Santibanez v. Wier McMahon & Co.

United States Court of Appeals,

Fifth Circuit.

No. 95-20312.

Alfredo L. SANTIBANEZ, M.D.; Guadalupe G. Santibanez; Latin American Medical and
Surgical Clinic, P.A., Plaintiffs-Appellees,

v.

WIER McMAHON & CO., et al., Defendants,

Billy M. Thompson, Defendant-Appellant.

Feb. 12, 1997.

Appeal from the United States District Court for the Southern District of Texas.

Before BENAVIDES, STEWART and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

In this case, Defendant-Appellant Billy M. Thompson, a judgment debtor, appeals from the

District Court's "turnover" order requiring him to describe and value all his assets; claim exemptions

by stating the character of the exempt property and the legal basis for each exemption; and deliver

to a receiver his nonexempt assets. Thompson also appeals from the District Court's order holding

him in contempt for failure to comply with the court's decree. The orders appealed from arose from

actions by the Plaintiffs-Appellees as judgment creditors to enforce a money judgment against

Thompson for damage caused them by Thompson's fraud and breach of fiduciary duties violative of

the Employee Retirement Income Security Act ("ERISA"). 29 U.S.C. §§ 1001, et seq. We affirm,

holding that: (1) we have jurisdiction of the appeal, and (2) the trial court had jurisdiction to hold

defendant in contempt. Further, we conclude that the trial court did not abuse its discretion in

determining that: (3) plaintiffs proved that defendant owned or controlled present or future rights

to property; (4) defendant failed to carry his burden of pleading and producing evidence to show that

his property was exempt from seizure; and, (5) defendant intentionally and willfully refused to

comply with the court's order and placed himself in contempt of court.

Facts and Proceedings Below

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 The District Court, after a bench trial, rendered a judgment in favor of the Plaintiffs-

Appellees, Alfredo L. Santibanez, Guadalupe G. Santibanez, and the Latin American Medical and

Surgical Clinic, P.A. (collectively: "Santibanez"), on July 14, 1994, against Billy M. Thompson and

others for the principal sum of $618,881.36. The judgment was based on the District Court's findings

that Thompson and other defendants had caused Santibanez financial losses by their ERISA violations

involving fraud and breaches of fiduciary duties.

Seven months later on February 23, 1995, Santibanez, claiming to have been frustrated in

attempts to collect on the judgment, applied to the District Court for post-judgment relief.

Santibanez asserted that garnishment had netted only $42.36 and t hat Thompson held nonexempt

property which could not be obtained through ordinary legal means. Following a hearing on April

3, 1995, at which Thompson was represented by co unsel but did not personally appear, the court

issued a "turnover" order on April 7 requiring Thompson to describe and value his assets, classify

each asset as exempt or nonexempt, and give the legal basis for each exemption by April 11. The

court also appointed a receiver to take possession and sell the nonexempt assets.

Thompson failed to meet the April 11 deadline and indicated through his attorney, in a letter

to the receiver, that he considered the court's order "unenforceable." On June 14, 1995, the receiver

moved the court to hold Thompson in contempt for violating the court's order. The court directed

the receiver to submit a report by October 23 compiling evidence of the alleged violations of the April

7 order. On October 23, the receiver filed a report which delineated numerous violations of the

order, including: failure to provide information and failure to adequately describe and disclose the

location of assets; additionally, it alleged that Thompson had transferred assets to circumvent the

court's order. Thompson filed a written response to the report simply denying all allegations.

On October 30, a n to hold Thompson in contempt or to impose other sanctions. Thompson

was present, represented by retained counsel, and was afforded an opportunity to testify, present

evidence, and cross-examine the receiver. Thompson and his attorney did not take advantage of this

opportunity but chose to present only argument by counsel. In the absence of any evidentiary

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showing by Thompson, the court accepted the receiver's presentation as establishing t at the
h

judgment debtor owned or controlled substantial nonexempt property that he had concealed;

deliberately failed to describe, value, or turn over; and/or, fraudulently transferred. Based on these

findings, the court held Thompson in contempt for willfully refusing to comply with the court's order,

sentenced him to 30 days in jail, and ordered that he be incarcerated indefinitely pending his full

compliance.

