Opinion
NO. 01-18-00846-CV
08-20-2019
On Appeal from the 55th District Court Harris County, Texas
Trial Court Case No. 2018-31381
DISSENTING OPINION
Because I believe that the Texas Citizens Participation Act ("TCPA") requires dismissal of all claims against Schmidt and Greenbriar—including the plaintiffs' constitutional claims—I respectfully dissent to the portion of the judgment affirming the trial court's order denying dismissal of the constitutional claims.
The Opinion concludes that, as to the plaintiffs' quiet-title and declaratory-judgment claims, the TCPA impermissibly shifts the burden of proof by requiring the plaintiffs to produce prima facie evidence supporting these claims, thereby denying plaintiffs the protections found in article XVI, section 50(c) of the Texas Constitution. In so holding, the Opinion states that "[b]ecause the homestead liens are invalid, dismissal of the plaintiffs' quiet-title and declaratory-relief claims under the Citizens Participation Act would impair the right guaranteed in article XVI, section 50 of the Texas Constitution." (emphasis added).
Six types of loans or liens can burden a homestead. See TEX. CONST. XVI, § 50(a)(1-6).
However, the Opinion assumes , without any showing by plaintiffs, that the liens at issue are on the plaintiffs' homesteads. To claim the constitutional protections afforded to homesteads, a plaintiff carries the initial burden of establishing (1) overt acts of homestead usage and (2) the intention to claim the property as a homestead. Zorilla v. Aypco Constr. Co. II, LLC, 469 S.W.3d 143, 159 (Tex. 2015); see also Burk Royalty Co. v. Riley, 475 S.W.2d 566, 568 (Tex. 1972) (holding initial burden to establish homestead exemption is on party claiming exemption).
Once a plaintiff has proved homestead status, then the burden shifts to the defendant to show that it has a constitutionally valid lien on the homestead. Zorilla, 469 S.W.3d at 159; see also TEX. CONST. XVI, § 50(c). "If the debtor [proves that the property constitutes a homestead], then the creditor has the burden to prove that the debt falls within one of the excepted debts listed in Article XVI, section 50(a)." Chase Manhattan Mortg. Corp. v. Cook, 141 S.W.3d 709, 713 (Tex. App.—Eastland 2004, no pet.); see also Marincasiu v. Drilling, 441 S.W.3d 551, 559 (Tex. App.—El Paso 2014, pet. denied) (holding that once property is shown to be homestead, constitutional homestead privilege against unenumerated liens presumed to exist unless lienholder proves termination of homestead status).
"No mortgage, trust deed, or other lien on the homestead shall ever be valid unless it secures a debt described by this section . . . ." TEX. CONST. art. XVI, §50(c).
Thus, there is a two-step process to consider: (1) did the plaintiffs prove a homestead, and, if so, (2) does the defendant have a valid lien under section 50(a)? By concluding that the liens at issue in this case are void, the Opinion skips to the second step of the process, thereby impermissibly relieving plaintiffs of their burden to first prove homestead status.
The Opinion's reliance on Wood v. HSBC Bank USA, 505 S.W.3d 542 (Tex. 2016) is misplaced. Wood considered the ability to cure a loan that fails to comply with the requirements imposed by article XVI, section 50(a)(6). Id. at 548-49. Though "extension of credit" loans do not comply with section 50(a)(6), the supreme court held that a lender may attempt to cure the defects and thereby render the loan valid. Id. Consistent with the law holding that a lienholder has the burden to show that a lien is constitutionally valid, the supreme court held that homestead liens remain invalid until any defect is cured and that the party asserting a cure has the burden of proof on that issue. See id. at 549-51.
Thus, Wood involved only the second issue in the two-step process, i.e., whether the lien was invalid and who had the burden to show that an invalid had been cured. Wood does not purport to excuse or relieve the plaintiff of his initial burden of showing a homestead. Under Zorillo, that burden must be met by the plaintiff before a defendant is required to defend the validity of his lien or loan. 469 S.W.3d at 159.
Put more simply, whether a lien is invalid under section 50(a) is irrelevant unless and until the plaintiff first proves that the subject property is his homestead. Here, the plaintiffs made no showing of overt acts of homestead usage and the intention to claim the property as a homestead, as required by Zorilla. See 469 S.W.3d at 159. And, in fact, ABC Bail Bonding Company secured a written disavowal of homestead status from all its clients.
Because they did not prove homestead status, I would dismiss all the plaintiffs' claims, even their constitutional claims. To the extent that the Opinion does not, I respectfully dissent.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Goodman and Countiss. Radack, C.J., dissenting in part from the judgment. Countiss, J., dissenting in part and concurring in judgment only in part.