Norris v. Thomas

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 20, 2005

Charles R. Fulbruge III
No. 04-51215 Clerk
Summary Calendar

IN THE MATTER OF:

THOMAS EUGENE NORRIS, SR.
KAREN LYNN NORRIS
Debtors

____________________________

THOMAS EUGENE NORRIS, SR.
KAREN LYNN NORRIS
Appellants

v.

JOHNNY W. THOMAS, TRUSTEE
Appellee

Appeal from the United States District Court
for the Western District of Texas

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:

Debtor-appellants Thomas and Karen Norris challenge the

bankruptcy court’s holding that, under Texas law, their boat may

not be considered a homestead and is therefore not exempt from

creditors in bankruptcy. As this case presents a novel question of

Texas state law, which is dispositive of the entire case, we

respectfully certify the question to the Texas Supreme Court.
 CERTIFICATION FROM THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME
COURT OF TEXAS, PURSUANT TO THE TEXAS
CONSTITUTION ART. 5, 3-C AND RULE 58 OF THE
TEXAS RULES OF APPELLATE PROCEDURE

TO THE SUPREME COURT OF TEXAS AND THE HONORABLE JUSTICES THEREOF:

I. STYLE OF THE CASE

The style of the case in which certification is made is In re

Norris, or Norris v. Thomas, Case No. 04-51215 in the United States

Court of Appeals for the Fifth Circuit, on appeal from the United

States District Court for the Western District of Texas, San

Antonio Division, Norris v. Thomas, 316 B.R. 246 (W.D. Tex. 2004),

and the Bankruptcy Court, Western District of Texas, San Antonio

Division, No. 03-55095. Federal jurisdiction is based on a federal

question presented. The Fifth Circuit, on its own motion, has

decided to certify this question to the Justices of the Texas

Supreme Court.

II. STATEMENT OF THE CASE

In September 2003, debtor-appellants Thomas and Karen Norris

filed a voluntary petition for relief under Chapter 7 of the

Bankruptcy Code in the Bankruptcy Court, Western District of Texas,

indicating that their street address was 13909 Nacogdoches Road,

San Antonio, Texas. In the same petition, the Norrises claimed a

68-foot boat as exempt property under Article 16, §§ 50 and 51 of

the Texas Constitution (the “Homestead exemptions”) and Texas

Property Code §§ 41.001 and 41.002. The boat includes four

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bedrooms, three bathrooms, a galley, and an upper and lower salon.

Mr. Norris testified that he listed the San Antonio street address,

a business postal center, in the bankruptcy petition because he

receives his mail there, rather than at the marina in Corpus

Christi where his boat is moored. After selling his home in Lake

McQueeney, Texas in 2000, Mr. Norris had taken up permanent

residence on his boat.

The bankruptcy court denied the debtors’ claim for exemption,

holding that the Texas homestead exemption, even broadly construed,

does not include boats. The district court agreed that language in

the Texas statutes addressing homesteads indicates that the

legislature intended homesteads to include only estates in land and

improvements affixed to land. The court concluded that structures

unattached to land, such as a boat, even if used as a debtor’s

primary residence, are moveable chattels and do not fall within the

definition of homestead under Texas law.

III. LEGAL ISSUES

When a debtor selects state exemptions on filing a bankruptcy

petition under 11 U.S.C. § 522, the bankruptcy court must determine

exemption rights according to state law.1 “An exemption is an

interest withdrawn from the estate (and hence from the creditors)

for the benefit of the debtor.”2 The Texas Constitution provides

1
In re Nerios, 171 B.R. 224, 225 (Bankr. N.D. Tex. 1994).
2
Owen v. Owen, 500 U.S. 305, 308 (1991).

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for a homestead exemption but does not define the term other than