Discussion

Thompson appealed and makes a number of arguments questioning the validity of both the

"turnover" order and the subsequent finding of contempt. Santibanez argues that this court lacks

jurisdiction to entertain Thompson's appeal. We conclude that both parties' arguments are without

merit.

1.

Santibanez contends that we do not have jurisdiction of Thompson's appeal from the

"turnover" decree because it is not a final judgment. However, the courts of appeals have jurisdiction

of appeals from "[i]nterlocutory orders appointing receivers, or refusing orders to wind up

receiverships or to take steps to accomplish the purposes thereof, such as di recting sales or other

disposals of property." 28 U.S.C. § 1292(a)(2). In its decree, the court appointed a receiver to, inter

alia, "take possession of and sell the non-exempt assets of [Thompson] to apply the proceeds to the

judgment...." Consequently, because the order appointed a receiver and directed the sale and disposal

of property, it is appealable. Resolution Trust Corp. v. Smith, 53 F.3d 72, 77 n. 2 (5th Cir.1995);

7 James Moore et al., Moore's Federal Practice ¶ 66.04[3](2d. ed.1996)(citing Gulf Refining Co. v.

Vincent Oil Co., 185 F. 87 (5th Cir.1911)).

2.

Thompson argues that the contempt order is invalid because the District Court lost

jurisdiction over enforcement of its judgment when Thompson appealed. This argument is without

merit. A district court has continuing jurisdiction in support of its judgment, R.T.C. v. Smith, 53 F.3d

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at 76, and "[u]ntil the judgment has been properly stayed or superseded, the district court may

enforce it through contempt sanctions." Id. (quoting Alberti v. Klevenhagen, 46 F.3d 1347, 1358

(5th Cir.1995)(quoting United States v. Revie, 834 F.2d 1198, 1205 (5th Cir.1987), cert. denied, 487

U.S. 1205, 108 S.Ct. 2845, 101 L.Ed.2d 882 (1988)))(internal quotations omitted).

3. and 4.

Thompson contends in interrelated arguments that the District Court erred in entering the

"turnover" order of April 7, 1995, because: (i) there was no evidence that he owned property on that

date that was not exempt from attachment and which could not readily be attached; and, (ii) it

required him to turn over to the receiver commissions and earnings which were exempt. The

arguments are without merit.

The Texas "Turnover" Statute, Tex. Civ. Prac. & Rem.Code Ann. § 31.002, in pertinent part,

provides:

(a) A judgment creditor is entitled to aid from a court of appropriate jurisdiction through
injunction or other means in order to reach property to obtain satisfaction on the judgment
if the judgment debtor owns property, including present or future rights to property, that:

(1) cannot readily be attached or levied on by ordinary legal process; and

(2) is not exempt from attachment, execution, or seizure for the satisfaction of
liabilities.

(b) The court may:

(1) order the judgment debtor to turn over nonexempt property that is in the debtor's
possession or is subject to the debtor's control, together with all documents or records
related to the property, to a designated sheriff or constable for execution;

***

(3) appoint a receiver with the authority to take possession of the nonexempt
property, sell it, and pay the proceeds to the judgment creditor to the extent required
to satisfy the judgment.

