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
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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.
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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.
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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
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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
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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.
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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
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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
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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
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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.
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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])
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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.
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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.))
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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
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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
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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
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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).
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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.)
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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.
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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.
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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.
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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
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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
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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
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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).
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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
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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
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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
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Vernon's Ann.Texas Const. Art. 16, § 50 Page 6
AMOUNT THAT, WHEN ADDED TO THE PRINCIPAL BALANCES OF ALL OTHER LIENS AGAINST
YOUR HOME, IS MORE THAN 80 PERCENT OF THE FAIR MARKET VALUE OF YOUR HOME;
(C) THE LOAN MUST BE WITHOUT RECOURSE FOR PERSONAL LIABILITY AGAINST YOU AND
YOUR SPOUSE UNLESS YOU OR YOUR SPOUSE OBTAINED THIS EXTENSION OF CREDIT BY
ACTUAL FRAUD;
(D) THE LIEN SECURING THE LOAN MAY BE FORECLOSED UPON ONLY WITH A COURT ORDER;
(E) FEES AND CHARGES TO MAKE THE LOAN MAY NOT EXCEED 3 PERCENT OF THE LOAN
AMOUNT;
(F) THE LOAN MAY NOT BE AN OPEN-END ACCOUNT THAT MAY BE DEBITED FROM TIME TO
TIME OR UNDER WHICH CREDIT MAY BE EXTENDED FROM TIME TO TIME UNLESS IT IS A HOME
EQUITY LINE OF CREDIT;
(G) YOU MAY PREPAY THE LOAN WITHOUT PENALTY OR CHARGE;
(H) NO ADDITIONAL COLLATERAL MAY BE SECURITY FOR THE LOAN;
(I) THE LOAN MAY NOT BE SECURED BY HOMESTEAD PROPERTY THAT IS DESIGNATED FOR
AGRICULTURAL USE AS OF THE DATE OF CLOSING, UNLESS THE AGRICULTURAL HOMESTEAD
PROPERTY IS USED PRIMARILY FOR THE PRODUCTION OF MILK;
(J) YOU ARE NOT REQUIRED TO REPAY THE LOAN EARLIER THAN AGREED SOLELY BECAUSE
THE FAIR MARKET VALUE OF YOUR HOME DECREASES OR BECAUSE YOU DEFAULT ON ANOTHER
LOAN THAT IS NOT SECURED BY YOUR HOME;
(K) ONLY ONE LOAN DESCRIBED BY SECTION 50(a)(6), ARTICLE XVI, OF THE TEXAS
CONSTITUTION MAY BE SECURED WITH YOUR HOME AT ANY GIVEN TIME;
(L) THE LOAN MUST BE SCHEDULED TO BE REPAID IN PAYMENTS THAT EQUAL OR EXCEED THE
AMOUNT OF ACCRUED INTEREST FOR EACH PAYMENT PERIOD;
(M) THE LOAN MAY NOT CLOSE BEFORE 12 DAYS AFTER YOU SUBMIT A LOAN APPLICATION TO
THE LENDER OR BEFORE 12 DAYS AFTER YOU RECEIVE THIS NOTICE, WHICHEVER DATE IS
LATER; AND MAY NOT WITHOUT YOUR CONSENT CLOSE BEFORE ONE BUSINESS DAY AFTER THE
DATE ON WHICH YOU RECEIVE A COPY OF YOUR LOAN APPLICATION IF NOT PREVIOUSLY
PROVIDED AND A FINAL ITEMIZED DISCLOSURE OF THE ACTUAL FEES, POINTS, INTEREST, COSTS,
AND CHARGES THAT WILL BE CHARGED AT CLOSING; AND IF YOUR HOME WAS SECURITY FOR
THE SAME TYPE OF LOAN WITHIN THE PAST YEAR, A NEW LOAN SECURED BY THE SAME
PROPERTY MAY NOT CLOSE BEFORE ONE YEAR HAS PASSED FROM THE CLOSING DATE OF THE
OTHER LOAN, UNLESS ON OATH YOU REQUEST AN EARLIER CLOSING DUE TO A DECLARED
STATE OF EMERGENCY;
(N) THE LOAN MAY CLOSE ONLY AT THE OFFICE OF THE LENDER, TITLE COMPANY, OR AN
ATTORNEY AT LAW;
(O) THE LENDER MAY CHARGE ANY FIXED OR VARIABLE RATE OF INTEREST AUTHORIZED BY
