                                                  FILED
                                                  15-0661
                                                  8/31/2015 11:09:15 PM
                                                  tex-6735480
                                                  SUPREME COURT OF TEXAS
                                                  BLAKE A. HAWTHORNE, CLERK
                     15-0661
            NO. _________


     In the Supreme Court of Texas



         IN RE AMELIA V. KELLY,
                    Relator


   ORIGINAL PROCEEDING FROM CAUSE NO. 11CV0325
122ND DISTRICT COURT OF GALVESTON COUNTY, TEXAS
           HON. JOHN ELLISOR PRESIDING


      PETITION FOR WRIT OF MANDAMUS


             SMITH LAW GROUP LLLP
                Maitreya Tomlinson
              State Bar No. 24070751
            maitreya@appealsplus.com
         1250 Capital of Texas Hwy South
           Three Cielo Center, Suite 601
               Austin, Texas 78746
                  (512) 439-3230
               (512) 439-3232 (fax)


               Counsel for Relator
                Amelia V. Kelly
                  IDENTITY OF PARTIES AND COUNSEL

Relator:                        Appellate Counsel for Relator:

Amelia V. Kelly                 Maitreya Tomlinson
                                SMITH LAW GROUP LLLP
                                1250 Capital of Texas Highway South
                                Three Cielo Center, Suite 601
                                Austin, Texas 78746

                                Trial Counsel and Former Appellate
                                Counsel for Relator:

                                George F. May
                                TWOMEY MAY, PLLC
                                2 Riverway, 15th Floor
                                Houston, Texas 77056

                                Trial Counsel for Relator:

                                Larry A. Vick
                                LAW OFFICES OF LARRY A. VICK
                                908 Town & Country Blvd., Suite 120
                                Houston, Texas 77024

Real Party in Interest:         Trial and Appellate Counsel for Real Party
                                in Interest:

Matthew D. Wiggins, Jr.         Timothy A. Beeton
                                SIMPSON & BEETON
                                2200 Market Street, Suite 801
                                Galveston, Texas 77550

                                George W. Vie, III
                                MILLS SHIRLEY, LLP
                                2228 Mechanics Street
                                Galveston, Texas 77550




                                 i
Respondent:

The Honorable John Ellisor
122nd Judicial District Court
600 59th Street, Suite 4304
Galveston, Texas 77551




                                ii
                                           TABLE OF CONTENTS


Identity of Parties and Counsel ...................................................................................i

Index of Authorities ................................................................................................ vii

Record and Appendix................................................................................................. 1

Statement of the Case................................................................................................. 2

Statement of Jurisdiction............................................................................................ 4

         1.       Does a trial court abuse its discretion by ordering a
                  residence’s foreclosure and sale, and is that order void when:

                  a.       the trial court’s plenary power has expired;

                  b.    the party seeking foreclosure merely filed a motion to
                  foreclose;

                  c.    the trial court’s final judgment did not order foreclosure
                  or provide any devices for the moving party to enforce the
                  lien;

                  d.     the judgment stated that the property owner intended to
                  reside in the property;

                  e.    the judgment and pleadings did not indicate the lien
                  was a lien that constituted an exception to homestead
                  protection;

                  f.    the trial court did not hold a trial or conduct any
                  evidentiary hearings; and

                  g.    the trial court, and the moving party, treat the lien like a
                  loan with a deadline for its payoff and the judgment does not?

         2.       Does a trial court abuse its discretion by ordering a property’s
                  foreclosure and sale when:



                                                           iii
     a.   the trial court acknowledged that the property was a
     homestead;

     b.    the trial court applied the purchase money exception to
     a lien that only included the lien beneficiary’s purchase
     money expended at an earlier foreclosure sale;

     c.    the trial court applied the work-and-materials exception
     when there was no written contract for the work and materials
     and the lien beneficiary performed the work after he
     purchased the property at an earlier foreclosure sale;

     d.    the trial court did not hold a trial or conduct any
     evidentiary hearings on potential fact issues regarding
     homestead protection; and

     e.     this Court and other courts have held analogous orders
     invalid.

3.   Does a trial court abuse its discretion and violate
     constitutional due process and due course of law protections
     when:

     a.   it orders foreclosure and sale on a property that it
     acknowledges as a person’s homestead; and
     b.    it does so without a trial or without holding evidentiary
     hearings?

4.   Does a trial court abuse its discretion by ordering foreclosure
     and the sale of real property two years after issuing a
     judgment in which it created a judicial lien in rem that need
     not be satisfied until the property is conveyed?

5.   Has a relator satisfied the no-adequate-remedy requirement
     when:

     a.    the trial court issued an inconsistent order after its
     plenary power expired; and
     b.     the relator has no means to otherwise complain about
     the order?

                                 iv
Issues Presented ......................................................................................................... 4

Why the court should grant mandamus ..................................................................... 6

Statement of Facts ...................................................................................................... 7

Argument and Authorities........................................................................................ 13

          I.        Standards of Review............................................................................ 13

          II.       The Trial Court Abused Its Discretion by Issuing a Void
                    Foreclosure Order ................................................................................ 14

                    A.        The Trial Court Abused Its Discretion by Issuing Its
                              Foreclosure Order Without Jurisdiction ................................... 14
                    B.        The Trial Court Abused Its Discretion by Issuing a
                              Foreclosure Order on Kelly’s Homestead ................................ 18
                    C.        The Trial Court Abused Its Discretion by Violating
                              Constitutional Due Process and Due Course of Law
                              Protections ................................................................................. 21
                    D.        The Trial Court Issued a Relatively Unique Judgment
                              that Created a Lien on 701 Bay, Which Need Not Be
                              Satisfied Until Kelly Conveys the Property .............................. 22
          III.      Kelly Has No Adequate Remedy ........................................................ 24
Prayer ....................................................................................................................... 24

Rule 52.3(j) Certification ......................................................................................... 26

Rule 9.4(i) Certificate of Compliance...................................................................... 26

Certificate of Service ............................................................................................... 27

Appendix ....................................................................................................................... post
          Order of Judicial Foreclosure (signed June 23, 2014).............................Tab A

          Final Judgment (signed June 22, 2012) ................................................... Tab B
          Writ of Execution and Order of Sale (dated August 26, 2014) ............... Tab C
                                                                 v
TEX. CONST. art. XVI, § 50......................................................................Tab D

TEX. PROP. CODE § 41.001 ....................................................................... Tab E

TEX. PROP. CODE § 53.254....................................................................... Tab F

U.S. CONST. amend. XIV .........................................................................Tab G

TEX. CONST. art. I § 15. ...........................................................................Tab H
TEX. CONST. art. I § 19. ............................................................................ Tab I




                                               vi
                                   INDEX OF AUTHORITIES

Cases
Bank One, N.A. v. Wohlfahrt,
     193 S.W.3d 190 (Tex. App.—Houston [1st Dist.] 2006, no pet.) .................16

Bell v. Jones,
       139 P.2d 884 (Utah 1943)..............................................................................16

Curtis Sharp Custom Homes, Inc. v. Glover,
      701 S.W.2d 24 (Tex. App.—Dallas 1985, writ ref’d n.r.e)...........................20

Custom Corporates, Inc. v. Sec. Storage, Inc.,
     207 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2006, no pet.) ..............14
Gilmore v. Dennison,
     131 Tex. 398, 115 S.W.2d 902 (1938) ..........................................................21

Great Bay Condo.,Owners Ass’n v. Merryman,
      No. ST-07-CV-0546, 2010 WL 7371946 (V.I. Aug. 9, 2010) ......................16
Heggen v. Pemelton,
     836 S.W.2d 145 (Tex. 1992) .................................................................. 18, 20

In re Adan Volpe Props., Ltd.,
       No. 04-14-00615-CV, 2014 WL 7437005 (Tex. App.—San
       Antonio Dec. 31, 2014, orig. proceeding [mand. denied]) ............................14

In re Kelly,
       No. 14-14-00789-CV, 2014 WL 5492809 (Tex. App.—Houston
       [14th Dist.] Oct. 30, 2014, orig. proceeding) ............................................3, 12
In re Kelly,
       No. 14-14-00944-CV, 2014 WL 7524979 (Tex. App.—Houston
       [14th Dist.] Nov. 26, 2014, orig. proceeding) ...........................................3, 12
In re Marriage of Christodolou,
      383 S.W.3d 718 (Tex. App.—Amarillo 2012, no pet.) .................................19

In re Prudential Ins. Co. of Am.,
       148 S.W.3d 124 (Tex. 2004) .................................................................. 13, 14

                                                     vii
In re Vaishangi, Inc.,
       442 S.W.3d 256 (Tex. 2014) .................................................................. 13, 24

Inwood N. Homeowners’ Ass’n, Inc. v. Harris,
     736 S.W.2d 632 (Tex. 1987) .........................................................................18

Johnson v. Fourth Court of Appeals,
     700 S.W.2d 916 (Tex. 1985) (orig. proceeding) ...........................................13

Katz v. Bianchi,
      848 S.W.2d 372 (Tex. App.—Houston [14th Dist.] 1993, no writ) ..............23

Kelly v. Wiggins,
      No. 14-14-00605-CV, 2015 WL 2169519 (Tex. App.—Houston
      [14th Dist.] May 7, 2015, no. pet.) ................................................. 3, 9, 12, 24
Kendall Builders, Inc. v. Chesson,
     149 S.W.3d 796 (Tex. App.—Austin 2004, pet. denied) ..............................21
Millikin v. Jeffrey,
       117 Tex. 152, 299 S.W. 397 (1927) ..............................................................14

Moser v. Schachar,
     No. 4:14-CV-185, 2015 WL 679689 (E.D. Tex. Feb. 17, 2015) ..................22

Perry v. Del Rio,
      66 S.W.3d 239 (Tex. 2001) (quoting Walker, 827 S.W.2d at 842) ...............13
Salomon v. Lesay,
     369 S.W.3d 540 (Tex. App.—Houston [1st Dist.] 2012, no pet.) .................18

Spradlin v. Jim Walter Homes, Inc.,
      34 S.W.3d 578 (Tex. 2000) ...........................................................................19

Stephens v. LPP Mortgage, Ltd.,
      316 S.W.3d 742 (Tex. App.—Austin 2010, pet. denied) ..............................16

Vackar v. Patterson, Boyd, Lowery, Anderholt & Peterson, P.C.,
     866 S.W.2d 817 (Tex. App.—Beaumont 1993, no writ) ..............................17

Walker v. Packer,
     827 S.W.2d 833 (Tex. 1992) .........................................................................13


                                                    viii
Walter v. Marathon Oil Corp.,
      422 S.W.3d 848 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ..............24

Statutes
Tex. Const. art. I § 19...............................................................................................21

TEX. CONST. art. I, § 15 ............................................................................................21
TEX. CONST. art. V, § 3 ..............................................................................................4

TEX. CONST. art. XVI, § 50(a) .......................................................................... 18, 19

TEX. CONST. art. XVI, § 50(a)(1) .............................................................................19
TEX. CONST. art. XVI, § 50(a)(5) .............................................................................19
TEX. GOV’T CODE § 22.002(a) ...................................................................................4
TEX. PROP. CODE § 41.001 ................................................................................ 18, 19

TEX. PROP. CODE § 41.001(b)(1)..............................................................................19

TEX. PROP. CODE § 41.001(b)(3)..............................................................................19

U.S. CONST. amend. XIV .........................................................................................21

Rules
TEX. R. APP. P. 52.7(a) ...............................................................................................1




                                                          ix
TO THE HONORABLE SUPREME COURT OF TEXAS:

      Relator Amelia V. Kelly files this petition for writ of mandamus requesting

relief from the trial court’s June 23, 2014 order granting judicial foreclosure and

providing an order of sale. Although Matthew D. Wiggins sued for foreclosure in a

related proceeding, he filed a motion in the complained-about court and obtained

judicial foreclosure and an order of sale on what was Kelly’s homestead. The trial

court did so without adjudicating the issues and in contravention of its final order.

Despite its characterization as an enforcement order, the June 23, 2014 order does

not comport with the trial court’s final judgment. The order’s issuance is

incongruent with Texas homestead rights, and it raises due process concerns.

Consequently, Kelly requests the Court to declare the order void. Kelly also

respectfully shows:

                            RECORD AND APPENDIX

      Relator is filing a separate sworn mandamus record, which is cited by page

number in this petition (e.g., MR ___). The record contains certified copies of all

documents filed in Cause No. 11CV0325 and properly authenticated transcripts

from the relevant hearings. See TEX. R. APP. P. 52.7(a). The appendix is attached to

this petition and is cited by tab (e.g., App’x. ___).




                                           1
                       STATEMENT OF THE CASE
Underlying Proceeding:                The underlying case is styled Amelia V.
                                      Kelly v. Matthew D. Wiggins, Jr. and D.L.
                                      Hammaker, Cause No. 11CV0325 in the
                                      122nd Judicial District Court of Galveston
                                      County, Texas.

Nature of Case and Ruling at Issue:   This case involved a successful wrongful
                                      foreclosure claim against Wiggins. It also
                                      included Wiggins’ counterclaim seeking
                                      reimbursement for the amounts he
                                      expended to purchase the property at the
                                      foreclosure sale and the amounts he
                                      expended to preserve and improve the
                                      property after the wrongful foreclosure.

                                      In June 2012, the trial court issued a
                                      judgment reflecting that Kelly intended to
                                      reside at the wrongfully foreclosed
                                      property. The judgment also ordered that
                                      the property’s title remain vested in Kelly’s
                                      name, free and clear of any liens and
                                      claims asserted by a party subject to,
                                      among other things, a lien against the
                                      property for the amounts claimed by
                                      Wiggins. The judgment further provided
                                      Kelly legal avenues to enforce the
                                      judgment, but did not order the same for
                                      Wiggins.

