Can a Contractor be Charged Criminally for Not Paying His Subs?

Full Question:

Can you be charged criminally as a contractor if you have been paid in full on a contract and the subs haven't been paid and leins are being filed?
07/06/2011   |   Category: Contractors ยป Construction...   |   State: Texas   |   #25147

Answer:

The answer will depend on all the facts involved, such as whether the project was residential, whether a lender was involved, and whether an affidavit of payment was provided. For example, if the contractor provided an affidavit stating subcontractors have been paid, a criminal penalty applies if this isn't true. Please see the following TX statutes that apply to residential construction contracts:

§ 53.259 PROP. Final Bills-Paid Affidavit Required

(a) As a condition of final payment under a residential construction contract, the original contractor shall, at the time the final payment is tendered, execute and deliver to the owner, or the owner's agent, an affidavit stating that the original contractor has paid each person in full for all labor and materials used in the construction of improvements on the real property. If the original contractor has not paid each person in full, the original contractor shall state in the affidavit the amount owed and the name and, if known, the address and telephone number of each person to whom a payment is owed.

(b) The seller of any real property on which a structure of not more than four units is constructed and that is intended as the principal place of residence for the purchaser shall, at the closing of the purchase of the real property, execute and deliver to the purchaser, or the purchaser's agent, an affidavit stating that the seller has paid each person in full for all labor and materials used in the construction of improvements on the real property and that the seller is not indebted to any person by reason of any construction. In the event that the seller has not paid each person in full, the seller shall state in the affidavit the amount owed and the name and, if known, the address and telephone number of each person to whom a payment is owed.

(c) A person commits an offense if the person intentionally, knowingly, or recklessly makes a false or misleading statement in an affidavit under this section. An offense under this section is a misdemeanor. A person adjudged guilty of an offense under this section shall be punished by a fine not to exceed $4,000 or confinement in jail for a term not to exceed one year or both a fine and confinement. A person may not receive community supervision for the offense.

(d) A person signing an affidavit under this section is personally liable for any loss or damage resulting from any false or incorrect information in the affidavit.