on to interpret the notice
language in current section 53.055--which expressly mandates that "[a] person who
files an affidavit must send a copy of the affidavit by registered or certified mail to
the owner . . . not later than the fifth day after the date the affidavit is filed"--as
actually meaning the opposite of what it directly and unambiguously says, namely,
as meaning that the affidavit need not be on file when notice of a filed affidavit is sent
and that the notice need not be sent within five days "after the date the affidavit is
filed."  
	I cannot agree with our interpretation of the mandate of Fleming Foods or with
our conclusion that current section 53.055 clearly and specifically requires us to hold
that a "notice of filed affidavit" may be given before the affidavit is filed.  As
Fleming Foods states, proper code construction requires that in determining the
meaning of a statute in an integrated code chapter, we consider the code in its
entirety.  See Fleming Foods, 6 S.W.3d at 282 ("The doctrine of legislative
acceptance contemplates that "'[a] statute of doubtful meaning that has been
construed by the proper administrative officers, when re-enacted without any
substantial change in verbiage, will ordinarily receive the same construction.'"); see
also Tex. Gov't Code Ann. §§ 311.021, (1)
 311.023 (2) (Vernon 2005).  Indeed, the
Texas Supreme Court has specifically directed that
	we must always consider the statute as a whole rather than its isolated
provisions.  We should not give one provision a meaning out of
harmony or inconsistent with other provisions, although it might be
susceptible to such a construction standing alone.  We must presume
that the Legislature intends an entire statute to be effective and that a
just and reasonable result is intended.

Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (citations omitted);
see also Ken Petroleum Corp. v. Questor Drilling Corp., 24 S.W.3d 344, 350 (Tex.
2000) (citing Fleming Foods and section 311.023 of the Government Code and
stating that "[i]n determining legislative intent, the Legislature has instructed that we
may consider, among other things, the object the Legislature sought to obtain, the
circumstances under which the statute was enacted, legislative history, and the
consequences of a particular construction").
	Section 63.055 is an integral part of a statutory scheme governing the
perfection of mechanic's, contractor's and materialman's liens.  See, e.g., Tex. Prop.
Code Ann. §§ 53.051 ("To perfect the lien, a person must comply with this
subchapter."); 52.052 (setting out deadlines for person claiming lien to file affidavit,
running from day on which indebtedness accrues and requiring clerk to record
affidavit); 53.053 (setting deadlines for accrual of indebtedness); 53.054(a) and (b)
(setting out contents of lien affidavit, including dates of each notice to owner); 53.056
(setting out requirements for notice by derivative claimant); and 53.081 (conveying
authority to withhold funds for claimants). 
	Employing the rules of statutory construction, and considering the language
and purpose of current section 53.055 and prior law, I agree with appellees that
interpreting section 53.055 as requiring notice within 5 days after the filing of the lien
accords with prior law, reflects the intent of the Legislature, preserves the statutory
scheme set out in related sections within the same subchapter of the Texas Property
Code, and is just and reasonable.  See Cabintree, 728 S.W.2d at 397; Tex. Gov't
Code Ann. § 311.021, 311.023(1).  I would hold that Cabintree is good law and
precedent in this Court and that Cabintree, the plain language of current section
53.055, and the foregoing considerations all support the interpretation that section
53.055 requires that an affidavit giving notice of a filed mechanic's, contractor's, or
materialman's lien must be sent to the owner or reputed owner of the property against
which the lien has been filed within five days after the lien is filed.  An affidavit of
filed lien sent before the lien is filed does not substantially comply with the statute. 
	Because I would hold that a person does not comply with the Property Code
by sending an affidavit of filed lien to the property owner prior to the filing of the
lien, I would grant rehearing on this issue.




						Evelyn V. Keyes
						Justice

Panel consists of Justices Nuchia, Keyes, and Higley.
Justice Keyes, dissenting from denial of rehearing.
1. Section 311.021 provides, inter alia, that when the Legislature enacts a statute, "it is
presumed that . . . (2) the entire statute is presumed to be effective" and "a just and
reasonable result is intended."  Tex. Gov't Code Ann. § 311.021 (Vernon 2005)
(emphasis added). 
2. Section 311.023 provides:
 
	In construing a statute, whether or not the statute is considered ambiguous on its face,
a court may consider among other matters the:
 
		(1) object sought to be attained;

		(2) circumstances under which the statute was enacted;
 
		(3) legislative history;
 
		(4) common law or former statutory provisions, including laws on the same or
similar subjects;
 
		(5) consequences of particular construction;
 
		(6) administrative construction of the statute; and
 
		(7) title (caption), preamble, and emergency provision.

Tex. Gov't Code Ann. § 311.023 (Vernon 2005) (emphasis added).
