As I indicated in a previous post, a recent decision by the Texas Supreme Court contains an important lesson for Texas attorneys who represent Texas real estate owners, general contractors or subcontractors. Texas attorneys who practice construction law should be aware that, because of this decision, claims by a temporary labor service are covered by the Texas mechanic's lien statutes, and that service can file a mechanic's lien claim, just as an individual laborer can. As a result, when using a contractor who uses workers from a temporary labor service, an owner and/or general contractor must comply with the mechanic's lien statutes, including the portions of those statutes regarding the timing of payment and the withholding of payment to a contractor who has been using temporary workers. The Texas mechanic's lien statutes are complex, and not for the faint of heart. If you are a property owner or contractor, you would be well served by retaining an attorney who is experienced in construction law to review your contracts and explain the time limits in the statutes to you. This is one area where an ounce of preventive legal advice can save you a lot of money later!
It might seem obvious that workers from a temporary labor service should be considered as "labor" under the Texas mechanic's lien statutes. However, this issue does not seem to have been decided until recently by the Texas Supreme Court. In Reliance National Indemnity Co., L&T Joint Venture and Lamar Construction Inc. v. Advance'd Temporaries, Inc. the Texas Supreme Court decided that a temporary staffing agency could, indeed, file a mechanic's lien for unpaid labor services.
The case arose from the construction of an apartment building in Corpus Christi, Texas. L&T Joint Venture, the general contractor, hired Gonzalez, an individual, to do the framing, drywall and roofing at the project. Gonzalez supplemented his crew with additional workers from Advance'd. A written agreement between Gonzalez and Advance'd specified that the workers were employees of Advance'd, not Gonzalez. Reliance was the surety on the job.
At some point, L&T terminated Gonzalez, and paid him through the date of termination. Unfortunately, Gonzalez did not pay Advance'd. Advance'd gave a statutory mechanic's lien notice that it had not been paid to the owner, the general contractor and the surety .
The relevant Texas statute, Texas Property Code Section 53.021, recognizes a mechanic's lien for a person who "furnishes labor" for the construction of improvements on real estate. Being entitled to a mechanic's lien is extremely important, because it allows the claimant to place a lien on the real estate and to foreclose, if necessary, if a claim is not paid.
The general contractor and the surety argued that Advance'd did not actually furnish the labor to the apartment construction, because, in their view, the workers were really employees of Gonzalez, and not Advance'd. The Supreme Court looked to the written contract signed by Gonzalez and Advance'd, noted that the parties had agreed in the contract that the workers were employees of Advance'd, even though Gonzalez directed their work, and decided that the Advance'd claim really was a claim for the furnishing of labor under the mechanic's lien statutes.