                                                                           ACCEPTED
                                                                       12-15-00033-CV
                                                          TWELFTH COURT OF APPEALS
                                                                        TYLER, TEXAS
                                                                  5/18/2015 9:57:20 PM
                                                                         CATHY LUSK
                                                                                CLERK

                  CASE NO. 12-15-00033-CV

            IN THE COURT OF APPEALS FOR THE        FILED IN
                                            12th COURT OF APPEALS
          TWELFTH APPELLATE DISTRICT OF TEXAS TYLER, TEXAS
                    AT TYLER, TEXAS         5/18/2015 9:57:20 PM
                                                   CATHY S. LUSK
                                                      Clerk
                   DIRECT APPEAL FROM

     JERRY BYROM, DIMPLE BYROM, and DOROTHY BERRY,
                      APPELLANTS
                           VS.
    JILL CAMPBELL PENN as COURT APPOINTED RECEIVER,
                       APPELLEE

   THE 4th JUDICIAL DISTRICT COURT OF RUSK COUNTY, TEXAS

                     CAUSE NO. 2013-18


                COLLATERAL APPEAL FROM

      IN THE ESTATE OF RUBY RENEE BYROM, DECEASED

  IN THE COUNTY COURT AT LAW OF CHEROKEE COUNTY, TEXAS

                    CAUSE NO. 10745-CV

                  BRIEF OF APPELLANTS

                                JOE SHUMATE
                                State Bar No. 18327500
                                107 North Main Street
                                P. O. Box 1915
                                Henderson, Texas 75653-1915
                                (903) 657-1416
                                (903) 655-8211
                                Attorney for Appellants
ORAL ARGUMENT REQUESTED
     CERTIFICATE OF INTERESTED PARTIES - DIRECT APPEAL

      The undersigned counsel of record for Appellant certifies that the following

listed persons have an interest in the outcome of this case. These representations are

made so that this Court may evaluate possible disqualifications or recusal.

APPELLANT                              COUNSEL

Jerry Byrom, Appellant                 Joe Shumate
Dimple Byrom, Appellant                State Bar No. 18327500
Dorothy Berry, Appellant               107 North Main Street
                                       P. O. Box 1915
                                       Henderson, Texas 75653
                                       Tel: (903) 657-1416
                                       Fax: (903) 655-8211

                                       Associate Attorney, James J. Rosenthal
                                       On the brief for Appellants


APPELLEE                               COUNSEL

Jill Campbell Penn, as                 Joseph F. Zellmer
Court-Appointed Receiver               Joseph F. Zellmer, P.C.
                                       620 West Hickory St.
                                       Denton, Texas 76201
                                       Tel: (940) 383-2674

TRIAL COURT JUDGE

Hon. J. Clay Gossett
Cherokee County Courthouse
115 North Main Street, Ste. 303
Henderson, Texas 75652
Tel: (903) 657-0358

                                         -ii-
                    TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

        1.       ISSUE 1: THE DECREE ORDERING SALE OF REAL PROPERTY
                 (APPELLANTS’ HOMESTEAD), AND UNDERLYING ORDERS IMPRESSING A
                 CONSTRUCTIVE TRUST UPON THE APPELLANT’S HOMESTEAD OR
                 COMPELLING THE FORCED SALE OF APPELLANTS’ HOMESTEAD, ARE VOID
                 AS A MATTER OF LAW ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

        2.       ISSUE 2: THE ORDER TO PAY ATTORNEY FEES CONTAINED IN THE DECREE
                 ORDERING SALE OF REAL PROPERTY AND UNDERLYING ORDERS
                 IMPRESSING A CONSTRUCTIVE TRUST UPON AND ORDERING THE SALE OF
                 APPELLANT’S HOMESTEAD, ARE VOID AS A MATTER OF LAW.. . . . . . 37

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

APPENDIX                . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45




                                                        -iii-
                                   INDEX OF AUTHORITIES

Statutes and Rules:                                                                                    Pages

TEX. CONST. ART. XVI, § 50.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20, 21, 35, 38

TEX. PROP. CODE § 42.001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

TEX. PROBATE CODE § 146(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

TEX. PROBATE CODE § 147. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 39

Cases:                                                                                                 Pages

Allen v. Ramey, 226 S.W. 489
(Tex. Civ. App.—Texarkana 1920, no writ).. . . . . . . . . . . . . . . . . . . . . . . 23, 28, 38

Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d 723
(Tex. App.—San Antonio 2007, pet. denied). . . . . . . . . . . . . . . . . 26, 27, 29, 38, 39

Baucom v. Texam Oil Corp., 423 S.W.2d 434
(Tex. Civ. App–El Paso 1967, writ ref'd n.r.e.). . . . . . . . . . . . . . . . . . . . . 26, 27, 29

Bransom v. Standard Hardware, 874 S.W.2d 919
(Tex.App.-Fort Worth 1994, writ denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 29

Brightwell v. Barlow, Gardner, Tucker & Garsek, 619 S.W.2d 249
(Tex. Civ. App.—Fort Worth 1981, no writ). . . . . . . . . . . . . . . . . . . . . . . 31, 32, 39

Burke v. Satterfield, 525 S.W.2d 950, 953 (Tex. 1975). . . . . . . . . . . . . . . . . . 32, 39

Cline v. Henry, 239 S.W.2d 205
(Tex.Civ.App.—Dallas 1951, writ ref'd n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . 18, 36

Cline v. Niblo, 117 Tex. 474, 8 S.W.2d 633 (Tex. 1928).. 19, 21, 22, 23, 27, 28, 33

Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325 (1895). . . . . . . . . 19, 22, 27, 28

                                                      -iv-
Curtis Sharp Custom Homes, Inc. v. Glover, 701 S.W.2d 24, (Tex. App.—
Dallas 1985), writ refused NRE (Mar. 12, 1986). . . . . 18, 19-22, 27, 28, 30, 33, 38

Ex parte Fernandez, 645 S.W.2d 636 (Tex.App.-El Paso 1983, no writ.). . . . 25, 39

Franklin v. Woods, 598 S.W.2d 946
(Tex. Civ. App.—Corpus Christi 1980). . . . . . . . . . . . . . . . . . . . . . . . 19, 22, 27, 38

Gann v. Montgomery, 210 S.W.2d 255
(Tex.Civ.App.—Fort Worth 1948, writ ref'd n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . 17

Garrard v. Henderson, 209 S.W.2d 225 (Tex.Civ.App.—Dallas 1948, no writ). . 18

Gober v. Smith, 36 S.W. 910 (Tex. Civ. App. 1896, no writ). . . . . . . . . . . . . . . . 34

In re Byrom, No. 12-09-00278-CV, 316 S.W.3d 787
(Tex.App.-Tyler 2010, orig. proceeding [mand. denied] ). . . . . . . . . . . . . . . 4, 5, 28

In re Estate of Byrom, 12-09-00279-CV, 2011 WL 590588
(Tex. App.—Tyler Feb. 16, 2011, pet. denied)(mem. op.). . . . . . . . . . . . 5, 6, 23, 39

In re Estate of Byrom, 12-12-00374-CV, 2013 WL 3967432
(Tex. App.—Tyler July 31, 2013), reh'g overruled (Oct. 9, 2013),
review denied (Jan. 31, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 24, 26, 28

In re Garza, 126 S.W.3d 268 (Tex.App.-San Antonio 2003,
orig. proceeding [mand. denied]). . . . . . . . . . . . . . . . . . . . . . . . 6, 23, 25, 28, 38, 39

In re Guardianship of Bayne, 171 S.W.3d 232,
(Tex. App.—Dallas 2005, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 39

In re Marriage of Nolder, 48 S.W.3d 432
(Tex.App.-Texarkana 2001, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 38

KCM Fin. LLC v. Bradshaw, 13-0199, 2015 WL 1029652
(Tex. Mar. 6, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36



                                                         -v-
Kendall Builders, Inc. v. Chesson, 149 S.W.3d 796
(Tex. App.—Austin 2004, pet. denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Kleine v. United States, 539 F.2d 427, 432 (5th Cir. 1976). . . . . . . . . . . . . . . . . . 31

Kostelnik v. Roberts, 680 S.W.2d 532 (Tex. App.—Corpus Christi 1984),
writ refused NRE (Jan. 16, 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 38

Landram v. Robertson, 195 S.W.2d 170
(Tex. Civ. App.—San Antonio 1946), writ refused NRE.. . . . . . . . . . . . . . . . . . . 36

Lifemark Corp. v. Merritt, 655 S.W.2d 310, 314 (Tex. App.—Houston [14th Dist.]
1983), writ refused NRE (Oct. 5, 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Meadows v. Bierschwale, 516 S.W.2d 125, 128 (Tex.1974). . . . . . . . . . . . . . 28, 38

Mohseni v. Hartman, 363 S.W.3d 652
(Tex. App.—Houston [1st Dist.] 2011, no pet.). . . . . . . . . . . . . . . . . . . . . 29, 31, 39

Parker v. Schrimsher, 172 S.W. 165
(Tex. Civ. App.—Amarillo 1914), writ refused (Nov. 17, 1915).. . . . . . . . . . . . . 34

Rankin v. Naftalis, 557 S.W.2d 940 (Tex. 1977). . . . . . . . . . . . . . . . . . . . . . . 29, 38

Rowland v. Moore, 141 Tex. 469, 174 S.W.2d 248 (1943). . . . . . . . . . . . 30, 31, 39

U.S. v. Rodgers, U.S.Tex.1983, 103 S.Ct. 2132, 461 U.S. 677,
76 L.Ed.2d 236, on remand 712 F.2d 990.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Villarreal v. Laredo National Bank, 677 S.W.2d 600
(Tex.App.—San Antonio 1984, writ ref'd n.r.e.). . . . . . . . . . . . . . . . . . . . . . . . . . 34

Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35 (1929). . . . . . . . . . 17

Yarboro v. Brewster, 38 Tex. 397 (1873). . . . . . . . . . . . . . . . . . . . . . . 19, 22, 27, 28

Zable v. Henry, 649 S.W.2d 136 (Tex. App.—Dallas 1983, no writ). . . . . . . . . . 34

                                                    -vi-
                             CASE NO. 12-15-00033-CV

                    IN THE COURT OF APPEALS FOR THE
                  TWELFTH APPELLATE DISTRICT OF TEXAS
                            AT TYLER, TEXAS

                               DIRECT APPEAL FROM

      JERRY BYROM, DIMPLE BYROM, and DOROTHY BERRY,
                       APPELLANTS
                           VS.
JILL CAMPBELL PENN as COURT APPOINTED RECEIVER, APPELLEE

      THE 4th JUDICIAL DISTRICT COURT OF RUSK COUNTY, TEXAS

                                 CAUSE NO. 2013-18


                          COLLATERAL APPEAL FROM

            IN THE ESTATE OF RUBY RENEE BYROM, DECEASED

    IN THE COUNTY COURT AT LAW OF CHEROKEE COUNTY, TEXAS

                                  CAUSE NO. 10745

                              BRIEF OF APPELLANTS

TO THE HONORABLE JUDGE OF SAID COURT:

      COMES NOW, Jerry Byrom, Dimple Byrom, and Dorothy Berry, Appellants

herein, and respectfully file this brief.




                                            -1-
                          STATEMENT OF THE CASE

      This case originated as a claim against the Estate of Ruby Renee Byrom,

deceased, for attorney’s fees and other fees incurred in Denton County, Texas, by Roy

Anderson (“Anderson”), the temporary guardian of Mrs. Byrom’s estate. (CR 10-12)

These claims were denied by Jerry Byrom (“Byrom”), independent executor and sole

heir of Ruby Byrom’s estate. (CR 4-9) Following Byrom’s removal as executor, the

trial court ordered Byrom to pay certain sums of money into the registry of the court.

(Id.) When Byrom failed to comply with the trial court’s orders, the trial court

imposed a constructive trust upon Byrom’s real property in Mt. Enterprise, Texas, and

ordered the property to be sold. (CR 10-16) The real property subject to the order of

sale is Appellant Jerry and Dimple Byrom’s homestead. (Exhibit G; Exhibit H)

      Following unsuccessful prior appeals by Bryom, Appellee, Jill Campbell Penn

(“Penn”), was appointed as receiver to effectuate the partition and sale of the Byrom’s

real property. Penn filed an Original Petition for Partition on January 17, 2013 in the

4th District Court of Rusk County, Texas. (CR 4-9) Appellants directly appeal the

Decree Ordering Sale of Real Property signed and filed by the trial court on November

14, 2014 (CR 141-43; Exhibit A), and collaterally attacks the prior judgments of the

Cherokee County Court in Cause No. 10745, (CR 10-16, Exhibit E, Exhibit F) as

unconstitutional and void in regards to Appellants’ homestead.

                                          -2-
                    ISSUES PRESENTED



1.   ISSUE 1: THE DECREE ORDERING SALE OF REAL PROPERTY
     (APPELLANTS ’ HOMESTEAD ), AND UNDERLYING ORDERS
     IMPRESSING A CONSTRUCTIVE TRUST UPON THE APPELLANT’S
     HOMESTEAD OR COMPELLING THE FORCED SALE OF APPELLANTS’
     HOMESTEAD, ARE VOID AS A MATTER OF LAW.




2.   ISSUE 2: THE ORDER TO PAY ATTORNEY FEES CONTAINED IN THE
     DECREE ORDERING SALE OF REAL PROPERTY AND UNDERLYING
     ORDERS IMPRESSING A CONSTRUCTIVE TRUST UPON AND ORDERING
     THE SALE OF APPELLANT’S HOMESTEAD, ARE VOID AS A MATTER OF
     LAW.




                              -3-
                                 STATEMENT OF FACTS

I.
 PROCEDURAL AND FACTUAL HISTORY– THE CONSTRUCTIVE TRUST AND ORDER
OF SALE OF THE APPELLANT’S HOMESTEAD:

      A proper grounding for this appeal– which includes a direct appeal of the

Decree Ordering Sale of Real Property, issued by the Rusk County District Court in

2014, as well as a collateral attack upon the prior orders of the County Court of Law

of Cherokee County relating to the forced sale of Appellants’ homestead, requires a

review of the procedural and factual history relating to the Appellant’s homestead

claims. In the interest of judicial economy, and in the interest of highlighting that the

relevant issues to this appeal are legal in nature, Appellants requests this Honorable

Court take judicial notice of the factual and procedural history of this case as set forth

in the prior appellate records and opinions relating to the instant matter, including:


A.    In re Byrom, No. 12-09-00278-CV, 316 S.W.3d 787 (Tex.App.–Tyler 2010,
      orig. proceeding [mand. denied]).1

      This cause was Jerry Byrom’s application for habeas corpus following his

imprisonment by contempt for failure to pay debts owed to creditors of his mother’s

estate. In re Byrom, 316 S.W.3d 787 (Tex.App.-Tyler 2010, orig. proceeding [mand.

denied] ). A thorough recitation of the procedural history of the case leading up to


       1
           See Appendix, Exhibit B, for opinion.

                                               -4-
Bryom’s imprisonment for contempt is included in the opinion. Id. at 788-790. The

trial court’s order imprisoning Byrom for contempt was reversed and Byrom’s petition

for habeas corpus was granted. Id. at 795. Issues raised concerning the attorney fees

and constructive trust awarded by the Cherokee County Court were not decided in this

opinion. Id.; See In re Estate of Byrom, 12-09-00279-CV, 2011 WL 590588 (Tex.

App.—Tyler Feb. 16, 2011, pet. denied).

      Notably, in distinguishing Byrom’s confinement for refusal to pay the court-

ordered debt to the creditors of his mother’s estate from the cases cited by the appellee

therein, this Honorable Court stated:

       “And even if fiduciary duty had been the basis for the court’s holding in
       those cases, we have been unable to located any Texas case holding that
       an independent executor has a fiduciary relationship with estate
       creditors.” Id. at 794-95.

B.    In re Estate of Byrom, 12-09-00279-CV, 2011 WL 590588 (Tex. App.—Tyler
      Feb. 16, 2011, pet. denied)(mem. op.)2

      Byrom filed an appeal raising multiple issues following the entry of the Nunc

Pro Tunc Order on Motion for Constructive Trust by the County Court at Law of

Cherokee County in Cause No. 10745 on or about November 16, 2009. See CR 10-16

for exhibited copy of the Order. Once again, the procedural history of the underlying

case leading up to Byrom’s illegal imprisonment and imposition of the constructive

       2
           See Appendix, Exhibit C, for decision.

                                                -5-
trust were discussed at length. In re Estate of Byrom, 12-09-00279-CV, 2011 WL

590588, *1 (Tex. App.—Tyler Feb. 16, 2011, pet. denied) (mem. op.). The issues of

attorney fees and constructive trust, inter alia, were considered in this appeal, and the

trial court was reversed in part, affirmed in part. Id. at *7. In regards to the imposition

of the constructive trust, this Honorable Court held, without considering the associated

constitutional homestead claim because it was not briefed in compliance with

TEX.R.APP. P. 38.1(I), that because Byrom had a statutory duty to pay claims against

his mother’s estate, “the probate court was authorized by statute to award Anderson

and Coker attorney’s fees incurred in connection with the constructive trust.” Id. at

*4, *6.

