Austin Construction Lawyers
Liens, payment disputes, and defect claims, from contract review to trial.
Johnson Evans & Headrick's Austin construction practice represents contractors, subcontractors, suppliers, and owners on Central Texas projects. It is led by partner Brian E. Berger, whose practice centers on construction and civil litigation: multi-party defect cases, nonpayment claims, mechanic's liens under the Texas Property Code, and contract review for commercial construction companies. Brian was lead negotiator on a multimillion-dollar settlement arising from the bankruptcy of an international industrial construction project, and he is a member of the State Bar of Texas Construction Law Section. Senior counsel Donald W. Elliott, Jr., who handles construction and insurance disputes and practiced in Corpus Christi before joining the firm, is also licensed in Texas. The team works as part of the firm's construction law practice.
15th day, 3rd month
The usual deadline for a subcontractor's or supplier's notice of an unpaid claim on a commercial Texas project, counted from each month the work went unpaid. Miss it, and the lien right for that month can be lost.
What we handle
Mechanic's liens and payment notices
Texas Property Code Chapter 53, rewritten by HB 2237 for original contracts entered on or after January 1, 2022, uses statutory notice forms and calendar-month deadlines. Subcontractors and suppliers send a notice for each unpaid month by the 15th day of the third month after it (second month on residential work). Lien affidavits are generally due by the 15th day of the fourth month after completion or last work (third month on residential). Suit to foreclose generally must follow within a year of the last day to file. We prepare, file, and challenge liens, including fraudulent-lien and removal proceedings.
Prompt pay and bond claims
Private projects are governed by the Texas Prompt Payment Act, Property Code Chapter 28, which imposes payment deadlines and interest of 1.5% per month on late payments. Public projects fall under Government Code Chapter 2251. Liens are not available against public property, so subcontractors and suppliers on public work rely on payment bond claims under the McGregor Act, Government Code Chapter 2253, which has its own notice deadlines.
Construction Trust Fund Act
Under Property Code Chapter 162, payments for construction on Texas projects are trust funds for the benefit of those who furnished labor and materials. Misapplying them can create personal liability for the individuals who controlled the money, as well as criminal exposure. The Act is often the only route to recovery when a contractor becomes insolvent.
Construction defect claims
Multi-party defect cases among owners, contractors, subcontractors, and design professionals. Claims against licensed architects and engineers require a certificate of merit under Civil Practice and Remedies Code Chapter 150, residential defect claims require presuit notice under Property Code Chapter 27, and a ten-year statute of repose generally applies. Brian's article on third-party claims in Texas defect cases appeared in the Construction Law Journal in 2019.
Brian Berger’s publicationsContract review and risk allocation
Texas limits several common construction provisions. Insurance Code Chapter 151 restricts broad-form indemnity and related additional-insured requirements. Business and Commerce Code Chapter 56 limits pay-if-paid clauses. Section 272.001 of the Business and Commerce Code makes out-of-state venue and choice-of-law provisions voidable for work on Texas real property. We review contracts before signing so these rules work for the client, not against it, including the conditions precedent that decide whether a claim survives.
Litigation, arbitration, and insolvency
Construction suits in Travis, Williamson, and Hays County district courts and the Western District of Texas, AAA construction arbitration, the Texas Business Court for disputes of $5 million or more, and claims arising when a project participant files for bankruptcy.
Our construction law practiceWhy the contract date matters
HB 2237's reforms to Texas lien law apply only to original contracts entered on or after January 1, 2022. Projects under earlier contracts still follow the prior notice scheme, which required different notices on different schedules. Central Texas has plenty of long-running projects that straddle the change, so the first question on any lien or payment dispute is which version of Chapter 53 governs. The second is whether every monthly deadline has been met, because missed notices usually cannot be cured.
Your Texas-licensed team
Brian Berger leads the work from Austin. Donald Elliott and Matthew Evans in Knoxville and Daniel Headrick in Atlanta are also licensed in Texas; Donald practiced in Corpus Christi for seven years before joining the firm.
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2110 W. Slaughter Lane, Suite 107-679, Austin, TX 78748. Shareholder-led from the first call.