                                      Just over two years later, even though
                                      Wiggins had not sued to foreclose, the trial
                                      court issued an order purportedly judicially
                                      foreclosing on the homesteaded property.

Respondent:                           Hon. John Ellisor, Judge of the 122nd
                                      Judicial District Court of Galveston
                                      County, Texas.




                                       2
Relief Sought:                     Relator seeks a writ of mandamus either
                                   declaring the trial court’s June 23, 2014
                                   foreclosure order void or vacating the
                                   order.

Court of Appeals and the Supreme   Since the trial court issued the foreclosure
Court of Texas:                    order, Kelly has filed two relevant
                                   mandamus petitions in the Fourteenth
                                   District Court of Appeals. She has also
                                   filed, concurrently with her second
                                   mandamus petition, a direct appeal in the
                                   same court. Additionally, Kelly filed a
                                   mandamus petition in this Court for the
                                   limited purpose of instructing the appeals
                                   court to issue a stay.
Court of Appeals’ Dispositions:    In re Kelly, No. 14-14-00789-CV, 2014
                                   WL 5492809, at *1 (Tex. App.—Houston
                                   [14th Dist.] Oct. 30, 2014, orig.
                                   proceeding). The court denied mandamus
                                   without any substantive explanation.
                                   In re Kelly, No. 14-14-00944-CV, 2014
                                   WL 7524979, at *1 (Tex. App.—Houston
                                   [14th Dist.] Nov. 26, 2014, orig.
                                   proceeding). The court noted the filings’
                                   similarity to Kelly’s previous mandamus
                                   petition. And, it similarly denied
                                   mandamus without any substantive
                                   explanation.
                                   Kelly v. Wiggins, No. 14-14-00605-CV,
                                   2015 WL 2169519, at *3-4 (Tex. App.—
                                   Houston [14th Dist.] May 7, 2015, no.
                                   pet.). The court determined it lacked
                                   jurisdiction and dismissed the appeal. Its
                                   opinion, however, suggested why the court
                                   decided to deny Kelly’s mandamus
                                   petitions.




                                    3
Supreme Court of Texas’               In No. 15-0004, this Court denied Kelly’s
Disposition:                          request for mandamus relief involving her
                                      sought-after stay.

                     STATEMENT OF JURISDICTION
      This Court has jurisdiction over this original proceeding under Article V,

Section 3 of the Texas Constitution and Section 22.002 of the Texas Government

Code. See TEX. CONST. art. V, § 3; TEX. GOV’T CODE § 22.002(a).

                            ISSUES PRESENTED

      1.     Does a trial court abuse its discretion by ordering a residence’s
foreclosure and sale, and is that order void when:

            a.    the trial court’s plenary power has expired;

            b.    the party seeking foreclosure merely filed a motion to foreclose;

            c.    the trial court’s final judgment did not order foreclosure or
                  provide any devices for the moving party to enforce the lien;

            d.    the judgment stated that the property owner intended to reside
                  in the property;

            e.    the judgment and pleadings did not indicate the lien was a lien
                  that constituted an exception to homestead protection;

            f.    the trial court did not hold a trial or conduct any evidentiary
                  hearings; and

            g.    the trial court, and the moving party, treat the lien like a loan
                  with a deadline for its payoff and the judgment does not?

      2.     Does a trial court abuse its discretion by ordering a property’s
foreclosure and sale when:

            a.    the trial court acknowledged that the property was a homestead;


                                        4
             b.    the trial court applied the purchase money exception to a lien
                   that only included the lien beneficiary’s purchase money
                   expended at an earlier foreclosure sale;

             c.    the trial court applied the work-and-materials exception when
                   there was no written contract for the work and materials and the
                   lien beneficiary performed the work after he purchased the
                   property at an earlier foreclosure sale;

             d.    the trial court did not hold a trial or conduct any evidentiary
                   hearings on potential fact issues regarding homestead
                   protection; and

             e.    this Court and other courts have held analogous orders invalid.

      3.    Does a trial court abuse its discretion and violate constitutional due
process and due course of law protections when:
             a.    it orders foreclosure and sale on a property that it acknowledges
                   as a person’s homestead; and
             b.    it does so without a trial or without holding evidentiary
                   hearings?

       4.      Does a trial court abuse its discretion by ordering foreclosure and the
sale of real property two years after issuing a judgment in which it created a
judicial lien in rem that need not be satisfied until the property is conveyed?
      5.     Has a relator satisfied the no-adequate-remedy requirement when:
             a.    the trial court issued an inconsistent order after its plenary
                   power expired; and
             b.    the relator has no means to otherwise complain about the order?




                                          5
            WHY THE COURT SHOULD GRANT MANDAMUS

      Without jurisdiction, the trial court issued a foreclosure order and an order of

sale on Relator’s homestead that altered a two-year-old final judgment. Assuming

that the trial court had jurisdiction, it acknowledged that the subject property was a

homestead, but clearly misapplied law that obviates that protection. The trial court

also ordered the property’s sale without trying the homestead issues or accepting

any evidence.

      Mandamus relief is important here because trial courts should never issue

orders without jurisdiction. Allowing them to do so would provide trial courts with

unfettered authority. Further, preserving a person’s residential property is so

paramount in Texas that homesteads are constitutionally protected. Allowing a trial

court to improperly foreclose on a homestead not only negates the will of the

people, it unconstitutionally deprives a person of their home. Lastly, issues like

homestead protection require evidence and proper adjudication. Here, the trial

court allowed a woman’s home to be taken away through simple motion practice

and non-evidentiary hearings. Constitutionally protected property should not be

wrested from someone’s hands so expediently.




                                          6
                               STATEMENT OF FACTS

        The 2012 Case:       Matthew       D.       Wiggins   conducted       a   non-judicial

foreclosure sale on 701 Bay Avenue in Kemah, Texas, a property owned by

Amelia V. Kelly. MR6. He also purchased the property at the foreclosure sale. Id.

Wiggins later claimed that he paid to preserve and improve the property, which

occurred after his foreclosure purchase. See id.; MR48.

        Kelly subsequently sued Wiggins and a purported substitute trustee, D.L.

Hammaker for, among other things, wrongfully foreclosing on 701 Bay. MR74,

57-74. Kelly also pleaded that 701 Bay was her homestead.1 MR74.

        In response, Wiggins made multiple counterclaims, including that the trial

court should hold Kelly’s potential interest in 701 Bay subject to a “claim for

reimbursement for all amounts spent by him to purchase, preserve, and improve

the property . . .” at, and after, the wrongful foreclosure. See MR48. Wiggins also

claimed that those amounts should constitute a lien on Kelly’s interest in the

property. Id. He did not seek foreclosure. See MR46-56.




    1
            In fact, during the relevant times, Kelly has claimed and evidence has supported that
701 Bay was her homestead. Kelly has steadfastly maintained that 701 Bay is her homestead.
MR74, 78-92, 99, 108-12, 114-27, 129-31 134-35). She has also filed briefing and other
documents, and submitted evidence, supporting that 701 Bay is her homestead. See id.
Unsurprisingly, the jury determined that Kelly intended to reside at 701 Bay. MR168. And, the
trial court impliedly acknowledged that 701 Bay was Kelly’s homestead when it applied an
exception to homestead protection and issued the foreclosure order. See MR173, 175.


                                                7
      The Unorthodox 2012 Final Judgment and Subsequent Appeals: The

trial court signed its final judgment on June 22, 2012. MR176-82; App’x. B. In it,

the trial court declared that Wiggins’ foreclosure was void and that title did not

pass from Kelly to Wiggins. MR179; App’x. B. The trial court also stated that

Wiggins’ right, title, and interest in 701 Bay remain vested in Kelly. MR179-80;

App’x. B. Relevantly, however, the trial court included the following language:

            It is further ORDERED, ADJUDGED AND DECREED that
      the Subject Property is free and clear of any liens and claims of any
      party to this cause, subject only to (1) a lien against the Property
      created by this Judgment in favor of [Wiggins] in the amount of
      $660,000.00 found by the jury for the purchase, preservation and
      improvement of the property....

            It is further ORDERED, ADJUDGED AND DECREED that
      [Kelly] shall have all such Writs and Orders as shall become, in
      [Kelly’s] behalf, necessary to enforce the execution hereof . . . and
      [Wiggins] is divested of all right, title and interest in the Property.

MR180; App’x. B.

      The trial court’s judgment accorded with Wiggins’ requested relief in some

manners, but diverged in others. For example, because Wiggins did not plead a

foreclosure claim, the trial court did not provide him with one. Compare MR46-56,

with MR176-82; App’x. B. The judgment, however, diverged from Wiggins’

sought-after relief when it did not provide him a lien on Kelly’s interest in 701

Bay. Compare MR48, with MR179-80; App’x. B.




                                        8
      Instead, the judgment explicitly (and oddly) created a lien in Wiggins’ favor

against the property itself after declaring that 701 Bay “is free and clear of any

liens and claims of any party to [the case]....” MR179-80; App’x. B. It did not

supply Wiggins with devices necessary for foreclosing or executing on the lien, nor

did it impose liability for the lien on Kelly. See MR176-82; App’x. B.

      While both parties appealed the judgment, they later abandoned those

appeals. MR183-208); see also Kelly, 2015 WL 2169519, at *2 (providing links to

orders dismissing appeals).

      Wiggins’ Attempts to Foreclose and His Successful Attempt to Transfer

a Related Case to Respondent’s Court:        Since the 2012 judgment, Wiggins

has repeatedly tried to non-judicially foreclose on 701 Bay, which prompted Kelly

to seek bankruptcy protection. MR99, 110, 223, 294, 384-85, 410-12 Wiggins’

attempted foreclosures also precipitated Kelly filing a successful suit in the 405th

District Court, Galveston County, Texas (No. 13-CV-1392), to obtain a temporary

restraining order and injunctions to prevent any further attempts. MR302-83.

      After removing the case to the bankruptcy court, Wiggins filed a

counterclaim for judicial foreclosure on 701 Bay. MR294-301, 384-91. He later

requested that the 405th District Court transfer the case to the Respondent’s court.

MR412, 443. When the 405th District Court denied the request, he successfully

persuaded the Administrative Judge to transfer the case. See id.



                                         9
      The 2014 Foreclosure Proceeding and Order:          Even   though    Wiggins

had counterclaimed for judicial foreclosure in a related suit, he filed a motion

purportedly seeking to enforce the 2012 final judgment. MR463-79. He also sought

an order for judicial foreclosure. Id. In his motion, Wiggins premised his sought-

after relief on the assumption that the judgment required Kelly to pay him

$660,000 and that she satisfy that liability within a reasonable amount of time. See

MR464-65.

      Kelly responded by asking the trial court to abate the motion because

Wiggins had an active, first-filed foreclosure counterclaim in a related matter.

MR98-101. She also requested that the trial court dismiss the motion because it

lacked jurisdiction to alter its 2012 final judgment. MR101-02. The trial court

denied both requests. MR480.

      Kelly further responded that there was no existing judgment allowing for

701 Bay’s forced sale. She also made the following arguments: (1) the trial court’s

plenary power to alter its 2012 judgment had expired; (2) the trial court could not

foreclose on 701 Bay because it was Kelly’s homestead; (3) the trial court could

not apply the purchase money exception to the homestead protection because none

of the $660,000 lien constituted Kelly’s purchase money; (4) the trial court could

not foreclose without Wiggins filing a lawsuit and receiving a new judgment; and




                                        10
(5) Kelly’s homestead protection exempted 701 Bay from a forced sale by

execution. MR108-12.

      The trial court conducted two hearings related to Wiggins’ motion, but

neither was evidentiary. See MR492-526. After conducting the two hearings, the

trial court sent a letter to the parties stating that “it is likely that no ‘homestead

protection’ will apply because “the lien was determined to be for [701 Bay’s]

‘purchase, preservation and improvement....” MR173. The trial court later issued

an order, signed on June 23, 2014, granting Wiggins motion and judicially

foreclosing on the $660,000 lien. MR482; App’x. A. It also directed the district

clerk to issue an order of sale. Id.

      In August 2014, the trial court issued findings of fact and conclusions of

law. MR 174-75. Relevantly, the trial court included the following conclusions of

law: (1) the trial court has the power to enforce its judgments; (2) Kelly had “not

paid any sum to release or otherwise satisfy the lien against [701 Bay]...”; (3) no

homestead protection applied because the lien was “for [701 Bay’s] purchase,

preservation and improvement...”; and (4) Wiggins was entitled to a foreclosure

order and an order of sale. MR175. Pursuant to the foreclosure order, the district

clerk issued a writ of execution and order of sale. MR483-84; App’x. C.

      Kelly’s Post-2014 Foreclosure Order Appellate Filings: Kelly filed her

first mandamus petition in October 2014, complaining about the trial court’s



                                         11
foreclosure order. In re Kelly, 2014 WL 5492809, at *1. She filed a second petition

in November 2014, after the sheriff’s office had set a date to auction off 701 Bay.

See In re Kelly, 2014 WL 7524979, at *1. In an abundance of caution, Kelly also

filed a direct appeal on the same day. See Kelly, 2015 WL 2169519, at *2. Kelly

later filed a mandamus petition (15-0004) in this Court in January 2015,

exclusively asking the Court to stay proceedings below while Kelly completed her

appeals. See MR209-93.