      Notably, in discussing Byrom’s release from illegal imprisonment upon his

habeas petition, this Honorable Court explained:

          “We granted Byrom’s petition for writ of habeas corpus... because we
          determined that the contempt order violated the constitutional
          prohibition against imprisonment for debt and therefore, was void. A
          void order has no force of effect and confers no rights; it is a mere
          nullity. In re Garza, 126 S.W.3d 268, 271 (Tex.App.-San Antonio
          2003, orig. proceeding [mand. denied]). Any attorney fees based upon
          a void order must also be void. Ex parte Fernandez, 645 S.W.2d 636,
          639 (Tex.App.-El Paso 1983, no writ.)” Id. at *4




                                            -6-
C.    In re Estate of Byrom, 12-12-00374-CV, 2013 WL 3967432 (Tex.
      App.—Tyler July 31, 2013), reh'g overruled (Oct. 9, 2013), review denied
      (Jan. 31, 2014).3

      The issue of the constructive trust and forced sale of the Byroms’ homestead

was the subject of a further appeal. In re Estate of Byrom, 12-12-00374-CV, 2013 WL

3967432 (Tex. App.—Tyler July 31, 2013), reh'g overruled (Oct. 9, 2013), review

denied (Jan. 31, 2014). Therein, this Honorable Court again affirmed the trial court;

this time on the ground of res judicata, holding:

       “Byrom contends that the trial court erred in imposing a constructive
       trust on property he claims as homestead and in ordering the sale of that
       property. Byrom raised these same issues in the prior proceeding
       between the same parties and arising out of the same facts. This court
       ruled adversely to Appellant on both claims. See In re Estate of Byrom,
       2011 WL 590588, at * 7. Therefore, the doctrine of res judicata bars the
       relitigation of Byrom’s claims. Id. at *6-7.

      In addition to declaring the prior litigation a bar to relief upon Byrom’s

constitutional homestead claims, this Honorable Court appears to have determined that

any error resulting from imposition of the constructive trust upon Byrom’s homestead,

from a constitutional perspective, would be harmless, as:

       “It has long been decided that [the] homestead and exemption laws of
       this State were never intended to be, and cannot be, the haven of
       wrongfully obtained money or properties.” Baucom v. Texam Oil Corp.,
       423 S.W.2d 434, 442 (Tex. Civ. App–El Paso 1967, writ ref'd n.r.e.).
       “[T]he homestead protection afforded by the Texas Constitution was

       3
           See Appendix, Exhibit D, for decision.

                                                -7-
       never intended to protect stolen funds. Bransom v. Standard Hardware,
       874 S.W.2d 919, 928 (Tex.App.-Fort Worth 1994, writ denied).” Id. at
       *1.

As a conclusion to the harm analysis, this Honorable Court looked into the factual

record of the proceedings and determined:

       “Byrom wrongfully used the estate's money to construct the home he
       now claims as homestead. The homestead law does not protect property
       or funds obtained with money misappropriated by a fiduciary. See
       Baucom, 423 S.W.2d at 442; Bransom, 874 S.W.2d at 928.” Id. at *2.


II.   PROCEDURAL AND FACTUAL HISTORY OF THE RUSK COUNTY DISTRICT
      COURT’S DECREE ORDERING OF SALE OF REAL PROPERTY

A.    Receiver’s Authority to Act

      Appellee, Jill Campbell Penn, was appointed as Receiver by the County Court

at Law of Cherokee County pursuant to a First Amended Nunc Pro Tunc Order for

Sale of Real Property and for Appointment of Receiver (“Cherokee County Order for

Sale”), signed and filed on May 13, 2013. See page 40-42 of Cherokee County

Clerk’s Record submitted to Court of Appeal on June 14, 2013; See also Appendix,

Exhibit E. The Cherokee County Order for Sale was authorized by the Nunc Pro

Tunc Order on Motion for Constructive Trust (“Order for Constructive Trust”) signed

on November 16, 2009, and filed by the Cherokee County Court at Law on November

17, 2009. See CR 10-16; See also Appendix, Exhibit F.


                                        -8-
      Pursuant to the Cherokee County Order of Sale, the real property of Jerry

Byrom (not including the real property interests of Appellants Dimple Byrom and

Dorothy Berry), located at 17441 County Road 3226 South, Mount Enterprise, Texas

was encumbered by a constructive trust in the amount of Two Hundred Thousand

Dollars ($200,000.00) for the benefit of the Estate of Ruby Renee Byrom because of

Byrom’s “breach of his fiduciary duty to the estate of Ruby Renee Byrom.” Id. The

Order of Sale was entered following Byrom’s failure to pay the sum of $200,000.00

into the Registry of the Court of Cherokee County, as ordered. Id.



B.    Absence of Homestead Findings and Conclusions in Prior Orders

      Neither the Order for Constructive Trust, nor the subsequently filed Cherokee

County Order for Sale, issued by the County Court at Law of Cherokee County,

include findings and conclusions pertaining to Appellants’ homestead interests or

rights. Id.



C.    Petition for Partition and Pretrial Proceedings

      Pursuant to the authority of the Cherokee County Order of Sale and for

Appointment of Receiver– as amended by the County Court of Law of Cherokee

County on May 13, 2013– Appellee filed an Original Petition for Partition in the 4th

                                        -9-
District Court of Rusk County, Texas on January 17, 2013, under Cause No. 2013-18

with the caption “Estate of Ruby Renee Byrom, Deceased,” against Jerry Byrom,

Dimple Byrom, and Dorothy Berry. CR 4-16. As indicated on the Warranty Deed

exhibited to the Petition for Partition, the owners of the “Real Property at Interest”–

specifically the Second Tract described in the exhibited Warranty Deed, comprised of

76 acres and commonly known as 17441 County Road 3226 South, Mount Enterprise,

Texas– are Jerry Byrom, his wife, Daisy “Dimple” Byrom, and Dorothy Berry. Jerry

and Dimple Byrom owning an undivided 2/3 of the Real Property at Interest as

community interest, and Dorothy Berry owning an undivided 1/3 of the Real Property

at Interest. CR 7-8.

      In answer to the Petition, Appellants asserted their homestead interest in the

Real Property in Interest and Constitutional prohibition against encumbrance or forced

sale of homestead property. CR 19-20.

      On August 11, 2014, Dimple Byrom filed a verified Objection to the Partition

and Sale of Homestead Property, asserting her unencumbered homestead rights in the

Real Property at Interest. CR 134.

      At a pretrial hearing held October 29, 2014, the trial court appointed Martha

MacDougal as an independent appraisal to assist the court in determining whether

Tract 2 of the Real Property in Interest was susceptible to partition. 3 RR 7; CR 117.

                                         -10-
D.    The Trial

      The trial court heard Appellee’s request for an order to approve the forced sale

of the Appellants’ real property on August 11, 2014. 4 RR 1. Appellants renewed

their objection to any order of partition or sale of their homestead property. 4 RR 4.

Appellee argued that the objection was moot because this Honorable Court had

previously affirmed the order of sale on two occasions; thus reconsideration of the

matter was barred by res judicata. 4 RR 4. The trial court apparently agreed and

allowed the trial to commence without further consideration of the homestead issue.

4 RR 4.

      1.     Testimony of Martha McDougal4

      Martha McDougal testified that the value of the Real Property in Interest–

specifically the second tract of land, commonly described as 17441 South County

Road 3226, Mount Enterprise, Texas– was between $332,000.00 and $379,000.00.

4 RR 5. McDougal subsequently testified that, although she did not write it down, she

appraised the value of the house on the property at approximately $261,000-$262,000.

She testified to having seen a contract for construction on the house dated April 5,

2006, with a contract price of $53,000 for the construction of the house. 4 RR 9-10.



       4
        Martha McDougal’s last name is spelled inconsistently throughout the pleadings and
testimony on record. Appellants have elected to go with the Court Reporter’s spelling.

                                            -11-
McDougal stated that per the Appraisal District’s tax rolls, construction on the house

was completed in 2007. 4 RR 9. McDougal, though somewhat unclear as to whether

she had been commissioned to make a determination on partition, stated that she did

not believe the property could be readily partitioned in a manner which would provide

$200,000.00 for payment into the Registry of the Cherokee County Court, while not

impairing the ownership interests of Dimple Byrom and Dorothy Berry. 4 RR 11-12.

      2.     Testimony of Jerry Byrom

      Jerry Byrom, appellant, testified that he currently resides at 17441 County Road

3226 South, in Mount Enterprise, Texas. 4 RR 14. Byrom stated that he owns the

property in undivided interest with his wife, Dimple Byrom, and family friend,

Dorothy Berry. 4 RR 14-15. Two of the Byrom’s grandchildren live at the house, as

well. 4 RR 16-17.

      Byrom testified that the home in which he, his wife, and grandchildren live

being on the 76 acre Second Tract, which is more commonly described as 17441

County Road 3226 South, in Mount Enterprise, Texas; a.k.a., the Real Property in

Interest. 4 RR 19, 24-25.

      Byrom acquired the land subject to the Cherokee County Order of Sale and

Rusk County Decree Ordering Sale of Real Property beginning in 1986. 4 RR 27-30.

All of the property was acquired in the names of Jerry Byrom, Dimple Byrom and

                                         -12-
Dorothy Berry. 4 RR 31. Byrom testified that he started building the house on the

second tract of that land before his inheritance from his mother’s estate came in. 4 RR

21. Byrom stated he has no way to trace where the money for the construction of the

house came from. 4 RR 22.

      3.     Testimony of Dorothy Berry:

      Dorothy Berry testified that she is a one-third owner of the Real Property in

Interest, but does not presently live there, and has never lived there. 4 RR 32-34.

      4.     Testimony of Daisy (Dimple) Byrom:

      Mrs. Byrom testified that she is a co-owner of and lives at the Real Property in

Interest– 17441 County Road 3226 South, Mount Enterprise, Texas– with her husband

and two of her grandchildren. 4 RR 35-36.



E.    The Decree Ordering Sale of Property

      Following the hearing, the Rusk County District Court signed and filed the

Decree Ordering Sale of Property (“Rusk County Decree Ordering Sale”) on

November 14, 2014. CR 141-43; Exhibit A. In part, the Order states as follows:

      1.     “Jerry Byrom, Dimple Byrom and Dorothy Berry are the sole owners of

             the real property more fully described on Exhibit A..., more commonly



                                         -13-
             known as 17441 County Road 3226 South, Mount Enterprise, Texas,

             specifically the Second Tract described thereon (the “Real Property”).”

      2.     “Jerry Byrom owns an undivided 1/3 interest in the Real Property”

      3.     “Dimple Byrom owns an undivided 1/3 interest in the Real Property”

      4.     “Dorothy Berry owns an undivided 1/3 interest in the Real Property”

      5.     “The Real Property is not susceptible to fair and equitable partition in

             kind because to do so would hinder the value of the property and cause

             substantial economic loss such that the entire amount to be placed in the

             registry of the Court could not be so placed. Accordingly, the Real

             Property must be sold per the previous order of the Cherokee County

             Court at Law, affirmed by the Tyler Court of Appeals.”

      6.     “IT IS ORDERED THAT Jill Campbell Penn, is appointed Receiver by

             this Court, to the extent such an appointment is necessary, to conduct the

             sale of the entire Real Property.”

      The Decree further provides that Appellee is to pay herself a $9,000.00 payment

for payment of her fees and costs of court from the proceeds of the sale. Id.

      Appellants filed an objection to the proposed Rusk County Decree Ordering

Sale of Property on November 7, 2014, asserting, inter alia, that the order was

deficient in failing to include requisite findings of fact and conclusions of law relative

                                           -14-
to the Appellants’ homestead interest and rights. CR 138-39. The trial court signed

the proposed Decree without amendment.

      Appellants filed a Motion for New Trial on December 9, 2014. CR 144-49.

      Appellants filed their Notice of Appeal on February 10, 2015. CR 150-51.

F.    Absence of Homestead findings and conclusions in the Decree Ordering
      Sale

      The Decree Ordering Sale of the Appellants’ real property– to-wit: the

homestead– contained no findings or conclusions regarding the homestead status of

Appellants’ real property, or the applicability of Constitutional exceptions permitting

the forced sale of Appellant’s homestead to satisfy Mr. Byrom’s debt to the creditors

of his mother’s estate.

II.   APPELLANT’S HOMESTEAD INTEREST IN THE REAL PROPERTY SUBJECT TO
      THE DECREE ORDERING SALE

      Appellants Jerry Byrom and Daisy “Dimple” Byrom were married on July 26,

1971. Affidavit of Daisy “Dimple” Byrom, See Appendix, Exhibit G; Affidavit of

Jerry Byrom, See Appendix, Exhibit H. On or about March of 2006, Appellants Jerry

and Dimple Byrom constructed a home upon the land they acquired in 1986– the real

property which is subject to the Cherokee County Order of Sale and Rusk County

Decree Ordering Sale. Id. The Byroms have lived on the real property since 2006 and

continue to reside there with two of their grandchildren. Id.

                                         -15-
                        SUMMARY OF THE ARGUMENT

      This is the fourth appeal before this Honorable Court related to Appellant Jerry

Byrom’s handling of his deceased mother’s estate. It encompasses a direct appeal of

the Decree Ordering Sale of Real Property, entered by the Rusk County District Court,

and a collateral attack upon the previously appealed orders of the Cherokee County

Court at Law. The central issue raised on this appeal is whether the Cherokee County

Court at Law had the subject matter jurisdiction or constitutional authority to enter the

orders imposing a constructive trust upon Appellants’ homestead and appointing a

receiver to compel the sale of that homestead. Appellants contend that the County

Court at Law of Cherokee County lacked the jurisdiction and exceeded its

constitutional authority in entering the orders for constructive trust and forced sale of

Appellants’ homestead in violation of Texas Constitution Article XVI, § 50.

      As the Cherokee County Court at Law orders were beyond the jurisdiction and

constitutional authority of the court to enter, said orders, and all subsequent orders

based thereon– including the Decree Ordering Sale of Real Property entered by the

Rusk County District Court– are void and of no effect. As this Honorable Court has

stated, “A void order has no force of effect and confers no rights; it is a mere nullity.”

In re Estate of Byrom, 2011 WL 590588 at *4 (citing In re Garza, 126 S.W.3d 268,

271 (Tex.App.-San Antonio 2003, orig. proceeding [mand. denied])

                                           -16-
                       ARGUMENT AND AUTHORITIES

       ISSUE 1: THE DECREE ORDERING SALE OF REAL PROPERTY
       (APPELLANTS’ HOMESTEAD), AND UNDERLYING ORDERS IMPRESSING A
       CONSTRUCTIVE TRUST UPON THE APPELLANT’S HOMESTEAD OR
       COMPELLING THE FORCED SALE OF APPELLANTS’ HOMESTEAD, ARE VOID
       AS A MATTER OF LAW .


A. THE NATURE OF THE HOMESTEAD RIGHT AND PROTECTION IN TEXAS

      The Texas Constitution provides that the homestead of a family or single adult

is protected from forced sale for purposes of paying debts and judgments except in

specifically enumerated cases. TEX. CONST. art. XVI, § 50; Kendall Builders, Inc.

v. Chesson, 149 S.W.3d 796, 806-07 (Tex. App.—Austin 2004, pet. denied). This

protection is historically favored and liberally construed to preserve the homestead in

order to protect citizens from losing their homes. Lifemark Corp. v. Merritt, 655

S.W.2d 310, 314 (Tex. App.—Houston [14th Dist.] 1983), writ refused NRE (Oct. 5,

1983)(quoting Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35, 35

(1929).

      A homestead is the dwelling house constituting the family residence, together

with the land on which it is situated and the appurtenances connected therewith. Gann

v. Montgomery, 210 S.W.2d 255, 258 (Tex.Civ.App.—Fort Worth 1948, writ ref'd

n.r.e.). The possession and use of real estate by one who owns it, and who, with his

family, resides upon it makes it the homestead of the family in law and in fact.

                                         -17-
Garrard v. Henderson, 209 S.W.2d 225, 230 (Tex.Civ.App.—Dallas 1948, no writ).

      The affidavits and testimony of Appellants Jerry and Dimple Byrom establish

that the real property subject to the Cherokee County Order of Sale and subsequent

Decree Ordering Sale of the Rusk County District Court– to-wit: the real property

more fully described on Exhibit A to the Decree Ordering Sale, specifically the Second

Tract described thereon, located upon 76 acres, and more commonly known as 17441

County Road 3226 South, Mount Enterprise, Texas– is their homestead. The Byroms

have owned the 120 acres of which the subject real property is a part since 1986. In

March 2006, the Byroms constructed a home upon the Real Property in Interest, with

the intention to reside thereupon, and have continuously resided thereupon as husband

and wife, at times and presently with their grandchildren, since 2006. (Exh. G, Exh.

H) The Byroms began construction of the home upon the Real Property in Interest

began prior to the receipt by Jerry Byrom of any funds from his mother’s estate. (Id.)

      The forced sale of a homestead to satisfy any debt, except as provided by the

Texas Constitution, is void. Curtis Sharp Custom Homes, Inc. v. Glover, 701 S.W.2d

24, 25 (Tex. App.—Dallas 1985), writ refused NRE (Mar. 12, 1986) (citing Cline v.

Henry, 239 S.W.2d 205, 208 (Tex.Civ.App.—Dallas 1951, writ ref'd n.r.e.))




                                         -18-
B.    A VOID ORDER COMPELLING THE FORCED SALE OF A HOMESTEAD IS SUBJECT
      TO COLLATERAL ATTACK.

      In the watershed case of Cline v. Niblo, the Texas Supreme Court declared that

when the record fails to show that the homestead status of real property, and the

applicability of constitutional exceptions permitting forced sale of homestead property,

are affirmatively adjudicated by the trial court, the court lacks subject matter

jurisdiction to compel the forced sale of a homestead. Cline v. Niblo, 117 Tex. 474,

485, 8 S.W.2d 633, 638-39 (Tex. 1928). As such, any order compelling the sale of a

homestead in which homestead status and the applicability of constitutional exceptions

permitting the forced sale of the homestead have not been adjudicated, is void and

subject to collateral attack at any time. Id.; Franklin v. Woods, 598 S.W.2d 946, 950

(Tex. Civ. App.—Corpus Christi 1980). The rule announced in Cline is a consistent

and logical extension of the long-standing general rule that orders made beyond the

jurisdictional power of the issuing court is void. Yarboro v. Brewster, 38 Tex. 397,

405-06 (1873); Crawford v. McDonald, 88 Tex. 626, 631, 33 S.W. 325, 328 (1895).