The statute is the procedural device " "by which judgment creditors may reach assets of a

debtor that are otherwise difficult to attach or levy on by ordinary legal process.' " R.T.C. v. Smith,

53 F.3d at 77 (quoting Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 224 (Tex.1991)). It allows

the court to reach assets owned and subject to the control of a judgment debtor, even if those assets

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are in the hands of a third party. Norsul Oil & Mining Ltd. v. Commercial Equip. Leasing Co., 703

S.W.2d 345, 349 (Tex.Ct.App.1985). A trial court's judgment as to whether issuance of a turnover

order was justified is reviewed under an abuse of discretion standard and may be reversed only if the

court has acted in an unreasonable or arbitrary manner. Beaumont Bank, N.A. v. Buller, 806 S.W.2d

223, 226 (Tex.1991). A turnover order, even if "predicated on an erroneous conclusion of law, will

not be reversed for abuse of discretion if the judgment is sustainable for any reason." Id. (citing

Buttles v. Navarro, 766 S.W.2d 893, 894-95 (Tex.Ct.App.1989)).

There does not appear to be any Texas statute specifically providing standards for pleadings

and proof in claiming property to be exempt from levy or execution. In general, a debtor, although

not bound by technical pleading requirements, must allege or make known tangible facts necessary

to show that a particular asset falls within a statutorily exempt classification. E.g., Schuler v.

Langdon, 433 N.E.2d 841 (Ind.Ct.App.1982); State ex rel. Bartol v. Justice of Peace Court, 102

Mont. 1, 55 P.2d 691 (1936); Bradley v. Earle, 22 N.D. 139, 132 N.W. 660 (1911). The "mere

statement that the property is exempt is but a conclusion of law and unavailing." State ex rel. Bartol,

55 P.2d at 692 (citing Paulson v. Nunan, 64 Cal. 290, 30 P. 845 (1883)).

The Texas courts' approval of these pleading requirements is implied by their adoption of the

general rule that the party who claims or alleges that property is exempt has the burden of producing

evidence to show facts establishing the applicability of the statutory exemption. Roosth v. Roosth,

889 S.W.2d 445 (Tex.Ct.App.1994); Jacobs v. Adams, 874 S.W.2d 166 (Tex.Ct.App.1994); Watts

v. Gibson, 33 S.W.2d 777 (Tex.Ct.App.1930); see also Dale v. Finance America Corp., 929 S.W.2d

495 (Tex.Ct.App.1996); Rucker v. Rucker, 810 S.W.2d 793 (Tex.Ct.App.1991).

The court in Roosth did not depart from these principles, although at one point it broadly

stated that "not all exemptions require proof." Roosth, 889 S.W.2d at 459. The Roosth court

recognized that a party asserting an exemption bears the burden of establishing entitlement to the

exemption and reject ed the debtor's argument that a post-judgment creditor must prove the

non-existence of an exemption. Id. & n. 4. The debtor claimed an exemption for life insurance

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policies, and it was clear, from either the face of the parties' pleadings or evidence of the policies

themse the debtor was not relieved of his obligations to plead facts and produce evidence that showed

that the particular assets in question fell within an exempt statutory class.

Thompson argues that the creditor has the burden of proving that the property is nonexempt,

relying on Brink v. Ayre, 855 S.W.2d 44 (Tex.Ct.App.1993), and Sloan v. Douglass, 713 S.W.2d 436

(Tex.Ct.App.1986). However, this court applies the latest and most authoritative expression of state

law applicable to the facts of a case. See Lamarque v. Mass. Indem. & Life Ins. Co., 794 F.2d 194,

196 (5th Cir.1986). Accordingly, we conclude that the general rule set forth in Jacobs, Watts, Dale,

Rucker, and Roosth, that the party who claims the exemption has the burden of proof, is applicable

to this action.

Santibanez made a sufficient showing that Thompson owned or controlled present or future

rights to property to warrant the District Court's exercise of its discretion to issue the "turnover"

order. Santibanez applied to the court for relief alleging, inter alia, that:

3. Applicants have reason to believe and do believe based on post-judgment interrogatories,
deposition of Thompson's assistant, Lisa LaBaff, and investigation that Respondents own
non-exempt property as follows:

(1) accounts receivable for insurance commissions and renewal commissions for the
prior sale of life, disability and annuity products;

(2) diamond Rolex watch;

(3) gun collection;

(4) antique firearms;

(5) coin collection;

(6) men's jewelry;

(7) stamp collection; and

(8) stock in Billy M. Thompson, P.C.