to limit a rural homestead to not more than two hundred acres of

land with the improvements thereon and urban homesteads to not more

than 10 acres together with improvements.3 The Texas Property Code

defines homestead as follows

(a) If used for the purposes of an urban home or as
both an urban home and a place to exercise a
calling or business, the homestead of a family or a
single, adult person, not otherwise entitled to a
homestead, shall consist of not more than 10 acres
of land which may be in one or more contiguous
lots, together with any improvements thereon.
(b) If used for the purposes of a rural home, the
homestead shall consist of:
(1) for a family, not more than 200 acres, which
may be in one or more parcels, with the
improvements thereon; or
(2) for a single, adult person, not otherwise
entitled to a homestead, not more than 100
acres, which may be in one or more parcels,
with the improvements thereon.
(c) A homestead is considered to be urban if, at
the time the designation is made, the property is:
(1) located within the limits of a municipality
or its extraterritorial jurisdiction or a
platted subdivision; and
(2) served by police protection, paid or
volunteer fire protection, and at least three
of the following services provided by a
municipality or under contract to a
municipality:
(A) electric;
(B) natural gas;
(C) sewer;
(D) storm sewer; and
(E) water.
(d) The definition of a homestead as provided in
this section applies to all homesteads in this
state whenever created.4

3
Tex. Const. Art. XVI §§ 50, 51.
4
Tex. Prop. Code Ann. § 41.002.

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The Texas Tax Code, however, defines a homestead as a structure

used as an individual’s or family’s residence, together with the

land, if the structure and land have identical ownership.5

In Texas, homesteads are “favorites of the law,” so we must

“give a liberal construction to the constitutional and statutory

provisions that protect homestead exemptions.”6 “Indeed, we must

uphold and enforce the Texas homestead laws even though in so doing

we might unwittingly assist a dishonest debtor in wrongfully

defeating his creditor.”7 Historically, however, the purpose of

the Texas homestead exemptions, “both urban and rural, has been to

protect not only the home, but also the property that enables the

head of the household to support the family.”8

In this case, we have been asked to resolve whether a debtor

may claim a homestead exemption in a motorboat without any

accompanying interest in real property, i.e., whether a debtor may

claim a homestead exemption in personal property. In Cullers v.

5
Tex. Tax Code Ann. § 11.13 (j).
6
In re Bradley, 960 F.2d 502, 507 (5th Cir. 1992). See also
Perry v. Dearing, 345 F.3d 303, 316 (5th Cir. 2003)(“Homesteads
are favorites of the law, and are liberally construed by Texas
courts.”).
7
Id.
8
Perry, 345 F.3d at 317 (emphasis added). See also Houston
& Great N.R.R. Co. v. Winter, 44 Tex. 597, 611 (Tex.
1876)(stating that the rural homestead exemption aims to protect
the farm, mill, gin, tanyard, or whatever else had been used in
connection with the residence to provide a living and support the
family).

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James,9 the Supreme Court of Texas stated that a house standing on

land not owned or leased by a family is a chattel but may qualify

as a homestead under the Texas constitution.10 Although this

statement appears to endorse the debtors’ argument that the

homestead exemption includes personal property used as a home

without regard to whether it is attached to or situated on land,

such an argument was rejected by a Texas appellate court when it

determined that mobile homes do not qualify for the homestead

exemption without an accompanying interest in the real property to

which they are affixed.11 The Gann court expressed doubt whether

in Cullers the Supreme Court of Texas intended to expand the

9
1 S.W. 314 (Tex. 1886).
10
1 S.W. at 315. See also Kelly v. Nowlin, 227 S.W. 373,
375 (Tex. Civ. App. 1921)(“[T]he Supreme Court held that a
homestead right may attach to the building alone when occupied as
a residence. But that rule applies when the building is mere
personalty, and not a fixture forming a part of the realty, as
when the land is owned by one party and the house by
another.”)(citing Cullers, 1 S.W. at 315).
11
See Gann v. Montgomery, 210 S.W.2d 255, 259 (Tex. Civ.
App. —— Fort Worth 1948, writ ref’d n.r.e.)(“[T]o be exempt as
part of the homestead, [mobile homes] must be part of the exempt
realty.”). See also Minnehoma Financial Co. v. Ditto, 566 S.W.2d
354, 357 (Tex. Civ. App. —— Fort Worth 1978, writ ref’d
n.r.e)(“If a mobile home is attached in such a manner [indicating
an intention that it be a permanent part of the real estate] to a
homestead, it is entitled to homestead protection.”)(citations
omitted); Capitol Aggregates, Inc. v. Walker, 448 S.W.2d 830, 835
(Tex. Civ. App. —— Austin 1969, writ ref’d n.r.e)(“All
homesteads, excluding the land, consist of an aggregation of
chattels. It is their attachment to realty which gives them
homestead character.”); Clark v. Vitz, 190 S.W.2d 736, 738 (Tex.
Civ. App. —— Dallas 1945, writ ref’d)(approving use of homestead
exemption for mobile trailer affixed to debtor’s “homestead lot”
and used as an extension of family’s brick house).