Because the Constitutional protection of homesteads outlined in Cline is jurisdictional,

an appellate court has the power to collaterally review an invalid equitable lien

imposed upon a homestead and declare it unenforceable.           Curtis Sharp Custom




                                          -19-
Homes, Inc. v. Glover, 701 S.W.2d 24, 27-28 (Tex. App.—Dallas 1985), writ refused

NRE (Mar. 12, 1986).

      In analyzing the immediately appealable order– to-wit: the Decree Ordering

Sale of Real Property, issued by the 4th District Court of Rusk County, Texas on

November 14, 2014– there is no affirmative adjudication as to the question of whether

the real property ordered sold is the homestead of Appellants, nor an affirmative

adjudication as to whether an enumerated exception contained in TEX. CONST. art.

XVI, § 50 authorizes the forced sale of the Appellants’ homestead. (CR 141-143; Exh.

A) Moreover, the underlying orders upon which the Decree Ordering Sale is

authorized– to-wit: the First Amended Nunc Pro Tunc Order for Sale of Real Property

and for Appointment of Receiver (“Cherokee County Order for Sale”), filed by the

Cherokee County Court at Law on May 13, 2013, and the preceding Nunc Pro Tunc

Order on Motion for Constructive Trust (“Order for Constructive Trust”) filed by the

Cherokee County Court at Law on November 17, 2009– also failed to address or

adjudicate the homestead interests of the Appellants in the real property upon which

the constructive trust was impressed and the order for sale authorized. See Appendix,

Exhibit E; See CR 10-16; Appendix, Exhibit F.

      The curious fact underlying this appeal, and previous appeals of the rulings of

the Cherokee County Court at Law, is that, despite the Appellants’ numerous efforts

                                        -20-
to assert their homestead rights in the Real Property in Interest, there has never been

an order affirmatively adjudicating their homestead rights in the Real Property in

Interest, nor an affirmative finding that Appellants’ homestead property is subject to

forced sale by one of the enumerated exceptions of TEX. CONST. art. XVI, § 50.

Absent these affirmative adjudications, the Decree Ordering Sale of Real Property,

issued by the 4th District Court of Rusk County, Texas, and the preceding Cherokee

County Order of Sale and Order for Constructive Trust were entered without subject

matter jurisdiction and therefore void. Cline v. Niblo, 117 Tex. 474, 485, 8 S.W.2d

633, 638-39 (Tex. 1928); Curtis Sharp Custom Homes, Inc. v. Glover, 701 S.W.2d 24,

27-28 (Tex. App.—Dallas 1985), writ refused NRE (Mar. 12, 1986).

      1.     THE RES JUDICATA ARGUMENT

      Appellee argued– successfully, if the failure of the 4th District Court of Rusk

County to address the Appellants’ homestead objections at trial is any indication– that

Appellants’ homestead objections were without merit as they were already the subject

of two appeals to this Honorable Court and barred by res judicata. While Appellee’s

argument was true and correct in that Appellant Jerry Byrom has twice before

attempted to assert and protect his homestead rights in the Real Property in Interest,

and twice been denied, most recently on the grounds of res judicata, Appellants

respectfully, and with due regard for this Honorable Court’s prior decisions, raise three

                                          -21-
counterpoints: 1) a void order cannot supply grounds for res judicata, 2) the harmless

error analysis previously employed by this Honorable Court is not a substitute for

constitutional compliance and does not retroactively imbue the trial court with

jurisdiction to enter a void order, and 3) this is the first time Appellant Dimple

Byrom’s homestead rights have been properly attached by a trial court order and

placed before this Court.

      While aware of the tenuous ground they walk in doing so, in order to avoid the

greater injustice which would occur were the unconstitutional forced sale of their

homestead allowed to proceed, it is necessary to ask this Honorable Court to review

and reconsider its prior decisions in light of the trial courts’ lack of subject matter

jurisdiction over their homestead. In so doing, Appellants acknowledge their part in

failing to properly present the issue previously. Fortunately, however, appeal of the

Decree Ordering Sale is timely, and there is no bar to collateral attack upon the prior

orders of the Cherokee County Court at Law if its orders are void. See Cline v. Niblo,

117 Tex. 474, 485, 8 S.W.2d 633, 638-39 (Tex. 1928); Franklin v. Woods, 598

S.W.2d 946, 950 (Tex. Civ. App.—Corpus Christi 1980); Yarboro v. Brewster, 38

Tex. 397, 405-06 (1873); Crawford v. McDonald, 88 Tex. 626, 631, 33 S.W. 325, 328

(1895); Curtis Sharp Custom Homes, Inc. v. Glover, 701 S.W.2d 24, 27-28 (Tex.

App.—Dallas 1985), writ refused NRE (Mar. 12, 1986).

                                         -22-
      Pursuant to the authority of Cline v. Niblo, a void judgment ordering the sale of

a homestead, premised upon error not apparent in the record because the homestead

issues have not been affirmatively adjudicated, may be corrected upon collateral attack

by a showing of the true facts at any time. Cline v. Niblo, 117 Tex. 474, 484 85, 8

S.W.2d 633, 637-38 (1928). The true facts of Appellants’ homestead claim, being

presented for the consideration of the 4th District Court of Rusk County and upon

testimony and affidavits presented herewith, are sufficient to demonstrate that the

immediately appealed Decree Ordering Sale, and its predecessor orders from the

Cherokee County Court at Law, are void in fact and in law.

       “Interpreting and applying these sections of the Constitution and various
       statutes, our courts have consistently held that probate or other judicial
       sales of exempt homestead property, in the absence of an affirmative
       showing in the decree that the question was adjudicated in the judgment
       leading up to the sale, may be inquired into and declared a nullity in
       collateral proceedings.” Cline v. Niblo, 117 Tex. 474, 481, 8 S.W.2d
       633, 636 (Tex. 1928).

As this Honorable Court has stated, “A void order has no force of effect and confers

no rights; it is a mere nullity.” In re Estate of Byrom, 2011 WL 590588 at *4 (citing

In re Garza, 126 S.W.3d 268, 271 (Tex.App.-San Antonio 2003, orig. proceeding

[mand. denied]); See also Allen v. Ramey, 226 S.W. 489, 491 (Tex. Civ.

App.—Texarkana 1920, no writ) (Void order compelling sale of real property is

always subject to collateral attack.)

                                         -23-
      A)        Analysis of In re Byrom, No. 12-09-00278-CV, 316 S.W.3d 787
                (Tex.App.–Tyler 2010, orig. proceeding [mand. denied]).5

      This cause was Jerry Byrom’s successful application for habeas corpus

following his imprisonment by contempt for failure to pay the creditors of his mother’s

estate. While not immediately applicable to the issues raised in the instant appeal– as

they were addressed in subsequent opinions– the opinion is notable herein because this

Honorable Court stated as follows:

       “And even if fiduciary duty had been the basis for the court’s holding in
       those cases, we have been unable to located any Texas case holding that
       an independent executor has a fiduciary relationship with estate
       creditors.” Id. at 794-95.

Upon conducting their own review of Texas and some national decisions, using

multiple boolean search strings in Westlaw, Appellants state that no case has been

located in which an independent executor was found to owe or to have violated a

fiduciary duty to estate creditors. This finding is significant in light of this Honorable

Court’s decision in In re Estate of Byrom, 12-12-00374-CV, 2013 WL 3967432 (Tex.

App.—Tyler July 31, 2013), reh'g overruled (Oct. 9, 2013), review denied (Jan. 31,

2014), and will be discussed below.




       5
           See Appendix, Exhibit B, for opinion.

                                               -24-
      B)        Analysis of In re Estate of Byrom, 12-09-00279-CV, 2011 WL 590588
                (Tex. App.—Tyler Feb. 16, 2011, pet. denied)(mem. op.)6

      This appeal by Appellant Jerry Byrom, individually, was filed following the

entry of the Nunc Pro Tunc Order on Motion for Constructive Trust by the County

Court at Law of Cherokee County in Cause No. 10745, on or about November 16,

2009. Although many of the issues raised by Byrom– including the constitutionality

of impressing a constructive upon Byrom’s homestead, the forced sale of Byrom’s

homestead, and the imposition of various attorney fees by the Cherokee County Court

at Law– were not considered because they were deemed not to have been briefed in

compliance with Tex.R.App.P. 38.1(I), the findings of the Court in discussing

Byrom’s release from illegal imprisonment are significant to this appeal:

       “We granted Byrom’s petition for writ of habeas corpus... because we
       determined that the contempt order violated the constitutional
       prohibition against imprisonment for debt and therefore, was void. A
       void order has no force of effect and confers no rights; it is a mere
       nullity. In re Garza, 126 S.W.3d 268, 271 (Tex.App.-San Antonio
       2003, orig. proceeding [mand. denied]). Any attorney fees based
       upon a void order must also be void. Ex parte Fernandez, 645
       S.W.2d 636, 639 (Tex.App.-El Paso 1983, no writ.)” Id. at *4.




       6
           See Appendix, Exhibit C, for decision.

                                               -25-
      C)        Analysis of In re Estate of Byrom, 12-12-00374-CV, 2013 WL
                3967432 (Tex. App.—Tyler July 31, 2013), reh'g overruled (Oct. 9,
                2013), review denied (Jan. 31, 2014).7

      The issue of the constructive trust and forced sale of Appellant Jerry Byrom’s

homestead was the subject of a further appeal. In re Estate of Byrom, 12-12-00374-

CV, 2013 WL 3967432 (Tex. App.—Tyler July 31, 2013), reh'g overruled (Oct. 9,

2013), review denied (Jan. 31, 2014). Therein, this Honorable Court again affirmed

the County Court at Law of Cherokee County; this time on the ground of res judicata,

holding:

       “Byrom contends that the trial court erred in imposing a constructive
       trust on property he claims as homestead and in ordering the sale of that
       property. Byrom raised these same issues in the prior proceeding
       between the same parties and arising out of the same facts. This court
       ruled adversely to Appellant on both claims. See In re Estate of Byrom,
       2011 WL 590588, at * 7. Therefore, the doctrine of res judicata bars the
       relitigation of Byrom’s claims. Id. at *6-7.

      In addition to declaring the prior litigation a bar to relief upon Byrom’s

homestead claims, this Honorable Court appears to have determined that any error

resulting from imposition of the constructive trust upon Byrom’s homestead, from a

constitutional perspective, would be harmless, as:

       “It has long been decided that [the] homestead and exemption laws of
       this State were never intended to be, and cannot be, the haven of
       wrongfully obtained money or properties.” Baucom v. Texam Oil Corp.,

       7
           See Appendix, Exhibit D, for decision.

                                               -26-
       423 S.W.2d 434, 442 (Tex. Civ. App–El Paso 1967, writ ref'd n.r.e.).
       “[T]he homestead protection afforded by the Texas Constitution was
       never intended to protect stolen funds. Bransom v. Standard Hardware,
       874 S.W.2d 919, 928 (Tex.App.-Fort Worth 1994, writ denied).” Id. at
       *1.

As a conclusion to the harm analysis, this Honorable Court looked into the factual

record of the proceedings and determined:

       “Byrom wrongfully used the estate's money to construct the home he
       now claims as homestead. The homestead law does not protect property
       or funds obtained with money misappropriated by a fiduciary. See
       Baucom, 423 S.W.2d at 442; Bransom, 874 S.W.2d at 928.” Id. at *2

      D)     Argument and Authorities

      These prior appellate decisions are contingent upon the jurisdiction of the trial

court to enter the orders affirmed by this Honorable Court. If, as suggested above, the

County Court at Law of Cherokee lacked subject matter jurisdiction over Jerry

Bryom’s homestead because his homestead rights were not affirmatively adjudicated,

then the doctrine of res judicata cannot and should not apply to shield such orders

from constitutional scrutiny. See Cline v. Niblo, 117 Tex. 474, 485, 8 S.W.2d 633,

638-39 (Tex. 1928);      Franklin v. Woods, 598 S.W.2d 946, 950 (Tex. Civ.

App.—Corpus Christi 1980); Yarboro v. Brewster, 38 Tex. 397, 405-06 (1873);

Crawford v. McDonald, 88 Tex. 626, 631, 33 S.W. 325, 328 (1895); Curtis Sharp

Custom Homes, Inc. v. Glover, 701 S.W.2d 24, 27-28 (Tex. App.—Dallas 1985), writ


                                         -27-
refused NRE (Mar. 12, 1986); In re Garza, 126 S.W.3d 268, 271 (Tex.App.-San

Antonio 2003, orig. proceeding [mand. denied]); Allen v. Ramey, 226 S.W. 489, 491

(Tex. Civ. App.—Texarkana 1920, no writ).

      To say that Appellants’ must yield to the unconstitutional forced sale of their

homestead because there is evidence in the record to support the proposition that Jerry

Byrom, individually, invested wrongfully obtained funds in the homestead, as this

Honorable Court ruled in In re Estate of Byrom, 12-12-00374-CV, 2013 WL 3967432

(Tex. App.—Tyler July 31, 2013), reh'g overruled (Oct. 9, 2013), review denied (Jan.

31, 2014), is incorrect for multiple reasons.

      Firstly, as acknowledged by this Honorable Court in In re Byrom, No. 12-09-

00278-CV, 316 S.W.3d 787 (Tex.App.–Tyler 2010, orig. proceeding [mand. denied]),

an independent executor– which is what Jerry Byrom was as the time he allegedly

wrongfully procured funds from his mother’s estate– has never been held to owe a

fiduciary or special duty to the creditors of a decedent’s estate. In the absence of a

special, confidential relationship or established fiduciary relationship, there is no basis

and no authority for the imposition of a constructive trust. Meadows v. Bierschwale,

516 S.W.2d 125, 128 (Tex.1974); In re Marriage of Nolder, 48 S.W.3d 432, 434

(Tex.App.-Texarkana 2001, pet. denied); Kostelnik v. Roberts, 680 S.W.2d 532, 534

(Tex. App.—Corpus Christi 1984), writ refused NRE (Jan. 16, 1985). Moreover, strict

                                           -28-
proof of a prior confidential relationship and unfair conduct are required to authorize

the imposition of a constructive trust. Rankin v. Naftalis, 557 S.W.2d 940, 944 (Tex.

1977); Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d 723, 736 (Tex. App.—San

Antonio 2007, pet. denied).

      No such proof was offered or found in the underlying Cherokee County Court

at Law case. The constructive trust was based upon Jerry Byrom alleged breach of

“fiduciary duty” without any lawful justification to support the conclusion that Jerry

Byrom was a fiduciary. See CR 10-16; Appendix, Exhibit F. Not only was there no

authority to sustain the proposition that Jerry Byrom was a fiduciary, to the contrary,

it has been affirmatively held that,

       “[A]n independent executor does not hold the estate property in trust for
       the benefit of the estate creditors and therefore does not owe them a
       fiduciary duty absent any specific undertaking to manage the creditor's
       interests in the case of a bankrupt estate.” Mohseni v. Hartman, 363
       S.W.3d 652, 658 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

      This Honorable Court’s prior comparison of Jerry Byrom’s conduct to the

conduct of the litigants in Baucom v. Texam Oil Corp., 423 S.W.2d 434, 442 (Tex.

Civ. App–El Paso 1967, writ ref'd n.r.e.) and Bransom v. Standard Hardware, 874

S.W.2d 919, 928 (Tex.App.-Fort Worth 1994, writ denied) is therefore misplaced. In

both Baucom and Bransom, the parties whom wrongfully invested illegally obtained

funds in the construction or improvement of their homesteads– which authorized the

                                         -29-
imposition of a constructive trust upon their homesteads– were corporate fiduciaries

who owed a clear, previously existing fiduciary duties to their employers from whom

they stole funds. Id.; Cf. Curtis Sharp Custom Homes, Inc. v. Glover, 701 S.W.2d 24,

27-28 (Tex. App.—Dallas 1985), writ refused NRE (Mar. 12, 1986) (Imposition of

constructive trust and forced sale of homestead based upon investment of wrongfully

obtained funds by corporate fiduciary held unconstitutional and void.). No such duty

was owed by Byrom to the creditors of his mother’s estate.

      Secondarily, viewed in the light of his authority as independent executor, the

initial actions of Jerry Byrom in rejecting the claims of the creditors of his mother’s

estate were not wrongful. Under the Probate Code, effective at the time Jerry Byrom

was independent executor of his mother’s estate (and under the new Estates Code) an

Independent Executor has the power to “approve, classify, and pay, or reject, claims

against the estate.” TEX. PROBATE CODE § 146(a)(3). “In general, an independent

executor has the authority, without an order of the probate court, to do any act which

an ordinary executor or administrator may do under such an order.” Rowland v.

Moore, 141 Tex. 469, 473-74, 174 S.W.2d 248, 250 (1943). Under Texas law, as long

as an estate remains in hands of and under control of independent executor probate

court lacks jurisdiction to consider and approve claims against estate. Kleine v. United

States, 539 F.2d 427, 432 (5th Cir. 1976).