      By the end of November 2014, the Fourteenth Court had denied both

petitions. In re Kelly, 2014 WL 5492809, at *1; In re Kelly, 2014 WL 7524979, at

*1. It later, in May 2015, determined it lacked jurisdiction over the direct appeal

and issued an opinion. Kelly, 2015 WL 2169519, at *3-4. This Court also denied

Kelly her requested stay. See MR488-91.

      After considering whether to file any motions for rehearing or en banc

reconsideration, Kelly hired the undersigned counsel to review her case and

evaluate her appellate options.

      701 Bay’s Recent Foreclosure Sale: Since the Fourteenth Court issued its

opinion, Wiggins has again purchased the property at a foreclosure sale.




                                        12
                      ARGUMENT AND AUTHORITIES

I.    Standards of Review

      A writ of mandamus is available when a trial court clearly abuses its

discretion and a relator has no adequate remedy at law. See Walker v. Packer, 827

S.W.2d 833, 839 (Tex. 1992). A trial court clearly abuses its discretion when “‘it

reaches a decision so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law.’” Id. (quoting Johnson v. Fourth Court of Appeals, 700

S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). A trial court has no discretion

when it comes to “determining what the law is or applying the law to the facts.” Id.

at 840.

      Generally, an adequate legal remedy exists if the relator can raise the

complaint on appeal. Id. The question to ask, however, is whether “any benefits to

mandamus review are outweighed by the detriments.” In re Prudential Ins. Co. of

Am., 148 S.W.3d 124, 136 (Tex. 2004). Ultimately, an appellate remedy “is

inadequate, justifying the issuance of mandamus relief, ‘when the parties stand to

lose their substantial rights.’” Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex. 2001)

(quoting Walker, 827 S.W.2d at 842).

      Relators, however, do not need to show they lack adequate remedies on

appeal when trial courts exceed their jurisdiction and issue void orders. In re

Vaishangi, Inc., 442 S.W.3d 256, 261 (Tex. 2014). Mandamus is also available



                                        13
when trial courts do not afford litigants due-process rights, particularly when they

deny a party’s right to adjudicate material issues by jury trial. See Prudential, 148

S.W.3d at 139; cf. Millikin v. Jeffrey, 117 Tex. 152, 154, 299 S.W. 397, 398

(1927).

II.    The Trial Court Abused Its Discretion by Issuing a Void Foreclosure
       Order

       A.     The Trial Court Abused Its Discretion by Issuing Its Foreclosure
              Order Without Jurisdiction

       The trial court lacked jurisdiction to issue its 2014 foreclosure order. Trial

courts may not issue enforcement orders that are inconsistent with their original

judgments after their plenary power has expired. In re Adan Volpe Props., Ltd.,

No. 04-14-00615-CV, 2014 WL 7437005, at *3 (Tex. App.—San Antonio Dec. 31,

2014, orig. proceeding [mand. denied]). They also may not issue orders that

materially change the original judgment’s substantive adjudicative portions.

Custom Corporates, Inc. v. Sec. Storage, Inc., 207 S.W.3d 835, 839 (Tex. App.—

Houston [14th Dist.] 2006, no pet.). Additionally, a postjudgment enforcement

order may not require a party to perform obligations that the trial court does not

impose in its final judgment. In re Adan Volpe Props., 2014 WL 7437005, at *3. If

a trial court issues an enforcement order that violates these standards, the order is

void. Id., at *3-4.




                                         14
      The trial court’s 2014 foreclosure order is void. The trial court’s plenary

power to alter its 2012 final judgment has expired. Compare MR181; App’x. B,

with MR482; App’x. A. The trial court’s foreclosure order, however, (1) is

inconsistent with its 2012 final judgment; (2) materially changes substantive

adjudicated portions of the judgment; and (3) impermissibly requires a

performance of obligations not imposed by judgment. See id.

      The trial court’s 2014 foreclosure order is inconsistent with its final

judgment. As described below in Part II.D, the trial court’s foreclosure order

materially changes the 2012 judgment’s language by foreclosing on a lien before

701 Bay is conveyed. See id. The trial court’s foreclosure order also materially

changes its homestead determination and the meaning of “purchase” and

“improvement” as adjudicated in 2012. See id.

      The trial court’s 2014 foreclosure order is also inconsistent for other reasons.

In its 2014 order, the trial court ordered 701 Bay’s foreclosure and provided

Wiggins an order of sale. MR482; App’x. A. The final judgment, however, did not

order the property’s foreclosure. MR176-82; App’x. B. While the judgment

explicitly provided Kelly rights of enforcement, it did not provide Wiggins any

such rights. See id. The judgment, and the pleadings, also do not reflect that

Wiggins sued for foreclosure or that the trial court adjudicated foreclosure when it

decided 701 Bay’s ownership status. Compare id.; App’x. B, with MR46-56.



                                         15
      Assuming that Wiggins could judicially foreclose on the judgment lien, he

needed to sue for foreclosure and receive a judgment. See Stephens v. LPP

Mortgage, Ltd., 316 S.W.3d 742, 746 (Tex. App.—Austin 2010, pet. denied)

(explaining that lien holder may adjudicate lien and then later sue to foreclose it).

The trial court cannot rewrite its judgment to skip adjudicating foreclosure to

provide Wiggins relief.

      To the extent that Wiggins argues that the 2014 foreclosure order is

consistent because he could, and did, foreclose through an execution sale, the

argument should fail because the 2012 judgment did not order foreclosure. When a

final judgment does not order foreclosure, subsequent writs of execution exceed

the final judgment’s scope. See, e.g., Great Bay Condo.,Owners Ass’n v.

Merryman, No. ST-07-CV-0546, 2010 WL 7371946, at *2 (V.I. Aug. 9, 2010)

(citing Bank One, N.A. v. Wohlfahrt, 193 S.W.3d 190, 194-95 (Tex. App.—

Houston [1st Dist.] 2006, no pet.) and Bell v. Jones, 139 P.2d 884, 885 (Utah

1943)). Here, the trial court did not order foreclosure in its final judgment. See

MR176-82; App’x. B. The judgment only provided Kelly with the right to enforce

the judgment’s execution though any necessary writs or orders. MR180; App’x. B.

Reading it to afford Wiggins with the right to enforce the judgment through an

execution sale would impermissibly rewrite the judgment’s language after the trial

court’s plenary power has expired. A writ of execution, therefore, would exceed



                                         16
the final judgment’s scope; and consequently, it is inconsistent with the final

judgment.

        Moreover, as will be discussed below, the trial court acknowledged that 701

Bay was Kelly’s homestead, which under the circumstances would exempt it from

execution. See, e.g., Vackar v. Patterson, Boyd, Lowery, Anderholt & Peterson,

P.C., 866 S.W.2d 817, 819 (Tex. App.—Beaumont 1993, no writ) (stating that

homesteads are exempt from execution unless the debt is provided for under Texas

law).

        The trial court’s 2014 foreclosure order implicitly required Kelly to perform

an obligation that the trial court did not impose on her in its final judgment. More

specifically, the trial court’s order implicitly, and Wiggins explicitly, treated the

judicial lien against 701 Bay as debt that Kelly needed to satisfy. Compare MR465

(complaining that Kelly had not made a principal or interest payment on the lien

and asserting that she has a reasonable amount of time to do so), with MR175

(stating in its conclusions of law that Kelly had “not paid any sum to release or

otherwise satisfy the lien….”). The 2012 judgment does not contain any language

that required Kelly to satisfy the lien by a certain date. See MR176-82; App’x. B;

see also Part II.D. It also does not order any loan-like terms. See id.




                                          17
      B.     The Trial Court Abused Its Discretion by Issuing a Foreclosure
             Order on Kelly’s Homestead

      Assuming that the trial court had jurisdiction to issue its foreclosure order, it

abused its discretion by misapplying law regarding homestead protection. Courts

must liberally construe constitutional homestead exemption to further its purposes.

See, e.g., Salomon v. Lesay, 369 S.W.3d 540, 554 (Tex. App.—Houston [1st Dist.]

2012, no pet.) (citing Inwood N. Homeowners’ Ass’n, Inc. v. Harris, 736 S.W.2d

632, 635 (Tex. 1987)). Accordingly, trial courts may not order foreclosure or the

forced sale of homesteaded property to satisfy debts unless the constitution

specifically provides the authority. See TEX. CONST. art. XVI, § 50(a); TEX. PROP.

CODE § 41.001; Salomon, 369 S.W.3d at 555 (citing, among others, Heggen v.

Pemelton, 836 S.W.2d 145, 148 (Tex. 1992)).

      The trial court implicitly acknowledged that 701 Bay was Kelly’s

homestead. In a June 2014 letter to counsel, the trial court stated that it had

reviewed the facts and pertinent caselaw. MR173. It also stated that there was

likely no homestead protection because the lien was for 701 Bay’s “‘purchase,

preservation, and improvement.’” Id. In other words, the trial court decided that the

property was Kelly’s homestead, but that an exception applied. See id. The trial

court’s findings and conclusions indicate the same. MR175 (stating that “[s]ince

the lien was determined to be for the purchase, preservation, and improvement of

the property, no ‘homestead protection’ will apply”).

                                         18
      The trial court misapplied the exceptions to homestead protection. It

concluded that homestead protection did not apply because the lien was for 701

Bay’s purchase, preservation, and improvement. Id. While not specifying which

constitutional or statutory exception applied, based on its conclusion and Texas

law, the trial court could only have meant the purchase-money and the work-and-

materials exceptions. Compare id., with TEX. CONST. art. XVI, § 50(a) and TEX.

PROP. CODE § 41.001. Significantly, neither exception could apply here.

      Under the circumstances, the purchase money exception is inapplicable. The

purchase money exception requires that the lien recipient has lent money to the

debtor to purchase the lien-encumbered property. See TEX. CONST. art. XVI,

§ 50(a)(1); see TEX. PROP. CODE § 41.001(b)(1); In re Marriage of Christodolou,

383 S.W.3d 718, 721 (Tex. App.—Amarillo 2012, no pet.) (citing multiple cases).

Here, the “purchase money” was the money Wiggins spent buying 701 Bay, for

himself, at the first foreclosure sale. MR6; see also MR48 (pleading that the lien

would represent reimbursement of funds “spent by him to purchase” 701 Bay)

(emphasis added).

      The work-and-materials exception is also inapplicable because it would

require that Wiggins and Kelly had contracted for the work in writing. See TEX.

CONST. art. XVI, § 50(a)(5); see TEX. PROP. CODE § 41.001(b)(3); Spradlin v. Jim

Walter Homes, Inc., 34 S.W.3d 578, 580-81 (Tex. 2000). Wiggins “preserve[d] and



                                        19
improve[d]” 701 Bay after he bought it at the foreclosure sale. MR6, 48. Kelly did

not ask Wiggins to preserve and improve 701 Bay after the property was

foreclosed upon, let alone sign a written contract for the same. Even if this were

not the case, Wiggins never pleaded, see MR46-56, nor did he produce a relevant

written contract.

       This Court and others have held that analogous orders are invalid. In

Heggen, a trial court imposed an equitable lien on a homestead to secure a just-

and-right division. 836 S.W.2d at 146. Like here, this Court noted that, based on

the record, the lien did not fit into a constitutionally allowable exception. Id. at

148. It then held that the order imposing the lien was invalid. See id. The Court

reasoned that permitting the lien’s beneficiary to enforce the lien could lead to

foreclosure, a result that is contrary to constitutional homestead protection. Id.

Another appellate court likewise held that a trial court may not enforce an

equitable lien imposed by an earlier judgment when the homestead issue was

raised, but not disproven in the earlier action. See Curtis Sharp Custom Homes,

Inc. v. Glover, 701 S.W.2d 24, 24-28 (Tex. App.—Dallas 1985, writ ref’d n.r.e).

      The same reasoning should apply here. In the earlier action that culminated

with the 2012 final judgment, Kelly pleaded that 701 Bay was her homestead and

the jury decided that Kelly possessed the requisite intent for 701 Bay to be her

homestead. MR74, 86-90, 178; App’x. B. Further, the trial court included the



                                        20
jury’s homestead finding in its judgment, and later implicitly acknowledged that

701 Bay was Kelly’s homestead in a letter and in its findings and conclusions. See

MR173, 175, 178; App’x. B.

      Assuming that the homestead protection had not been adequately

established, the trial court still abused its discretion because it would need to

determine whether 701 Bay qualified as Kelly’s homestead. It would also need to

determine if one of the exceptions applied. Both of these inquiries are fact-

intensive. See Gilmore v. Dennison, 131 Tex. 398, 400, 115 S.W.2d 902 (1938);

see also Kendall Builders, Inc. v. Chesson, 149 S.W.3d 796, 807-08 (Tex. App.—

Austin 2004, pet. denied) (noting that establishing a homestead is a fact issue and

implying that courts must determine if contractors complied with TEX. PROP. CODE

§ 53.254 to determine whether they may judicially foreclose on a homestead). In

deciding to issue its 2014 foreclosure order, the trial court held two hearings, but

neither was evidentiary. See MR492-526. It could not have properly decided the

homestead issue and order foreclosure without admitting and weighing evidence.

      C.    The Trial Court Abused Its Discretion by Violating Constitutional
            Due Process and Due Course of Law Protections

      The trial court facilitated Wiggins’ taking of Kelly’s homestead property

without holding a trial or conducting evidentiary hearings. The trial court,

therefore, violated constitutional due process and due course of law protections.

See U.S. CONST. amend. XIV; see TEX. CONST. art. I, §§ 15, 19.

