Prompt payment

Texas prompt payment act and retainage rules

Texas has two prompt pay statutes. Government Code Chapter 2251 covers public work: payment is overdue on day 31 and primes have 10 days to pay subs. Property Code Chapter 28 covers private work: 35 days for the owner, 7 days down each tier, and 1.5 percent a month on late money.

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The Texas prompt payment act is really two laws. On public work, Government Code § 2251.021 makes a governmental entity's payment overdue on the 31st day after the later of delivery, completion of the service, or receipt of the invoice, and § 2251.022 gives the prime 10 days to pay its subs. Late public money earns the prime rate plus 1 percent. On private work, Property Code § 28.002 gives the owner 35 days from a written payment request, then 7 days at each tier below, with 1.5 percent a month on anything late. Retainage is capped on public jobs of $400,000 and up (10 percent under $5 million, 5 percent at $5 million or more), and private owners must reserve 10 percent under the lien statute.

Texas payment and retainage rules at a glance
RulePublic work (Gov't Code Ch. 2251 and 2252)Private work (Property Code Ch. 28 and 53)
Owner pays primeOverdue on day 31 after the later of delivery, completion, or invoice receipt; day 46 for a political subdivision whose board meets monthly or less (§ 2251.021)Within 35 days after the owner receives a written payment request (§ 28.002(a))
Prime pays subsWithin 10 days after receiving payment; overdue on day 11 (§ 2251.022). Same 10 days for subs paying their suppliers (§ 2251.023)Within 7 days after receiving the owner's payment, and 7 days again at each lower tier (§ 28.002(b), (c))
Interest on late paymentPrime rate in the Wall Street Journal plus 1 percent, set each September 1 (§ 2251.025). Comptroller posts 7.75 percent for fiscal 20271.5 percent per month (§ 28.004)
Retainage cap10 percent if the contract is under $5 million; 5 percent at $5 million or more; 10 percent on dam work (§ 2252.032(b)). Contracts under $400,000 and TxDOT Chapter 223 work are exempt (§ 2252.033)Owner must reserve 10 percent of the contract price or of the value of work done, until 30 days after completion (§ 53.101)
Retainage escrowInterest-bearing account by agreement on competitively awarded contracts of $10 million or more and on non-bid contracts (§ 2252.032(c))No escrow rule in Chapter 28; the 10 percent reserve secures lien claimants (§ 53.102)
Right to stop workAfter written notice and 10 days (§ 2251.051)After written notice to the owner (and lender, if posted) and 10 days (§ 28.009)

Public work: owner to prime under Chapter 2251

Chapter 2251 governs payments by a governmental entity to vendors, and its exceptions section speaks directly to public works construction. The 30-day clock starts from the latest of three dates, so an invoice that lands two weeks after the work is done pushes the due date out. Political subdivisions whose governing body meets once a month or less get until day 46. If the entity disputes an invoice, it must say so in writing within 21 days of receiving it, with a detailed statement of the disputed amount, and it may hold back no more than 110 percent of that amount (§ 2251.042). Note that § 2251.002(c) says an audit dragging on more than 60 days past substantial completion is not a bona fide dispute on a public work.

Interest runs from the day the payment becomes overdue. The rate is the Wall Street Journal prime rate on the first weekday of July plus 1 percent, fixed for the fiscal year that starts September 1. The Comptroller's August 14, 2026 notice puts the fiscal 2027 rate at 7.75 percent. A state agency cannot make you ask for the interest before paying it (§ 2251.026(f)). In a formal action to collect, the losing side pays the prevailing party's reasonable attorney fees (§ 2251.043).

Public work: prime to sub, retainage, and escrow

Once the prime is paid, the sub's share is due within 10 days and overdue on day 11. The same rule repeats one level down, so a drywall sub that gets paid on the 5th owes its own suppliers by the 15th. Interest on late sub payments follows the same Chapter 2251 rate.

