By Solomons                                            H.J.R. No. 5
                                 A JOINT RESOLUTION
 1-1     proposing a constitutional amendment prescribing requirements for
 1-2     imposing a lien for work and material used in the construction,
 1-3     repair, or renovation of improvements on residential homestead
 1-4     property and including the conversion and refinance of a personal
 1-5     property lien secured by a manufactured home to a lien on real
 1-6     property as a debt on homestead property subject to a forced sale.
 1-7           BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-8           SECTION 1.  Section 50(a), Article XVI, Texas Constitution,
 1-9     is amended to read as follows:
1-10           (a)  The homestead of a family, or of a single adult person,
1-11     shall be, and is hereby protected from forced sale, for the payment
1-12     of all debts except for:
1-13                 (1)  the purchase money thereof, or a part of such
1-14     purchase money;
1-15                 (2)  the taxes due thereon;
1-16                 (3)  an owelty of partition imposed against the
1-17     entirety of the property by a court order or by a written agreement
1-18     of the parties to the partition, including a debt of one spouse in
1-19     favor of the other spouse resulting from a division or an award of
1-20     a family homestead in a divorce proceeding;
1-21                 (4)  the refinance of a lien against a homestead,
1-22     including a federal tax lien resulting from the tax debt of both
1-23     spouses, if the homestead is a family homestead, or from the tax
1-24     debt of the owner;
 2-1                 (5)  work and material used in constructing new
 2-2     improvements thereon, if contracted for in writing, or work and
 2-3     material used to repair or renovate existing improvements thereon
 2-4     if:
 2-5                       (A)  the work and material are contracted for in
 2-6     writing, with the consent of both spouses, in the case of a family
 2-7     homestead, given in the same manner as is required in making a sale
 2-8     and conveyance of the homestead;
 2-9                       (B)  the contract for the work and material is
2-10     not executed by the owner or the owner's spouse before the fifth
2-11     [12th] day after the owner makes written application for any
2-12     extension of credit for the work and material, unless the work and
2-13     material are necessary to complete immediate repairs to conditions
2-14     on the homestead property that materially affect the health or
2-15     safety of the owner or person residing in the homestead and the
2-16     owner of the homestead acknowledges such in writing;
2-17                       (C)  the contract for the work and material
2-18     expressly provides that the owner may rescind the contract without
2-19     penalty or charge within three days after the execution of the
2-20     contract by all parties, unless the work and material are necessary
2-21     to complete immediate repairs to conditions on the homestead
2-22     property that materially affect the health or safety of the owner
2-23     or person residing in the homestead and the owner of the homestead
2-24     acknowledges such in writing; and
2-25                       (D)  the contract for the work and material is
2-26     executed by the owner and the owner's spouse only at the office of
2-27     a third-party lender making an extension of credit for the work and
 3-1     material, an attorney at law, or a title company;
 3-2                 (6)  an extension of credit that:
 3-3                       (A)  is secured by a voluntary lien on the
 3-4     homestead created under a written agreement with the consent of
 3-5     each owner and each owner's spouse;
 3-6                       (B)  is of a principal amount that when added to
 3-7     the aggregate total of the outstanding principal balances of all
 3-8     other indebtedness secured by valid encumbrances of record against
 3-9     the homestead does not exceed 80 percent of the fair market value
3-10     of the homestead on the date the extension of credit is made;
3-11                       (C)  is without recourse for personal liability
3-12     against each owner and the spouse of each owner, unless the owner
3-13     or spouse obtained the extension of credit by actual fraud;
3-14                       (D)  is secured by a lien that may be foreclosed
3-15     upon only by a court order;
3-16                       (E)  does not require the owner or the owner's
3-17     spouse to pay, in addition to any interest, fees to any person that
3-18     are necessary to originate, evaluate, maintain, record, insure, or
3-19     service the extension of credit that exceed, in the aggregate,
3-20     three percent of the original principal amount of the extension of
3-21     credit;
3-22                       (F)  is not a form of open-end account that may
3-23     be debited from time to time or under which credit may be extended
3-24     from time to time;
3-25                       (G)  is payable in advance without penalty or
3-26     other charge;
3-27                       (H)  is not secured by any additional real or
 4-1     personal property other than the homestead;
 4-2                       (I)  is not secured by homestead property
 4-3     designated for agricultural use as provided by statutes governing
 4-4     property tax, unless such homestead property is used primarily for
 4-5     the production of milk;
 4-6                       (J)  may not be accelerated because of a decrease
 4-7     in the market value of the homestead or because of the owner's
 4-8     default under other indebtedness not secured by a prior valid
 4-9     encumbrance against the homestead;
4-10                       (K)  is the only debt secured by the homestead at
4-11     the time the extension of credit is made unless the other debt was
4-12     made for a purpose described by Subsections (a)(1)-(a)(5) of this
4-13     section;
4-14                       (L)  is scheduled to be repaid in substantially
4-15     equal successive monthly installments beginning no later than two
4-16     months from the date the extension of credit is made, each of which
4-17     equals or exceeds the amount of accrued interest as of the date of
4-18     the scheduled installment;
4-19                       (M)  is closed not before:
4-20                             (i)  the 12th day after the later of the
4-21     date that the owner of the homestead submits an application to the