                                        21
      D.     The Trial Court Issued a Relatively Unique Judgment that
             Created a Lien on 701 Bay, Which Need Not Be Satisfied Until
             Kelly Conveys the Property

      The trial court’s 2012 judgment is relatively unique in that it creates a lien

on 701 Bay that does not need to be satisfied until Kelly conveys the property. In

relevant part, the judgment states:

            It is further ORDERED, ADJUDGED AND DECREED that
      the Subject Property is free and clear of any liens and claims of any
      party to this cause, subject only to (1) a lien against the Property
      created by this Judgment in favor of [Wiggins] in the amount of
      $660,000.00 found by the jury for the purchase, preservation and
      improvement of the property....

MR180; App’x B.

      Under the circumstances, the judgment does not create a debt against Kelly

or her interest in the property. The judicial lien, as described in the judgment,

should be enforceable in rem and not against Kelly. See id. The lien represents

money that Wiggins expended purchasing 701 Bay after a wrongful foreclosure

and purportedly preserving/improving it. MR6, 48. The money never went into

Kelly’s hands, she never requested it, she has never owed it to Wiggins, and she

was not its beneficiary. In essence, Wiggins is like a secured creditor in bankruptcy

who, after the debtor is absolved of personal liability, is entitled to have the

judgment lien paid when the property is sold. Cf. Moser v. Schachar, No. 4:14-CV-

185, 2015 WL 679689, at *1, 4-6 (E.D. Tex. Feb. 17, 2015). Unlike bankruptcy,




                                         22
however, Kelly’s property does not need to be sold to satisfy debt because she is

not encumbered with any debt under the 2012 judgment.

      This is not a situation where judgment collection rests on Kelly’s whim. It is

also not a situation where judgment collection will be forever delayed. In Katz v.

Bianchi, the Fourteenth Court was concerned that the whim of a single party could

prevent a judgment’s viability. 848 S.W.2d 372, 375 (Tex. App.—Houston [14th

Dist.] 1993, no writ). Here, while Kelly might ultimately decide when to sell,

transfer, or otherwise convey 701 Bay, she does not control all the circumstances

that may precipitate 701 Bay’s eventual conveyance. Kelly cannot own the

property forever. Wiggins will still have an opportunity to collect on the judgment.

      Admittedly, the result seems harsh on Wiggins. But, if Wiggins wanted to

complain about the judgment and the lien, he could have, and should have,

complained after the trial court issued its final judgment. At this point, neither the

trial court, nor the appellate courts have jurisdiction to change the nature of the lien

and Wiggins’ enforcement remedies. The Court should not let the trial court

rewrite its judgment years after the trial court’s plenary power expired. Further,

forcing Kelly to make what amounts to a substantial lump sum payment for a

purchase that she did not make or improvements that she did not request seems

inequitable.




                                          23
III.   Kelly Has No Adequate Remedy

       Kelly does not need to show she lacks an adequate appellate remedy.

Relators do not need to show they lack adequate remedies on appeal when trial

courts exceed their jurisdiction and issue void orders. In re Vaishangi, 442 S.W.3d

at 261. The trial court signed its final judgment in 2012. MR181; App’x. B. As

demonstrated above, the trial court did not have jurisdiction to issue its 2014

foreclosure order and order of sale, which makes the order void. Further, the trial

court has violated constitutional due-process and due-course-of-law provisions.

Mandamus is, therefore, proper here.

       Regardless, Kelly does not have any adequate remedies on appeal. Kelly had

no appellate remedies besides seeking mandamus relief after the trial court issued

its 2014 order. See Kelly, 2015 WL 2169519, at *3 (acknowledging that 2014 order

was not a final judgment or an appealable interlocutory order); see also Walter v.

Marathon Oil Corp., 422 S.W.3d 848, 855 (Tex. App.—Houston [14th Dist.]

2014, no pet.) (stating that post-judgment enforcement orders are not subject to

appeal). Further, Kelly stands to permanently lose her constitutional homestead

rights and her rights to due process/due course of law.

                                     PRAYER

       For these reasons, Kelly respectfully requests that the Court grant mandamus

and declare the trial court’s 2014 foreclosure order and order for sale void.



                                         24
Alternatively, Kelly requests that the Court vacate the foreclosure order and the

order for sale. Kelly also requests any other relief to which she is entitled.

                                            Respectfully submitted,
                                            SMITH LAW GROUP LLLP

                                              /s/ Maitreya Tomlinson
                                            Maitreya Tomlinson
                                            State Bar No. 24070751
                                            maitreya@appealsplus.com
                                            1250 Capital of Texas Highway South
                                            Three Cielo Center, Suite 601
                                            Austin, Texas 78746
                                            (512) 439-3230
                                            (512) 439-3232 (fax)

                                            Counsel for Relator
                                            Amelia V. Kelly




                                          25
                       RULE 52.3(j) CERTIFICATION

      By my signature below, I certify that I have reviewed the foregoing petition

and concluded that every factual statement in the petition is supported by

competent evidence included in the mandamus record.

                                         /s/ Maitreya Tomlinson
                                         Maitreya Tomlinson




              RULE 9.4(I) CERTIFICATE OF COMPLIANCE

      This document complies with the typeface requirements of Texas Rule of

Appellate Procedure 9.4(e) because it has been prepared in a conventional typeface

no smaller than 14-point for text and 12-point for footnotes. This document also

complies with the word-count limitations of Rule 9.4(i), if applicable, because it

contains 4,402 words, excluding any parts exempted by Rule 9.4(i)(1).

                                            /s/ Maitreya Tomlinson
                                            Maitreya Tomlinson




                                       26
                         CERTIFICATE OF SERVICE

      On August 31, 2015, in compliance with Texas Rule of Appellate Procedure

9.5, I served a copy of this petition for writ of mandamus by e-service, e-mail,

facsimile, or mail to:

George W. Vie, III                         Timothy A. Beeton,
MILLS SHIRLEY, LLP                         SIMPSON & BEETON
2228 Mechanics Street                      2200 Market Street, Suite 801
Galveston, Texas 77550                     Galveston, Texas 77550
gvie@millshirley.com                       tbeeton@simpsonbeeton.com
Counsel for Real Party in Interest         Courtesy Copy

Hon. John Ellisor
122nd Judicial District Court
600 59th Street, Suite 4304
Galveston, Texas 77551
Respondent



                                       /s/ Maitreya Tomlinson
                                       Maitreya Tomlinson




                                      27
                                        NO. ____________




                            In the Supreme Court of Texas



                                   IN RE AMELIA V. KELLY,
                                                    Relator


                      ORIGINAL PROCEEDING FROM CAUSE NO. 11CV0325
                   122ND DISTRICT COURT OF GALVESTON COUNTY, TEXAS
                              HON. JOHN ELLISOR PRESIDING


      APPENDIX TO RELATOR’S PETITION FOR WRIT OF MANDAMUS


Order of Judicial Foreclosure (signed June 23, 2014) .......................................Tab A
Final Judgment (signed June 22, 2012) ............................................................. Tab B

Writ of Execution and Order of Sale (dated August 26, 2014) ......................... Tab C

TEX. CONST. art. XVI, § 50 ................................................................................Tab D

TEX. PROP. CODE § 41.001 ................................................................................. Tab E

TEX. PROP. CODE § 53.254 ................................................................................. Tab F

U.S. CONST. amend. XIV ...................................................................................Tab G
TEX. CONST. art. I, § 15. .....................................................................................Tab H
TEX. CONST. art. I, § 19. ...................................................................................... Tab I
        574
TAB A
Tab B   430
Tab B   431
Tab B   432
Tab B   433
Tab B   434
Tab B   435
Tab B   436
Tab C   658
Tab C   659
§ 50. Homestead; protection from forced sale; mortgages,..., TX CONST Art. 16, § 50




  Vernon's Texas Statutes and Codes Annotated
    Constitution of the State of Texas 1876 (Refs & Annos)
      Article XVI. General Provisions

                                          Vernon's Ann.Texas Const. Art. 16, § 50

                    § 50. Homestead; protection from forced sale; mortgages, trust deeds and liens

                                                Effective: November 22, 2013
                                                         Currentness


(a) The homestead of a family, or of a single adult person, shall be, and is hereby protected from forced sale, for the payment
of all debts except for:


(1) the purchase money thereof, or a part of such purchase money;


(2) the taxes due thereon;


(3) an owelty of partition imposed against the entirety of the property by a court order or by a written agreement of the parties
to the partition, including a debt of one spouse in favor of the other spouse resulting from a division or an award of a family
homestead in a divorce proceeding;


(4) the refinance of a lien against a homestead, including a federal tax lien resulting from the tax debt of both spouses, if the
homestead is a family homestead, or from the tax debt of the owner;


(5) work and material used in constructing new improvements thereon, if contracted for in writing, or work and material used
to repair or renovate existing improvements thereon if:


(A) the work and material are contracted for in writing, with the consent of both spouses, in the case of a family homestead,
given in the same manner as is required in making a sale and conveyance of the homestead;


(B) the contract for the work and material is not executed by the owner or the owner's spouse before the fifth day after the owner
makes written application for any extension of credit for the work and material, unless the work and material are necessary to
complete immediate repairs to conditions on the homestead property that materially affect the health or safety of the owner or
person residing in the homestead and the owner of the homestead acknowledges such in writing;


(C) the contract for the work and material expressly provides that the owner may rescind the contract without penalty or charge
within three days after the execution of the contract by all parties, unless the work and material are necessary to complete
immediate repairs to conditions on the homestead property that materially affect the health or safety of the owner or person
residing in the homestead and the owner of the homestead acknowledges such in writing; and



                                                                                                              Tab D

               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
§ 50. Homestead; protection from forced sale; mortgages,..., TX CONST Art. 16, § 50




(D) the contract for the work and material is executed by the owner and the owner's spouse only at the office of a third-party
lender making an extension of credit for the work and material, an attorney at law, or a title company;


(6) an extension of credit that:


(A) is secured by a voluntary lien on the homestead created under a written agreement with the consent of each owner and
each owner's spouse;


(B) is of a principal amount that when added to the aggregate total of the outstanding principal balances of all other indebtedness
secured by valid encumbrances of record against the homestead does not exceed 80 percent of the fair market value of the
homestead on the date the extension of credit is made;


(C) is without recourse for personal liability against each owner and the spouse of each owner, unless the owner or spouse
obtained the extension of credit by actual fraud;


(D) is secured by a lien that may be foreclosed upon only by a court order;


(E) does not require the owner or the owner's spouse to pay, in addition to any interest, fees to any person that are necessary
to originate, evaluate, maintain, record, insure, or service the extension of credit that exceed, in the aggregate, three percent of
the original principal amount of the extension of credit;


(F) is not a form of open-end account that may be debited from time to time or under which credit may be extended from time
to time unless the open-end account is a home equity line of credit;


(G) is payable in advance without penalty or other charge;


(H) is not secured by any additional real or personal property other than the homestead;


(I) is not secured by homestead property that on the date of closing is designated for agricultural use as provided by statutes
governing property tax, unless such homestead property is used primarily for the production of milk;


(J) may not be accelerated because of a decrease in the market value of the homestead or because of the owner's default under
other indebtedness not secured by a prior valid encumbrance against the homestead;


(K) is the only debt secured by the homestead at the time the extension of credit is made unless the other debt was made for a
purpose described by Subsections (a)(1)-(a)(5) or Subsection (a)(8) of this section;


(L) is scheduled to be repaid:

                                                                                                                 Tab D
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
§ 50. Homestead; protection from forced sale; mortgages,..., TX CONST Art. 16, § 50




(i) in substantially equal successive periodic installments, not more often than every 14 days and not less often than monthly,
beginning no later than two months from the date the extension of credit is made, each of which equals or exceeds the amount
of accrued interest as of the date of the scheduled installment; or


(ii) if the extension of credit is a home equity line of credit, in periodic payments described under Subsection (t)(8) of this section;


(M) is closed not before:


(i) the 12th day after the later of the date that the owner of the homestead submits a loan application to the lender for the
extension of credit or the date that the lender provides the owner a copy of the notice prescribed by Subsection (g) of this section;


(ii) one business day after the date that the owner of the homestead receives a copy of the loan application if not previously
provided and a final itemized disclosure of the actual fees, points, interest, costs, and charges that will be charged at closing.
If a bona fide emergency or another good cause exists and the lender obtains the written consent of the owner, the lender may
provide the documentation to the owner or the lender may modify previously provided documentation on the date of closing; and


(iii) the first anniversary of the closing date of any other extension of credit described by Subsection (a)(6) of this section
secured by the same homestead property, except a refinance described by Paragraph (Q)(x)(f) of this subdivision, unless the
owner on oath requests an earlier closing due to a state of emergency that:


(a) has been declared by the president of the United States or the governor as provided by law; and


(b) applies to the area where the homestead is located;


(N) is closed only at the office of the lender, an attorney at law, or a title company;


(O) permits a lender to contract for and receive any fixed or variable rate of interest authorized under statute;


(P) is made by one of the following that has not been found by a federal regulatory agency to have engaged in the practice
of refusing to make loans because the applicants for the loans reside or the property proposed to secure the loans is located
in a certain area:


(i) a bank, savings and loan association, savings bank, or credit union doing business under the laws of this state or the United
States;


(ii) a federally chartered lending instrumentality or a person approved as a mortgagee by the United States government to make
federally insured loans;


(iii) a person licensed to make regulated loans, as provided by statute of this state;
                                                                                                                    Tab D
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  3
§ 50. Homestead; protection from forced sale; mortgages,..., TX CONST Art. 16, § 50




(iv) a person who sold the homestead property to the current owner and who provided all or part of the financing for the purchase;


(v) a person who is related to the homestead property owner within the second degree of affinity or consanguinity; or


(vi) a person regulated by this state as a mortgage broker; and


(Q) is made on the condition that:


(i) the owner of the homestead is not required to apply the proceeds of the extension of credit to repay another debt except debt
secured by the homestead or debt to another lender;


