BILL ANALYSIS C.S.S.J.R. 46 By: Harris Jurisprudence 4-19-95 Committee Report (Substituted) BACKGROUND Historically, Texans have been able to secure third party financing to satisfy federal taxes secured by a lien perfected against their homestead. Federal law provides that a lien will attach to real estate of the taxpayer, regardless of whether that property is exempt under state law. Texans in the past have frequently partitioned their homestead property in divorce proceedings or separate agreements by transferring the homestead to one spouse or cotenant and imposing a lien against the entire property to secure the owelty of partition. This practice was recognized as a valid means of encumbering the homestead and facilitated the availability of third party financing. Recent litigation in state and bankruptcy courts has cast doubt on the validity of a lien on homestead securing refinancing of federal tax debt and of an owelty lien on the entire property. Without clarification of the law on refinancing of federal tax liens, taxpayers may be unable to pay their tax debt and face the possibility of the loss of their homestead. Without clarification of the effect of an agreement on financing of a partition of the homestead, the agreement in divorce and cotenant partitions to partition the homestead by sale to one of the owners will not be adequately secured by a lien on the full homestead; consequently, the spouse who retains a lien will face further expenses and the other spouse will not be able to secure third party financing to satisfy this debt. PURPOSE As proposed, C.S.S.J.R. 46 requires the submission to the voters of a constitutional amendment authorizing an encumbrance to be fixed on a homestead property for a debt of a spouse resulting from a division or award of a homestead in a divorce proceeding and for the refinance of a lien against a homestead. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not grant any additional rulemaking authority to a state officer, institution, or agency. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 50, Article XVI, Texas Constitution, to include in the list of debts for which a homestead may be sold forcibly an owelty of partition imposed against the entirety of the property designated as a homestead by a court order or by a written agreement of the parties to the partition, including the payment of 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, 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. Authorizes a purchaser or lender for value without actual knowledge to 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. Deletes a provision requiring this amendment to become effective upon its adoption. Makes a conforming change. SECTION 2. Requires this proposed constitutional amendment to be submitted to the voters at an election to be held November 7, 1995. Sets forth the required language for the ballot.