                                          -30-
      While Jerry Byrom’s subsequent failure to comply with the order of the

Cherokee County Court at Law to pay the claims made against his mother’s estate was

not ideal conduct for an independent executor, based upon the absence of fiduciary

duty and the statutory authority invested in him as independent executor, it cannot be

said that Byrom came to possess the funds from his mother’s estate in a manner that

was “wrongful.” Furthermore, in mitigation of the perceived wrong-doing by Jerry

Byrom in failing to comply with the orders of the Cherokee County Court at Law, it

appears that these estate creditors sued upon their claim in the name of the estate and

brought their claim directly in the probate court; actions which were contrary to the

procedure for pursuing recovery upon claims rejected by an independent executor at

the time. See TEX. PROBATE CODE § 147; Rowland v. Moore, 141 Tex. 469, 474, 174

S.W.2d 248, 250 (1943); Brightwell v. Barlow, Gardner, Tucker & Garsek, 619

S.W.2d 249, 254 (Tex. Civ. App.—Fort Worth 1981, no writ); In re Guardianship of

Bayne, 171 S.W.3d 232, 237-38 (Tex. App.—Dallas 2005, pet. denied); Mohseni v.

Hartman, 363 S.W.3d 652, 658 (Tex. App.—Houston [1st Dist.] 2011, no pet.). If so,

the Cherokee County Court at Law was without jurisdiction to enter the Nunc Pro

Tunc Order on Motion for Constructive Trust upon independent grounds unrelated to

the real property’s homestead status. See Brightwell v. Barlow, Gardner, Tucker &

Garsek, 619 S.W.2d 249, 254 (Tex. Civ. App.—Fort Worth 1981, no writ) (the

                                         -31-
probate court has no jurisdiction over rejected claims under the Probate Code); Burke

v. Satterfield, 525 S.W.2d 950, 953 (Tex. 1975) (“the subject matter jurisdiction of a

court cannot be enlarged by an agreement between the parties or a request that the

court exceed its powers.”)

      Given the prima facie establishment of the Real Property in Interest as

Appellants’ homestead herein, the absence of fiduciary duty, other special relationship,

or wrongful retention of funds to support the imposition or foreclosure of a

constructive trust upon the Appellants’ real property, the absence of an affirmative

adjudication of their homestead rights or an applicable constitutional homestead

exception permitting the imposition of an equitable lien upon their homestead or the

foreclosure of that lien, and the jurisdictional voidness of the underlying orders,

Appellants respectfully assert that the neither the immediate Decree Ordering Sale of

Real Property, nor the underlying orders of the Cherokee County Court at Law are

shielded from review upon appeal by the doctrine of res judicata.

      A third, salient argument against consideration of this Honorable Court’s prior

harmless error analysis is that pointing to evidence of Jerry Byrom’s alleged wrong-

doing in the record does not retroactively restore the jurisdiction of the trial court to

impress a constructive trust upon a homestead, or order the sale of a homestead, when



                                          -32-
the constitutional requirements to do so have not been affirmatively adjudicated. Cf.

Cline v. Niblo, 117 Tex. 474, 481, 8 S.W.2d 633, 636 (Tex. 1928).

      A fourth, and final consideration in this regard, is the independent homestead

interest of Appellant Daisy “Dimple” Byrom. Like Mr. Byrom, Mrs. Byrom’s

homestead interest in the Real Property in Interest has never been affirmatively

adjudicated. Unlike Mr. Byrom’s interest in the real property, which was the subject

of the orders of the Cherokee County Court at Law, Mrs. Byrom’s interest in the real

property at issue has not previously been ordered attached to the judgments entered

against Jerry Byrom by the Cherokee County Court at Law. The instantly appealed

order– to-wit: the Decree Ordering Sale entered by the 4th District Court of Rusk

County, Texas– is the first order attaching either the interest of Appellant Dimple

Byrom, or the interest of Appellant Dorothy Berry in the Real Property in Interest.

      Although Appellants were unable to locate a significant amount of controlling

law on this subject, the persuasive cases on the subject lead Appellants to believe that

the law of single spouse transactions encumbering a marital homestead apply herein.

See Curtis Sharp Custom Homes, Inc. v. Glover, 701 S.W.2d 24, 28 (Tex.

App.—Dallas 1985), writ refused NRE (Mar. 12, 1986) (Justice Akin, concurring).

Pursuant to the rule, a wife’s right in the homestead is a vested right in the land or

which she cannot be deprived except as provided by the Constitution and statutes. See

                                          -33-
Id. (Innocent spouse’s homestead interest cannot be impaired by wrongdoing of

spouse);    See also Parker v. Schrimsher, 172 S.W. 165, 168 (Tex. Civ.

App.—Amarillo 1914), writ refused (Nov. 17, 1915); See also U.S. v. Rodgers,

U.S.Tex.1983, 103 S.Ct. 2132, 461 U.S. 677, 76 L.Ed.2d 236, on remand 712 F.2d 990

(Pursuant to Texas Constitution, each spouse has separate and undivided possessory

interest in the homestead which is only lost by death or abandonment and which may

not be compromised either by the spouse or his or her heirs.) Further, it has been held

that a valid encumbrance of homestead against a husband does not act as res judicata

(“an estoppel”) to the wife’s interest in the homestead. Gober v. Smith, 36 S.W. 910,

911 (Tex. Civ. App. 1896, no writ).

      An alternate formulation of this rule, is that single spouse transactions which

result in an encumbrance upon a marital homestead are not void, but remain

inoperative while the property retains its homestead status. See Zable v. Henry, 649

S.W.2d 136, 137-38 (Tex. App.—Dallas 1983, no writ); Villarreal v. Laredo National

Bank, 677 S.W.2d 600, 609 (Tex.App.—San Antonio 1984, writ ref'd n.r.e.). While

this doctrine is not plainly applicable to the facts of this case– having been developed

by Texas courts to deal with the circumstance wherein one spouse sells the marital

homestead without the approval or consent of the other– it does afford a potentially

just remedy that protects the interests of all parties should the encumbrance upon the

                                          -34-
Byrom’s homestead not be declared void. As such, even if the Decree Ordering Sale

and prior orders of the Cherokee County Court at Law were upheld as a valid

encumbrance of the homestead interest of Jerry Byrom, enforcement of the order of

sale must be stayed by the homestead interest of Dimple Byrom, an innocent spouse.

C.    CONCLUSION

      Applying the available evidence to the applicable law in this case, is apparent

that Appellants’ homestead rights have been unlawfully encumbered. Doing justice

in this case requires looking beyond the mere language of the orders addressed herein.

Doing justice requires that the courts of this State are held to the standard of conduct

imposed by the law, even when the conduct of litigants is less than worthy.

Examination of the orders of the Cherokee County Court at Law herein reveal the

Order for Constructive Trust and Order for Sale of Real Property for what they are: an

unlawful circumvention of the constitutional protections afforded to the marital

homestead made beyond the jurisdiction of the court in an effort to punish Jerry

Byrom’s disobedience to the orders of the Cherokee County Court at Law. All for the

purpose of satisfying a debt in a manner disfavored by prevailing law:

       “The mere failure to pay an unsecured debt cannot possibly be grounds
       for impressing upon real estate a constructive trust.” Landram v.
       Robertson, 195 S.W.2d 170, 174 (Tex. Civ. App.—San Antonio 1946),
       writ refused NRE.


                                          -35-
       “A constructive trust is not merely a vehicle for collecting assets as a
       form of damages.” KCM Fin. LLC v. Bradshaw, 13-0199, 2015 WL
       1029652, at *14 (Tex. Mar. 6, 2015)

       “A forced sale of the homestead in satisfaction of a debt of any character
       except as provided by the Constitution... is void.” Cline v. Henry, 239
       S.W.2d 205, 208 (Tex.Civ.App.—Dallas 1951, writ ref'd n.r.e.)

      Given the great weight of authority cited herein in support of the Appellants’

individual and collective homestead rights in the Real Property in Interest, the

Appellants pray that this Honorable Court declare the instant Decree Ordering Sale to

be void and/or unenforceable, and further pray that the underlying orders regarding the

imposition of constructive trust and order the sale of Appellant’s homestead by the

Cherokee County Court at Law be collaterally declared void and/or unenforceable, so

that Appellants’ constitutional homestead rights– including the rights of Appellant

Dimple Byrom, an innocent spouse– be honored and protected.




                                         -36-
       ISSUE 2: THE ORDER TO PAY ATTORNEY FEES CONTAINED IN THE DECREE
       ORDERING SALE OF REAL PROPERTY AND UNDERLYING ORDERS
       IMPRESSING A CONSTRUCTIVE TRUST UPON AND ORDERING THE SALE OF
       APPELLANT’S HOMESTEAD, ARE VOID AS A MATTER OF LAW.

      As discussed at length above, the following orders of the 4th District Court of

Rusk County, Texas, and of the Cherokee County Court at Law, are void for want of

subject matter jurisdiction:

      #      First Amended Nunc Pro Tunc Order for Sale of Real Property and for

             Appointment of Receiver (“Cherokee County Order for Sale”), signed

             and filed on May 13, 2013; (See page 40-42 of Cherokee County Clerk’s

             Record submitted to Court of Appeal on June 14, 2013; See also

             Appendix, Exhibit E)

      #      Nunc Pro Tunc Order on Motion for Constructive Trust (“Order for

             Constructive Trust”) signed on November 16, 2009, and filed by the

             Cherokee County Court at Law on November 17, 2009. (See CR 10-16;

             See also Appendix, Exhibit F)

      #      Decree Ordering Sale of Property (“Rusk County Decree Ordering Sale”)

             on November 14, 2014. (Exhibit A; CR 141-43)

      In the interest of judicial economy, Appellants hereby summarize and

incorporate by reference their prior arguments as to the voidness of these orders.


                                        -37-
         All three orders are void for want of subject matter jurisdiction as the object of

the constructive trust and the orders of sale is the homestead property of Appellants,

and neither their homestead interests, nor a constitutional exception permitting the

imposition of an equitable lien or forced sale has been adjudicated. See TEX. CONST.

art. XVI, § 50; Cline v. Niblo, 117 Tex. 474, 485, 8 S.W.2d 633, 638-39 (Tex. 1928);

Franklin v. Woods, 598 S.W.2d 946, 950 (Tex. Civ. App.—Corpus Christi 1980);

Yarboro v. Brewster, 38 Tex. 397, 405-06 (1873); Crawford v. McDonald, 88 Tex.

626, 631, 33 S.W. 325, 328 (1895); Curtis Sharp Custom Homes, Inc. v. Glover, 701

S.W.2d 24, 27-28 (Tex. App.—Dallas 1985), writ refused NRE (Mar. 12, 1986); In re

Garza, 126 S.W.3d 268, 271 (Tex.App.-San Antonio 2003, orig. proceeding [mand.

denied]); Allen v. Ramey, 226 S.W. 489, 491 (Tex. Civ. App.—Texarkana 1920, no

writ).

         The Cherokee County Order for Constructive Trust is independently void for

want of subject matter jurisdiction because there was no special relationship or

fiduciary duty upon which to base the imposition of a constructive trust– See

Meadows v. Bierschwale, 516 S.W.2d 125, 128 (Tex.1974); In re Marriage of Nolder,

48 S.W.3d 432, 434 (Tex.App.-Texarkana 2001, pet. denied); Kostelnik v. Roberts,

680 S.W.2d 532, 534 (Tex. App.—Corpus Christi 1984), writ refused NRE (Jan. 16,

1985); Rankin v. Naftalis, 557 S.W.2d 940, 944 (Tex. 1977); Baker Botts, L.L.P. v.

                                            -38-
Cailloux, 224 S.W.3d 723, 736 (Tex. App.—San Antonio 2007, pet. denied); Mohseni

v. Hartman, 363 S.W.3d 652, 658 (Tex. App.—Houston [1st Dist.] 2011, no pet.)– and

because the creditors of the Estate of Ruby Renee Byrom did not follow the procedure

necessary to empower the probate court to obtain jurisdiction to enter the order. See

TEX. PROBATE CODE § 147; Rowland v. Moore, 141 Tex. 469, 474, 174 S.W.2d 248,

250 (1943); Brightwell v. Barlow, Gardner, Tucker & Garsek, 619 S.W.2d 249, 254

(Tex. Civ. App.—Fort Worth 1981, no writ); In re Guardianship of Bayne, 171

S.W.3d 232, 237-38 (Tex. App.—Dallas 2005, pet. denied); Mohseni v. Hartman, 363

S.W.3d 652, 658 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Burke v. Satterfield,

525 S.W.2d 950, 953 (Tex. 1975).

       As previously stated by this Honorable Court,

       “A void order has no force of effect and confers no rights; it is a mere
       nullity. In re Garza, 126 S.W.3d 268, 271 (Tex.App.-San Antonio
       2003, orig. proceeding [mand. denied]). Any attorney fees based upon
       a void order must also be void. Ex parte Fernandez, 645 S.W.2d 636,
       639 (Tex.App.-El Paso 1983, no writ.)” In re Estate of Byrom,
       12-09-00279-CV, 2011 WL 590588 at *4 (Tex. App.—Tyler Feb. 16,
       2011, pet. denied)(mem. op.)

Appellant is aware that the matter of attorney fees upon the various orders of the

Cherokee County Court at Law have already been addressed. However, the matter of

the attorney fees awarded to Appellee in the 4th District Court of Rusk County in the

amount of $9,000.00, and those yet to be incurred in relation to this appeal, have not

                                         -39-
yet been addressed. In any event, the law is clear: “Any attorney fees based upon a

void order must be void.” Id. As such, Appellants pray that the attorney fees awarded

to Appellee, and the following attorney fees approved upon the Nunc Pro Tunc Order

on Motion for Constructive Trust and the First Amended Nunc Pro Tunc Order for

Sale of Real Property and for Appointment of Receiver, entered by the Cherokee

County Court at Law, by declared void and/or enforceable.

      Such fees include, but are not necessarily limited to, attorney’s fees identifiable

to the following orders:

      #      ¶ 11 of the Decree Ordering Sale: “Once the Real Property sells, the
             Receiver is entitled to $9,000.00 for payment of her fees and costs of
             Court. It is ORDERED that Receiver shall write herself a check in the
             amount of $9000.00 for attorney’s fees and costs. Additionally, the
             Receiver is entitled to and is ORDERED to pay all fees, charges and
             expenses incurred by the Receiver associated with selling the Real
             Property.” (Exhibit A; CR 142)

      #      ¶ ¶ 2(a), 3(a) of the First Amended Nunc Pro Tunc Order for Sale of Real
             Property and for Appointment of Receiver, authorizing Receiver to pay
             “all fees” and costs of sale associated with the order from the proceeds
             of the sale of Appellant’s real property. (Exhibit E)

      #      ¶ 13 of the Nunc Pro Tunc Order for Constructive Trust: “Plaintiff
             expended attorney fees and costs in the pursuit of this constructive trust
             as set out below, and said fees are properly chargeable as costs of this
             estate and should be paid by the Estate of RUBY RENEE BYROM.”
             (Exhibit F)




                                          -40-
                              PRAYER FOR RELIEF

      For all reasons set out, Appellants, Jerry Byrom, Daisy “Dimple” Byrom, and

Dorothy Berry pray that this Court reverse in all things the orders of the Cherokee

County Court and Law and District Court of Rusk County, declare such orders of these

courts imposing a constructive upon or compelling the sale of Appellants’ homestead

void and/or unenforceable, declare that all orders of attorney’s fees and costs declared

due by the establishment, enforcement, and defense of the orders imposing a

constructive trust upon or compelling the sale of Appellants’ homestead void and/or

unenforceable, and render judgment in favor of Appellants, or alternatively, remand

for new trial; or, alternatively, that the orders of the Cherokee County Court at Law

and 4th District Court of Rusk County imposing a constructive trust upon and

compelling the sale of Appellants’ homestead, if not declared void, be declared

unenforceable so long as the real property in interest is the homestead of Appellant

Daisy “Dimple” Byrom; and for such other and further relief as is available to

Appellants at law and in equity.




                                          -41-
Respectfully Submitted,

LAW OFFICES OF JOE SHUMATE
107 N. Main
P O Box 1915
Henderson, TX 75653
Tel: (903) 657-1416
Fax: (903) 655-8211



By:
  JOE SHUMATE
  State Bar No. 18327500
  JAMES J. ROSENTHAL
  State Bar No. 24088801
  Attorney for AppellantS




 -42-
          CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)(3)

                       CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this brief
contains 8,882 words (excluding any caption, identity of parties and counsel, statement
regarding oral argument, table of contents, index of authorities, statement of the case,
statement of issues presented, statement of jurisdiction, statement of procedural
history, signature, proof of service, certification, certificate of compliance, and
appendix). This is a computer-generated document created in WordPerfect, using
14-point typeface for all text, except for footnotes which are in 12-point typeface. In
making this certificate of compliance, I am relying on the word count provided by the
software used to prepare the document.


Date: May 18, 2015

________________________________________
Joe Shumate
James J. Rosenthal
Attorney for AppellantS
LAW OFFICES OF JOE SHUMATE
107 N. Main St.
P.O. Box 1915
Henderson, TX 75653-1915
903-657-1416 Phone
903-655-8211 Fax
shumate.law@suddenlinkmail.com




                                          -43-
                        CERTIFICATE OF SERVICE

     This is to certify that a true and correct copy of the above and foregoing
document has been served upon all known counsel of record and/or parties without
counsel via:

      _____              certified U.S. mail, return receipt requested
      _____              hand/messenger delivery
      _____              regular first class U. S. mail, postage prepaid
      __X__              facsimile/e-filing transmission as set out below

      Said service being made this 18th day of May, 2015, by sending to:


      Joseph F. Zellmer, P.C.
      Attorney at Law
      620 West Hickory St.
      Denton, TX 76201
      Fax#: 940-382-7174


__________________________________________
JOE SHUMATE
JAMES J. ROSENTHAL




                                       -44-
                                  APPENDIX

COURT DOCUMENTS

Exhibit A: Decree Ordering Sale of Real Property

Exhibit B: In re Byrom, No. 12-09-00278-CV, 316 S.W.3d 787 (Tex.App.–Tyler
           2010, orig. proceeding [mand. denied])

Exhibit C: In re Estate of Byrom, 12-09-00279-CV, 2011 WL 590588
           (Tex. App.—Tyler Feb. 16, 2011, pet. denied)(mem. op.)