4. Respondents own non-exempt personal property of a nature and type which cannot be
attached or executed upon by ordinary legal means to satisfy the judgment. Applicants have
attempted to garnish renewal commissions, but have been able to reach only $42.36 in the
possession of Texas Life Insurance Company at the time of garnishment. Due to the
recurring nature of renewal commission payments, garnishment is not an effective means of

6
 satisfying the judgment. In addition, Lisa LaBaff, Mr. Thompson's assistant, has testified in
her deposition that a bank account was opened in the name of Mac Consulting, Inc. and used
to process commission payments and pay Mr. Thompson's living expenses. The account was
opened on or about July 10, 1994, less than two weeks after the Court rendered its judgment
against Respondents, as shown on attached Exhibit "1". That account is outside of the reach
of garnishment on this judgment. Execution upon the personal property of Respondents has
been made impractical by Respondents' absence or avoidance of service of process as shown
by the U.S. Marshal's affidavit attached hereto as Exhibit "2" and to the Motion for
Substituted Service filed in this case.

The exhibits attached to the application, a copy of a bank statement for Mac Consulting, Inc. and an

affidavit of a United States Marshal who attempted to serve a writ of execution on Thompson, tend

to corroborate the indicated allegations.

The same District Court Judge who presided over the April 3, 1995, hearing also presided

over the trial that resulted in the judgment that is the subject of the present proceedings. After that

trial, the judge made oral findings that Thompson was an insurance agent and that he was going to

receive, because of his ERISA fraud and breach of fiduciary duties, in excess of $118,000 in

commissions, plus any bonuses and overrides that might result from the renewal of these premiums.

R.Vol.9, pp. 7-8. The trial judge was entitled to take judicial notice in the present case of the

evidence that he had heard and the findings that he had made as part of the trial over which he

presided. Fed.R.Evid. 201(b). See MacMillan Bloedel Ltd. v. Flintkote Co., 760 F.2d 580, 587 (5th

Cir.1985)(citing In Matter of Missionary Baptist Foundation of America, 712 F.2d 206, 211 (5th

Cir.1983); State of Florida Board of Trustees of the Internal Improvement Trust Fund v. Charley

Toppino and Sons, Inc., 514 F.2d 700, 704 (5th Cir.1975)).

Considering the evidence available to the District Court, we cannot say that it abused its

discretion in determining that there was a sufficient factual basis to warrant allowing the judgment

creditor to invoke supplementary proceedings in this case. See, e.g., Jacobs, 874 S.W.2d at 167-68

(Debtor admitted in answer to interrogatory to owning accounts receivable but refused to disclose

amounts, sources, or locations); Childre v. Great Southwest Life Ins. Co., 700 S.W.2d 284, 288

(Tex.Ct.App.1985)(Corporate officer testified judgment debtor was the record owner of stock);

Arndt v. Nat'l Supply Co., 650 S.W.2d 547, 549 (Tex.Ct.App.1983)(Creditor testified debtor's 1976

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financial statement reflected stock and accounts receivable ownership and debtor twice failed to

appear for depositions); cf. Beaumont Bank, 806 S.W.2d at 226 (Once assets are traced to a holder

of property of a judgment debtor, the holder is presumed to possess the entire amount and has the

burden to show lack of possession of all or part); Hennigan v. Hennigan, 666 S.W.2d 322, 324

(Tex.Ct.App.1984)(Husband's testimony that he did not intend to pay former wife's attorney's fees

voluntarily and refusal to attend depositions established that his assets were not readily attachable).

