A Texas preliminary notice is the certified letter that subcontractors, suppliers, and anyone else without a direct contract with the property owner must send to preserve the right to file a mechanic’s lien on a Texas construction project. Under Chapter 53 of the Texas Property Code, the notice has to reach both the owner and the general contractor by the 15th day of the second month (residential) or third month (commercial) after each month you performed unpaid work. Miss the deadline for a given month and the lien rights for that month’s work are gone, with no way to revive them.
Who Has to Send One
If you signed a contract directly with the property owner, you are an “original contractor” under Texas law and do not need to send a preliminary notice to protect your lien rights.1State of Texas. Texas Property Code Section 53.056 – Derivative Claimant: Notice to Owner and Original Contractor Everyone else does. That includes subcontractors hired by the general contractor, sub-subcontractors hired by those subcontractors, and material suppliers at any tier.
Texas calls these parties “derivative claimants” because their right to payment flows from the prime contract between the owner and the original contractor rather than from any direct agreement with the owner. A lumber supplier selling to a framing subcontractor, an electrician hired by the general contractor, and a concrete company delivering to a sub-subcontractor all fall into this group. The farther removed you are from the owner, the more the notice matters, because you have no other contractual leverage against the property.
When the Notice Is Due
Texas uses a rolling monthly system. Each month you perform unpaid work or deliver unpaid materials starts its own countdown.
- Commercial projects: the notice must reach the owner and the original contractor by the 15th day of the third month after the month the labor or materials were provided. Work performed in January means an April 15 deadline.1State of Texas. Texas Property Code Section 53.056 – Derivative Claimant: Notice to Owner and Original Contractor
- Residential projects: the deadline is tighter. The notice must be sent by the 15th day of the second month after the month the work was performed. January work means a March 15 deadline.1State of Texas. Texas Property Code Section 53.056 – Derivative Claimant: Notice to Owner and Original Contractor
If the 15th falls on a Saturday, Sunday, or federal holiday, the deadline extends to the next business day. Missing one month’s deadline does not kill your entire claim. You lose lien rights only for the work performed during that specific month. If you supplied materials in both January and February and missed the January notice but sent the February notice on time, your February claim survives.
The date that matters is the month you actually performed the work or delivered the materials, not the invoice date. A supplier delivering lumber on January 28 but not invoicing until February 10 still calculates the deadline from January. Tracking work by calendar month is the single most important habit for keeping lien rights alive.
What the Notice Must Say
The statute provides a form, and your notice must follow it “substantially.” You don’t need to copy it word for word, but every required field has to be there. The template calls for:1State of Texas. Texas Property Code Section 53.056 – Derivative Claimant: Notice to Owner and Original Contractor
- The date you are sending the notice.
- A description or address of the project, detailed enough for the owner to identify the property.
- Your name as the claimant.
- A plain description of the labor or materials provided, such as “electrical wiring” or “concrete delivery.”
- The original contractor’s name.
- The party you contracted with, if that was someone other than the original contractor.
- The dollar amount currently unpaid.
- Your contact person and address so the owner can reach you.
The form also carries mandatory warning language at the top: “WARNING: This notice is provided to preserve lien rights. Owner’s property may be subject to a lien if sufficient funds are not withheld from future payments to the original contractor to cover this debt.” That language is what activates the fund-trapping mechanism, so leaving it out undercuts the whole point of sending the notice.
You can attach an invoice or billing statement, and a copy of your standard billing in its usual format satisfies the content requirements.1State of Texas. Texas Property Code Section 53.056 – Derivative Claimant: Notice to Owner and Original Contractor Relying on an invoice alone without the warning language is risky. Use the statutory form and attach the invoice as backup.
How to Send It
The notice must go by registered or certified mail to the last known business or residence address of the owner (or reputed owner) and the original contractor. Depositing a properly addressed notice in the U.S. mail by certified or registered mail counts as compliance, whether or not the recipient actually signs for it.
You don’t need proof the owner read the notice. You need proof you mailed it correctly and on time. Keep the certified mail receipt, the tracking number, and the return receipt when it comes back. Print digital tracking records and store them with the project file. If the green card never comes back because the recipient refused delivery or the address was wrong, the postal receipt showing timely mailing still protects you.
Both the owner and the original contractor have to be served. Sending to just one does not satisfy the statute. If you don’t know the owner’s address, you can address the notice to the “reputed owner” at the project address, but check county property records first.