Exhibit D: In re Estate of Byrom, 12-12-00374-CV, 2013 WL 3967432 (Tex.
           App.—Tyler July 31, 2013), reh'g overruled (Oct. 9, 2013), review
           denied (Jan. 31, 2014)

Exhibit E:   First Amended Nunc Pro Tunc Order for Sale of Real Property and for
             Appointment of Receiver

Exhibit F:   Nunc Pro Tunc Order on Motion for Constructive Trust

Exhibit G: Affidavit of Daisy “Dimple” Byrom

Exhibit H: Affidavit of Jerry Byrom


CONSTITUTION AND STATUTES

TEX. CONST. ART. XVI, § 50

TEX. PROBATE CODE § 146(a)(3)

TEX. PROBATE CODE § 147




                                       -45-
     EXHIBIT A

Decree Ordering Sale of Real Property




                -46-
141
142
143
              EXHIBIT B

  In re Byrom, No. 12-09-00278-CV, 316 S.W.3d 787
(Tex.App.–Tyler 2010, orig. proceeding [mand. denied])
                                                                      197k206 Purpose and Use of Writ
                                                                         197k207 k. Release from restraint.
                                                        Most Cited Cases
            Court of Appeals of Texas,                       An original habeas proceeding is a collateral
                                                        attack on a contempt judgment; its purpose is not to
                        Tyler.                          determine the ultimate guilt or innocence of the
           In re: Jerry BYROM, Relator.                 relator, but only to ascertain whether the relator has
               No. 12 09 00278 CV.                      been unlawfully confined.

                    July 14, 2010.                      [3] Habeas Corpus 197        528.1
Background: Creditor of estate filed a motion to
enforce, by contempt, a probate court order that had    197 Habeas Corpus
required independent executor of the estate to
deposit $85,000 into the court registry within 30           197II Grounds for Relief; Illegality of Restraint
days. The County Court at Law, Cherokee County,                197II(C) Relief Affecting Particular Persons
Craig A. Fletcher, J., held independent executor in     or Proceedings
civil contempt and ordered him confined if he did                 197k528 Contempt
not make the required deposit and pay creditor's                     197k528.1 k. In general. Most Cited
attorney fees and expenses. Independent executor        Cases
filed petition for writ of habeas corpus.                Habeas Corpus 197       711

Holding: On motion for rehearing, the Court of          197 Habeas Corpus
Appeals, James T. Worthen, C.J., held that the
contempt order violated constitutional prohibition         197III Jurisdiction, Proceedings, and Relief
against imprisonment for debt.                                 197III(C) Proceedings
                                                                  197III(C)2 Evidence
                                                                     197k705 Burden of Proof
    Petition granted.                                                   197k711 k. Particular persons and
                                                        proceedings. Most Cited Cases
                  West Headnotes                            A court will issue a writ of habeas corpus if the
                                                        order underlying the contempt is void or if the
[1] Habeas Corpus 197       528.1                       contempt order itself is void; the relator bears the
                                                        burden of showing that the contempt order is void
197 Habeas Corpus                                       and not merely voidable.

    197II Grounds for Relief; Illegality of Restraint   [4] Habeas Corpus 197        702
       197II(C) Relief Affecting Particular Persons
or Proceedings                                          197 Habeas Corpus
          197k528 Contempt
             197k528.1 k. In general. Most Cited            197III Jurisdiction, Proceedings, and Relief
Cases                                                          197III(C) Proceedings
     Habeas corpus is available to review a                        197III(C)2 Evidence
contempt order entered by a lower court confining a                   197k701 Presumptions
contemnor.                                                               197k702 k. Validity and regularity
                                                        of prior proceedings. Most Cited Cases
[2] Habeas Corpus 197       203                              In a habeas corpus proceeding, until the relator
                                                        has discharged his burden of showing a contempt
197 Habeas Corpus                                       order is void and not merely voidable, the contempt
                                                        order is presumed valid.
  197I In General
      197I(A) In General                                [5] Contempt 93       30
         197I(A)1 Nature of Remedy in General
            197k203 k. Collateral or direct attack.     93 Contempt
Most Cited Cases
Habeas Corpus 197      207                                  93II Power to Punish, and Proceedings Therefor
                                                               93k30 k. Nature and grounds of power. Most
197 Habeas Corpus                                       Cited Cases
                                                        Contempt 93       40
   197I In General
      197I(A) In General                                93 Contempt
         197I(A)1 Nature of Remedy in General
    93II Power to Punish, and Proceedings Therefor       92 Constitutional Law
        93k40 k. Nature and form of remedy. Most
Cited Cases                                                  92VII Constitutional Rights in General
     A contempt order is void if it deprives the                92VII(B) Particular Constitutional Rights
relator of liberty without due process of law or if it            92k1106 k. Imprisonment for debt. Most
was beyond the power of the court to issue.              Cited Cases
U.S.C.A. Const.Amend. 14.                                Execution 161       1

[6] Constitutional Law 92       1106                     161 Execution

92 Constitutional Law                                        161I Nature and Essentials in General
                                                                161k1 k. Nature of final process in general.
    92VII Constitutional Rights in General               Most Cited Cases
      92VII(B) Particular Constitutional Rights               An order requiring payment of a debt may be
         92k1106 k. Imprisonment for debt. Most          enforced through legal processes like execution or
Cited Cases                                              attachment, but not by the imprisonment of the
Contempt 93       78                                     adjudicated debtor. Vernon's Ann.Texas Const. Art.
                                                         1, § 18.
93 Contempt
                                                         [9] Constitutional Law 92       1106
    93III Punishment
       93k78 k. Imprisonment to compel payment           92 Constitutional Law
of money. Most Cited Cases
     An order of confinement for failure to pay a            92VII Constitutional Rights in General
debt violates the Texas Constitution and therefore is          92VII(B) Particular Constitutional Rights
beyond the power of the court to issue;                           92k1106 k. Imprisonment for debt. Most
consequently, such a contempt order is void.             Cited Cases
Vernon's Ann.Texas Const. Art. 1, § 18.                  Contempt 93       2

[7] Contempt 93       20                                 93 Contempt

93 Contempt                                                 93I Acts or Conduct Constituting Contempt of
                                                         Court
   93I Acts or Conduct Constituting Contempt of                93k1 Nature and Elements of Contempt
Court                                                             93k2 k. In general. Most Cited Cases
      93k19 Disobedience to Mandate, Order, or           Contempt 93       77
Judgment
         93k20 k. In general. Most Cited Cases           93 Contempt
 Contempt 93     70
                                                             93III Punishment
93 Contempt                                                      93k77 k. Imprisonment on nonpayment of
                                                         fine. Most Cited Cases
    93III Punishment                                          An obligation that is a legal duty arising out of
       93k70 k. Nature and grounds in general.           the status of the parties is not a debt and therefore
Most Cited Cases                                         may be enforced by contempt; similarly, criminal
     As a general rule, a person who willfully           fines are not debts, and confinement for failure to
disobeys a valid court order is guilty of contempt       pay such fines is not constitutionally prohibited.
and subject to imprisonment for a prescribed period      Vernon's Ann.Texas Const. Art. 1, § 18.
until he complies with the order.
                                                         [10] Constitutional Law 92       1106
[8] Attachment 44       1
                                                         92 Constitutional Law
44 Attachment
                                                             92VII Constitutional Rights in General
   44I Nature and Grounds                                       92VII(B) Particular Constitutional Rights
       44I(A) Nature of Remedy, Causes of Action,                   92k1106 k. Imprisonment for debt. Most
and Parties                                              Cited Cases
          44k1 k. Nature and purpose of remedy.               Generally, an obligation to pay money arising
Most Cited Cases                                         out of a contract is a debt within the meaning of
 Constitutional Law 92     1106                          constitutional prohibition against imprisonment for
a debt; moreover, all causes of action become debts            92VII(B) Particular Constitutional Rights
when they are placed in the form of judgments.                    92k1106 k. Imprisonment for debt. Most
Vernon's Ann.Texas Const. Art. 1, § 18.                Cited Cases
                                                            An order requiring a deposit of funds into the
[11] Constitutional Law 92      1106                   court's registry is not enforceable by contempt, as a
                                                       result of constitutional prohibition against
92 Constitutional Law                                  imprisonment for a debt, if any portion of the funds
                                                       is for the payment of a debt. Vernon's Ann.Texas
    92VII Constitutional Rights in General             Const. Art. 1, § 18.
      92VII(B) Particular Constitutional Rights
         92k1106 k. Imprisonment for debt. Most        *788 James W. Volberding, Tyler, Joe E. Shumate,
Cited Cases                                            for Relator.
Contempt 93       78
                                                       Judge Guy W. Griffin, pro se.
93 Contempt
                                                       Sheriff James Campbell, pro se.
    93III Punishment
       93k78 k. Imprisonment to compel payment         David S. Bouschor II, Joseph F. Zellmer, for Real
of money. Most Cited Cases                             Party in Interest.
     With few exceptions, attorney's fees are
 debts, within meaning of constitutional               Panel consisted of WORTHEN, C.J., GRIFFITH,
prohibition against imprisonment for a debt, and       J., and HOYLE, J.
cannot be collected by contempt. Vernon's
Ann.Texas Const. Art. 1, § 18.                                     OPINION ON REHEARING

[12] Constitutional Law 92      1106                   JAMES T. WORTHEN, Chief Justice.
                                                            Real party in interest Roy P. Anderson filed a
92 Constitutional Law                                  motion for rehearing, which is overruled. We
                                                       withdraw our opinion and judgment of January 29,
    92VII Constitutional Rights in General             2010, and substitute the following opinion and
      92VII(B) Particular Constitutional Rights        corresponding judgment in its place.
         92k1106 k. Imprisonment for debt. Most             In this original habeas proceeding, Relator
Cited Cases                                            Jerry Byrom seeks relief from an order signed on
Contempt 93       78                                   June 16, 2009 finding him in contempt for violation
                                                       of an order signed on December 8, 2008. The
93 Contempt                                            respondent is the Honorable Craig A. Fletcher,
                                                       Judge of the County Court at Law, Cherokee
    93III Punishment                                   County, Texas. The real parties in interest are Roy
        93k78 k. Imprisonment to compel payment        P. Anderson and David S. Bouschor II. We grant
of money. Most Cited Cases                             habeas corpus relief.
     Contempt order that required independent
executor of estate to pay $85,000 into court                        PROCEDURAL HISTORY
registry, as required by previous order of probate
court, or be jailed for contempt violated                   Byrom's mother, Ruby Renee Byrom, died on
constitutional prohibition against imprisonment for    February 5, 2005. Byrom was named in Mrs.
debt and was void; estate creditor had filed motion    Byrom's will as the sole *789 beneficiary and
to enforce the probate court order by contempt to      independent executor of her estate. The will was
assure that property of estate would be available to   admitted to probate in the County Court at Law,
satisfy creditor's judgment against independent        Cherokee County (the probate court ), and letters
executor, creditor had also been awarded attorney      testamentary were issued to Byrom. The contempt
fees and expenses that were payable from estate        order challenged here was signed in the probate
property, and thus independent executor was held in    proceeding as a result of a controversy between
contempt for failure to deposit funds that would be    Byrom and Anderson, a creditor of Mrs. Byrom's
used to pay debts. Vernon's Ann.Texas Const. Art.      estate.
1, § 18.                                               The Claim

