Can I Go to Jail for Spending the Insurance Proceeds and Not Paying the Roofer?
Full Question:
Answer:
Yes, it is possible for a roofer to file a mechanics lien against property for failing to pay for work done to the property. It is also possible that a breach of contract claim could be filed to recover the money due. However, the amount claimed to be owed cannot be any price they choose to name, it must be based on actual losses suffered and the purchase price in the contract will be a factor. Other losses such as attorney fees and court costs might be asked for, so it is best to come to terms before anything is filed with the court. If you are unable to come up with the money, you may try going to a reputable debt counselor for assistance in coming up with a repayment plan.
Please see the following TX statutes:
§ 31.04 PENAL. Theft of Service
(a) A person commits theft of service if, with intent to avoid payment
for service that he knows is provided only for compensation:
(1) he intentionally or knowingly secures performance of the service by
deception, threat, or false token;
(2) having control over the disposition of services of another to which
he is not entitled, he intentionally or knowingly diverts the other's
services to his own benefit or to the benefit of another not entitled to
them;
(3) having control of personal property under a written rental
agreement, he holds the property beyond the expiration of the rental
period without the effective consent of the owner of the property, thereby
depriving the owner of the property of its use in further rentals; or
(4) he intentionally or knowingly secures the performance of the
service by agreeing to provide compensation and, after the service is
rendered, fails to make payment after receiving notice demanding
payment.
(b) For purposes of this section, intent to avoid payment is presumed if:
(1) the actor absconded without paying for the service or expressly
refused to pay for the service in circumstances where payment is
ordinarily made immediately upon rendering of the service, as in hotels,
campgrounds, recreational vehicle parks, restaurants, and comparable
establishments;
(2) the actor failed to make payment under a service agreement within
10 days after receiving notice demanding payment;
(3) the actor returns property held under a rental agreement after the
expiration of the rental agreement and fails to pay the applicable rental
charge for the property within 10 days after the date on which the actor
received notice demanding payment; or
(4) the actor failed to return the property held under a rental
agreement:
(A) within five days after receiving notice demanding return, if the
property is valued at less than $1,500; or
(B) within three days after receiving notice demanding return, if the
property is valued at $1,500 or more.
(c) For purposes of Subsections (a)(4), (b)(2), and (b)(4), notice
shall be notice in writing, sent by registered or certified mail with
return receipt requested or by telegram with report of delivery
requested, and addressed to the actor at his address shown on the rental
agreement or service agreement.
(d) If written notice is given in accordance with Subsection (c), it is
presumed that the notice was received no later than five days after it was
sent.
(e) An offense under this section is:
(1) a Class C misdemeanor if the value of the service stolen is less
than $20;
(2) a Class B misdemeanor if the value of the service stolen is $20 or
more but less than $500;
(3) a Class A misdemeanor if the value of the service stolen is $500 or
more but less than $1,500;
(4) a state jail felony if the value of the service stolen is $1,500 or
more but less than $20,000;
(5) a felony of the third degree if the value of the service stolen is
$20,000 or more but less than $100,000;
(6) a felony of the second degree if the value of the service stolen is
$100,000 or more but less than $200,000; or
(7) a felony of the first degree if the value of the service stolen is
$200,000 or more.
(f) Notwithstanding any other provision of this code, any police or
other report of stolen vehicles by a political subdivision of this state
shall include on the report any rental vehicles whose renters have been
shown to such reporting agency to be in violation of Subsection (b)(2)
and shall indicate that the renting agency has complied with the notice
requirements demanding return as provided in this section.
(g) It is a defense to prosecution under this section that:
(1) the defendant secured the performance of the service by giving a
post-dated check or similar sight order to the person performing the
service; and
(2) the person performing the service or any other person presented the
check or sight order for payment before the date on the check or sight
order.
§ 53.052 PROP. Filing of Affidavit
(a) Except as provided by Subsection (b), the person claiming the lien
must file an affidavit with the county clerk of the county in which the
property is located or into which the railroad extends not later than the
15th day of the fourth calendar month after the day on which the
indebtedness accrues.
(b) A person claiming a lien arising from a residential construction
project must file an affidavit with the county clerk of the county in
which the property is located not later than the 15th day of the third
calendar month after the day on which the indebtedness accrues.
(c) The county clerk shall record the affidavit in records kept for
that purpose and shall index and cross-index the affidavit in the names
of the claimant, the original contractor, and the owner. Failure of the
county clerk to properly record or index a filed affidavit does not
invalidate the lien.
