Tex.
Bus. & Com. Code Section 9.109
Scope
(a)
Except as otherwise provided in Subsections (c), (d), and (e), this chapter applies to:(1)
a transaction, regardless of its form, that creates a security interest in personal property or fixtures by contract;(2)
an agricultural lien;(3)
a sale of accounts, chattel paper, payment intangibles, or promissory notes;(4)
a consignment;(5)
a security interest arising under Section 2.401 (Passing of Title; Reservation for Security; Limited Application of This Section), 2.505 (Seller’s Shipment Under Reservation), 2.711 (Buyer’s Remedies in General; Buyer’s Security Interest in Rejected Goods)(c), or 2A.508 (Lessee’s Remedies)(e), as provided in Section 9.110; and(6)
a security interest arising under Section 4.210 (Security Interest of Collecting Bank in Items, Accompanying Documents and Proceeds) or 5.118 (Security Interest of Issuer or Nominated Person).(b)
The application of this chapter to a security interest in a secured obligation is not affected by the fact that the obligation is itself secured by a transaction or interest to which this chapter does not apply.(c)
This chapter does not apply to the extent that:(1)
a statute, regulation, or treaty of the United States preempts this chapter;(2)
another statute of this state expressly governs the creation, perfection, priority, or enforcement of a security interest created by this state or a governmental unit of this state;(3)
a statute of another state, a foreign country, or a governmental unit of another state or a foreign country, other than a statute generally applicable to security interests, expressly governs creation, perfection, priority, or enforcement of a security interest created by the state, country, or governmental unit; or(4)
the rights of a transferee beneficiary or nominated person under a letter of credit are independent and superior under Section 5.114 (Assignment of Proceeds).(d)
This chapter does not apply to:(1)
a landlord’s lien, other than an agricultural lien;(2)
a lien, other than an agricultural lien, given by statute or other rule of law for services or materials, but Section 9.333 (Priority of Certain Liens Arising by Operation of Law) applies with respect to priority of the lien;(3)
an assignment of a claim for wages, salary, or other compensation of an employee;(4)
a sale of accounts, chattel paper, payment intangibles, or promissory notes as part of a sale of the business out of which they arose;(5)
an assignment of accounts, chattel paper, payment intangibles, or promissory notes that is for the purpose of collection only;(6)
an assignment of a right to payment under a contract to an assignee that is also obligated to perform under the contract;(7)
an assignment of a single account, payment intangible, or promissory note to an assignee in full or partial satisfaction of a preexisting indebtedness;(8)
a transfer of an interest in or an assignment of a claim under a policy of insurance, other than an assignment by or to a health care provider of a health-care-insurance receivable and any subsequent assignment of the right to payment, but Sections 9.315 (Secured Party’s Rights on Disposition of Collateral and in Proceeds) and 9.322 (Priorities Among Conflicting Security Interests in and Agricultural Liens on Same Collateral) apply with respect to proceeds and priorities in proceeds;(9)
an assignment of a right represented by a judgment, other than a judgment taken on a right to payment that was collateral;(10)
a right of recoupment or set-off, but:(A)
Section 9.340 (Effectiveness of Right of Recoupment or Set-off Against Deposit Account) applies with respect to the effectiveness of rights of recoupment or set-off against deposit accounts; and(B)
Section 9.404 (Rights Acquired by Assignee; Claims and Defenses Against Assignee) applies with respect to defenses or claims of an account debtor;(11)
the creation or transfer of an interest in or lien on real property, including a lease or rents, as defined by Section 64.001 (Definitions), Property Code, the interest of a vendor or vendee in a contract for deed to purchase an interest in real property, or the interest of an optionor or optionee in an option to purchase an interest in real property, except to the extent that provision is made for:(A)
liens on real property in Sections 9.203 and 9.308;(B)
fixtures in Section 9.334;(C)
fixture filings in Sections 9.501, 9.502, 9.512, 9.516, and 9.519; and(D)
security agreements covering personal and real property in Section 9.604;(12)
an assignment of a claim arising in tort, other than a commercial tort claim, but Sections 9.315 (Secured Party’s Rights on Disposition of Collateral and in Proceeds) and 9.322 (Priorities Among Conflicting Security Interests in and Agricultural Liens on Same Collateral) apply with respect to proceeds and priorities in proceeds;(13)
an assignment of a deposit account, other than a nonnegotiable certificate of deposit, in a consumer transaction, but Sections 9.315 (Secured Party’s Rights on Disposition of Collateral and in Proceeds) and 9.322 (Priorities Among Conflicting Security Interests in and Agricultural Liens on Same Collateral) apply with respect to proceeds and priorities in proceeds; or(14)
an oil and gas lien arising under Chapter 67 (Oil and Gas Liens), Property Code.(e)
The application of this chapter to the sale of accounts, chattel paper, payment intangibles, or promissory notes is not to recharacterize that sale as a transaction to secure indebtedness but to protect purchasers of those assets by providing a notice filing system. For all purposes, in the absence of fraud or intentional misrepresentation, the parties’ characterization of a transaction as a sale of such assets shall be conclusive that the transaction is a sale and is not a secured transaction and that title, legal and equitable, has passed to the party characterized as the purchaser of those assets regardless of whether the secured party has any recourse against the debtor, whether the debtor is entitled to any surplus, or any other term of the parties’ agreement.(1)
the security interest is enforceable, even if Section 9.203 (Attachment and Enforceability of Security Interest; Proceeds; Supporting Obligations; Formal Requisites)(b)(3) has not been satisfied;(2)
filing is not required to perfect the security interest;(3)
the rights of the secured party after default by the debtor are governed by Chapter 2 (Competition and Trade Practices) or 2A (Leases); and(4)
the security interest has priority over a conflicting security interest created by the debtor.
Source:
Section 9.109 — Scope, https://statutes.capitol.texas.gov/Docs/BC/htm/BC.9.htm#9.109 (accessed Apr. 20, 2024).
