By:  Patterson                                        S.J.R. No. 25
                                SENATE JOINT RESOLUTION
    1-1  proposing a constitutional amendment authorizing a voluntary,
    1-2  consensual encumbrance on homestead property for the purpose of an
    1-3  equity loan.
    1-4        BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 50, Article XVI, Texas Constitution, is
    1-6  amended to read as follows:
    1-7        Sec. 50.  (a)  The homestead of a family, or of a single
    1-8  adult person, shall be, and is hereby protected from forced sale,
    1-9  for the payment of all debts except for:
   1-10              (1)  the purchase money thereof, or a part of such
   1-11  purchase money;
   1-12              (2)  <,> the taxes due thereon;
   1-13              (3)  <, or for> work and material used in constructing
   1-14  improvements thereon, if <and in this last case only when> the work
   1-15  and material are contracted for in writing, with the consent of
   1-16  both spouses, in the case of a family homestead, given in the same
   1-17  manner as is required in making a sale and conveyance of the
   1-18  homestead; or
   1-19              (4)  an equity loan.
   1-20        (b)  The <nor may the> owner or claimant of the property
   1-21  claimed as homestead, if married, may not sell or abandon the
   1-22  homestead without the consent of each owner and the <other> spouse
   1-23  of each owner, given in such manner as may be prescribed by law.
   1-24        (c)  No mortgage, trust deed, or other lien on the homestead
    2-1  shall ever be valid unless it secures a debt described by this
    2-2  section, <except for the purchase money therefor, or improvements
    2-3  made thereon, as hereinbefore provided,> whether such mortgage, or
    2-4  trust deed, or other lien, shall have been created by the owner
    2-5  alone, or together with his or her spouse, in case the owner is
    2-6  married.  All pretended sales of the homestead involving any
    2-7  condition of defeasance shall be void.
    2-8        (d)  An equity loan may be made only by:
    2-9              (1)  a bank, savings and loan association, savings
   2-10  bank, or credit union doing business under the laws of this state
   2-11  or the United States;
   2-12              (2)  a person licensed to make regulated loans, as
   2-13  provided by statute; or
   2-14              (3)  a person approved as a mortgagee by the United
   2-15  States government to make federally insured loans, as determined by
   2-16  statute.
   2-17        (e)  An equity loan may not be secured by homestead property
   2-18  that is designated for agricultural use as provided by statutes
   2-19  governing property tax.
   2-20        (f)  An equity loan may not be in the form of an open-end
   2-21  account under which a credit card may be used to debit the account.
   2-22        (g)  At any time a homestead may not be encumbered by more
   2-23  than one equity loan in addition to a valid encumbrance on the
   2-24  homestead property authorized by Subsection (a)(1), (a)(2), or
   2-25  (a)(3) of this section.
   2-26        (h)  A lender may not require or accept real or personal
   2-27  property as additional collateral on an equity loan, except for a
    3-1  manufactured home, personal property affixed or to be affixed to
    3-2  the homestead in a manner that would make the property a fixture,
    3-3  or rents derived from the homestead property.  Only the homestead
    3-4  property securing an equity loan may be collateral for the equity
    3-5  loan.
    3-6        (i)  A lender may not require or accept a borrower's
    3-7  homestead property, regardless of whether the property was
    3-8  previously encumbered by an existing equity loan, as collateral on
    3-9  a debt not described by Subsection (a) of this section.
   3-10        (j)  The principal amount of an equity loan plus the
   3-11  aggregate total of the outstanding balances of other indebtedness
   3-12  secured by valid encumbrances of record against the homestead
   3-13  property may not exceed 90 percent of the fair market value of the
   3-14  homestead property on the date the equity loan is made.
   3-15        (k)  For the purposes of Subsection (j) of this section, the
   3-16  aggregate total of the outstanding balances of indebtedness secured
   3-17  by valid encumbrances of record against the homestead property does
   3-18  not include any advance made by a lender to protect a lien,
   3-19  security interest, or other valid encumbrance on the homestead
   3-20  property securing the loan, including the payment of hazard
   3-21  insurance premiums, repairs to the homestead property, or payments
   3-22  on any indebtedness secured by a prior valid encumbrance on the
   3-23  homestead property.