[13] Constitutional Law 92      1106                       On June 3, 2005, Anderson presented to Byrom
                                                       and filed in the probate court an unsecured claim
92 Constitutional Law                                  against Mrs. Byrom's estate in the sum of
                                                       $31,992.75, which was based on two orders signed
   92VII Constitutional Rights in General
by the Denton County Probate Court. The orders           proceeding, and ordered that Byrom pay this
arose out of a guardianship proceeding in which          amount to Anderson within thirty days of the order.
Byrom was appointed temporary guardian of Mrs.           Additionally, the order included a finding that Mrs.
Byrom's person and Anderson was appointed                Byrom's estate owned an interest in certain Denton
temporary guardian of her estate. The first order        County real property, which Byrom had converted
authorized payment of $5,117.50 in temporary             to cash in the amount of $622,786.22. The order
guardian's fees to Anderson and payment of               also directed Byrom to deposit estate property in
$8,521.50 in attorney's fees to Bouschor for             that amount into the registry of the court
representing Anderson in the guardianship. The           within*790 thirty days of the order. On Byrom's
second order, signed after Mrs. Byrom's death,           motion, the court signed a reformed order on
authorized payment of $2,748.75 in temporary             December 8, 2008, reducing the required deposit to
guardian's fees to Anderson and $15,535.00 in            $85,000.00.
attorney's fees to Bouschor for representing
Anderson. Both orders stated that the fees were to       Contempt Proceeding
be paid from the funds of Mrs. Byrom's estate
within thirty days of the date of the order. However,         Byrom did not comply with the December 8,
the fees had not been paid at the time Anderson          2008 order, and on March 20, 2009, Anderson filed
presented and filed his claim in the probate court.      a motion to enforce the order by contempt. He
On June 9, 2005, Byrom's attorney informed               requested that Byrom be confined in jail for a
Anderson that Byrom had rejected his claim.              period not to exceed six months for each violation
Byrom's Removal as Independent Executor                  until he deposited $85,000.00 into the court's
                                                         registry and paid Anderson's fees and expenses
      Approximately two years after Byrom's              incurred in the contempt proceeding. Byrom filed a
rejection of the claim, Anderson filed a motion to       written response stating that he was no longer the
remove Byrom as independent executor or,                 executor of Mrs. Byrom's estate and did not have
alternatively, to require Byrom to post a bond, and      access to any funds of the estate.
to compel an accounting. Anderson alleged that, in            The trial court conducted an evidentiary
trial court cause number 7773, he and Duane Coker,       hearing on Anderson's motion. Byrom testified that
Mrs. Byrom's attorney/guardian ad litem, sued            he had not complied with the court's order because
Byrom in his capacity as independent executor for        he did not have $85,000.00, but acknowledged that
                                FN1
Authentication of Claims.           Anderson further     he had received $622,786.22 as property belonging
alleged that a final order against Byrom was signed      to the estate. His testimony was conflicting
in that cause on April 3, 2007. As grounds for           concerning whether he received the money before
Byrom's removal, Anderson alleged, in part, that         or after the December 8, 2008 order was signed.
Byrom had (1) failed to pay claims in the due            Anderson's attorney then proved up $7,058.17 in
course of administration, (2) misapplied property        attorney's fees and expenses incurred in the
committed to his care, (3) failed to comply with a       contempt proceeding.
final order of the court, signed on April 23, 2007,FN2
(4) liquidated real property assets of the estate and         At the conclusion of the hearing, the trial court
made disbursements to himself in his individual          held Byrom in civil contempt after finding that he
capacity without payment to creditors of the estate,     had failed to deposit $85,000.00 in estate funds into
and (5) failed to file an inventory, appraisement,       the court's registry as required by the December 8,
and list of claims within ninety days after              2008 order. Byrom was ordered to report to the
qualification as required by Texas Probate Code          court on July 2 at 9:00 a.m. at which time he would
sections 250 and 251.                                    be remanded to the Cherokee County jail if he had
          FN1. The record reflects that the Denton       not purged himself of the contempt by making the
          County Probate Court had awarded               required deposit and paying Anderson's attorney's
          $27,551.93 in fees to Coker in the             fees and expenses in the contempt proceeding. FN3
          guardianship proceeding.                       Byrom did not purge himself of the contempt and
                                                         was confined in the Cherokee County jail.
         FN2. Neither the April 3 order or the April
         23 order is part of the record in this                   FN3. Because we are granting habeas
         proceeding.                                              relief, we need not address the trial court's
                                                                  requirement that, to purge himself of the
     The trial court held an evidentiary hearing on               contempt, Byrom must pay Anderson's
Anderson's motion. By order signed on September                   attorney's fees and expenses in the
10, 2008, the probate court removed Byrom as                      contempt proceeding in addition to making
independent executor, but did not discharge him.                  the required deposit.
The order awarded Anderson $14,034.10 for
attorney's fees and expenses incurred in the removal     Habeas Proceedings
     Byrom filed an application for writ of habeas       and therefore is beyond the power of the court to
corpus seeking bail, and the trial court signed an       issue. See In re Henry, 154 S.W.3d 594, 596
order setting his bond at $80,000.00. His attorney       (Tex.2005) (orig. proceeding). Consequently, such
filed a bond, and Byrom was released from jail. He       an order is void. Id.
then amended his habeas application requesting that
the court grant an evidentiary hearing and, after             VALIDITY OF THE CONTEMPT ORDER
hearing evidence, order him released from
confinement. The court conducted the requested                In his first issue, Byrom asserts that Anderson
hearing on September 2, 2009. Byrom testified that       and Bouschor have creatively used the procedures
at the time the Denton County property was sold, he      for civil contempt to collect their legal and
did not have notice of any claims he would owe out       accounting fees, rather than through well
of the proceeds or any of the fees that he had been      established debt collection procedures.       He also
ordered to pay. He again insisted that he had none       makes reference to the attorney's fees awarded to
of the funds remaining. He also admitted that the        Anderson by the probate court, which are ordered
day before he was held in contempt, he signed gift       payable out of estate property. The authority Byrom
deeds conveying four tracts of land to his daughter.     cites pertains to the prohibition against
He testified, however, that he did not purchase the      imprisonment for debt found in article I, section 18
property with money from his mother's estate.            of the Texas Constitution and the prohibition
     At the conclusion of the hearing, the trial court   against collection of attorney's fees by contempt.
denied habeas relief, ordered Byrom taken into           He contends that, in light of the cited authority, the
custody, and set his bond at $95,000.00 cash.            contempt order is void.
Byrom then filed this original habeas proceeding,             Anderson responds that Byrom was held in
and also filed a motion for temporary relief, which      contempt for failing to deposit $85,000.00 into the
was denied.                                              registry of the court as ordered on December 8,
                                                         2008, and that there is nothing in the record to
      AVAILABILITY OF HABEAS CORPUS                      indicate that the $85,000.00 was for the collection
                                                         of attorney's fees.
     [1][2] Habeas corpus is available to review a
contempt order entered by a lower court confining a      Imprisonment for Debt
contemnor. Ex parte Gordon, 584 S.W.2d 686,
687 88 (Tex.1979) (orig. proceeding). An original              [7][8] As a general rule, a person who willfully
habeas proceeding is a collateral attack on a            disobeys a valid court order is guilty of contempt
contempt judgment. Ex parte Rohleder, 424 *791           and subject to imprisonment for a prescribed period
S.W.2d 891, 892 (Tex.1967) (orig. proceeding); In        until he complies with the order. Ex parte Hall, 854
re Ragland, 973 S.W.2d 769, 771 (Tex.App.-Tyler          S.W.2d 656, 658 (Tex.1993) (orig. proceeding).
1998, orig. proceeding). Its purpose is not to           But the Texas Constitution provides that          [n]o
determine the ultimate guilt or innocence of the         person shall ever be imprisoned for debt. See TEX.
relator, but only to ascertain whether the relator has   CONST. art. I, § 18. This provision establishes that
been unlawfully confined. Ex parte Gordon, 584            [i]t is not the policy of the law [in Texas] to
S.W.2d at 688.                                           enforce the collection of mere civil debts by
     [3][4] A court will issue a writ of habeas          contempt proceedings. Ex parte Britton, 127 Tex.
corpus if the order underlying the contempt is void      85, 90, 92 S.W.2d 224, 227 (1936) (orig.
or if the contempt order itself is void. See Ex parte    proceeding). An order requiring payment of a debt
Shaffer, 649 S.W.2d 300, 301 02 (Tex.1983) (orig.        may be enforced through legal processes like
proceeding); Ex parte Gordon, 584 S.W.2d at 688.         execution or attachment, but not by the
The relator bears the burden of showing that the         imprisonment of the adjudicated debtor. Ex parte
contempt order is void and not merely voidable. In       Hall, 854 S.W.2d at 658; see also In re Nunu, 960
re Munks, 263 S.W.3d 270, 272            73 (Tex.App.-   S.W.2d 649, 650 (Tex.1997) (orig. proceeding)
Houston [1st Dist.] 2007, orig. proceeding). Until       (reasoning that because a judgment awarding
the relator has discharged his burden, the contempt      damages cannot be enforced by contempt, court
order is presumed valid. In re Parr, 199 S.W.3d          cannot require payment of expenses incurred as
457, 460 (Tex.App.-Houston [1st Dist.] 2006, orig.       means of purging contempt).
proceeding).                                                   [9] Not every obligation to pay money is a debt
                                                         within the meaning of article I, section 18. See Ex
      [5][6] A contempt order is void if it deprives     parte Davis, 101 Tex. 607, 612, 111 S.W. 394, 396
the relator of liberty without due process of law or     (1908) (orig. *792 proceeding) ( There are many
if it was beyond the power of the court to issue. See    instances in the proceedings of the courts where the
In re Coppock, 277 S.W.3d 417, 418 (Tex.2009)            performance of an act may be enforced by
(orig. proceeding). An order of confinement for          imprisonment and would not come within the
failure to pay a debt violates the Texas Constitution    prohibition of the Constitution, although it might
involve the payment of money. ). For example, an                  FN4. For example, Byrom's motion to
obligation that is a legal duty arising out of the                reform the original order removing Byrom
status of the parties is not a debt and therefore may             as independent executor requested in part
be enforced by contempt. See In re Henry, 154                     that the amount of the deposit, originally
S.W.3d at 596 (holding that past due child support                set at $622,786.22, be reduced because the
is not a debt); Ex parte Gorena, 595 S.W.2d 841,                  previous order       embrace[d] a much
846 47 (Tex.1979) (orig. proceeding) (holding that                broader portion of the Estate of Ruby
former husband was constructive trustee for portion               Renee Byrom than is reasonably necessary
of monthly retirement pay awarded to former wife                  to protect any litigant herein. Moreover,
in divorce decree; therefore obligation to deliver                Anderson states in his response that the
money to former wife was not         debt ). Similarly,           $85,000.00 deposit was required pursuant
criminal fines are not debts, and confinement for                 to section 149C(b) of the Texas Probate
failure to pay criminal fines is not prohibited. In re            Code and refers us to a subsequent order
Henry, 154 S.W.3d at 596 n. 1.                                    entered by the respondent, which contains
                                                                  the following finding:
      [10][11] Generally, however, an obligation to
pay money arising out of a contract is a debt within                  (8) By Order of this Court entered
the meaning of article I, section 18. TEX. CONST.                    December 8, 2008, JERRY BYROM
art. I, § 18 interp. commentary. Moreover,       [a]ll               was ordered to deposit property of the
causes of action become debts when they are placed                   Estate of RUBY RENEE BYROM in
in the form of judgments.... Id.; see also Ex parte                  the amount of $85,000.00 in the
Hall, 854 S.W.2d at 658. And with few exceptions,                    Registry of the Court of Cherokee
none of which are applicable here, attorney's fees                   County, Texas to be used to pay the
are debts and cannot be collected by contempt. See                   judgments awarded Plaintiff
Wallace v. Briggs, 162 Tex. 485, 488        90, 348                  [Anderson].
S.W.2d 523, 525 26 (1961) (orig. proceeding); Ex
parte Dolenz, 893 S.W.2d 677, 680 81 (Tex.App.-                [13] An order requiring a deposit of funds into
Dallas 1995, orig. proceeding).                           the court's registry is not enforceable*793 by
                                                          contempt if any portion of the funds is for the
The Contempt Order                                        payment of a debt. See In re Wiese, 1 S.W.3d 246,
                                                          251 (Tex.App.-Corpus Christi 1999, orig.
     [12] Anderson contends that Byrom was held           proceeding) (contempt order void because portion
in contempt and confined for failure to comply with       of funds to be deposited in registry was attorney's
the respondent's December 8, 2008 order by                fees that were part of turnover order);     Ex parte
depositing $85,000.00 in the court's registry. He         Roan, 887 S.W.2d 462, 465 (Tex.App.-Dallas 1994,
points out that the order Byrom violated was a            orig. proceeding) (order void where trial court
 court order made mandatory by [Texas Probate             conditioned coercive contempt upon payment of
Code section] 149C(b)....      Because the order          funds into registry and funds were ordered
Byrom disobeyed was mandatory by statute,                 deposited for judgment creditors' benefit). Here,
Anderson contends that contempt and confinement           Anderson's judgment is against Byrom in his
are permissible.                                          representative capacity and is based on the fee
     An order removing an independent executor            orders of the Denton County Probate Court. He also
must direct the disposition of the assets remaining       has been awarded attorney's fees and expenses
in the name or under the control of the removed           incurred in various proceedings in the probate court
executor. TEX. PROB.CODE ANN.              § 149C(b)      that are payable from estate property. As we have
(Vernon Supp. 2009). The order requiring the              previously stated, a judgment is a debt and cannot
$85,000 deposit was signed in compliance with this        be collected by contempt.        Ex parte Hall, 854
section. However, Anderson has a judgment against         S.W.2d at 658. Additionally, the attorney's fees and
Byrom as independent executor of Mrs. Byrom's             expenses awarded to Anderson by the probate court
estate. From our review of the record, it is clear that   are debts. See Wallace v. Briggs, 162 Tex. at
Anderson sought Byrom's removal as independent            488 90, 348 S.W.2d at 525 26; Ex parte Dolenz,
executor and filed his motion to enforce the              893 S.W.2d at 680 81. Therefore, the only sums
December 8, 2008 order by contempt to assure that         payable to Anderson out of estate property are for
property of the estate would be available to satisfy      debts. Consequently, Byrom has been held in
his judgment against Byrom. Because Byrom is the          contempt for failure to deposit funds that will be
sole beneficiary under the will, there are no other       used to pay debts. See Ex parte Roan, 887 S.W.2d
beneficiaries who would benefit from the                  at 465. Thus, the contempt order violates the
$85,000.00 deposit. Therefore, it is also clear that      constitutional prohibition against imprisonment for
the respondent required the deposit for Anderson's        debt and is void. See In re Henry, 154 S.W.3d at
benefit.FN4                                               595. Because the contempt order is void, the order
illegally restrains Byrom. See In re Wiese, 1 S.W.3d        money Preston was ordered to deposit rightfully
at 251; Ex parte Roan, 887 S.W.2d at 465.                   belonged to his wife under the terms of the divorce
                                                            decree. Id., 162 Tex. at 384, 347 S.W.2d at 941.
The Buller Cases                                            Thus, he was not a debtor of his wife, but a
                                                            constructive trustee holding a portion of the assets
      Anderson disagrees and calls our attention to         awarded to her in the divorce decree.         Id. In the
the Buller cases. See Beaumont Bank, N.A. v.                court's view, there was no question ... about the
Buller, 806 S.W.2d 223, 226 (Tex.1991) ( Buller I           right of the [trial] court to hold a trustee in
 ); Ex parte Buller, 834 S.W.2d 622, 623              24    contempt of court for willfully refusing to obey an
(Tex.App.-Beaumont 1992, orig. proceeding)                  order to pay over funds held in his hands to the one
( Buller II ). He urges that the facts in Buller II         rightfully entitled thereto. Id.
and those presented in this case are
indistinguishable and concludes that we should                    In the second case, the supreme court held that
deny Byrom's habeas petition.                               a husband could be held in contempt and confined
      Buller I is an appeal from a turnover order           for refusing to surrender property to his former wife
directing Patricia Buller, independent executrix of         as ordered in the divorce decree. Ex parte Gorena,
her husband's estate, to deliver a specific amount of       595 S.W.2d at 846 47. Gorena was committed to
estate cash to the sheriff for levy in partial              jail for contempt for failing to pay his former wife
satisfaction of a judgment. Buller I, 806 S.W.2d at         monthly payments of a portion of his military
224. In reviewing the order, the supreme court              retirement benefits. Id. at 843. In denying habeas
stated that once the cash was traced to Buller in her       relief, the supreme court concluded that Gorena
representative capacity, a presumption arose that           held the unpaid funds as a trustee for his wife. See
those assets were in her possession. Id. at 226. The        id. at 846     47. Therefore, he was not being
burden then shifted to Buller to account for the            imprisoned for debt. See id.
assets. Id. The court noted that Buller presented
only scant documentation to support her testimony                In short, the supreme court in Preston and
that she no longer had possession of the cash.        Id.   Gorena held that the contemnor's refusal to deliver
Ultimately, the court determined that [c]learly the         the property of another to its rightful owner as
trial court was within its discretionary authority in       ordered was punishable by contempt and
disbelieving Mrs. Buller's unsubstantiated claim            confinement. In applying these two cases, the court
that [the] cash was spent....     Id. Specifically, the     stated in Buller II that
court opined that simply asserting I spent it is
unacceptable. Id. at 227. Consequently, the court             [a] trustee or other fiduciary such as a legal
affirmed the portions of the turnover order that              representative or independent executrix may
relate to our analysis in this case. See id.                  constitutionally be fined and jailed for
                                                              contemptuously refusing to obey an order to turn
     Despite the supreme court's ruling, Buller               over funds held in her hands and subject to her
refused to comply with the turnover order. As a               right of possession to a proper authority or entity
result, the trial court held her in contempt and              that is lawfully and rightfully entitled to those
confined her. See Buller II, 834 S.W.2d at 624. She           funds for levy.
sought habeas relief arguing, in part, that her
confinement violated the constitutional prohibition              Buller II, 834 S.W.2d at 626. It then concluded
of imprisonment for debt. Id. at 626; see also TEX.         that Buller, as independent executrix of her
CONST. art. I, § 18. The Beaumont*794 court of              husband's estate, had a fiduciary relationship to the
appeals held to the contrary, relying on two cases it       estate's creditors. Id. Because of this relationship,
described as       compellingly persuasive.     Id. at      the court reasoned, her confinement was not
626 27.                                                     constitutionally prohibited. Id. We do not read
                                                            Preston and Gorena so broadly.
     In the first case, the supreme court determined
that a husband could be held in contempt and                     We first note that Buller was the independent
confined for refusing to obey an order to pay into          executrix of her husband's estate and consequently
the court's registry his wife's share of certain             a holder of property of a judgment debtor[.]     See
community property funds. Ex parte Preston, 162             Buller I, 806 S.W.2d at 226. She was not a holder
Tex. 379, 381, 347 S.W.2d 938, 939 (1961).                  of property belonging to the judgment creditor that
Preston argued, in part, that the sum to be paid            had sued her. See id.; see also TEX. PROB.CODE
constituted a debt to his wife and therefore he could       ANN. § 37 (Vernon 2003) (estate of testate
not constitutionally be held in contempt and                decedent vests immediately in devisees, but
confined for his failure to deposit the funds. Id., 162     independent executor has right to possession of
Tex. at 382, 347 S.W.2d at 940;         see also TEX.       estate). Moreover, the holdings in       Preston and
CONST. art. I, § 18. The court observed that the            Gorena do not turn on, and the court does not
address, whether the contemnor was a fiduciary by                           DISPOSITION
virtue of his holding the property of another. The
critical facts were that Preston and Gorena                    Because we have held that the contempt order
possessed the property of another but refused to          is void and Byrom is illegally restrained, we grant
deliver it to the rightful owner, despite being           Byrom's petition for writ of habeas corpus and
ordered to do so. And even if fiduciary duty had          order him discharged. Thus, Byrom's first issue is
been the basis for the court's holdings in those          dispositive, and we need not address his remaining
cases, we have been unable to locate any Texas case       issues. See TEX.R.APP. P. 47.1. All pending
holding that an independent executor has a                motions are overruled as moot.
fiduciary relationship*795 with estate creditors.         Tex.App. Tyler,2010.
Finally, the above quoted language from Buller II
is, in substance, a determination that a fiduciary is     In re Byrom
not subject to the constitutional prohibition of          316 S.W.3d 787
imprisonment for debt. We do not reach the same           END OF DOCUMENT
conclusion from our reading of the cases cited in
Buller II and other cases addressing the prohibition
of imprisonment for debt. FN5 Consequently, for the
reasons we have discussed, we respectfully decline
to follow Buller II here.FN6

         FN5. In Buller I, the dissent predicted that
          [e]ven as to any estate assets which
         Buller has not spent, the turnover order
         will ultimately prove unenforceable. The
         Texas Bill of Rights prohibits the trial
         court from enforcing the turnover order by
         imprisonment.... In the present case,
         enforcement of the turnover order by
         imprisonment would fall squarely within
         the constitutional prohibition.      Buller I,
         806 S.W.2d at 229 (Mauzy, J., dissenting).
         In Buller II, Justice Burgess noted in his
         dissent that the trial court's order directed
         Buller to turn over a specific sum, which
         was nothing more than telling her to pay
         the debt. In his view, Buller was entitled
         to the guarantee of article I, section 18,
         and could not be confined for refusing to
         deliver the funds. Buller II, 834 S.W.2d at
         627 28 (Burgess, J., dissenting).

         FN6. The court also held that the
         constitutional prohibition against
         imprisonment for debt does not apply
          unless the contemn[o]r demonstrates
         inability to pay.      See Buller II, 834
         S.W.2d at 626 (citing       Pierce v. Vision
         Invs., 779 F.2d 302, 309 (5th Cir.1986)
         and Ex parte Smyers, 529 S.W.2d 769, 770
         (Tex.1975)). These cases hold that a
         contempt order is not proper if the
         contemnor is unable to comply with the
         order he failed to obey. See Pierce, 779
         F.2d at 310;      Smyers, 529 S.W.2d at
         769 70. According to the dissent in Buller
         I, the express language of the 1836
         Republic of Texas Constitution required
         inability to pay, but this language has been
         included in subsequent state constitutions.
         Buller I, 806 S.W.2d at 229.
               EXHIBIT C

In re Estate of Byrom, 12-09-00279-CV, 2011 WL 590588
 (Tex. App.—Tyler Feb. 16, 2011, pet. denied)(mem. op.)
                                                         Appeal from the County Court of Cherokee County,
                                                         Texas, Craig A. Fletcher, Judge.

Only the Westlaw citation is currently available.        Joe E. Shumate, for Appellant.
SEE TX R RAP RULE 47.2 FOR DESIGNATION                   Scott E. Rectenwald, for Ad litem.
AND SIGNING OF OPINIONS.
                                                         Joseph F. Zellmer, for Appellee.
MEMORANDUM OPINION(PUBLISH)
                                                         Panel consisted of WORTHEN, C.J., GRIFFITH,
             Court of Appeals of Texas,                  J., and HOYLE, J.