4-22     lender for the extension of credit or the date that the lender
4-23     provides the owner a copy of the notice prescribed by Subsection
4-24     (g) of this section; and
4-25                             (ii)  the first anniversary of the closing
4-26     date of any other extension of credit described by Subsection
4-27     (a)(6) of this section secured by the same homestead property;
 5-1                       (N)  is closed only at the office of the lender,
 5-2     an attorney at law, or a title company;
 5-3                       (O)  permits a lender to contract for and receive
 5-4     any fixed or variable rate of interest authorized under statute;
 5-5                       (P)  is made by one of the following that has not
 5-6     been found by a federal regulatory agency to have engaged in the
 5-7     practice of refusing to make loans because the applicants for the
 5-8     loans reside or the property proposed to secure the loans is
 5-9     located in a certain area:
5-10                             (i)  a bank, savings and loan association,
5-11     savings bank, or credit union doing business under the laws of this
5-12     state or the United States;
5-13                             (ii)  a federally chartered lending
5-14     instrumentality or a person approved as a mortgagee by the United
5-15     States government to make federally insured loans;
5-16                             (iii)  a person licensed to make regulated
5-17     loans, as provided by statute of this state;
5-18                             (iv)  a person who sold the homestead
5-19     property to the current owner and who provided all or part of the
5-20     financing for the purchase; or
5-21                             (v)  a person who is related to the
5-22     homestead property owner within the second degree of affinity or
5-23     consanguinity; and
5-24                       (Q)  is made on the condition that:
5-25                             (i)  the owner of the homestead is not
5-26     required to apply the proceeds of the extension of credit to repay
5-27     another debt except debt secured by the homestead or debt to
 6-1     another lender;
 6-2                             (ii)  the owner of the homestead not assign
 6-3     wages as security for the extension of credit;
 6-4                             (iii)  the owner of the homestead not sign
 6-5     any instrument in which blanks are left to be filled in;
 6-6                             (iv)  the owner of the homestead not sign a
 6-7     confession of judgment or power of attorney to the lender or to a
 6-8     third person to confess judgment or to appear for the owner in a
 6-9     judicial proceeding;
6-10                             (v)  the lender, at the time the extension
6-11     of credit is made, provide the owner of the homestead a copy of all
6-12     documents signed by the owner related to the extension of credit;
6-13                             (vi)  the security instruments securing the
6-14     extension of credit contain a disclosure that the extension of
6-15     credit is the type of credit defined by Section 50(a)(6), Article
6-16     XVI, Texas Constitution;
6-17                             (vii)  within a reasonable time after
6-18     termination and full payment of the extension of credit, the lender
6-19     cancel and return the promissory note to the owner of the homestead
6-20     and give the owner, in recordable form, a release of the lien
6-21     securing the extension of credit or a copy of an endorsement and
6-22     assignment of the lien to a lender that is refinancing the
6-23     extension of credit;
6-24                             (viii)  the owner of the homestead and any
6-25     spouse of the owner may, within three days after the extension of
6-26     credit is made, rescind the extension of credit without penalty or
6-27     charge;
 7-1                             (ix)  the owner of the homestead and the
 7-2     lender sign a written acknowledgment as to the fair market value of
 7-3     the homestead property on the date the extension of credit is made;
 7-4     and
 7-5                             (x)  the lender or any holder of the note
 7-6     for the extension of credit shall forfeit all principal and
 7-7     interest of the extension of credit if the lender or holder fails
 7-8     to comply with the lender's or holder's obligations under the
 7-9     extension of credit within a reasonable time after the lender or
7-10     holder is notified by the borrower of the lender's failure to
7-11     comply; [or]
7-12                 (7)  a reverse mortgage; or
7-13                 (8)  the conversion and refinance of a personal
7-14     property lien secured by a manufactured home to a lien on real
7-15     property, including the refinance of the purchase price of the
7-16     manufactured home, the cost of installing the manufactured home on
7-17     the real property, and the refinance of the purchase price of the
7-18     real property.
7-19           SECTION 2.  The following temporary provision is added to the
7-20     Texas Constitution:
7-21           TEMPORARY PROVISION.  (a)  This temporary provision applies
7-22     to the constitutional amendment proposed by the 77th  Legislature,
7-23     Regular Session, 2001:
7-24                 (1)  prescribing requirements for imposing a lien for
7-25     work and material used in the construction, repair, or renovation
7-26     of improvements on residential homestead property; and
7-27                 (2)  including the conversion and refinance of a
 8-1     personal property lien secured by a manufactured home to a lien on
 8-2     real property as a debt on homestead property subject to a forced
 8-3     sale.
 8-4           (b)  The constitutional amendment takes effect January 1,
 8-5     2002.
 8-6           (c)  This temporary provision expires January 2, 2002.
 8-7           SECTION 3.  This proposed constitutional amendment shall be
 8-8     submitted to the voters at an election to be held November 6, 2001.
 8-9     The ballot shall be printed to permit voting for or against the
8-10     proposition:  "The constitutional amendment prescribing
8-11     requirements for imposing a lien for work and material used in the
8-12     construction, repair, or renovation of improvements on residential
8-13     homestead property and including the conversion and refinance of a
8-14     personal property lien secured by a manufactured home to a lien on
8-15     real property as a debt on homestead property subject to a forced
8-16     sale."