dissenting.
I disagree with the majority’s interpretation that the turnover statute gives the *152trial court power to order the “seizure” of an employee’s current or future paycheck to satisfy the employee’s judgment debt. The turnover statute, originally enacted by the legislature in 1979 as article 3827a and now codified as section 31.002 of the Texas Civil Practices and Remedies Code does not specifically set out anywhere in its provisions that “current wages” or paychecks representing such wages for personal services are subject to being seized in advance. I use the term “seized” because that in effect is the equivalent of what happens when a trial judge orders an employee debtor to turn over his paycheck or wages to a receiver or judgment creditor in advance.
For over one hundred years, the Texas Constitution has mandated that current wages for personal services are exempt from garnishment by judgment creditors. Tex. Const, art. XVI, § 28 (1876, amended 1983). (The 1983 amendment excluded court-ordered child support payments from the exemption). Current wages for personal services are also exempt from attachment, execution, and seizure for the satisfaction of debts under sections 42.001 and 42.002(8) of the Texas Property Code. The purpose of these constitutional and statutory mandates against garnishment and other forms of legal seizure is clear: to protect the employee in providing for his and his family’s current living expenses. Bell v. Indian Live-Stock Co., 11 S.W. 344, 346 (Tex.1889); Sloan v. Douglass, 713 S.W.2d 436, 440 (Tex.App.—Fort Worth 1986, no writ.).
I find nothing in the legislative history nor in the expressed purpose of the turnover statute to indicate that the legislature, by enacting this statute, intended to abrogate that constitutional protection. See Hittner, Texas Post-Judgment Turnover and Receivership Statutes, 45 Tex.B.J. 417, 418 (1982). Nor do I find anything therein to suggest that the legislature intended the turnover statute to empower the courts to do what they were previously prohibited from doing — ordering the advance seizure of an employee’s current wages. If the purpose of the constitutional provision was to protect the employee in providing for current expenses, and that purpose still exists, I am hard pressed to understand how an advance court-ordered seizure of such current wages differs significantly from a prohibited garnishment as to its effect on the employee in meeting his current living expenses. I have no sympathy for the judgment debtor who intentionally scorns payment of a money judgment ordered by a court, but neither am I sympathetic to judicially interpreting a statute in such a way as to avoid previous constitutional mandates, particularly when that statute is devoid of any such expressed intent.
If we judicially interpret a statute in such a way as to circumvent the effect of a clear constitutional mandate, we should do so with a statute that is either clear in its terms or specific in its purpose. This one is neither. In my opinion, it is outside our judicial prerogative to make a strained interpretation of the term “current wages” so as to emasculate the Constitution’s prohibition against taking an employee’s wages in advance. To make that kind of change, either the Constitution should be amended, as in the case of the child support amendment, or at the very minimum, the statute seeking such a significant change should be specific.
The turnover statute became law ten years ago. Yet only recently has it judicially been determined that its intent was to bring an employee’s current wages within reach of the judgment creditor. Buttles v. Navarro, 766 S.W.2d 893 (Tex.App.—San Antonio 1989, no writ); Cain v. Cain, 746 S.W.2d 861 (Tex.App.—El Paso 1988, writ, denied); Barlow v. Lane, 745 S.W.2d 451 (Tex.App.—Waco 1988, writ, denied); Salem v. American Bank of Commerce, 717 S.W.2d 948 (Tex.App.—El Paso 1986, no writ.). This judicial extension of the turnover statute has not been totally embraced by all the appellate courts which have considered it. See Maumus v. Lyons, 771 S.W.2d 191 (Tex.App.—Fort Worth 1989, no writ.); Davis v. Raborn, 754 S.W.2d 481 (Tex.App.—Houston [1st Dist.] 1988, writ, granted). The Supreme Court may finally clarify the law in its pending *153review of Davis v. Rabom. But as for me, on this issue at this time, I would reverse and render judgment that the appellee take nothing with regard to appellant’s wages.
Alternatively, if I am wrong with regard to the reach of the turnover statute, I would still reverse and remand this judgment as to the percentage of appellant’s wages ordered to be turned over to satisfy the judgment debt. I would find, based on the evidence submitted, the judge erred in ordering 90% of the appellant’s pay to be applied absent any specific findings that appellant would be able to meet his current living expenses on the remaining 10% of his salary. Under this alternative I would be applying the reasoning of Barlow v. Lane, because it comes closest to upholding the purpose behind the constitutional and statutory mandates against advance seizure of employees’ wages for debt satisfaction. While Barlow recognizes the turnover statute as being applicable to employee wages, it interprets the term “may” as used in the statute to allow judicial discretion in determining whether to grant or deny the relief based on the effect such a seizure would have on the employee’s ability to meet his or her current living expenses. Although, it should be pointed out that at least one authority challenges the Barlow discretionary approach on the grounds that once employee wages have been determined to be non exempt, the court has no authority to do anything other than order their being turned over to the judgment creditor. For the court to do otherwise, this authority reasons, would be for it to assume a legislative rather than a judicial role. See To-ben, and Toben, Using Turnover Relief to Reach the Nonexempt Paycheck, 40 Bay-LOR L.Rev. 195, 219, 220 (1988).
In any event, even under the Barlow approach, the case at hand demonstrates at best that a marginal process was used to determine that a turnover of 90% of appellant’s paycheck was an equitable remedy. A search of the record shows there are no children of appellant’s present marriage and that neither he nor his present wife have dependent children from prior marriages. The wife, a Certified Public Accountant, was gainfully employed, but the coürt sustained appellant’s objection to having her level of compensation introduced as evidence. Appellant testified he used his paycheck to partially feed, clothe and provide medical care for himself and his wife. There was other testimony that most of his compensation was being used to pay the mortgage on the farm in question and to buy feed for livestock. The findings of fact make no disclosure that a 10% wage retention by appellant will safely meet his family’s needs for food, shelter and clothing.
A better approach would have been to require all relevant issues on family finances be presented along with arguments for an equitable division of the paycheck, followed by a finding of fact by the court which would become the basis for the turnover order, if any, and the dollar amount or percentage of proceeds to be turned over directly to the creditor or a court-appointed receiver.
An additional point to be considered in future argument would be the community property interests of the spouse who is not a named party in the judgment sought to be enforced. It is rather basic law that the earnings of each spouse are subject to the community interests of the other spouse. Absent a partition and exchange, as allowed by Texas Constitution and the Family Code, all such earnings are community property owned one-half by each spouse. It may not be appropriate for the court to grant a turnover of more than one-half because of the property rights of the non-judgment debtor spouse. This issue was not addressed by us at this time because it was not presented, but I feel it should be addressed in trials involving petitions for the turnover of wages along with a more orderly and conscious examination of the ongoing living expenses of the wage earner-judgment debtor than was done in this case.