                     Tyler.                                         MEMORANDUM OPINION
    In the ESTATE OF Ruby Renee BYROM,
                   Deceased.                             JAMES T. WORTHEN, Chief Justice.
             No. 12 09 00279 CV.                              *1 Jerry Byrom appeals the county court's
                                                         orders holding him in contempt and committing
              Feb. 16, 2011.                             him to county jail, awarding attorney's fees, and
West KeySummaryExecutors and Administrators              imposing a constructive trust. On appeal, Byrom
              162      35(1)                             presents three issues. We dismiss in part, vacate in
                                                         part, and affirm in part.
162 Executors and Administrators
                                                                          BACKGROUND
    162II Appointment, Qualification, and Tenure
       162k35 Removal                                         Ruby Renee Byrom died on February 5, 2005,
          162k35(1) k. Grounds in General. Most          and her son, Byrom, was named in her will as the
Cited Cases                                              sole beneficiary and independent executor of her
Executors and Administrators 162         456(4)          estate. The will was admitted to probate in the
                                                         County Court at Law of Cherokee County (the
162 Executors and Administrators                         probate court), and Byrom was appointed the
                                                         independent executor of Ruby's will and estate
    162X Actions                                         without bond. A few months after Byrom was
       162k456 Costs                                     appointed, Roy Anderson and Duane L. Coker filed
          162k456(4) k. Unreasonable Resistance,         claims in the probate court against Ruby's estate.
and Refusal to Refer Claim or Consent to                 Anderson, who had been appointed by a Denton
Determination on Settlement of Accounts. Most            County court as Ruby's temporary guardian, filed a
Cited Cases                                              claim based on two orders from that court for
Trusts 390      102(2)                                   payment of attorney's and temporary guardian's
                                                         fees. Coker, who had been appointed as the attorney
390 Trusts                                               ad litem for Ruby in the guardianship proceeding,
                                                         filed a claim based on an order from the Denton
    390I Creation, Existence, and Validity               County court for payment of attorney's fees.
        390I(C) Constructive Trusts                      Byrom, as the independent executor of Ruby's
           390k102 Breach of Duty by Person in           estate, denied Anderson's and Coker's claims.
Fiduciary Relation in General                                 Anderson filed a motion to remove Byrom as
               390k102(2) k. Executors,                  independent executor, or in the alternative, to have
Administrators, and Guardians. Most Cited Cases          Byrom show cause why he should not be required
     Testator's son was removed as the independent       to post a bond. Anderson also moved to compel an
executor of testator's estate for cause, and thus        accounting and requested attorney's fees. Byrom
creditors of the estate were entitled under the          filed an inventory, appraisement, and list of claims,
Probate Code to an award of attorney's fees              and Anderson objected to it. Thereafter, the probate
incurred to obtain son's compliance to perform his       court removed Byrom as independent executor for
statutory duty as independent executor. As an            cause, but did not discharge him. Further, the
independent executor, son had a statutory duty to        probate court ordered Byrom to file an accounting
pay claims against testator's estate. Son failed to do   and deposit $85,000.00 FN1 into the registry of the
so, warranting his removal for cause. Further,           court within thirty days. The probate court also
creditors moved for the imposition a constructive        awarded Anderson attorney's fees against Ruby's
trust to force son to comply with his statutory duty     estate in the amount of $14,034.10 for prosecuting
to pay their claims from the assets of testator's        the removal of the independent executor.
estate, and the probate court granted the motion.
V.A.T.S. Probate Code, § 245(a)(2).                               FN1. In the order removing Byrom as
         independent executor, Byrom was ordered
         to deposit $622,786.22 into the registry of          In his first issue, Byrom argues that the probate
         the court. On December 9, 2008, the             court erred by finding him in contempt and
         probate court issued a reformed order           committing him to the county jail for violation of its
         directing Byrom to deposit $85,000.00           removal order requiring him to deposit $85,000.00
         into the registry of the court.                 into the registry of the court. More specifically,
                                                         Byrom contends that the June 16, 2009 contempt
      Then, Anderson filed a motion to enforce the       order violates the Texas Constitution, which forbids
removal order by contempt and requested attorney's       that a person be imprisoned or incarcerated for a
fees. On June 16, 2009, the probate court ordered        debt.
that Byrom be held in contempt for failing to                 A contempt order is reviewable only by a
deposit $85,000.00 into the registry of the court,       petition for writ of habeas corpus if the person held
and ordered that Byrom be committed to the county        in contempt is confined.      See In re Henry, 154
jail until he purged himself of the contempt and         S.W.3d 594, 596 (Tex.2005);            Cadle Co. v.
complied with the probate court's orders. The            Lobingier, 50 S.W.3d 662, 671 (Tex.App.-Fort
probate court also awarded Anderson attorney's fees      Worth 2001, pet. denied) (citing In re Long, 984
against Ruby's estate in the amount of $7,058.17 for     S.W.2d 623, 625 (Tex.1999) (orig .proceeding)).
the contempt action.                                     Therefore, we lack jurisdiction to review Byrom's
                                                         challenge to the June 16, 2009 contempt order on
     Anderson filed a motion for a constructive trust    appeal. See Tex. Animal Health Comm'n v. Nunley,
to be imposed on Byrom's real property in Mount          647 S.W.2d 951, 952 (Tex.1983);            Vernon v.
Enterprise, Texas, and requested attorney's fees.        Vernon, 225 S.W.3d 179, 180 (Tex.App.-El Paso
Coker, as intervenor, filed a notice of joinder in the   2005, no pet.); see also In re Long, 984 S.W.2d at
motion to impose a constructive trust and an             625.
application for a turnover order. On August 10,
2009, the probate court granted the motion for a              Moreover, on September 8, 2009, Byrom filed
constructive trust, finding that Byrom had breached      a petition for a writ of habeas corpus with this
his fiduciary duty to Ruby's estate. FN2 The probate     court, complaining of the June 16, 2009 contempt
court ordered that a constructive trust in the amount    order. We granted Byrom's petition for writ of
of $200,000.00 be imposed on Byrom's real                habeas corpus and ordered him discharged because
property, and that if that amount was not paid into      we determined that the contempt order violated the
the registry of the court within thirty days, the        constitutional prohibition against imprisonment for
probate court would order that the property be sold.     debt and therefore, was void.FN3 Consequently, even
Further, the probate court awarded Anderson and          if the contempt order could otherwise be reviewed
Coker attorney's fees against Ruby's estate totaling     by appeal, the issue Byrom raises here is moot. See
$6,412.94 incurred in obtaining the constructive         Williams v. Lara, 52 S.W.3d 171, 184 (Tex.2001)
trust. The probate court also ordered that a writ of     (stating that if a party lacks a legally cognizable
attachment be issued for Byrom for failing to            interest in obtaining relief and, thus, no longer faces
appear at the August 10 hearing even though he           the unconstitutional conduct about which he
was ordered to do so. Finally, the probate court         complains, that party's claim is moot).
ordered that Byrom be brought before the court to
fulfill the terms of the order holding him in                     FN3. See In re Byrom, 316 S.W.3d 787,
contempt.                                                         793 95 (Tex.App.-Tyler 2010, orig.
                                                                  proceeding [mand. denied] ).
         FN2. On November 16, 2009, the probate
         court entered a nunc pro tunc order to               Byrom's first issue is dismissed for want of
         correct the real property description           jurisdiction.
         attached to the original judgment imposing
         the constructive trust.                                        ATTORNEY'S FEES

     *2 Byrom filed an application for a writ of              In his second issue, Byrom contends that the
habeas corpus seeking bond and the probate court         probate court erred in ordering subsequent
set his bond at $80,000.00. Byrom's attorney filed       attorney's fees for failure to pay a court-ordered
the bond and Byrom was released. After a hearing,        claim for attorney's fees. In his brief, Byrom states
the probate court denied Byrom's application for         that there were three separate awards of attorney's
writ of habeas corpus, ordered Byrom taken into          fees. We will address each award of attorney's fees
custody, and set his bond at $95,000.00. Byrom           separately.
filed another habeas application, which was denied.      Removal of Independent Executor
This appeal followed.
                                                             On September 10, 2008, the probate court
            ORDER OF CONTEMPT
removed Byrom as independent executor of Ruby's           file an accounting, and awarded attorney's fees
estate, and awarded Anderson attorney's fees              against the estate. Because the order challenged
against the estate in the amount of $14,034.10 for        here addressed each issue raised in Anderson's
prosecuting Byrom's removal as the independent            motion, thereby conclusively disposing of this
executor.                                                 phase of the probate proceeding, the order
     Before addressing the propriety of the fee           removing Byrom as independent executor is a final
award, we must first determine whether the award          and appealable order.     See id.; De Ayala,    193
is appealable. To do so, we consider whether the          S.W.3d at 578. Therefore, the award of attorney's
probate court's order removing Byrom as the               fees included in the order is also appealable.
independent executor the order that includes the
fee award is an appealable order. Generally, an                Next, we must determine whether Byrom
appeal may be taken only from a final judgment.           timely appealed the fee award. The removal order
Lehmann v. Har Con Corp., 39 S.W.3d 191, 195              was signed on September 10, 2008. Byrom timely
(Tex.2001). Probate proceedings are an exception          filed a motion to reform the judgment or
to the one final judgment rule; in such cases,            alternatively, for new trial, complaining that the
 multiple judgments final for purposes of appeal          award of attorney's fees was excessive,
can be rendered on certain discrete issues.       De      unreasonable, and unnecessary. Therefore, Byrom
Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex.2006)           was required to file his notice of appeal on or
(quoting Lehmann, 39 S.W.3d at 192). The                  before December 9, 2008.         See TEX.R.APP. P.
appropriate test for jurisdiction adopted by the          26.1(a)(1) (stating that a notice of appeal must be
Texas Supreme Court is as follows:                        filed within ninety days after the judgment is signed
                                                          if any party timely files a motion for new trial).
  *3 If there is an express statute, such as the one      However, Byrom did not file his notice of appeal
  for the complete heirship judgment, declaring the       until September 9, 2009. See id . Because Byrom
  phase of the probate proceedings to be final and        did not timely file a notice of appeal of the fee
  appealable, that statute controls. Otherwise, if        award, we are without jurisdiction to consider this
  there is a proceeding of which the order in             portion of his second issue.      See TEX.R.APP. P.
  question may logically be considered a part, but        42.3(a).
  one or more pleadings also part of that
  proceeding raise issues or parties not disposed of,     Constructive Trust
  then the probate order is interlocutory.
                                                               *4 On August 10, 2009, the probate court
    Id. (quoting Crowson v. Wakeham, 897 S.W.2d           granted Anderson's motion for a constructive trust,
779, 783 (Tex.1995)). In addition, courts may             and awarded Anderson attorney's fees against
assess finality by determining whether the order to       Ruby's estate in the amount of $4,662.94 for the
be challenged dispose[d] of all parties or issues in      constructive trust. On August 14, 2009, the probate
a particular phase of the proceedings for which it        court also granted Coker's joinder in the motion for
was brought. Young v. First Community Bank, N.A.,         a constructive trust, and awarded Coker attorney's
222 S.W.3d 454, 457 (Tex.App.-Houston [1st Dist.]         fees against Ruby's estate in the amount of
2006, no pet.) (quoting De Ayala, 193 S.W.3d at           $1,750.00 for the constructive trust. These awards
579).                                                     totaled $6,412.94.
                                                               The availability of attorney's fees under a
     Here, there is no express statute providing that     particular statute is a question of law. Holland v.
an order removing an independent executor is final        Wal Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.1999).
and appealable. See Logan v. McDaniel, 21 S.W.3d          We review the availability of an award of attorney's
683, 688 (Tex.App.-Austin 2000, pet. denied). The         fees de novo. Estate of Hawkins, 187 S.W.3d 182,
question, then, is whether the order removing             185 (Tex.App.-Fort Worth 2006, no pet.). An award
Byrom as the independent executor disposed of             of attorney's fees is permissible if authorized by
each issue raised in the pleadings for that part of the   statute or by contract between the parties. Colonial
probate proceeding or, in other words, whether the        Am. Casualty & Surety Co. v. Scherer, 214 S.W.3d
order conclusively disposed of that phase of the          725, 729 (Tex.App.-Austin 2007, no pet.). If a
proceeding. See id. Anderson filed a motion               personal representative is removed for cause, the
requesting that Byrom be removed as the                   personal representative and the sureties on the
independent executor of Ruby's estate for cause, or       personal representative's bond are liable for
in the alternative, be required to show cause why he      reasonable attorney's fees incurred in removing the
should not be required to post a bond. Anderson           personal representative or in obtaining compliance
also moved to compel an accounting and sought his         regarding any statutory duty the personal
attorney's fees. The probate court's order removed        representative has neglected. TEX. PROBATE
Byrom as the independent executor of Ruby's               CODE ANN. § 245(a)(2) (Vernon Supp.2010). In
estate, but did not discharge him, ordered him to         other words, section 245 provides for attorney's fees
incurred in connection with the removal of a
representative for cause or due to the neglect of an     Disposition
administrator in performing his statutory duties.
Scherer, 214 S.W.3d at 731; Estate of Hawkins, 187            *5 Byrom's second issue is dismissed for want
S.W.3d at 185.                                           of jurisdiction in part, overruled in part, and
                                                         sustained in part.
     Here, Byrom was removed as the independent                       CONSTRUCTIVE TRUST
executor of Ruby's estate for cause. See Scherer,
214 S.W.3d at 731. Anderson's motion for a                    In his third issue, Byrom argues that he was not
constructive trust, and Coker's joinder in               given proper legal notice prior to the entry of the
Anderson's motion, included allegations that Byrom       order granting the constructive trust. More
failed to deposit funds into the registry of the court   specifically, he contends that he was not given
as ordered by the probate court to pay claims            notice of the hearing and, therefore, the order is
Ruby's estate owed to them. As an independent            voidable.
executor, Byrom had a statutory duty to pay claims       Facts
against Ruby's estate. See TEX. PROBATE CODE
ANN. § 146(a)(3) (Vernon 2003). He failed to do               At the hearing on the motion for constructive
so. Thus, Anderson and Coker requested a                 trust on August 10, 2009, the judge of the probate
constructive trust to force Byrom to comply with         court stated that he had anticipated a letter from
his statutory duty to pay their claims from the assets   Byrom stating that he would be unable to attend the
of Ruby's estate. Because Byrom was removed as           hearing. It appears, however, that the letter did not
independent executor for cause and Anderson and          arrive because the court ordered the bailiff to call
Coker incurred attorney's fees to obtain Byrom's         Byrom's name at the courthouse door. Byrom did
compliance to perform his statutory duty, the            not respond and did not appear at the hearing.
probate court was authorized by statute to award         Further, Anderson's attorney stated that all parties
Anderson and Coker attorney's fees incurred in           were given notice of the hearing. Subsequently, the
connection with the constructive trust. See TEX.         probate court granted the motion for a constructive
PROBATE CODE ANN. § 245(a)(2); Scherer, 214              trust. In its order, the probate court found that [a]ll
S.W.3d at 731; Estate of Hawkins, 187 S.W.3d at          persons entitled to citation were properly cited.
185. Accordingly, we overrule that portion of                 At the hearing on Byrom's petition for writ of
Byrom's second issue regarding the award of              habeas corpus, Byrom's attorney explained that
attorney's fees to Anderson and Coker incurred in        prior to the date of the August 10 hearing, Byrom
connection with the constructive trust.                  was required to be at his physician's office and,
                                                         based on an understanding that he would receive
Contempt                                                 something from Byrom's physician, his attorney
                                                         went to a seminar in Galveston. According to
     Finally, Byrom argues that there is no              Byrom's attorney,         [a]pparently there was a
provision in the Texas Probate Code for obtaining        setting, but he did not recall getting notice. He
attorney's fees for civil contempt actions after an      stated that I'm certainly not saying I didn't, but I
independent executor has been removed. As noted          didn't recall getting notice of any settings on that
above, the probate court ordered that Byrom be held      day or I wouldn't have been gone or I would have
in contempt, committed him to the county jail, and       made arrangements. Then, Byrom's attorney stated
awarded Anderson attorney's fees against Ruby's          that he was not saying I didn't. I sure don't didn't
estate in the amount of $7,058.17 for the contempt       see one; and probably if I didn't or if I don't find
action. We granted Byrom's petition for writ of          something, I may be filing some kind of a motion
habeas corpus regarding the June 16, 2009                for rehearing on that receivership matter.         The
contempt order and ordered him discharged because        judge expressed his recollection of some concern
we determined that the contempt order violated the       that may have led to his allowing Byrom to bond
constitutional prohibition against imprisonment for      out pending the current hearing because of         some
debt and therefore, was void. A void order has no        notice issues. However, the judge declined to
force or effect and confers no rights; it is a mere       point[ ] a finger at anybody.       In his motion for
nullity. In re Garza, 126 S.W.3d 268, 271                new trial, Byrom complains about a lack of notice
(Tex.App.-San Antonio 2003, orig. proceeding             for a hearing on Anderson's motion for a nunc pro
[mand. denied] ). Any attorney's fees based upon a       tunc order to correct an error in the order on the
void order must also be void. Ex parte Fernandez,        motion for a constructive trust.
645 S.W.2d 636, 639 (Tex.App.-El Paso 1983, no
writ). Because the June 16, 2009 contempt order is       Applicable Law
void, the probate court's award of attorney's fees to
Anderson for the contempt action is also void. See           The law presumes a trial court hears a case
id. Accordingly, we sustain that portion of Byrom's      only after proper notice to the parties. Osborn v.
second issue.
Osborn, 961 S.W.2d 408, 411 (Tex.App.-Houston             Anderson and Coker are merely creditors and that
[1st Dist.] 1997, writ denied). A recitation in a         their interest in Ruby's estate is limited to the extent
judgment that proper notice and hearing were had          of their claims. In summary argument 5, Byrom
provides prima facie evidence of such notice, which       contends that the real parties in interest have
must be accepted as true absent proof to the              obtained ancillary relief for their claims and that
contrary. Aldine Indep. Sch. Dist. v. Baty,       946     renders the contempt action moot. Both of these
S.W.2d 851, 852 (Tex.App.-Houston [14th Dist.]             summary arguments appear to be based on his
1997, no writ). To overcome this presumption, an          first issue, that the probate court erred by finding
appellant must affirmatively show lack of notice.         him in contempt and committing him to the county
Hanners v. State Bar of Tex., 860 S.W.2d 903, 908         jail for violating its removal order. For the reasons
(Tex.App.-Dallas 1993, writ dism'd);            In re     stated in our discussion of Byrom's first issue, we
Marriage of Lamirault, No. 07 01 00133 CV,                lack jurisdiction to address Byrom's         summary
2001 WL 1166373, at *2 (Tex.App.-Amarillo                 arguments 4 and 5.
Oct.3, 2001, no pet.) (not designated for                       In summary argument 6, Byrom argues that
publication). This burden is not discharged by mere       the probate court exceeded its authority by ordering
allegations, unsupported by affidavits or other           a constructive trust because the property to be sold
competent evidence, that proper notice was not            is his homestead, is located on land he had owned
received. See Hanners, 860 S.W.2d at 908; In re           for over twenty years, and was, at least partially,
Marriage of Lamirault, 2001 WL 1166373, at *2.            paid for by community property funds belonging to
Analysis                                                  him and his wife. Thus, he contends, this property
                                                          should not be subject to Anderson's and Coker's
     *6 As noted above, the order on the motion for       claims. An appellant's brief must contain a clear and
a constructive trust states that [a]ll persons entitled   concise argument for the contentions made, with
to citation were properly cited . This is prima facie     appropriate citations to the authorities and to the
evidence that proper notice was given to all parties.     record. TEX.R.APP. P. 38.1(i). Byrom does not
See Baty, 946 S.W.2d at 852. To overcome this             provide any argument or citations to authorities or
presumption, Byrom must affirmatively show a lack         the record to demonstrate how the probate court
of notice. See Hanners, 860 S.W.2d at 908; In re          exceeded its authority. His argument consists of
Marriage of Lamirault, 2001 WL 1166373, at *2.            only conclusory statements that the probate court
At the hearing on his petition for writ of habeas         exceeded its authority, and that the property subject
corpus, Byrom's attorney alleged that he did not          to the constructive trust was his homestead and
recall receiving a notice of hearing, but did not         community property. Because Byrom has failed to
affirmatively state that he did not receive notice.       provide an adequate substantive analysis of this
Further, although the judge of the probate court           summary argument, he has presented nothing for
appeared to believe that there might have been            our review. See TEX.R.APP. P. 38.1(i). Therefore,
some problems with notice, he did not elaborate and       we overrule Byrom's summary argument 6.
declined to point[ ] a finger at anybody.         The
record does not contain a letter from the probate                            CONCLUSION
court or any of the parties regarding a notice of
hearing. Nor does the record contain affidavits or             *7 Because Byrom's June 16, 2009 contempt
other evidence affirmatively showing that Byrom           order is not reviewable by appeal, we dismiss for
did not receive proper notice. See Hanners, 860           want of jurisdiction his first issue, and his
S.W.2d at 908; In re Marriage of Lamirault, 2001           summary arguments 4 and 5. We also dismiss for
WL 1166373, at *2. Because Byrom merely alleged           want of jurisdiction that portion of Byrom's second
that he did not receive proper notice of the hearing      issue regarding the award of attorney's fees to
on the motion for a constructive trust without any        Anderson for seeking Byrom's removal as
supporting affidavits or evidence, he did not meet        independent executor. We sustain that portion of
his burden to rebut the presumption that he received      Byrom's second issue regarding the award of
proper notice. Accordingly, we overrule Byrom's           attorney's fees to Anderson for the contempt action,
third issue.                                              and vacate the probate court's award of attorney's
                                                          fees in its June 16, 2009 contempt order. In all other
            SUMMARY ARGUMENTS                             respects, we affirm the judgment of the probate
                                                          court.
    In his brief, Byrom makes three other                 Tex.App.-Tyler,2011.
 summary arguments, none of which are
designated as issues in his brief. In       summary       In re Estate of Byrom
argument 4, he asserts that he is the sole beneficiary    Not Reported in S.W.3d, 2011 WL 590588
of Ruby's estate and, thus, there is no beneficiary       (Tex.App.-Tyler)
who can claim harm from his use of funds from             END OF DOCUMENT
Ruby's estate for his benefit. Further, he claims that
                         EXHIBIT D

