A recent ruling by a Texas appeals court
serves as another reminder that, once an individual/debtor establishes real estate as his/her homestead, a subsequent criminal conviction resulting in his/her being shipped off to prison for a long time is not enough to terminate the benefit from the exemption against a creditor's attempted forced sale or other taking of the individual/debtor's home that is available in some states. The following facts have been extracted (mostly verbatim, but slightly adapted) from the case:
- One, Conley, has previously been convicted of, and is serving 35 years in prison for, sexual assaults against one, Driver.(1)
- For those torts, Driver obtained a civil money judgment against Conley. As part of Driver's efforts to collect that judgment, she appeals from the denial of her request for a turnover order(2) on a house and lot that Conley claims as his homestead.
- Driver argues that "someone who intentionally commits criminal acts of sexual assault within a home against a minor child may [not] be entitled to claim continuing homestead exemption" since "imprisonment in a new residence" should be deemed abandonment of homestead.
- Because the appeals court held that Conley's imprisonment for his crimes does not constitute abandonment of his homestead, it affirmed the trial court's denial of Driver's request for a turnover order concerning the house and lot in question.(3)
For the ruling, see Driver v. Conley, No. 06-10-00004-CV (Tex. App. [6th Dist.] Texarkana, August 11, 2010).
(1) Conley was convicted of two counts of aggravated sexual assault, three counts of sexual assault, and four counts of indecency with a child. He was sentenced to thirty-five years' incarceration on both counts of aggravated sexual assault and twenty years' incarceration on all remaining counts, all to be served concurrently.
(2) To try to collect on the judgment, Driver filed with the trial court a motion for turnover order asking the court to order Conley to turn over his home and lot along with other unimproved lots. While the trial court ordered turnover of the unimproved lots, it agreed with Conley that the property containing his home remained his homestead.
(3) In reaching its conclusion, the Texas appeals court made a detailed analysis of the Texas case law; the bulk of its analysis follows (bold text is my emphasis, not in the original text):
- “Homestead rights have historically enjoyed great protection in our jurisprudence.” Florey v. Estate of McConnell, 212 S.W.3d 439, 443 (Tex.App.-Austin 2006, pet. denied) (prisoner who murdered his wife was entitled to claim homestead exemption). Our Texas Constitution provides that “[t]he homestead of ... a single adult person, shall be, and is hereby protected from forced sale, for the payment of all debts” not specifically enumerated within. Tex. Const. art. XVI, § 50.
- Homestead rights are liberally construed to prevent citizens from losing their homes. Florey, 212 S.W.3d at 443. The party seeking a turnover order must prove that the property is not exempt. Hanif v. Clarksville Oil & Gas Co., No. 06-09-00110-CV, 2010 WL 2105936, at *3 (Tex.App.-Texarkana May 27, 2010, no pet.) (mem.op.); see Tex. Civ. Prac. & Rem.Code Ann. § 31.002(a)(2), (b)(1) (Vernon 2008); Tanner v. McCarthy, 274 S.W.3d 311, 322 (Tex.App.-Houston [1st Dist.] 2008, no pet.).
- All parties agree that the property in question was the homestead of Conley at some point. “Once acquired, homestead rights are not easily lost. Property may lose its homestead character only by the claimant's death, abandonment, or alienation.” Duran v. Henderson, 71 S.W.3d 833, 842 (Tex.App.-Texarkana 2002, pet. denied).
- Driver argues that Conley's incarceration constituted an abandonment of his homestead. “Abandonment of a homestead requires both the cessation or discontinuance of use of the property as a homestead, coupled with the intent to permanently abandon the homestead.” Womack v. Redden, 846 S.W.2d 5, 7 (Tex.App.-Texarkana 1992, writ denied). Evidence relied on as establishing “abandonment of a homestead must make it undeniably clear that there has been a total abandonment with an intention not to return and claim the exemption.” Id.
- Driver's first argument is that Conley's homestead was abandoned due to his long-term imprisonment. Driver had the burden of proving abandonment with legally and factually sufficient evidence. Florey, 212 S.W.3d at 446. Conley was married and divorced several times. The home was purchased as his separate property in 1985. He testified, “I've lived there ever since. I have supported it fully. I have not abandoned it or anything of that type․ I have never left my home with the intention of not going back.” Records from the appraisal district list the property as Conley's homestead. [...] Conley's responses to discovery establish that his books and records are still kept at his home and that his daughter lived in the home from time to time. Conley testified he planned on living in the home on his release from incarceration.
- Abandonment of a homestead must be voluntary. Id. at 444 (citing King v. Harter, 70 Tex. 579, 8 S.W. 308, 309 (1888)).
- “An act of necessity is not a voluntary abandonment of the homestead.” R.B. Spencer Co. v. Green, 203 S.W.2d 957, 959 (Tex.Civ.App.-El Paso 1947, no writ). While Conley voluntarily committed the crime, he did not voluntarily change his residence.
- A homestead is not abandoned merely because a person does not occupy the home during a prison sentence. Florey, 212 S.W.3d at 447. We conclude that there was some evidence to support the trial court's finding that Conley's homestead was not abandoned.