   3-24        (l)  A lender may not accelerate the remaining payments of an
   3-25  equity loan or demand payment of the loan in full because of a
   3-26  decrease in the market value of the homestead property securing the
   3-27  equity loan, unless the decrease in the market value is caused by
    4-1  substantial damage or destruction to the property, condemnation or
    4-2  other taking of the property, the discovery of an environmental
    4-3  hazard on the property, or the use of the property in a manner that
    4-4  constitutes waste on the property or a nuisance.  This section does
    4-5  not prohibit a lender, if permitted by the loan documents, from
    4-6  refusing to make additional advances under an equity loan other
    4-7  than a reverse mortgage, if the value of the homestead property
    4-8  decreases, regardless of the cause of the decrease.
    4-9        (m)  A lender may not accelerate the remaining payments of an
   4-10  equity loan or demand payment of the loan in full because of the
   4-11  borrower's default under any other indebtedness not secured by a
   4-12  prior valid encumbrance on the homestead property, regardless of
   4-13  whether the indebtedness is owed to the lender.  This section does
   4-14  not prohibit a lender, if permitted by the loan documents, from
   4-15  refusing to make additional advances under an equity loan, other
   4-16  than a reverse mortgage, if the borrower has defaulted in the
   4-17  performance or payment of another indebtedness owed to the lender
   4-18  or another creditor.
   4-19        (n)  A lender may not seek recourse against or expose assets
   4-20  of a borrower other than the property securing the equity loan for
   4-21  payment or performance of an obligation of an equity loan.
   4-22        (o)  A lienholder or assignee for value may conclusively rely
   4-23  on an acknowledgment by the owner of homestead property and the
   4-24  owner's spouse, if the owner is married, of compliance with
   4-25  applicable requirements for an equity loan secured by a mortgage,
   4-26  trust deed, or other lien on a homestead.
   4-27        (p)  In this section:
    5-1              (1)  "Blended equity loan" means an equity loan made
    5-2  for:
    5-3                    (A)  the payment or refinancing of all or part of
    5-4  the purchase money of a homestead, taxes on homestead property, or
    5-5  the work and material used in constructing improvements on a
    5-6  homestead or for the refinancing of a valid lien given in renewal
    5-7  and extension of a lien made for such a purpose; and
    5-8                    (B)  another purpose.
    5-9              (2)  "Equity loan" means an extension of credit under a
   5-10  written agreement, including a contract for an open-end account,
   5-11  blended equity loan, or reverse mortgage, that is:
   5-12                    (A)  secured in whole or in part by a voluntary
   5-13  lien on or other consensual security interest in a homestead;
   5-14                    (B)  created with the consent of each owner and
   5-15  the spouse of each owner, in accordance with applicable statutory
   5-16  requirements; and
   5-17                    (C)  without recourse for personal liability
   5-18  against each owner and the spouse of each owner.
   5-19              (3)  "Net equity" means the fair market value of the
   5-20  homestead property less the aggregate total of the outstanding
   5-21  balances of all indebtedness secured by valid encumbrances of
   5-22  record against the homestead property.
   5-23              (4)  "Reverse mortgage" means a nonrecourse equity
   5-24  loan:
   5-25                    (A)  under which advances are provided to a
   5-26  borrower based on the equity in a borrower's residence homestead
   5-27  property; and
    6-1                    (B)  which requires no payment of principal or
    6-2  interest until the entire loan becomes due and payable.  <This
    6-3  amendment shall become effective upon its adoption.>
    6-4        SECTION 2.  The following temporary provision is added to the
    6-5  Texas Constitution:
    6-6        TEMPORARY PROVISION.  (a)  This temporary provision applies
    6-7  to the constitutional amendment proposed by the 74th Legislature,
    6-8  Regular Session, 1995, authorizing a voluntary, consensual
    6-9  encumbrance on homestead property.
   6-10        (b)  The constitutional amendment takes effect May 1, 1996.
   6-11        (c)  This temporary provision takes effect on the adoption of
   6-12  the amendment by the voters and expires May 2, 1996.
   6-13        SECTION 3.  This proposed constitutional amendment shall be
   6-14  submitted to the voters at an election to be held November 7, 1995.
   6-15  The ballot shall be printed to permit voting for or against the
   6-16  proposition:  "The constitutional amendment extending homeowners'
   6-17  rights to borrow voluntarily against the equity in and establish a
   6-18  valid lien on their homesteads under certain limited circumstances
   6-19  for purposes in addition to purchase money, improvements, and
   6-20  taxes."