In re Estate of Byrom, 12-12-00374-CV, 2013 WL 3967432 (Tex. App.—Tyler
 July 31, 2013), reh'g overruled (Oct. 9, 2013), review denied (Jan. 31, 2014).
                                                              On July 1, 2008, the county court removed
                                                         Byrom as executor citing gross mismanagement,
                                                         misappropriation of funds, and gross misconduct.
Only the Westlaw citation is currently available.        On August 10, 2009, the county court granted the
SEE TX R RAP RULE 47.2 FOR DESIGNATION                   joint request of Anderson and Duane Coker FN2 to
AND SIGNING OF OPINIONS.                                 impose a constructive trust on Byrom's home
                                                         constructed with estate funds. The court ordered
MEMORANDUM OPINION(PUBLISH)                              Byrom to pay $200,000.00 into the court's registry
                                                         within thirty days. If Byrom failed to comply with
            Court of Appeals of Texas,                   the court's order, his home was to be sold to satisfy
                                                         the estate's debts.
                     Tyler.
    In The ESTATE OF Ruby Renee BYROM,                            FN2. Coker was the attorney ad litem for
                   Deceased.                                      Mrs. Byrom in the guardianship
             No. 12 12 00374 CV.                                  proceeding.

                 July 31, 2013.                               Byrom appealed the order to this court
Appeal from the County Court, Cherokee County,           asserting, inter alia, that he had no legal notice of
Texas.                                                   the hearing that resulted in the order impressing a
                                                         constructive trust on his homestead. See In re Estate
Scott E. Rectenwald, Marshall, TX, Mr. Joseph F.         of Byrom, No. 12 09 00279 CV, 2011 WL
Zellmer, Denton, TX, for Appellee.                       590588, at * 5 ( Tex.App.-Tyler Feb. 16, 2011, pet.
Joe E. Shumate, Henderson, TX, for Appellant.            denied) (mem.op.). Byrom also maintained that the
                                                         county court exceeded its authority in imposing a
Panel consisted of WORTHEN, C.J., HOYLE, J.,             constructive trust on his homestead and
and BASS, Retired J., Twelfth Court of Appeals,          conditionally ordering its sale. See id. at * 6. In all
sitting by assignment.                                   respects pertinent to this appeal, the judgment was
                                                         affirmed.
           MEMORANDUM OPINION
                                                             On September 4, 2012, the county court
BILL BASS, Justice.                                      ordered the sale of part of Byrom's property, and
     *1 Jerry Byrom appeals from the county court's      Byrom appealed.
order for the sale of real property and appointment
of a receiver. In one issue, he contends the county              THE COUNTY COURT'S ORDER
court erred in imposing a constructive trust on his
homestead property and ordering its sale to pay               In his sole issue, Byrom contends the county
guardian's fees, accounting fees, attorney's fees, and   court erred in imposing a constructive trust on his
the interest thereon. We affirm.                         homestead property and ordering its sale to pay
                                                         guardian's fees, accounting fees, attorney's fees, and
                BACKGROUND FN1                           the interest thereon. Anderson argues that Byrom's
                                                         complaints are barred by res judicata. We agree.
         FN1. For a somewhat more extended
         recital of the procedural history of this       Applicable Law
         case, see In re Estate of Byrom, No. 12
         09 00279 CV, 2011 WL 590588 (                        The homestead of a family or of a single adult
         Tex.App.-Tyler Feb. 16, 2011, pet. denied)      person is exempt from forced sale for the payment
         (mem.op.).                                      of all debts except for those classes of indebtedness
                                                         enumerated in Article 16, Section 50(a) of the
     Jerry Byrom was appointed executor of the           Texas Constitution. However, [i]t has long been
estate of his mother, Ruby Renee Byrom. In June          decided that [the] homestead and exemption laws of
2005, Roy Anderson, the temporary guardian of            this State were never intended to be, and cannot be,
Mrs. Byrom's estate prior to her death, filed a          the haven of wrongfully obtained money or
$31,992.75 claim against her probate estate for          properties. Baucom v. Texam Oil Corp.,           423
temporary guardian's fees and attorney's fees.           S.W.2d 434, 442 (Tex. Civ. App         El Paso 1967,
Byrom rejected the claim. Byrom also filed an            writ ref'd n.r.e.).    [T]he homestead protection
inventory and appraisement of Mrs. Byrom's estate.       afforded by the Texas Constitution was never
Anderson objected to the inventory claiming that         intended to protect stolen funds.         Bransom v.
Byrom had omitted assets that existed at Mrs.            Standard Hardware, 874 S.W.2d 919, 928
Byrom's death.                                           (Tex.App.-Fort Worth 1994, writ denied).
     *2 Res judicata bars assertion of a claim in a      Therefore, the doctrine of res judicata bars the
later case when (1) there is a prior final               relitigation of Byrom's claims.
determination on the merits in a court of competent            Moreover, the record indicates that sometime
jurisdiction, (2) the parties in the second action are   during the course of the litigation, Byrom admitted
the same or in privity with those in the first action,   that, while executor, he paid for the construction of
and (3) the second action is based on the same           the home on the subject property with money from
claims as were raised or could have been raised in       his mother's estate. Byrom was removed as
the first action. Travelers Ins. Co. v. Joachim, 315     executor for misappropriation of funds and gross
S.W.3d 860, 862 (Tex.2010). Res judicata                 misconduct. Now, apparently, the estate has no
precludes the relitigation of claims that were finally   money to pay the claims against the estate. Byrom
adjudicated as well as related matters that, with the    wrongfully used the estate's money to construct the
use of diligence, should have been litigated in the      home he now claims as homestead. The homestead
prior suit. Barr v. Resolution Trust Corp., 837          law does not protect property or funds obtained
S.W.2d 627, 628 (Tex.1991). Texas follows the            with money misappropriated by a fiduciary.        See
transactional approach to res judicata barring claims    Baucom, 423 S.W.2d at 442; Bransom, 874 S.W.2d
arising out of the transaction or occurrence that is     at 928.
the subject matter of the first suit.    State & Cnty.
Mut Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696              Appellant's sole issue is overruled.
(Tex.2001).
                                                                           DISPOSITION
Discussion
                                                             The judgment of the trial court is affirmed.
     Byrom contends that the trial court erred in        Tex.App.-Tyler,2013.
imposing a constructive trust on property he claims
as homestead and in ordering the sale of that            In re Estate of Byrom
property. Byrom raised these same issues in the          Not Reported in S.W.3d, 2013 WL 3967432
prior proceeding between the same parties and            (Tex.App.-Tyler)
arising out of the same facts. This court ruled          END OF DOCUMENT
adversely to Appellant on both claims. See In re
Estate of Byrom, 2011 WL 590588, at * 7.
                     EXHIBIT E

First Amended Nunc Pro Tunc Order for Sale of Real Property and for
     Appointment of Receiver (“Cherokee County Order for Sale”)
              EXHIBIT F

Nunc Pro Tunc Order on Motion for Constructive Trust
          (“Order for Constructive Trust”)
    EXHIBIT G

Affidavit of Daisy “Dimple” Byrom
EXHIBIT H

Affidavit of Jerry Byrom
TEX. CONST. ART. XVI, § 50 (attached)
Vernon's Ann.Texas Const. Art. 16, § 50                                                                         Page 1




                                             Effective: November 6, 2007

Vernon's Texas Statutes and Codes Annotated Currentness

  Constitution of the State of Texas 1876 (Refs & Annos)
       Article XVI. General Provisions
            § 50. Homestead; protection from forced sale; mortgages, trust deeds and liens
(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

(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;


                      © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Vernon's Ann.Texas Const. Art. 16, § 50                                                                         Page 2



(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:

(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


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Vernon's Ann.Texas Const. Art. 16, § 50                                                                          Page 3


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;

(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;



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Vernon's Ann.Texas Const. Art. 16, § 50                                                                           Page 4


(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 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


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Vernon's Ann.Texas Const. Art. 16, § 50                                                                        Page 5


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.

(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


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Vernon's Ann.Texas Const. Art. 16, § 50                                       Page 6


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;

 (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


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Vernon's Ann.Texas Const. Art. 16, § 50                                          Page 7


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;

 (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;



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Vernon's Ann.Texas Const. Art. 16, § 50                                                                          Page 8


 (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.

 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.


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Vernon's Ann.Texas Const. Art. 16, § 50                                                                           Page 9



    <Text of subsec. (k) effective until approval of the constitutional amendment proposed by Acts 2013, 83rd
    Leg., S.J.R. No. 18, at the Nov. 5, 2013 election>

(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;

(4) under which advances are provided to a borrower based on the equity in a borrower's homestead;

(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; 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

(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


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Vernon's Ann.Texas Const. Art. 16, § 50                                                                        Page 10


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 owner of the homestead attests in writing that the owner received counseling
regarding the advisability and availability of reverse mortgages and other financial alternatives;

(9) that requires the lender, at the time the loan is made, to disclose to the borrower by written notice the specific
provisions contained in Subdivision (6) of this subsection under which the borrower is required to repay the
loan;

(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

(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.

    <Text of subsec. (k) effective upon approval of the constitutional amendment proposed by Acts 2013, 83rd
    Leg., S.J.R. No. 18, at the Nov. 5, 2013 election>

(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;

(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;



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Vernon's Ann.Texas Const. Art. 16, § 50                                                                          Page 11


(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

(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.


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Vernon's Ann.Texas Const. Art. 16, § 50                                       Page 12



 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

 (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:


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Vernon's Ann.Texas Const. Art. 16, § 50                                                                       Page 13



 (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

(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;



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Vernon's Ann.Texas Const. Art. 16, § 50                                                                        Page 14


(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

(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;


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Vernon's Ann.Texas Const. Art. 16, § 50                                                                         Page 15



(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.

(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



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


(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:

(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.

CREDIT(S)

Amended Nov. 6, 1973; Nov. 7, 1995; Nov. 4, 1997, eff. Jan. 1, 1998; Nov. 2, 1999; Nov. 6, 2001; Sept. 13,
2003; Nov. 8, 2005; Nov. 6, 2007.

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


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Vernon's Ann.Texas Const. Art. 16, § 50                                                                 Page 17


  became stagnate, money scarce, and credit unobtainable. Most Texans were in debt, and the young nation
  was in economic peril. The homestead 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.




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                              TEX. PROBATE CODE § 146(a)(3)

PAYMENT OF CLAIMS AND DELIVERY OF EXEMPTIONS AND ALLOWANCES

(a) Duty of the Independent Executor. An independent executor, in the administration of an estate,
independently of and without application to, or any action in or by the court:

(1) shall give the notices required under Sections 294 and 295;

(2) may give the notice permitted under Section 294(d) and bar a claim under that subsection;

(3) shall approve, classify, and pay, or reject, claims against the estate in the same order of
priority, classification, and proration prescribed in this Code; and

(4) shall set aside and deliver to those entitled thereto exempt property and allowances for
support, and allowances in lieu of exempt property, as prescribed in this Code, to the same extent
and result as if the independent executor's actions had been accomplished in, and under orders of,
the court.

(b) Secured Claims for Money. Within six months after the date letters are granted or within four
months after the date notice is received under Section 295, whichever is later, a creditor with a
claim for money secured by real or personal property of the estate must give notice to the
independent executor of the creditor's election to have the creditor's claim approved as a matured
secured claim to be paid in due course of administration. If the election is not made, the claim is a
preferred debt and lien against the specific property securing the indebtedness and shall be paid
according to the terms of the contract that secured the lien, and the claim may not be asserted
against other assets of the estate. The independent executor may pay the claim before the claim
matures if paying the claim before maturity is in the best interest of the estate.

(c) Liability of Independent Executor. An independent executor, in the administration of an estate,
may pay at any time and without personal liability a claim for money against the estate to the
extent approved and classified by the personal representative if:

(1) the claim is not barred by limitations; and

(2) at the time of payment, the independent executor reasonably believes the estate will have
sufficient assets to pay all claims against the estate.

(d) Notice Required of Unsecured Creditor. An unsecured creditor who has a claim for money
against an estate and receives a notice under Section 294(d) shall give notice to the independent
executor of the nature and amount of the claim not later than the 120th day after the date on which
the notice is received or the claim is barred.

(e) Placement of Notice. Notice required by Subsections (b) and (d) must be contained in:
(1) a written instrument that is hand-delivered with proof of receipt or mailed by certified mail,
return receipt requested, to the independent executor or the executor's attorney;

(2) a pleading filed in a lawsuit with respect to the claim; or

(3) a written instrument or pleading filed in the court in which the administration of the estate is
pending.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1957, 55th Leg., p. 53, ch.
31, Sec. 2(c), eff. Aug. 21, 1957; Acts 1995, 74th Leg., ch. 1054, Sec. 1, eff. Jan. 1, 1996; Acts
1997, 75th Leg., ch. 1302, Sec. 8, eff. Sept. 1, 1997.
                                 TEX. PROBATE CODE § 147


ENFORCEMENT OF CLAIMS BY SUIT

Any person having a debt or claim against the estate may enforce the payment of the same by suit
against the independent executor; and, when judgment is recovered against the independent
executor, the execution shall run against the estate of the decedent in the hands of the independent
executor which is subject to such debt. The independent executor shall not be required to plead to
any suit brought against him for money until after six months from the date that an independent
administration was created and the order appointing an independent executor was entered by the
county court.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1975, 64th Leg., p. 980,
ch. 376, Sec. 1, eff. June 19, 1975; Acts 1977, 65th Leg., p. 1064, ch. 390, Sec. 4, eff. Sept. 1,
1977.