Thompson failed to plead specific facts or produce evidence showing that he is entitled to an

exemption of any asset or property. In answer to Santibanez's application for relief, he filed a

response in which he "denies any [sic] the existence of non-exempt property designated in paragraph

3, As it relates to item 1 in paragraph 3. Any such commissions would be considered wages in

accordance with Tex. Civ. Prac. & Rem.Code 31.0025." Thompson produced no evidence of

concrete facts showing that any particular asset fell within an exempt statutory classification. He

failed to appear at depositions or to present any evidence at the hearing in this respect. He was

represented by counsel at the hearing who presented only oral argument and no sworn testimony.

On appeal, Thompson attempts to argue, without any support of allegations or proof of

specific facts in the record, that he is entitled to exemptions for wages and/or commissions under the

Texas Property Code and the Texas constitution.ege and prove concrete facts showing that he was

receiving current wages for personal services from a particular person with whom he had an

employer/employee relationship. See Tex. Const. art. XVI, sec. 28; Brasher v. Carnation Co., 92

S.W.2d 573 (Tex.Ct.App.1936); see also Tex. Prop.Code Ann. 42.001 (Vernon Supp.1997);

DeVore v. Central Bank & Trust, 908 S.W.2d 605 (Tex.Ct.App.1995). The record does not contain

any such allegation, evidence, or proof.

To be entitled to the commissions exemption, Thompson was required to allege and prove

specific facts to show that he was due unpaid commissions of disclosed amounts for described

personal services and to demonstrate the aggregate fair market value o f his exempt assets and

whether he is providing for a family or is a single adult who is not a member of a family. Tex.

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Prop.Code. Ann. 42.001 (Vernon Supp.1997). Thompson did not allege or prove any of these

factors necessary to a determination of entitlement to an exemption of commissions in the District

Court. Consequently, Thompson's arguments are wholly without merit.

Moreover, the District Court had the power to appoint a receiver to take possession of the

judgment debtor's property for preservation under Federal Rule of Civil Procedure 66. Under that

rule, the appointment of a receiver can be sought "by anyone showing an interest in certain property

or a relation to the party in control or ownership thereof such as to justify conservation of the

property by a court officer." 7 Moore et al., ¶ 66.05[1]. The appointment is in the sound discretion

of the court. Id. Similarly, "the form and quantum of evidence required on a motion requesting the

appo intment of a receiver is a matter of judicial discretion." 12 Charles A. Wright & Arthur R.

Miller, Federal Practice and Procedure § 2983 (1973)(citing authorities). Courts have held that

receivers may be appointed "to preserve property pending final determination of its distributioet al.,

¶ 66.05[1] (citing Haase v. Chapman, 308 F.Supp. 399 (W.D.Mo.1969)). In addition, "receivership

may be an appropriate remedy for a judgment creditor who seeks to set aside allegedly fraudulent

conveyances by the judgment debtor, or who has had execution issued and returned unsatisfied, or

who proceeds through supplementary proceedings pursuant to Rul e 69, or who seeks to subject

equitable assets to the payment of his judgment, or who otherwise is attempting to have the debtor's

property preserved from dissipation until his claim can be satisfied." 12 Wright & Miller, § 2983

(citing Pusey & Jones Co. v. Hanssen, 261 U.S. 491, 43 S.Ct. 454, 67 L.Ed. 763 (1923))(footnotes

and citations omitted). Factors that courts have considered as indicating the need for a receivership

include the following: "a valid claim by the party seeking the appointment; the probability that

fraudulent conduct has occurred or will occur to frustrate that claim; imminent danger that property

will be concealed, lost, or diminished in value; inadequacy of legal remedies; lack of a less drastic

equitable remedy; and likelihood that appointing the receiver will do more good than harm."

Aviation Supply Corp. v. R.S.B.I. Aerospace, Inc., 999 F.2d 314, 316-17 (8th Cir.1993). In an action

"where the appointment of a receiver is sought at the commencement thereof, ... [t]he decision will

9
be made on the basis of the moving papers and such answers, affidavits in apposition, or

counter-affidavits as may be offered, and also on the testimony of witnesses in open court if the court

deems such a hearing advisable." 7 Moore et al., ¶ 66.04[1] (citing Haase v. Chapman, supra;

United States v. O'Connor, 291 F.2d 520 (2d Cir.1961)).