  • Caps: retainage may not exceed 10 percent on a public works contract under $5 million, or 5 percent at $5 million or more, and the rate applies line by line, including materials delivered on site (§ 2252.032(b)).
  • Flow-down: a prime may not hold a higher percentage from a sub than the owner holds from the prime, and the same limit applies at each lower tier (§ 2252.032(d)).
  • Release: the contract must define substantial completion and when retainage can be released for completed portions. The entity may not keep holding retainage after the prime's work is complete, including during the warranty period (§ 2252.032(a), (e)).
  • Disputes at closeout: retainage may be held at final payment only for a bona fide dispute over noncompliant work or when the surety will not consent, and the entity must give written notice of the basis (§ 2252.032(f)).
  • Escrow: on competitively awarded contracts of $10 million or more, and on contracts awarded without competitive bidding, the parties may agree to put retainage in an interest-bearing account (§ 2252.032(c)).

Private work under Property Code Chapter 28

Chapter 28 covers private owners (the definition excludes governmental entities). The owner pays within 35 days after receiving a written request for properly performed work or suitably stored or specially fabricated materials. Then the money moves down in 7-day steps, interest included. A single-family residence contract may push the owner's deadline out to as late as day 60 (§ 28.006(b)), but otherwise an attempted waiver of the chapter is void. If the owner's lender fails to fund on time despite a proper draw request, the owner's deadline becomes the 5th day after loan proceeds arrive (§ 28.008).

Good faith disputes allow withholding of up to 100 percent of the disputed difference on commercial work and up to 110 percent on one-to-four family homes (§ 28.003). Late amounts earn 1.5 percent a month, and the court may award costs and attorney fees (§ 28.004, § 28.005). The 10 percent owner reserve under § 53.101 is part of the lien statute, so pair this page with the Texas mechanics lien guide.

Pay-if-paid clauses in Texas

Texas allows pay-if-paid clauses, which the statute calls contingent payment clauses, but Business and Commerce Code Chapter 56 limits them. The contingent payor cannot enforce one if the owner's nonpayment comes from the payor's own failures, if the relationship is a sham, or if enforcement would be unconscionable. A sub may send written notice objecting to the clause after the 45th day following a proper payment request; for later work, the clause stops being enforceable once the notice takes effect (§ 56.052). The clause can never be used to defeat a mechanics lien (§ 56.055). Chapter 56 does not apply to design-only contracts, civil work such as roads and utilities, or one-to-four family homes (§ 56.002).

Frequently asked questions

How long does a Texas public owner have to pay a contractor?

Under Government Code § 2251.021, payment is overdue on the 31st day after the later of delivery, completion of the work, or receipt of the invoice. Political subdivisions whose governing body meets monthly or less often have until the 46th day.

What interest rate applies to late Texas public payments?

The Wall Street Journal prime rate on the first weekday of July plus 1 percent, set for the fiscal year starting September 1. The Comptroller lists 7.75 percent for fiscal 2027.

How fast must a Texas general contractor pay subs on private jobs?

Within 7 days after receiving the owner's payment, under Property Code § 28.002(b). Each sub then has 7 days to pay its own subs and suppliers. Late amounts earn 1.5 percent per month.

What is the Texas retainage cap on public projects?

Government Code § 2252.032 caps retainage at 10 percent on public works contracts under $5 million and 5 percent at $5 million or more. Contracts under $400,000 and TxDOT Chapter 223 contracts are exempt from that subchapter.

Are pay-if-paid clauses enforceable in Texas?

Yes, with limits. Business and Commerce Code Chapter 56 blocks enforcement in several cases, lets a sub cut off the clause for later work by written notice after 45 days, and bars using it to defeat a mechanics lien.

Sources

  1. Texas Legislature: Government Code Chapter 2251 (Payment for Goods and Services)
  2. Texas Legislature: Government Code Chapter 2252 (retainage, § 2252.031 to 2252.033)
  3. Texas Legislature: Property Code Chapter 28 (Prompt Payment to Contractors and Subcontractors)
  4. Texas Legislature: Property Code Chapter 53 (§ 53.101 reserved funds)
  5. Texas Legislature: Business and Commerce Code Chapter 56 (contingent payment clauses)
  6. Texas Comptroller FMX: What's New, Late Payment Interest Rate for Fiscal 2027 (posted 08/14/26)

Laws and rates change. Confirm current requirements with the state agency before you bid, file, or pay. This page is general information, not legal advice.

Written and edited by

Maurice Francois writes and edits construction operations guides for Smart Business Automator. More from Maurice on the Scaling Legends podcast.

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