Why the Notice Actually Matters: Fund Trapping
When the owner receives your notice, Texas law requires the owner to “trap” funds. The owner must withhold money from future payments to the original contractor, up to the amount of your claim, until the claim is paid, settled, or the time for filing a lien affidavit passes.2State of Texas. Texas Property Code Section 53.101 – Funds Required to Be Reserved
Without a proper notice, your lien recovery is limited to your share of the 10% retainage the owner is already required to hold back from the original contractor during construction and for 30 days after completion.2State of Texas. Texas Property Code Section 53.101 – Funds Required to Be Reserved On a $500,000 contract, that is only $50,000 split among every unpaid claimant. With a proper notice, the owner must trap additional funds beyond the 10% to cover your specific claim.
Fund trapping also matters when an owner has already paid the general contractor in full. If the owner paid everything before receiving your notice, the owner’s personal liability is generally capped at the statutory retainage amount. But if the owner pays the general contractor after receiving your notice without withholding enough to cover your claim, the owner becomes personally liable for the shortfall.
Extra Rules for Homestead Projects
Residential projects on a Texas homestead carry additional requirements that can invalidate a lien entirely. A homestead is the owner’s primary residence, and Texas gives homesteads especially strong protections.
For a mechanic’s lien to attach to a homestead, the original contractor and the owner must have a written contract signed before any work begins. If the owner is married, both spouses must sign. The contract must be filed with the county clerk in the county where the homestead is located.3State of Texas. Texas Property Code Section 53.254 – Contractual Requirements for Lien on Homestead
On top of that, any preliminary notice sent to a homestead owner must include or attach a specific disclosure statement spelling out the owner’s rights. The disclosure tells the owner that if they properly withhold funds after receiving a claim notice and reserve the statutory 10% retainage, a subcontractor’s or supplier’s lien will not be valid against the property.3State of Texas. Texas Property Code Section 53.254 – Contractual Requirements for Lien on Homestead The exact language is in the statute, and paraphrasing is not a safe substitute. Without that disclosure, you may still have a breach-of-contract claim against the party who hired you, but the lien against the home can fail.
Unpaid Retainage Needs Its Own Notice
Retainage is handled separately. Monthly preliminary notices do not cover retainage, and a retainage notice does not cover unpaid monthly balances. They are independent obligations.
The retainage notice deadline is the earlier of 30 days after your own contract is completed, terminated, or abandoned, or 30 days after the original contract is terminated or abandoned.4State of Texas. Texas Property Code PROP 53.057 – Derivative Claimant: Notice of Claim for Unpaid Retainage This can arrive quickly. If the general contractor is terminated while your retainage is still outstanding, you have 30 days from that termination, even if your own contract is still open. The retainage notice has its own statutory form under Section 53.057 and must be sent in addition to any monthly notices.
What Happens After the Notice
The preliminary notice preserves your right to file a lien. It does not file the lien. If the payment dispute isn’t resolved, you still need to file a mechanic’s lien affidavit with the county clerk by a separate deadline.
- Subcontractors and suppliers on commercial projects: file by the 15th day of the fourth month after the month you last provided labor or materials.
- Subcontractors and suppliers on residential projects: file by the 15th day of the third month after you last provided labor or materials.
After filing the affidavit, you must bring a lawsuit to foreclose the lien within one year of the last day you could have filed the affidavit. Missing that lawsuit deadline means the lien expires, even with a perfect notice and a timely affidavit.
Federal Projects Are Different
Mechanic’s liens under the Texas Property Code do not apply to federal property. On a federal construction project in Texas, the Miller Act requires the prime contractor to post a payment bond, and your remedy runs against the bond rather than the land.
First-tier subcontractors and suppliers who contracted directly with the prime contractor do not have to send any written notice before claiming against the payment bond. Second-tier parties, those hired by a subcontractor rather than the prime, must send written notice to the prime contractor within 90 days of the date they last furnished labor or materials, delivered by a method providing third-party verification of delivery.5Office of the Law Revision Counsel. 40 U.S. Code 3133 – Rights of Persons Furnishing Labor or Material Confusing the Texas process with the Miller Act process on a federal job can wipe out your bond rights.
What Missing a Deadline Costs
Miss a preliminary notice deadline and the lien rights for that month’s work simply cease to exist. No court filing, no argument about substantial compliance, and no equitable remedy will revive them. You can still sue the party who hired you for breach of contract, but the lien, usually the strongest leverage a subcontractor or supplier has, is off the table.
Build the notice process into your project management from day one. Track labor and material deliveries by calendar month, calculate deadlines before invoices go out, and send notices early rather than on the last day. A certified mail receipt is the cheapest insurance available on a Texas construction project.