(ii) the owner of the homestead not assign wages as security for the extension of credit;


(iii) the owner of the homestead not sign any instrument in which blanks relating to substantive terms of agreement are left
to be filled in;


(iv) the owner of the homestead not sign a confession of judgment or power of attorney to the lender or to a third person to
confess judgment or to appear for the owner in a judicial proceeding;


(v) at the time the extension of credit is made, the owner of the homestead shall receive a copy of the final loan application and
all executed documents signed by the owner at closing related to the extension of credit;


(vi) the security instruments securing the extension of credit contain a disclosure that the extension of credit is the type of credit
defined by Section 50(a)(6), Article XVI, Texas Constitution;


(vii) within a reasonable time after termination and full payment of the extension of credit, the lender cancel and return the
promissory note to the owner of the homestead and give the owner, in recordable form, a release of the lien securing the
extension of credit or a copy of an endorsement and assignment of the lien to a lender that is refinancing the extension of credit;


(viii) the owner of the homestead and any spouse of the owner may, within three days after the extension of credit is made,
rescind the extension of credit without penalty or charge;


(ix) the owner of the homestead and the lender sign a written acknowledgment as to the fair market value of the homestead
property on the date the extension of credit is made;


(x) except as provided by Subparagraph (xi) of this paragraph, the lender or any holder of the note for the extension of credit
shall forfeit all principal and interest of the extension of credit if the lender or holder fails to comply with the lender's or holder's


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obligations under the extension of credit and fails to correct the failure to comply not later than the 60th day after the date the
lender or holder is notified by the borrower of the lender's failure to comply by:


(a) paying to the owner an amount equal to any overcharge paid by the owner under or related to the extension of credit if the
owner has paid an amount that exceeds an amount stated in the applicable Paragraph (E), (G), or (O) of this subdivision;


(b) sending the owner a written acknowledgement that the lien is valid only in the amount that the extension of credit does not
exceed the percentage described by Paragraph (B) of this subdivision, if applicable, or is not secured by property described
under Paragraph (H) or (I) of this subdivision, if applicable;


(c) sending the owner a written notice modifying any other amount, percentage, term, or other provision prohibited by this
section to a permitted amount, percentage, term, or other provision and adjusting the account of the borrower to ensure that the
borrower is not required to pay more than an amount permitted by this section and is not subject to any other term or provision
prohibited by this section;


(d) delivering the required documents to the borrower if the lender fails to comply with Subparagraph (v) of this paragraph or
obtaining the appropriate signatures if the lender fails to comply with Subparagraph (ix) of this paragraph;


(e) sending the owner a written acknowledgement, if the failure to comply is prohibited by Paragraph (K) of this subdivision, that
the accrual of interest and all of the owner's obligations under the extension of credit are abated while any prior lien prohibited
under Paragraph (K) remains secured by the homestead; or


(f) if the failure to comply cannot be cured under Subparagraphs (x)(a) -(e) of this paragraph, curing the failure to comply by a
refund or credit to the owner of $1,000 and offering the owner the right to refinance the extension of credit with the lender or
holder for the remaining term of the loan at no cost to the owner on the same terms, including interest, as the original extension
of credit with any modifications necessary to comply with this section or on terms on which the owner and the lender or holder
otherwise agree that comply with this section; and


(xi) the lender or any holder of the note for the extension of credit shall forfeit all principal and interest of the extension of
credit if the extension of credit is made by a person other than a person described under Paragraph (P) of this subdivision or if
the lien was not created under a written agreement with the consent of each owner and each owner's spouse, unless each owner
and each owner's spouse who did not initially consent subsequently consents;


(7) a reverse mortgage; or


(8) the conversion and refinance of a personal property lien secured by a manufactured home to a lien on real property, including
the refinance of the purchase price of the manufactured home, the cost of installing the manufactured home on the real property,
and the refinance of the purchase price of the real property.


(b) An owner or claimant of the property claimed as homestead may not sell or abandon the homestead without the consent of
each owner and the spouse of each owner, given in such manner as may be prescribed by law.

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(c) No mortgage, trust deed, or other lien on the homestead shall ever be valid unless it secures a debt described by this section,
whether such mortgage, trust deed, or other lien, shall have been created by the owner alone, or together with his or her spouse,
in case the owner is married. All pretended sales of the homestead involving any condition of defeasance shall be void.


(d) A purchaser or lender for value without actual knowledge may conclusively rely on an affidavit that designates other property
as the homestead of the affiant and that states that the property to be conveyed or encumbered is not the homestead of the affiant.


(e) A refinance of debt secured by a homestead and described by any subsection under Subsections (a)(1)-(a)(5) that includes
the advance of additional funds may not be secured by a valid lien against the homestead unless:


(1) the refinance of the debt is an extension of credit described by Subsection (a)(6) of this section; or


(2) the advance of all the additional funds is for reasonable costs necessary to refinance such debt or for a purpose described
by Subsection (a)(2), (a)(3), or (a)(5) of this section.


(f) A refinance of debt secured by the homestead, any portion of which is an extension of credit described by Subsection (a)
(6) of this section, may not be secured by a valid lien against the homestead unless the refinance of the debt is an extension of
credit described by Subsection (a)(6) or (a)(7) of this section.


(g) An extension of credit described by Subsection (a)(6) of this section may be secured by a valid lien against homestead
property if the extension of credit is not closed before the 12th day after the lender provides the owner with the following
written notice on a separate instrument:

“NOTICE CONCERNING EXTENSIONS OF CREDIT DEFINED BY SECTION 50(a)(6), ARTICLE XVI, TEXAS
CONSTITUTION:

“SECTION 50(a)(6), ARTICLE XVI, OF THE TEXAS CONSTITUTION ALLOWS CERTAIN LOANS TO BE SECURED
AGAINST THE EQUITY IN YOUR HOME. SUCH LOANS ARE COMMONLY KNOWN AS EQUITY LOANS. IF
YOU DO NOT REPAY THE LOAN OR IF YOU FAIL TO MEET THE TERMS OF THE LOAN, THE LENDER MAY
FORECLOSE AND SELL YOUR HOME. THE CONSTITUTION PROVIDES THAT:

“(A) THE LOAN MUST BE VOLUNTARILY CREATED WITH THE CONSENT OF EACH OWNER OF YOUR HOME
AND EACH OWNER'S SPOUSE;

“(B) THE PRINCIPAL LOAN AMOUNT AT THE TIME THE LOAN IS MADE MUST NOT EXCEED AN AMOUNT
THAT, WHEN ADDED TO THE PRINCIPAL BALANCES OF ALL OTHER LIENS AGAINST YOUR HOME, IS MORE
THAN 80 PERCENT OF THE FAIR MARKET VALUE OF YOUR HOME;

“(C) THE LOAN MUST BE WITHOUT RECOURSE FOR PERSONAL LIABILITY AGAINST YOU AND YOUR SPOUSE
UNLESS YOU OR YOUR SPOUSE OBTAINED THIS EXTENSION OF CREDIT BY ACTUAL FRAUD;

“(D) THE LIEN SECURING THE LOAN MAY BE FORECLOSED UPON ONLY WITH A COURT ORDER;

“(E) FEES AND CHARGES TO MAKE THE LOAN MAY NOT EXCEED 3 PERCENT OF THE LOAN AMOUNT;
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“(F) THE LOAN MAY NOT BE AN OPEN-END ACCOUNT THAT MAY BE DEBITED FROM TIME TO TIME OR
UNDER WHICH CREDIT MAY BE EXTENDED FROM TIME TO TIME UNLESS IT IS A HOME EQUITY LINE OF
CREDIT;

“(G) YOU MAY PREPAY THE LOAN WITHOUT PENALTY OR CHARGE;

“(H) NO ADDITIONAL COLLATERAL MAY BE SECURITY FOR THE LOAN;

“(I) THE LOAN MAY NOT BE SECURED BY HOMESTEAD PROPERTY THAT IS DESIGNATED FOR
AGRICULTURAL USE AS OF THE DATE OF CLOSING, UNLESS THE AGRICULTURAL HOMESTEAD PROPERTY
IS USED PRIMARILY FOR THE PRODUCTION OF MILK;

“(J) YOU ARE NOT REQUIRED TO REPAY THE LOAN EARLIER THAN AGREED SOLELY BECAUSE THE FAIR
MARKET VALUE OF YOUR HOME DECREASES OR BECAUSE YOU DEFAULT ON ANOTHER LOAN THAT IS
NOT SECURED BY YOUR HOME;

“(K) ONLY ONE LOAN DESCRIBED BY SECTION 50(a)(6), ARTICLE XVI, OF THE TEXAS CONSTITUTION MAY
BE SECURED WITH YOUR HOME AT ANY GIVEN TIME;

“(L) THE LOAN MUST BE SCHEDULED TO BE REPAID IN PAYMENTS THAT EQUAL OR EXCEED THE AMOUNT
OF ACCRUED INTEREST FOR EACH PAYMENT PERIOD;

“(M) THE LOAN MAY NOT CLOSE BEFORE 12 DAYS AFTER YOU SUBMIT A LOAN APPLICATION TO THE
LENDER OR BEFORE 12 DAYS AFTER YOU RECEIVE THIS NOTICE, WHICHEVER DATE IS LATER; AND MAY
NOT WITHOUT YOUR CONSENT CLOSE BEFORE ONE BUSINESS DAY AFTER THE DATE ON WHICH YOU
RECEIVE A COPY OF YOUR LOAN APPLICATION IF NOT PREVIOUSLY PROVIDED AND A FINAL ITEMIZED
DISCLOSURE OF THE ACTUAL FEES, POINTS, INTEREST, COSTS, AND CHARGES THAT WILL BE CHARGED
AT CLOSING; AND IF YOUR HOME WAS SECURITY FOR THE SAME TYPE OF LOAN WITHIN THE PAST YEAR,
A NEW LOAN SECURED BY THE SAME PROPERTY MAY NOT CLOSE BEFORE ONE YEAR HAS PASSED FROM
THE CLOSING DATE OF THE OTHER LOAN, UNLESS ON OATH YOU REQUEST AN EARLIER CLOSING DUE TO
A DECLARED STATE OF EMERGENCY;

“(N) THE LOAN MAY CLOSE ONLY AT THE OFFICE OF THE LENDER, TITLE COMPANY, OR AN ATTORNEY
AT LAW;

“(O) THE LENDER MAY CHARGE ANY FIXED OR VARIABLE RATE OF INTEREST AUTHORIZED BY STATUTE;

“(P) ONLY A LAWFULLY AUTHORIZED LENDER MAY MAKE LOANS DESCRIBED BY SECTION 50(a)(6),
ARTICLE XVI, OF THE TEXAS CONSTITUTION;

“(Q) LOANS DESCRIBED BY SECTION 50(a)(6), ARTICLE XVI, OF THE TEXAS CONSTITUTION MUST:

“(1) NOT REQUIRE YOU TO APPLY THE PROCEEDS TO ANOTHER DEBT EXCEPT A DEBT THAT IS SECURED
BY YOUR HOME OR OWED TO ANOTHER LENDER;

“(2) NOT REQUIRE THAT YOU ASSIGN WAGES AS SECURITY;



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“(3) NOT REQUIRE THAT YOU EXECUTE INSTRUMENTS WHICH HAVE BLANKS FOR SUBSTANTIVE TERMS
OF AGREEMENT LEFT TO BE FILLED IN;

“(4) NOT REQUIRE THAT YOU SIGN A CONFESSION OF JUDGMENT OR POWER OF ATTORNEY TO ANOTHER
PERSON TO CONFESS JUDGMENT OR APPEAR IN A LEGAL PROCEEDING ON YOUR BEHALF;

“(5) PROVIDE THAT YOU RECEIVE A COPY OF YOUR FINAL LOAN APPLICATION AND ALL EXECUTED
DOCUMENTS YOU SIGN AT CLOSING;

“(6) PROVIDE THAT THE SECURITY INSTRUMENTS CONTAIN A DISCLOSURE THAT THIS LOAN IS A LOAN
DEFINED BY SECTION 50(a)(6), ARTICLE XVI, OF THE TEXAS CONSTITUTION;

“(7) PROVIDE THAT WHEN THE LOAN IS PAID IN FULL, THE LENDER WILL SIGN AND GIVE YOU A RELEASE
OF LIEN OR AN ASSIGNMENT OF THE LIEN, WHICHEVER IS APPROPRIATE;

“(8) PROVIDE THAT YOU MAY, WITHIN 3 DAYS AFTER CLOSING, RESCIND THE LOAN WITHOUT PENALTY
OR CHARGE;

“(9) PROVIDE THAT YOU AND THE LENDER ACKNOWLEDGE THE FAIR MARKET VALUE OF YOUR HOME ON
THE DATE THE LOAN CLOSES; AND

“(10) PROVIDE THAT THE LENDER WILL FORFEIT ALL PRINCIPAL AND INTEREST IF THE LENDER FAILS TO
COMPLY WITH THE LENDER'S OBLIGATIONS UNLESS THE LENDER CURES THE FAILURE TO COMPLY AS
PROVIDED BY SECTION 50(a)(6)(Q)(x), ARTICLE XVI, OF THE TEXAS CONSTITUTION; AND

“(R) IF THE LOAN IS A HOME EQUITY LINE OF CREDIT:

“(1) YOU MAY REQUEST ADVANCES, REPAY MONEY, AND REBORROW MONEY UNDER THE LINE OF CREDIT;

“(2) EACH ADVANCE UNDER THE LINE OF CREDIT MUST BE IN AN AMOUNT OF AT LEAST $4,000;

“(3) YOU MAY NOT USE A CREDIT CARD, DEBIT CARD, OR SIMILAR DEVICE, OR PREPRINTED CHECK THAT
YOU DID NOT SOLICIT, TO OBTAIN ADVANCES UNDER THE LINE OF CREDIT;

“(4) ANY FEES THE LENDER CHARGES MAY BE CHARGED AND COLLECTED ONLY AT THE TIME THE LINE OF
CREDIT IS ESTABLISHED AND THE LENDER MAY NOT CHARGE A FEE IN CONNECTION WITH ANY ADVANCE;

“(5) THE MAXIMUM PRINCIPAL AMOUNT THAT MAY BE EXTENDED, WHEN ADDED TO ALL OTHER DEBTS
SECURED BY YOUR HOME, MAY NOT EXCEED 80 PERCENT OF THE FAIR MARKET VALUE OF YOUR HOME
ON THE DATE THE LINE OF CREDIT IS ESTABLISHED;

“(6) IF THE PRINCIPAL BALANCE UNDER THE LINE OF CREDIT AT ANY TIME EXCEEDS 50 PERCENT OF
THE FAIR MARKET VALUE OF YOUR HOME, AS DETERMINED ON THE DATE THE LINE OF CREDIT IS
ESTABLISHED, YOU MAY NOT CONTINUE TO REQUEST ADVANCES UNDER THE LINE OF CREDIT UNTIL THE
BALANCE IS LESS THAN 50 PERCENT OF THE FAIR MARKET VALUE; AND

“(7) THE LENDER MAY NOT UNILATERALLY AMEND THE TERMS OF THE LINE OF CREDIT.