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Vernon's Ann.Texas Const. Art. 16, § 50 Page 7
STATUTE;
(P) ONLY A LAWFULLY AUTHORIZED LENDER MAY MAKE LOANS DESCRIBED BY SECTION
50(a)(6), ARTICLE XVI, OF THE TEXAS CONSTITUTION;
(Q) LOANS DESCRIBED BY SECTION 50(a)(6), ARTICLE XVI, OF THE TEXAS CONSTITUTION MUST:
(1) NOT REQUIRE YOU TO APPLY THE PROCEEDS TO ANOTHER DEBT EXCEPT A DEBT THAT IS
SECURED BY YOUR HOME OR OWED TO ANOTHER LENDER;
(2) NOT REQUIRE THAT YOU ASSIGN WAGES AS SECURITY;
(3) NOT REQUIRE THAT YOU EXECUTE INSTRUMENTS WHICH HAVE BLANKS FOR SUBSTANTIVE
TERMS OF AGREEMENT LEFT TO BE FILLED IN;
(4) NOT REQUIRE THAT YOU SIGN A CONFESSION OF JUDGMENT OR POWER OF ATTORNEY TO
ANOTHER PERSON TO CONFESS JUDGMENT OR APPEAR IN A LEGAL PROCEEDING ON YOUR
BEHALF;
(5) PROVIDE THAT YOU RECEIVE A COPY OF YOUR FINAL LOAN APPLICATION AND ALL
EXECUTED DOCUMENTS YOU SIGN AT CLOSING;
(6) PROVIDE THAT THE SECURITY INSTRUMENTS CONTAIN A DISCLOSURE THAT THIS LOAN IS A
LOAN DEFINED BY SECTION 50(a)(6), ARTICLE XVI, OF THE TEXAS CONSTITUTION;
(7) PROVIDE THAT WHEN THE LOAN IS PAID IN FULL, THE LENDER WILL SIGN AND GIVE YOU A
RELEASE OF LIEN OR AN ASSIGNMENT OF THE LIEN, WHICHEVER IS APPROPRIATE;
(8) PROVIDE THAT YOU MAY, WITHIN 3 DAYS AFTER CLOSING, RESCIND THE LOAN WITHOUT
PENALTY OR CHARGE;
(9) PROVIDE THAT YOU AND THE LENDER ACKNOWLEDGE THE FAIR MARKET VALUE OF YOUR
HOME ON THE DATE THE LOAN CLOSES; AND
(10) PROVIDE THAT THE LENDER WILL FORFEIT ALL PRINCIPAL AND INTEREST IF THE LENDER
FAILS TO COMPLY WITH THE LENDER'S OBLIGATIONS UNLESS THE LENDER CURES THE FAILURE
TO COMPLY AS PROVIDED BY SECTION 50(a)(6)(Q)(x), ARTICLE XVI, OF THE TEXAS CONSTITUTION;
AND
(R) IF THE LOAN IS A HOME EQUITY LINE OF CREDIT:
(1) YOU MAY REQUEST ADVANCES, REPAY MONEY, AND REBORROW MONEY UNDER THE LINE
OF CREDIT;
(2) EACH ADVANCE UNDER THE LINE OF CREDIT MUST BE IN AN AMOUNT OF AT LEAST $4,000;
(3) YOU MAY NOT USE A CREDIT CARD, DEBIT CARD, OR SIMILAR DEVICE, OR PREPRINTED
CHECK THAT YOU DID NOT SOLICIT, TO OBTAIN ADVANCES UNDER THE LINE OF CREDIT;
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Vernon's Ann.Texas Const. Art. 16, § 50 Page 8
(4) ANY FEES THE LENDER CHARGES MAY BE CHARGED AND COLLECTED ONLY AT THE TIME
THE LINE OF CREDIT IS ESTABLISHED AND THE LENDER MAY NOT CHARGE A FEE IN
CONNECTION WITH ANY ADVANCE;
(5) THE MAXIMUM PRINCIPAL AMOUNT THAT MAY BE EXTENDED, WHEN ADDED TO ALL OTHER
DEBTS SECURED BY YOUR HOME, MAY NOT EXCEED 80 PERCENT OF THE FAIR MARKET VALUE
OF YOUR HOME ON THE DATE THE LINE OF CREDIT IS ESTABLISHED;
(6) IF THE PRINCIPAL BALANCE UNDER THE LINE OF CREDIT AT ANY TIME EXCEEDS 50 PERCENT
OF THE FAIR MARKET VALUE OF YOUR HOME, AS DETERMINED ON THE DATE THE LINE OF
CREDIT IS ESTABLISHED, YOU MAY NOT CONTINUE TO REQUEST ADVANCES UNDER THE LINE OF
CREDIT UNTIL THE BALANCE IS LESS THAN 50 PERCENT OF THE FAIR MARKET VALUE; AND
(7) THE LENDER MAY NOT UNILATERALLY AMEND THE TERMS OF THE LINE OF CREDIT.
THIS NOTICE IS ONLY A SUMMARY OF YOUR RIGHTS UNDER THE TEXAS CONSTITUTION. YOUR
RIGHTS ARE GOVERNED BY SECTION 50, ARTICLE XVI, OF THE TEXAS CONSTITUTION, AND NOT
BY THIS NOTICE.
If the discussions with the borrower are conducted primarily in a language other than English, the lender shall, before
closing, provide an additional copy of the notice translated into the written language in which the discussions were
conducted.
(h) A lender or assignee for value may conclusively rely on the written acknowledgment as to the fair market value
of the homestead property made in accordance with Subsection (a)(6)(Q)(ix) of this section if:
(1) the value acknowledged to is the value estimate in an appraisal or evaluation prepared in accordance with a state
or federal requirement applicable to an extension of credit under Subsection (a)(6); and
(2) the lender or assignee does not have actual knowledge at the time of the payment of value or advance of funds by
the lender or assignee that the fair market value stated in the written acknowledgment was incorrect.
(i) This subsection shall not affect or impair any right of the borrower to recover damages from the lender or
assignee under applicable law for wrongful foreclosure. A purchaser for value without actual knowledge may
conclusively presume that a lien securing an extension of credit described by Subsection (a)(6) of this section was a
valid lien securing the extension of credit with homestead property if:
(1) the security instruments securing the extension of credit contain a disclosure that the extension of credit secured
by the lien was the type of credit defined by Section 50(a)(6), Article XVI, Texas Constitution;
(2) the purchaser acquires the title to the property pursuant to or after the foreclosure of the voluntary lien; and
(3) the purchaser is not the lender or assignee under the extension of credit.
(j) Subsection (a)(6) and Subsections (e)-(i) of this section are not severable, and none of those provisions would
have been enacted without the others. If any of those provisions are held to be preempted by the laws of the United
States, all of those provisions are invalid. This subsection shall not apply to any lien or extension of credit made after
January 1, 1998, and before the date any provision under Subsection (a)(6) or Subsections (e)-(i) is held to be
preempted.
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