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 © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 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; © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 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 © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 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 © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 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 © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 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; © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 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. © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. Vernon's Ann.Texas Const. Art. 16, § 50 Page 9 (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 © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 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. (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; © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 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. © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 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: © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 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; © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 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; © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 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 © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 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 © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 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. © 2013 Thomson Reuters. No Claim to Orig. US Gov. Works. 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.