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“THIS NOTICE IS ONLY A SUMMARY OF YOUR RIGHTS UNDER THE TEXAS CONSTITUTION. YOUR RIGHTS
ARE GOVERNED BY SECTION 50, ARTICLE XVI, OF THE TEXAS CONSTITUTION, AND NOT BY THIS NOTICE.”

If the discussions with the borrower are conducted primarily in a language other than English, the lender shall, before closing,
provide an additional copy of the notice translated into the written language in which the discussions were conducted.


(h) A lender or assignee for value may conclusively rely on the written acknowledgment as to the fair market value of the
homestead property made in accordance with Subsection (a)(6)(Q)(ix) of this section if:


(1) the value acknowledged to is the value estimate in an appraisal or evaluation prepared in accordance with a state or federal
requirement applicable to an extension of credit under Subsection (a)(6); and


(2) the lender or assignee does not have actual knowledge at the time of the payment of value or advance of funds by the lender
or assignee that the fair market value stated in the written acknowledgment was incorrect.


(i) This subsection shall not affect or impair any right of the borrower to recover damages from the lender or assignee under
applicable law for wrongful foreclosure. A purchaser for value without actual knowledge may conclusively presume that a lien
securing an extension of credit described by Subsection (a)(6) of this section was a valid lien securing the extension of credit
with homestead property if:


(1) the security instruments securing the extension of credit contain a disclosure that the extension of credit secured by the lien
was the type of credit defined by Section 50(a)(6), Article XVI, Texas Constitution;


(2) the purchaser acquires the title to the property pursuant to or after the foreclosure of the voluntary lien; and


(3) the purchaser is not the lender or assignee under the extension of credit.


(j) Subsection (a)(6) and Subsections (e)-(i) of this section are not severable, and none of those provisions would have been
enacted without the others. If any of those provisions are held to be preempted by the laws of the United States, all of those
provisions are invalid. This subsection shall not apply to any lien or extension of credit made after January 1, 1998, and before
the date any provision under Subsection (a)(6) or Subsections (e)-(i) is held to be preempted.


(k) “Reverse mortgage” means an extension of credit:


(1) that is secured by a voluntary lien on homestead property created by a written agreement with the consent of each owner
and each owner's spouse;


(2) that is made to a person who is or whose spouse is 62 years or older;


(3) that is made without recourse for personal liability against each owner and the spouse of each owner;

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(4) under which advances are provided to a borrower:


(A) based on the equity in a borrower's homestead; or


(B) for the purchase of homestead property that the borrower will occupy as a principal residence;


(5) that does not permit the lender to reduce the amount or number of advances because of an adjustment in the interest rate
if periodic advances are to be made;


(6) that requires no payment of principal or interest until:


(A) all borrowers have died;


(B) the homestead property securing the loan is sold or otherwise transferred;


(C) all borrowers cease occupying the homestead property for a period of longer than 12 consecutive months without prior
written approval from the lender;


(C-1) if the extension of credit is used for the purchase of homestead property, the borrower fails to timely occupy the homestead
property as the borrower's principal residence within a specified period after the date the extension of credit is made that is
stipulated in the written agreement creating the lien on the property; or


(D) the borrower:


(i) defaults on an obligation specified in the loan documents to repair and maintain, pay taxes and assessments on, or insure
the homestead property;


(ii) commits actual fraud in connection with the loan; or


(iii) fails to maintain the priority of the lender's lien on the homestead property, after the lender gives notice to the borrower,
by promptly discharging any lien that has priority or may obtain priority over the lender's lien within 10 days after the date the
borrower receives the notice, unless the borrower:


(a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to the lender;


(b) contests in good faith the lien by, or defends against enforcement of the lien in, legal proceedings so as to prevent the
enforcement of the lien or forfeiture of any part of the homestead property; or


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(c) secures from the holder of the lien an agreement satisfactory to the lender subordinating the lien to all amounts secured by
the lender's lien on the homestead property;


(7) that provides that if the lender fails to make loan advances as required in the loan documents and if the lender fails to cure
the default as required in the loan documents after notice from the borrower, the lender forfeits all principal and interest of
the reverse mortgage, provided, however, that this subdivision does not apply when a governmental agency or instrumentality
takes an assignment of the loan in order to cure the default;


(8) that is not made unless the prospective borrower and the spouse of the prospective borrower attest in writing that the
prospective borrower and the prospective borrower's spouse received counseling regarding the advisability and availability of
reverse mortgages and other financial alternatives that was completed not earlier than the 180th day nor later than the 5th day
before the date the extension of credit is closed;


(9) that is not closed before the 12th day after the date the lender provides to the prospective borrower the following written
notice on a separate instrument, which the lender or originator and the borrower must sign for the notice to take effect:

               “IMPORTANT NOTICE TO BORROWERS RELATED TO YOUR REVERSE MORTGAGE

“UNDER THE TEXAS TAX CODE, CERTAIN ELDERLY PERSONS MAY DEFER THE COLLECTION OF PROPERTY
TAXES ON THEIR RESIDENCE HOMESTEAD. BY RECEIVING THIS REVERSE MORTGAGE YOU MAY BE
REQUIRED TO FORGO ANY PREVIOUSLY APPROVED DEFERRAL OF PROPERTY TAX COLLECTION AND YOU
MAYBE REQUIRED TO PAY PROPERTY TAXES ON AN ANNUAL BASIS ON THIS PROPERTY.

“THE LENDER MAY FORECLOSE THE REVERSE MORTGAGE AND YOU MAY LOSE YOUR HOME IF:

“(A) YOU DO NOT PAY THE TAXES OR OTHER ASSESSMENTS ON THE HOME EVEN IF YOU ARE ELIGIBLE TO
DEFER PAYMENT OF PROPERTY TAXES;

“(B) YOU DO NOT MAINTAIN AND PAY FOR PROPERTY INSURANCE ON THE HOME AS REQUIRED BY THE
LOAN DOCUMENTS;

“(C) YOU FAIL TO MAINTAIN THE HOME IN A STATE OF GOOD CONDITION AND REPAIR;

“(D) YOU CEASE OCCUPYING THE HOME FOR A PERIOD LONGER THAN 12 CONSECUTIVE MONTHS WITHOUT
THE PRIOR WRITTEN APPROVAL FROM THE LENDER OR, IF THE EXTENSION OF CREDIT IS USED FOR THE
PURCHASE OF THE HOME, YOU FAIL TO TIMELY OCCUPY THE HOME AS YOUR PRINCIPAL RESIDENCE
WITHIN A PERIOD OF TIME AFTER THE EXTENSION OF CREDIT IS MADE THAT IS STIPULATED IN THE
WRITTEN AGREEMENT CREATING THE LIEN ON THE HOME;

“(E) YOU SELL THE HOME OR OTHERWISE TRANSFER THE HOME WITHOUT PAYING OFF THE LOAN;

“(F) ALL BORROWERS HAVE DIED AND THE LOAN IS NOT REPAID;

“(G) YOU COMMIT ACTUAL FRAUD IN CONNECTION WITH THE LOAN; OR



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“(H) YOU FAIL TO MAINTAIN THE PRIORITY OF THE LENDER'S LIEN ON THE HOME, AFTER THE LENDER
GIVES NOTICE TO YOU, BY PROMPTLY DISCHARGING ANY LIEN THAT HAS PRIORITY OR MAY OBTAIN
PRIORITY OVER THE LENDER'S LIEN WITHIN 10 DAYS AFTER THE DATE YOU RECEIVE THE NOTICE, UNLESS
YOU:

“(1) AGREE IN WRITING TO THE PAYMENT OF THE OBLIGATION SECURED BY THE LIEN IN A MANNER
ACCEPTABLE TO THE LENDER;

“(2) CONTEST IN GOOD FAITH THE LIEN BY, OR DEFEND AGAINST ENFORCEMENT OF THE LIEN IN, LEGAL
PROCEEDINGS SO AS TO PREVENT THE ENFORCEMENT OF THE LIEN OR FORFEITURE OF ANY PART OF THE
HOME; OR

“(3) SECURE FROM THE HOLDER OF THE LIEN AN AGREEMENT SATISFACTORY TO THE LENDER
SUBORDINATING THE LIEN TO ALL AMOUNTS SECURED BY THE LENDER'S LIEN ON THE HOME.

“IF A GROUND FOR FORECLOSURE EXISTS, THE LENDER MAY NOT COMMENCE FORECLOSURE UNTIL THE
LENDER GIVES YOU WRITTEN NOTICE BY MAIL THAT A GROUND FOR FORECLOSURE EXISTS AND GIVES
YOU AN OPPORTUNITY TO REMEDY THE CONDITION CREATING THE GROUND FOR FORECLOSURE OR TO
PAY THE REVERSE MORTGAGE DEBT WITHIN THE TIME PERMITTED BY SECTION 50(k)(10), ARTICLE XVI,
OF THE TEXAS CONSTITUTION.THE LENDER MUST OBTAIN A COURT ORDER FOR FORECLOSURE EXCEPT
THAT A COURT ORDER IS NOT REQUIRED IF THE FORECLOSURE OCCURS BECAUSE:

“(1) ALL BORROWERS HAVE DIED; OR

“(2) THE HOMESTEAD PROPERTY SECURING THE LOAN IS SOLD OR OTHERWISE TRANSFERRED.”

“YOU SHOULD CONSULT WITH YOUR HOME COUNSELOR OR AN ATTORNEY IF YOU HAVE ANY CONCERNS
ABOUT THESE OBLIGATIONS BEFORE YOU CLOSE YOUR REVERSE MORTGAGE LOAN. TO LOCATE AN
ATTORNEY IN YOUR AREA, YOU MAY WISH TO CONTACT THE STATE BAR OF TEXAS.”

“THIS NOTICE IS ONLY A SUMMARY OF YOUR RIGHTS UNDER THE TEXAS CONSTITUTION. YOUR RIGHTS
ARE GOVERNED IN PART BY SECTION 50, ARTICLE XVI, OF THE TEXAS CONSTITUTION, AND NOT BY THIS
NOTICE.”;


(10) that does not permit the lender to commence foreclosure until the lender gives notice to the borrower, in the manner provided
for a notice by mail related to the foreclosure of liens under Subsection (a)(6) of this section, that a ground for foreclosure
exists and gives the borrower at least 30 days, or at least 20 days in the event of a default under Subdivision (6)(D)(iii) of
this subsection, to:


(A) remedy the condition creating the ground for foreclosure;


(B) pay the debt secured by the homestead property from proceeds of the sale of the homestead property by the borrower or
from any other sources; or


(C) convey the homestead property to the lender by a deed in lieu of foreclosure; and


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(11) that is secured by a lien that may be foreclosed upon only by a court order, if the foreclosure is for a ground other than a
ground stated by Subdivision (6)(A) or (B) of this subsection.


(l) Advances made under a reverse mortgage and interest on those advances have priority over a lien filed for record in the
real property records in the county where the homestead property is located after the reverse mortgage is filed for record in
the real property records of that county.


(m) A reverse mortgage may provide for an interest rate that is fixed or adjustable and may also provide for interest that is
contingent on appreciation in the fair market value of the homestead property. Although payment of principal or interest shall
not be required under a reverse mortgage until the entire loan becomes due and payable, interest may accrue and be compounded
during the term of the loan as provided by the reverse mortgage loan agreement.


(n) A reverse mortgage that is secured by a valid lien against homestead property may be made or acquired without regard to
the following provisions of any other law of this state:


(1) a limitation on the purpose and use of future advances or other mortgage proceeds;


(2) a limitation on future advances to a term of years or a limitation on the term of open-end account advances;


(3) a limitation on the term during which future advances take priority over intervening advances;


(4) a requirement that a maximum loan amount be stated in the reverse mortgage loan documents;


(5) a prohibition on balloon payments;


(6) a prohibition on compound interest and interest on interest;


(7) a prohibition on contracting for, charging, or receiving any rate of interest authorized by any law of this state authorizing
a lender to contract for a rate of interest; and


(8) a requirement that a percentage of the reverse mortgage proceeds be advanced before the assignment of the reverse mortgage.