Consequently, we conclude that the District Court did not abuse its discretion in finding that

Thompson owned or controlled present or future rights to property and that Thompson failed to carry

his burden to allege and prove that he was entitled to specific exemptions for particular assets.

5.

Thompson makes several arguments urging reversal of the civil portion of his contempt

order. None of them have reversible merit. On October 23, 1995, prior to the hearing on contempt,

the receiver submitted a report to the court documenting Thompson's alleged failure to obey the

court's April 7 order. The report, bolstered by twelve exhibits, outlines a list of violations including:

failure to turn over property, fraudulent transfers of money, interference with the collection of

commissions, inconsistent and incomplete deposition testimony by Thompson, and inadequate

compliance with requests for information. The exhibits include: affidavits, deposition transcripts,

letters from insurance companies affiliated with Thompson, and deposit slips and canceled checks

signed by Thompson. Thompson merely denied the allegations in a written response filed October

30 and offered no supporting evidence. In the hearing held the same day, the receiver appeared and

further explained his findings to the court. Thompson did not attempt to call the receiver to the stand

or cross-examine him. Thompson did not seek to test the evidence upon which the receiver's report

was based. Although Thompson was present, he did not testify. Instead, his attorney merely

presented oral argument. The court's order of contempt, entered the next day, adopted the receiver's

report and sentenced Thompson to 30 days in jail for past violations and required him to remain there

until full compliance occurs.

We note that federal courts are prevented from imprisoning a party for contempt when doing

so would conflict with the state's prohibition of debt imprisonment. 28 U.S.C. § 2007(a). See Tex.

10
Const. art. I, sec. 18. On analogous facts, a Texas court applying the constitutional provision to the

turnover statute held that the defense is unavailable "unless the contemner demonstrates inability to

pay." Ex Parte Buller, 834 S.W.2d 622, 626 (Tex.Ct.App.1992)(internal quotations omitted); s, 779

F.2d 302 (5th Cir.1986). Buller is evidently the latest and most authoritative expression of state law

applicable to the facts of the present case. Thompson did not demonstrate his inability to pay.

Relying on Texas cases, Thompson argues that: (1) civil contempt is only available for willful

disobedience and that there was no evidence of such; (2) he was deprived of the right to confront

witnesses; (3) the contempt order did not spell out how the prior order was violated; and, (4) the

turnover order requires Thompson to produce wages which are exempt under Texas law.

Thompson's first assertion has no basis in fact. There was ample evidence of willful

disobedience presented with the receiver's report. Thompson was free to call the receiver to the stand

and cross-examine him as to the documentary evidence attached to his report. Thompson also could

have testified, called witnesses, and presented evidence to explain his failure to comply and to

establish his entitlement to exemptions.

By claiming that he was deprived of his right to confront witnesses, Thompson invokes the

Confrontation Clause of the Sixth Amendment. However, the protections of the Sixth Amendment

extend only to criminal proceedings. See United States v. Zucker, 161 U.S. 475, 16 S.Ct. 641, 40

L.Ed. 777 (1896). Thompson contests only the civil portion of the contempt order, and thus we find

that Sixth Amendment considerations do not apply.

