H.B. No. 3857
 
 
 
 
AN ACT
  relating to foreclosure of liens on real property and certain
  personal property owned by members or dependents of the military;
  providing a criminal penalty.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 51, Property Code, is amended by adding
  Section 51.015 to read as follows:
         Sec. 51.015.  SALE OF CERTAIN PROPERTY OWNED BY MEMBER OF THE
  MILITARY. (a) In this section:
               (1)  "Active duty military service" means:
                     (A)  service as a member of the armed forces of the
  United States; and
                     (B)  with respect to a member of the Texas
  National Guard or the National Guard of another state or a member of
  a reserve component of the armed forces of the United States, active
  duty under an order of the president of the United States.
               (2)  "Dwelling" means a residential structure or
  manufactured home that contains one to four family housing units.
               (3)  "Military servicemember" means:
                     (A)  a member of the armed forces of the United
  States;
                     (B)  a member of the Texas National Guard or the
  National Guard of another state serving on active duty under an
  order of the president of the United States; or
                     (C)  a member of a reserve component of the armed
  forces of the United States who is on active duty under an order of
  the president of the United States.
               (4)  "Person" has the meaning assigned by Section
  311.005, Government Code.
         (b)  This section applies only to an obligation:
               (1)  that is secured by a mortgage, deed of trust, or
  other contract lien on real property or personal property that is a
  dwelling owned by a military servicemember;
               (2)  that originates before the date on which the
  servicemember's active duty military service commences; and
               (3)  for which the servicemember is still obligated.
         (c)  In an action filed during a military servicemember's
  period of active duty military service or during the nine months
  after the date on which that service period concludes to foreclose a
  lien or otherwise enforce an obligation described by Subsection
  (b), the court may after a hearing and on the court's own motion,
  and shall on the application by a servicemember whose ability to
  comply with the obligations of the contract secured by the lien is
  materially affected by the servicemember's military service:
               (1)  stay the proceedings for a period of time as
  justice and equity require; or
               (2)  adjust the obligations of the contract secured by
  the lien to preserve the interests of all parties.
         (d)  A sale, foreclosure, or seizure of property under a
  mortgage, deed of trust, or other contract lien described by
  Subsection (b) may not be conducted during the military
  servicemember's period of active duty military service or during
  the nine months after the date on which that service period
  concludes unless the sale, foreclosure, or seizure is conducted
  under:
               (1)  a court order issued before the sale, foreclosure,
  or seizure; or
               (2)  an agreement that complies with Subsection (e).
         (e)  A military servicemember may waive the servicemember's
  rights under this section only as provided by this subsection. The
  waiver must be:
               (1)  in writing in at least 12-point type;
               (2)  executed as an instrument separate from the
  obligation to which the waiver applies; and
               (3)  made under a written agreement:
                     (A)  executed during or after the servicemember's
  period of active duty military service; and
                     (B)  specifying the legal instrument to which the
  waiver applies and, if the servicemember is not a party to the
  instrument, the servicemember concerned.
         (f)  A person commits an offense if the person knowingly
  makes or causes to be made a sale, foreclosure, or seizure of
  property that is prohibited by Subsection (d).  An offense under
  this subsection is a Class A misdemeanor.
         (g)  On application to a court, a dependent of a military
  servicemember is entitled to the protections of this section if the
  dependent's ability to comply with an obligation that is secured by
  a mortgage, deed of trust, or other contract lien on real property
  or personal property that is a dwelling is materially affected by
  the servicemember's military service.
         (h)  A court that issues a stay or takes any other action
  under this section regarding the enforcement of an obligation that
  is subject to this section may grant a similar stay or take similar
  action with respect to a surety, guarantor, endorser, accommodation
  maker, comaker, or other person who is or may be primarily or
  secondarily subject to the obligation.
         (i)  If a judgment or decree is vacated or set aside wholly or
  partly under this section, the court may also set aside or vacate,
  as applicable, the judgment or decree with respect to a surety,
  guarantor, endorser, accommodation maker, comaker, or other person
  who is or may be primarily or secondarily subject to the obligation
  that is subject to the judgment or decree.
         (j)  This section does not prevent a waiver in writing by a
  surety, guarantor, endorser, accommodation maker, comaker, or
  other person, whether primarily or secondarily liable on an
  obligation, of the protections provided under Subsections (h) and
  (i). A waiver described by this subsection is effective only if it
  is executed as an instrument separate from the obligation with
  respect to which it applies. If a waiver under this subsection is
  executed by an individual who after the execution of the waiver
  enters active duty military service, or by a dependent of an
  individual who after the execution of the waiver enters active duty
  military service, the waiver is not valid after the beginning of the
  period of the active duty military service unless the waiver was
  executed by the individual or dependent during the applicable
  period described by 50 U.S.C. App. Section 516, as that section
  existed on January 1, 2009.
         SECTION 2.  The change in law made by this Act applies only
  to a sale, foreclosure, or seizure of property under a judgment in
  an action filed on or after the effective date of this Act or with
  respect to which a notice of default is given under Section
  51.002(d), Property Code, on or after the effective date of this
  Act. A sale, foreclosure, or seizure under a judgment in an action
  filed before the effective date of this Act or with respect to which
  notice of default is given before the effective date of this Act is
  governed by the law in effect immediately before the effective date
  of this Act, and that law is continued in effect for that purpose.
         SECTION 3.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution.  If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2009.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 3857 was passed by the House on May
  14, 2009, by the following vote:  Yeas 145, Nays 0, 1 present, not
  voting.
 
  ______________________________
  Chief Clerk of the House   
 
 
         I certify that H.B. No. 3857 was passed by the Senate on May
  27, 2009, by the following vote:  Yeas 31, Nays 0.
 
  ______________________________
  Secretary of the Senate    
  APPROVED:  _____________________
                     Date          
   
            _____________________
                   Governor