(o) For the purposes of determining eligibility under any statute relating to payments, allowances, benefits, or services provided
on a means-tested basis by this state, including supplemental security income, low-income energy assistance, property tax relief,
medical assistance, and general assistance:


(1) reverse mortgage loan advances made to a borrower are considered proceeds from a loan and not income; and



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(2) undisbursed funds under a reverse mortgage loan are considered equity in a borrower's home and not proceeds from a loan.


(p) The advances made on a reverse mortgage loan under which more than one advance is made must be made according to the
terms established by the loan documents by one or more of the following methods:


(1) an initial advance at any time and future advances at regular intervals;


(2) an initial advance at any time and future advances at regular intervals in which the amounts advanced may be reduced, for
one or more advances, at the request of the borrower;


(3) an initial advance at any time and future advances at times and in amounts requested by the borrower until the credit limit
established by the loan documents is reached;


(4) an initial advance at any time, future advances at times and in amounts requested by the borrower until the credit limit
established by the loan documents is reached, and subsequent advances at times and in amounts requested by the borrower
according to the terms established by the loan documents to the extent that the outstanding balance is repaid; or


(5) at any time by the lender, on behalf of the borrower, if the borrower fails to timely pay any of the following that the
borrower is obligated to pay under the loan documents to the extent necessary to protect the lender's interest in or the value
of the homestead property:


(A) taxes;


(B) insurance;


(C) costs of repairs or maintenance performed by a person or company that is not an employee of the lender or a person or
company that directly or indirectly controls, is controlled by, or is under common control with the lender;


(D) assessments levied against the homestead property; and


(E) any lien that has, or may obtain, priority over the lender's lien as it is established in the loan documents.


(q) To the extent that any statutes of this state, including without limitation, Section 41.001 of the Texas Property Code, purport
to limit encumbrances that may properly be fixed on homestead property in a manner that does not permit encumbrances for
extensions of credit described in Subsection (a)(6) or (a)(7) of this section, the same shall be superseded to the extent that such
encumbrances shall be permitted to be fixed upon homestead property in the manner provided for by this amendment.


(r) The supreme court shall promulgate rules of civil procedure for expedited foreclosure proceedings related to the foreclosure
of liens under Subsection (a)(6) of this section and to foreclosure of a reverse mortgage lien that requires a court order.

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(s) The Finance Commission of Texas shall appoint a director to conduct research on the availability, quality, and prices of
financial services and research the practices of business entities in the state that provide financial services under this section.
The director shall collect information and produce reports on lending activity of those making loans under this section. The
director shall report his or her findings to the legislature not later than December 1 of each year.


(t) A home equity line of credit is a form of an open-end account that may be debited from time to time, under which credit
may be extended from time to time and under which:


(1) the owner requests advances, repays money, and reborrows money;


(2) any single debit or advance is not less than $4,000;


(3) the owner does not use a credit card, debit card, or similar device, or preprinted check unsolicited by the borrower, to obtain
an advance;


(4) any fees described by Subsection (a)(6)(E) of this section are charged and collected only at the time the extension of credit
is established and no fee is charged or collected in connection with any debit or advance;


(5) the maximum principal amount that may be extended under the account, when added to the aggregate total of the outstanding
principal balances of all indebtedness secured by the homestead on the date the extension of credit is established, does not
exceed an amount described under Subsection (a)(6)(B) of this section;


(6) no additional debits or advances are made if the total principal amount outstanding exceeds an amount equal to 50 percent
of the fair market value of the homestead as determined on the date the account is established;


(7) the lender or holder may not unilaterally amend the extension of credit; and


(8) repayment is to be made in regular periodic installments, not more often than every 14 days and not less often than monthly,
beginning not later than two months from the date the extension of credit is established, and:


(A) during the period during which the owner may request advances, each installment equals or exceeds the amount of accrued
interest; and


(B) after the period during which the owner may request advances, installments are substantially equal.


(u) The legislature may by statute delegate one or more state agencies the power to interpret Subsections (a)(5)-(a)(7), (e)-(p),
and (t), of this section. An act or omission does not violate a provision included in those subsections if the act or omission
conforms to an interpretation of the provision that is:

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§ 50. Homestead; protection from forced sale; mortgages,..., TX CONST Art. 16, § 50




(1) in effect at the time of the act or omission; and


(2) made by a state agency to which the power of interpretation is delegated as provided by this subsection or by an appellate
court of this state or the United States.


(v) A reverse mortgage must provide that:


(1) the owner does not use a credit card, debit card, preprinted solicitation check, or similar device to obtain an advance;


(2) after the time the extension of credit is established, no transaction fee is charged or collected solely in connection with any
debit or advance; and


(3) the lender or holder may not unilaterally amend the extension of credit.


Credits
Amended Nov. 6, 1973; Nov. 7, 1995; Nov. 4, 1997, eff. Jan. 1, 1998; Nov. 2, 1999; Nov. 6, 2001, eff. Nov. 26, 2001; Sept. 13,
2003, eff. Sept. 29, 2003; Nov. 8, 2005, eff. Nov. 23, 2005; Nov. 6, 2007, eff. Dec. 4, 2007; Nov. 5, 2013, eff. Nov. 22, 2013.


Editors' Notes

                                              INTERPRETIVE COMMENTARY

                                                        1993 Main Volume

     The homestead exemption was a Texas creation. It was the logical development of the evolution of the changing
     social attitude toward debtors whereby first the person, then the personal property, and finally the real estate of the
     debtor were freed from the control of the creditor through the abolition of imprisonment for debt, the extension of
     chattel exemptions, and the adoption of the homestead exemption.

     While Texas was governed by Spanish colonial law and, subsequent thereto, the law of Mexico, it became familiarized
     with chattel exemptions for such items as family clothing, the minimum of furniture for the family abode, and the
     implements of the breadwinner, none of which could be used for forced application to the payment of debts. In an
     agricultural community, it was no great step to extend the concept underlying these chattel exemptions to the family
     home and land.

     The earliest homestead exemption law was the Statute of January 26, 1839 (Laws of the Republic of Texas, First
     Session of the Third Congress, 1839, pp. 125-126). Beyond statements to its intent and purpose, the idea of homestead
     exemption elicited slight notice, scarcely any comment, and no discernible opposition. Its passage was hurried through
     the legislature on the last day of its session with the legislators apparently unaware of the important precedent the
     law would establish or of the far-reaching effect it was to have.

     The direct cause of the law was the United States Panic of 1837 and the ensuing depression during which numerous
     families lost homes and farms through foreclosures, and in the Republic of Texas business became stagnate, money
     scarce, and credit unobtainable. Most Texans were in debt, and the young nation was in economic peril. The homestead

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§ 50. Homestead; protection from forced sale; mortgages,..., TX CONST Art. 16, § 50


    exemption was looked upon as a necessary measure to offset the economic danger to Texans and Texas. It had
    a three-fold purpose: (1) to preserve the integrity of the family as the basic element of social organization, and,
    incidentally, to encourage colonization for in a frontier society each pioneer family was of definite value to the
    community; (2) to provide the debtor with a home for his family and some means to support them and to recoup his
    economic losses so as to prevent the family from becoming a burdensome charge upon the public; (3) to retain in
    pioneers the feeling of freedom and sense of independence which was deemed necessary to the continued existence
    of democratic institutions.

    Although the Constitution of the Republic contained no provisions with reference to homestead exemptions, Texans
    quickly learned that homestead exemptions could not be left to the mercy of the legislators. The Fourth Congress of
    the Republic, in an act concerning executions (Act of February 5, 1840, sections 4 and 24, Laws of Republic of Texas,
    Session of Fourth Congress, pp. 93-98), annulled the law of 1839, although no explanation for this action can be
    found in the journals of that congress. The next legislature, however, repealed the action of the Fourth Congress and
    re-enacted the original homestead exemption law. (Act of December 22, 1840, Laws of Republic of Texas, Session
    of Fifth Congress, pp. 61-62). Consequently, the convention which drew up the Constitution of 1845, designed to
    provide for the government of the State of Texas after annexation by the United States, determined to safeguard the
    homestead by putting it beyond the reach of legislators as well as creditors by incorporating an exemption provision
    in the constitution.

    Article VII, Section 22, of the Constitution of 1845 declared:

       The Legislature shall have power to protect by law from forced sale, a certain portion of the property of all heads
       of families. The homestead of a family not to exceed two hundred acres of land, (not included in a town or city,)
       or any town or city lot or lots, in value not to exceed two thousand dollars, shall not be subject to forced sale, for
       any debts hereafter contracted, nor shall the owner, if a married man, be at liberty to alienate the same, unless by
       consent of the wife, in such manner as the Legislature may hereafter point out.

    There was little opposition in the convention to the homestead exemption as such, although it was adopted by a vote
    of only 42 to 14. The opposition specifically went on record as approving of the principle but objected to the wording
    of the measure on various grounds--the limitation on the size of the homestead was felt to be too small or too large;
    or objection was voiced to the provision preventing the husband from alienating the homestead without the wife's
    consent.

    The Constitutions of 1861 and 1866 carried forward those homestead provisions. The Constitution of 1869 provided
    for the exemption of a rural homestead not exceeding 200 acres or an urban homestead not in excess of $5,000
    evaluation without reference to improvements. The present constitution included the 1869 provisions with the added
    provision that a place of business might be included in an urban homestead and that certain property of an unmarried
    adult might be exempt as a homestead.

    At the convention of 1875 opposition again arose to the provision preventing the husband from alienating the
    homestead without the wife's consent. But eloquent pleas were made picturing the sad effect of drunken and worthless
    husbands bringing their wives to want and poverty, and the provision was retained.



Notes of Decisions (1665)

Vernon's Ann. Texas Const. Art. 16, § 50, TX CONST Art. 16, § 50
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature


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§ 50. Homestead; protection from forced sale; mortgages,..., TX CONST Art. 16, § 50




End of Document                                              © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                                                                                                            Tab D
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§ 41.001. Interests in Land Exempt from Seizure, TX PROPERTY § 41.001




  Vernon's Texas Statutes and Codes Annotated
    Property Code (Refs & Annos)
      Title 5. Exempt Property and Liens
        Subtitle A. Property Exempt from Creditors' Claims
           Chapter 41. Interests in Land (Refs & Annos)
              Subchapter A. Exemptions in Land Defined (Refs & Annos)

                                              V.T.C.A., Property Code § 41.001

                                     § 41.001. Interests in Land Exempt from Seizure

                                                Effective: September 1, 2001
                                                        Currentness


(a) A homestead and one or more lots used for a place of burial of the dead are exempt from seizure for the claims of creditors
except for encumbrances properly fixed on homestead property.


(b) Encumbrances may be properly fixed on homestead property for:


  (1) purchase money;


  (2) taxes on the property;


  (3) work and material used in constructing improvements on the property if contracted for in writing as provided by Sections
  53.254(a), (b), and (c);


  (4) an owelty of partition imposed against the entirety of the property by a court order or by a written agreement of the parties
  to the partition, including a debt of one spouse in favor of the other spouse resulting from a division or an award of a family
  homestead in a divorce proceeding;


  (5) the refinance of a lien against a homestead, including a federal tax lien resulting from the tax debt of both spouses, if the
  homestead is a family homestead, or from the tax debt of the owner;


  (6) an extension of credit that meets the requirements of Section 50(a)(6), Article XVI, Texas Constitution; or


  (7) a reverse mortgage that meets the requirements of Sections 50(k)-(p), Article XVI, Texas Constitution.


(c) The homestead claimant's proceeds of a sale of a homestead are not subject to seizure for a creditor's claim for six months
after the date of sale.



                                                                                                                   Tab E

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§ 41.001. Interests in Land Exempt from Seizure, TX PROPERTY § 41.001




Credits
Added by Acts 1985, 69th Leg., ch. 840, § 1, eff. June 15, 1985. Amended by Acts 1993, 73rd Leg., ch. 48, § 2, eff. Sept. 1,
1993; Acts 1995, 74th Leg., ch. 121, § 1.01, eff. May 17, 1995; Acts 1995, 74th Leg., ch. 121, § 2.01, eff. Nov. 7, 1995; Acts
1997, 75th Leg., ch. 526, § 1, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 516, § 1, eff. Sept. 1, 2001.



Notes of Decisions (352)

V. T. C. A., Property Code § 41.001, TX PROPERTY § 41.001
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                                                                                                                   Tab E

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§ 53.254. Homestead, TX PROPERTY § 53.254




  Vernon's Texas Statutes and Codes Annotated
    Property Code (Refs & Annos)
      Title 5. Exempt Property and Liens
        Subtitle B. Liens
           Chapter 53. Mechanic's, Contractor's, or Materialman's Lien (Refs & Annos)
              Subchapter K. Residential Construction Projects

                                               V.T.C.A., Property Code § 53.254

                                                      § 53.254. Homestead

                                                           Currentness


(a) To fix a lien on a homestead, the person who is to furnish material or perform labor and the owner must execute a written
contract setting forth the terms of the agreement.


(b) The contract must be executed before the material is furnished or the labor is performed.


(c) If the owner is married, the contract must be signed by both spouses.


(d) If the contract is made by an original contractor, the contract inures to the benefit of all persons who labor or furnish material
for the original contractor.


(e) The contract must be filed with the county clerk of the county in which the homestead is located. The county clerk shall
record the contract in records kept for that purpose.


(f) An affidavit for lien filed under this subchapter that relates to a homestead must contain the following notice conspicuously
printed, stamped, or typed in a size equal to at least 10-point boldface or the computer equivalent, at the top of the page:

“NOTICE: THIS IS NOT A LIEN. THIS IS ONLY AN AFFIDAVIT CLAIMING A LIEN.”