The 30-day jail sentence, although arguably a criminal contempt for past conduct, is not

before us because Thompson did not appeal that portion of the order. On the other hand, the

contempt resulting in an indefinite sentence is a "paradigmatic coercive, civil contempt sanction" to

which Thompson " "carries t he keys of his prison in his own pocket.' " United Mine Workers of

America v. Bagwell, 512 U.S. 821, ---- - ----, 114 S.Ct. 2552, 2557-58, 129 L.Ed.2d 642

(1994)(quoting Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 442, 31 S.Ct. 492, 498, 55

L.Ed. 797 (1911)). Although a contempt which occurs outside the court's presence is sometimes

11
granted greater procedural protection, when it "involv[es] discrete, readily ascertainable acts, such

as turning over a key or payment of a judgment," civil procedural safeguards are sufficient. Id. at ----,

114 S.Ct. at 2560.

Third, alt hough Texas courts have made it clear that a contemner must be told in the

judgment "the exact nature of his violation," the purpose of this requirement is to assure that the party

"know what steps are required to purge himself so as to be released from jail." Ex Parte McClain,

762 S.W.2d 238, 240 (Tex.Ct.App.1988); see also Ex parte Proctor, 398 S.W.2d 917 (Tex.1966).

The district court's order meets this requirement by providing that Thompson is being held in

contempt for avoiding the court's turnover order and that to secure his freedom, he must fully comply

with it.

Thompson's claim that the order requires the production of exempt property is misplaced.

His bare allegation that the court is requiring him to produce "wages" does not prove entitlement to

an exemption and thus does not relieve Thompson of his duty to comply with the turnover order.

Finally, Thompson makes two baseless arguments. He claims that no motion for contempt

was filed. This is incorrect. A motion for sanctions was filed in the District Court on June 14, 1995,

and it requested that Thompson be held in contempt. He also incorrectly claims that he was never

given an opportunity to explain his actions. Thompson filed a written response to the receiver's

report in which he denied the allegations without providing any explanation. At the hearing,

Thompson, acting on advice of counsel, refused to testify or otherwise respond to any of the findings

contained in the receiver's report.

We review the District Court's contempt order for an abuse of discretion. Martin v. Trinity

Indus., Inc., 959 F.2d 45, 46 (5th Cir.1992)(citing United States v. Sorrells, 877 F.2d 346, 348 (5th

Cir.1989)). Given the det ailed violations itemized by the receiver's report, the exhibits and

documentary evidence attached, and the refusal by Thompson to present evidence or explanation in

his defense, we conclude that the District Court did not abuse itnd willfully refusing to comply with

the turnover order.

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 Conclusion

For the foregoing reasons, the district court's turnover and contempt orders are AFFIRMED.

BENAVIDES, Circuit Judge, concurring:

While I agree with the majority's disposition of the instant case, I write separately to

emphasize the recalcitrant behavior of the appellant and his utter failure, despite multiple

opportunities, to provide the district court with any legal or factual support for the claim that his

commissions were exempt from the court's turnover order pursuant to state law.

The Texas Property Code explicitly addresses the collection of unpaid commission payments

and provides: "Unpaid commissions for personal services not to exceed 25% of the aggregate

limitations prescribed by Subsection (a) are exempt from seizure and are included in the aggregate."

TEX. PROP. CODE § 42.001(d) (Vernon Supp.1997). Subsection (a), in turn, provides that the

personal property exemption has an aggregate limit of $60,000 in fair market value for a family and

$30,000 in fair market value for a single adult. See id. § 42.001(a). In combination, these provisions

make clear that some, but not all, commissions are exempt from seizure pursuant to Texas law.

Whether and to what extent a particular commission payment is exempt under the statute turns on

the amount of the commission and the familial status of the individual claiming the exemption.

Despite a potentially meritorious legal claim under Texas law, the appellant failed to provide

any information in response to the district court's April 11 deadline, arguing instead that the court's

turnover order was unenforceable. Similarly, the appellant failed to provide any evidentiary support

for his position at the October 30 contempt hearing, relying on his counsel's argument that "[a]ny

commissions would be considered wages in accordance with Texas Civil Practice and Remedies Code

§ 31.0025." Never did the appellant refer the district court to the relevant statutory provision. Nor

did he provide any affirmative evidence regarding his familial status or the amounts of the accounts

receivable on his commissions. Under thess discretion in concluding that the appellant failed to

establish that his commissions were exempt from seizure under Texas law.

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