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homestead exemption to include personal property not affixed to

land and noted that Cullers only considered the homestead status of

structures that were “without doubt a house, or a building of the

kind and character which would uniformly have been declared to be

a permanent fixture attached to the realty.”12

Several bankruptcy courts sitting in other jurisdictions and

applying the laws of other states have found in favor of debtors

claiming homestead exemptions in boats on which they resided. Some

of those courts have done so by relying on statutes that expressly

allow for an exemption in “personal property”13 or “mobile homes or

similar dwellings.”14 Others have relied on liberal construction

of homestead exemption statutes, reasoning that, for example, boat

dock slips are real estate to which debtors have a title, therefore

entitling their houseboats to exemptions;15 that the primary

question is not whether a home is affixed to land but whether, on

the petition date, the debtor was using a boat as his only

12
Gann, 210 S.W.2d at 260. See Cullers, 1 S.W. at 315
(holding that a mill and gin could be considered part of an
exempt homestead if they were part of the “exempt realty.”).
13
In re Ross, 210 B.R. 320, 323 (Bankr. N.D. Ill. 1997); In
re Herd, 176 B.R. 312, 313-14 (Bankr. D. Conn. 1994); In re
McMahon, 60 B.R. 632, 634 (Bankr. W.D. Ky. 1986).
14
In re Scudder, 97 B.R. 617, 618-19 (Bankr. S.D. Ala.
1989)(allowing a houseboat to be claimed under Alabama’s
homestead exemption statute, which provides for exemptions of
“mobile home[s] or similar dwelling[s].”)
15
In re McMahon, 60 B.R. at 634.

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residence;16 or, in the case of the cab of a semi-tractor truck, a

debtor’s intent to use such a structure as his residence.17 In

contrast, other courts have construed state statutes narrowly, as

the bankruptcy and district courts did in this case, noting that

the statute at issue did not include exemptions for personal

property, waterborne vessels, or “mobile homes or similar

dwellings.”18

Given this tension between, on the one hand, the above-quoted

language in the Texas Constitution and Property Code and in other

Texas Supreme Court opinions referring to the homestead estate as

“an estate in land,”19 and, on the other hand, our duty to construe

the Texas homestead exemption broadly and the novelty of the

question presented, we are reluctant to be the first court to

decide this public policy-bound state law issue. We therefore

respectfully request that the Texas Supreme Court address and

16
In re Mead, 255 B.R. 80, 84-85 (Bankr. S.D. Fla. 2000).
17
In re Laube, 152 B.R. 260, 262-63 (Bankr. W.D. Wis.
1993)(holding operable semitruck cab used by professional driver
as homestead despite statute’s description of “dwelling” as “a
building, condominium, mobile home, house trailer, or
cooperative.”)(citation omitted).
18
In re Kiedaisch, Bk. No. 95-11726-MWV, 1996 LEXIS 1977 at
*8-9 (Bankr. D.N.H. Apr. 22, 1996). See also In re Hacker, 260
B.R. 542, 547-48 (Bankr. M.D. Fla. 2000)(holding that a debtor’s
boat was a movable chattel, not a permanent residence entitled to
homestead exemption).
19
Laster v. First Huntsville Props. Co., 826 S.W.2d 125,
129 (Tex. 1991); Woods v. Alvarado State Bank, 19 S.W.2d 35, 37-
38 (Tex. 1929).

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 answer the question that we certify below.

IV. QUESTION CERTIFIED

Does a motorized waterborne vessel, used as a primary

residence and otherwise fulfilling all of the requirements of a

homestead except attachment to land, qualify for the homestead

exemption under Article 16, §§ 50 and 51 of the Texas Constitution?

We disclaim any intention or desire that the Supreme Court of

Texas confine its reply to the precise form or scope of the question

certified. The answer provided by the Supreme Court of Texas will

determine the issue on appeal in this case. The record of this case,

together with copies of the parties’ briefs, is transmitted herewith.

QUESTION CERTIFIED.

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