(g) For the lien on a homestead to be valid, the notice required to be given to the owner under Section 53.252 must include
or have attached the following statement:

“If a subcontractor or supplier who furnishes materials or performs labor for construction of improvements on your property is
not paid, your property may be subject to a lien for the unpaid amount if:


  (1) after receiving notice of the unpaid claim from the claimant, you fail to withhold payment to your contractor that is
  sufficient to cover the unpaid claim until the dispute is resolved; or


  (2) during construction and for 30 days after completion of construction, you fail to retain 10 percent of the contract price
  or 10 percent of the value of the work performed by your contractor.

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§ 53.254. Homestead, TX PROPERTY § 53.254




“If you have complied with the law regarding the 10 percent retainage and you have withheld payment to the contractor sufficient
to cover any written notice of claim and have paid that amount, if any, to the claimant, any lien claim filed on your property
by a subcontractor or supplier, other than a person who contracted directly with you, will not be a valid lien on your property.
In addition, except for the required 10 percent retainage, you are not liable to a subcontractor or supplier for any amount paid
to your contractor before you received written notice of the claim.”


Credits
Added by Acts 1997, 75th Leg., ch. 526, § 23, eff. Sept. 1, 1997.



Notes of Decisions (16)

V. T. C. A., Property Code § 53.254, TX PROPERTY § 53.254
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                                                          Tab F2                                                        Tab F
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AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND..., USCA CONST Amend....




  United States Code Annotated
   Constitution of the United States
      Annotated
        Amendment XIV. Citizenship; Privileges and Immunities; Due Process; Equal Protection;
        Apportionment of Representation; Disqualification of Officers; Public Debt; Enforcement

                                            U.S.C.A. Const. Amend. XIV-Full Text

                     AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND IMMUNITIES; DUE
                     PROCESS; EQUAL PROTECTION; APPOINTMENT OF REPRESENTATION;
                       DISQUALIFICATION OF OFFICERS; PUBLIC DEBT; ENFORCEMENT

                                                          Currentness


Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the
whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of
electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers
of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one
years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the
basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole
number of male citizens twenty-one years of age in such State.


Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any
office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of
Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of
any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or
given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.


Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of
pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States
nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States,
or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.


Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

     <Section 1 of this amendment is further displayed in separate documents according to subject matter,>

     <see USCA Const Amend. XIV, § 1-Citizens>

     <see USCA Const Amend. XIV, § 1-Privileges>
                                                                                                                    Tab G
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AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND..., USCA CONST Amend....




    <see USCA Const Amend. XIV, § 1-Due Proc>

    <see USCA Const Amend. XIV, § 1-Equal Protect>

    <sections 2 to 5 of this amendment are displayed as separate documents,>

    <see USCA Const Amend. XIV, § 2,>

    <see USCA Const Amend. XIV, § 3,>

    <see USCA Const Amend. XIV, § 4,>

    <see USCA Const Amend. XIV, § 5,>


U.S.C.A. Const. Amend. XIV-Full Text, USCA CONST Amend. XIV-Full Text
Current through P.L. 114-49 approved 8-7-2015

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                                                                                                                  Tab G
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§ 15. Right of trial by jury, TX CONST Art. 1, § 15




  Vernon's Texas Statutes and Codes Annotated
    Constitution of the State of Texas 1876 (Refs & Annos)
      Article I. Bill of Rights (Refs & Annos)

                                            Vernon's Ann.Texas Const. Art. 1, § 15

                                                    § 15. Right of trial by jury

                                                           Currentness


Sec. 15. The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the
same, and to maintain its purity and efficiency. Provided, that the Legislature may provide for the temporary commitment, for
observation and/or treatment, of mentally ill persons not charged with a criminal offense, for a period of time not to exceed
ninety (90) days, by order of the County Court without the necessity of a trial by jury.


Credits
Amended Aug. 24, 1935.


Editors' Notes

                                              INTERPRETIVE COMMENTARY

                                                        2007 Main Volume

     One of the most characteristic elements of the American constitutional inheritance from England is that of trial by
     jury. In origin it grew from a practice in Norman times known as an inquest which was composed of a selected group
     from the community to tell the facts about certain situations, e. g., to tell who was guilty of a crime, or who had title
     to land. From this institution the jury developed, changing through time from a body of people chosen because they
     knew the facts to a body whose function is to determine the facts on the basis of evidence given at the trial.

     Trial by jury has been considered as a fundamental safeguard of constitutional liberty. The Declaration of
     Independence complains of the British Government for denying the colonists in many cases a trial by jury. The
     Texas Declaration of Independence makes the same indictment against Mexico, declaring that Mexico “has failed
     and refused to secure, on a firm basis, the right of trial by jury, that palladium of civil liberty, and only safe guarantee
     for the life, liberty, and property of the citizen.” As a result the right was placed in the Bills of Rights of both the
     United States Constitution and that of Texas.

     The words of Section 15 declare that trial by jury shall remain inviolate. This has been interpreted to mean that in
     each case where the issue is raised, an inquiry should be made into the practice before the constitution was adopted
     to determine whether such issues were tried by a jury; hence, any right to a jury trial that existed at the time of the
     adoption of the constitution is confirmed. White v. White, 108 T. 570, 196 S.W. 508, L.R.A.1918A, 339 (1917).

     Section 15 further grants to the legislature the power to regulate the right of trial by jury, and to maintain its purity
     and efficiency. This clause does not permit reduction of the right. It does permit the legislature to deny the right in
     cases where no right to jury trial existed at common law, the section merely protecting the right as it existed at the
     time the constitution went into effect. Johnson v. State, Civ.App., 267 S.W. 1057 (1925).


                                                                                                                       Tab H
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§ 15. Right of trial by jury, TX CONST Art. 1, § 15


    Historically in equity proceedings, the chancellor was judge of fact as well as of law, there being no right of trial by
    jury. In Texas, however, ever since the first state constitution of 1845, a party is not deprived of a jury trial in a suit
    of an equitable nature. San Jacinto Oil Co. v. Culbertson, 100 T. 462, 101 S.W. 197 (1907).

    In civil cases for the trial of a cause, wherein a fact situation is raised by the pleadings, either party is entitled to a
    jury upon a demand made to the court and the payment of the jury fee. See Hammond v. Ashe, 103 T. 503, 131 S.W.
    539 (1910); Thorne v. Moore, 101 T. 205, 105 S.W. 985 (1907); Blair v. Paggi, Com.App., 238 S.W. 639 (1922).
    If these conditions are met, the right is inviolate.

    In civil cases and misdemeanor cases a jury may be waived. Neill v. Tarin, 9 T. 256 (1852); Wagner v. State, 87 Cr.R.
    47, 219 S.W. 471 (1920); Armstrong v. State, 98 Cr.R. 335, 265 S.W. 701 (1924). However, in a capital case the
    defendant may not waive the right, but in felony cases less than capital he may, upon entering a plea of guilty, waive
    a jury trial in open court in person with the approval and consent of the court and of the state's attorney. See Vernon's
    Ann.C.C.P. [1925] art. 518 [see, now, Vernon's Ann.C.C.P. art. 27.14].

    The right to trial by jury means, of course, the right to a trial by an impartial jury. See Pierson v. State, 18 Tex.App.
    524 (1885). Within the limits of denying the parties an impartial jury, the legislature may prescribe the procedure
    for impanelling the jury and the qualifications of jurors. However, it is violative of the due process clause of the
    fourteenth amendment of the Federal Constitution, as well as of the state constitution, to exclude any citizen because
    of race or color. Jackson v. State, 63 Cr.R. 351, 139 S.W. 1156 (1911); or to discriminate on other grounds where
    such discrimination would tend to prejudice or favor an accused person. See Lively v. State, Crim.App., 73 S.W.
    1048 (1903).



Notes of Decisions (602)

Vernon's Ann. Texas Const. Art. 1, § 15, TX CONST Art. 1, § 15
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

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                                                                                                                        Tab H
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§ 19. Deprivation of life, liberty, etc.; due course of law, TX CONST Art. 1, § 19




  Vernon's Texas Statutes and Codes Annotated
    Constitution of the State of Texas 1876 (Refs & Annos)
      Article I. Bill of Rights (Refs & Annos)

                                          Vernon's Ann.Texas Const. Art. 1, § 19

                                 § 19. Deprivation of life, liberty, etc.; due course of law

                                                         Currentness


Sec. 19. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner
disfranchised, except by the due course of the law of the land.


Editors' Notes

                                           INTERPRETIVE COMMENTARY

                                                     2007 Main Volume

    Section 19 of the Texas Bill of Rights is a due process of law provision and has been included in all of the Texas
    Constitutions. The words “due process of law” or “due course of the law of the land” are the equivalent of the phrase
    “law of the land” in Magna Carta.

    This provision has been construed by the courts as affording several types of protection. It has been said that “when
    the great barons of England wrung from King John, at the point of the sword, the concession that neither their lives
    nor their property should be disposed of by the crown, except as provided by the law of the land, they meant by ‘law
    of the land’ the ancient and customary laws of the English people, or laws enacted by the Parliament. . . .. It was not
    in their minds, therefore, to protect themselves against enactment of laws by the Parliament of England.” Davidson
    v. New Orleans, 96 U.S. 97, 24 L.Ed. 616 (1878).

    Therefore, originally the due process clause was construed as applying to the method of making a judicial or
    administrative decision. It applied directly to the machinery or procedure by which people were tried for crime, by
    which property rights were adjudicated, by which the powers of eminent domain and taxation were exercised. In
    short, legal proceedings were and are required to be conducted by the rules and forms established for the protection
    of private rights. Otherwise, life, liberty or property would be taken without due process of law so as to be violative
    of the fundamental principles. See Steddum v. Kirby Lumber Co., 110 T. 513, 221 S.W. 920 (1920).

    As applied to procedure, due process requires a fair and impartial trial before a competent tribunal. Vogt v. Bexar
    County, 5 Tex.App. 272, 23 S.W. 1044 (1893). Included within this requisite is an opportunity to be heard, and
    reasonable opportunity to prepare for the hearing, which, of course, encompasses reasonable notice of the claim or
    charge against an individual so as to advise him of the nature thereof, and of the relief sought. State ex rel. Merriman
    v. Ball, 116 T. 527, 296 S.W. 1085 (1927), Steddum v. Kirby Lumber Co. supra.

    The right to a hearing requires a judicial examination of every issue that, according to established procedure, may
    affect the attainment of a legal trial, and in such a trial determine the cause according to law. Freeman v. Ortiz, 106
    T. 1, 153 S.W. 304 (1913). There should be opportunity given to cross examine witnesses and to produce witnesses
    and to be heard on questions of law. Steddum v. Kirby Lumber Co., supra.


                                                                                                                    Tab I
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§ 19. Deprivation of life, liberty, etc.; due course of law, TX CONST Art. 1, § 19


    Due process of law not only includes procedural protection, but also substantive protection. It is a direct constitutional
    restraint upon the substance of legislation and means that a legislative curtailment of personal or property rights must
    be justified by a resultant benefit to the public welfare. Thus the due process guaranty does not restrain the state in
    the exercise of its legitimate police powers. See City of New Braunfels v. Waldschmit, 109 T. 302, 207 S.W. 303
    (1918). Houston & Tex. Cent. Ry. Co. v. Dallas, 98 T. 396, 84 S.W. 648 (1905). Both liberty and property are subject
    to the exercise of these powers.

    Nevertheless, the exercise of the police powers is not unrestricted, but is limited to enactments having reference to the
    public health, comfort, safety and welfare. It must not be arbitrary, unreasonable, or patently beyond the necessities of
    the case, and the means which it employs must have a real and substantial relation to the object sought to be attained.
    See Spann v. City of Dallas, 111 T. 350, 235 S.W. 513 (1921), Houston & T.C. Ry. Co. v. City of Dallas, supra;
    American Federation of Labor v. Mann, Civ.App., 188 S.W.2d 276 (1945).

    In substantive due process cases, the courts balance the gain to the public welfare resulting from the legislation against
    the severity of its effect on personal and property rights. Every exercise of the police power involves a restraint upon
    individual freedom of action or the free use of property based upon some social need which presumably justifies the
    restraint. Hence, a law is unconstitutional as violating due process when it is arbitrary or unreasonable, and the later
    occurs when the social necessity the law is to serve is not a sufficient justification of the restriction of liberty involved.

    For example, the police power may be constitutionally exercised to destroy property where the social necessity or
    interest involved is the prevention of the spread of disease or conflagration. Chambers v. Gilbert, 17 Tex.App. 106,
    42 S.W. 630, error refused (1897); Keller v. City of Corpus Christi, 50 T. 614 (1879). Again the liberty of contract
    between employers and employees may be regulated under the police power by limiting the hours of labor in order
    to promote the public health. See Bunting v. State of Oregon, 37 S.Ct. 435, 243 U.S. 426, 61 L.Ed. 830 (1916).

    The Federal Constitution, in the fifth and fourteenth amendments, also provides against deprivation of life, liberty or
    property without due process of law, the fourteenth amendment by its language being applicable to prevent the states
    from carrying out such a deprivation. It has been held by Texas courts that the clause of the Texas Constitution, to
    the extent that it is identical with the fourteenth amendment, has placed upon the powers of the state legislature the
    same restrictions as those which have been held to be imposed by the language of that amendment of the Federal
    Constitution. Mellinger v. City of Houston, 68 T. 37, 3 S.W. 249 (1887).



Notes of Decisions (2844)

Vernon's Ann. Texas Const. Art. 1, § 19, TX CONST Art. 1, § 19
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

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                                                                                                                           Tab I
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