Florida State University Libraries
Electronic Theses, Treatises and Dissertations
The Graduate School
2012
From Frontier Paradigm to Modern Public
Policy: The Development of Homestead and
Property Exemption Law in Texas, Florida,
and Alaska
Eric H. Miller
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THE FLORIDA STATE UNIVERSITY
COLLEGE OF ARTS AND SCIENCES
FROM FRONTIER PARADIGM TO MODERN PUBLIC POLICY:
THE DEVELOPMENT OF HOMESTEAD AND PROPERTY EXEMPTION LAW
IN TEXAS, FLORIDA, AND ALASKA
By
ERIC H. MILLER
A Thesis submitted to the
Department of History
in partial fulfillment of the
requirements for the degree of
Master of Arts
Degree Awarded:
Fall Semester, 2012
Eric H. Miller defended this thesis on October 23, 2012.
The members of the supervisory committee were:
Neil T. Jumonville
Professor Directing Thesis
Andrew K. Frank
Committee Member
Jennifer L. Koslow
Committee Member
The Graduate School has verified and approved the above-named committee members, and
certifies that the thesis has been approved in accordance with university requirements.
ii
For Paula, whose patient encouragement sustains our family and whose heart I treasure.
iii
ACKNOWLEDGEMENTS
I am grateful for Dr. Neil Jumonville’s support for this project and his always cogent
comments for improvement. I thank Dr. Andrew Frank and Dr. Jennifer Koslow for their
willingness to help shepherd this project to completion. A particular note of thanks to Professor
H. Glenn Boggs, II, whose suggestion that I consider the effect of the Armed Occupation Act on
developing the homestead doctrine in Florida contributed greatly to the scope and depth both of
the research and this narrative.
iv
TABLE OF CONTENTS
List of Tables ................................................................................................................................ vii
Abstract ........................................................................................................................................ viii
1.
INTRODUCTION ...................................................................................................................1
1.1
1.2
1.3
1.4
2.
A NEW LAW FOR THE NATION: THE RISE OF SETTLEMENT DONATION
PRINCIPLES AND PROPERTY EXEMPTIONS IN TEXAS CONSTITUTIONALISM ...9
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
3.
The Question Presented .................................................................................................2
Research Methodology ..................................................................................................2
A Word About Vocabulary............................................................................................ 3
A Brief Historiography……………………………………………………………… ..4
The Colonial Period: 1821 - 1836 ................................................................................11
The Homestead Exemption and Land Grants in the Republic of Texas…………… ..14
2.2.1 The Homestead and Personal Property Exemptions ...........................................15
2.2.2 The Law of Settlement Donations ......................................................................18
1845: Annexation, Statehood, and the Constitutional Homestead………………… ..20
Early Statehood, Secession, and the Post-War Constitution: 1845 – 1866………… .24
2.4.1 The 1845 Texas Constitution………………………………………………… ..24
2.4.2 The 1861 Texas Constitution………………………………………………… ..26
2.4.3 The 1866 Texas Constitution………………………………………………… ..27
Chaos, Reconstruction, and Reassertion of Power by the Old Guard: 1868 – 1876 ...33
2.5.1 The 1869 Constitution………………………………………………………….33
2.5.2 Settlement by Donation: 1870 – 1875………………………………………… 37
2.5.3 Homestead and Personal Property Exemptions 1870 – 1875…………………. 38
2.5.4 The Constitutional Convention of 1875………………………………………..39
Codification and Evolution of the Laws Under the 1876 Constitution…………… ...44
2.6.1 Development and Revision of the Initial Statutory Code: 1876 – 1895………. 45
2.6.2 The End of the Frontier and Statutory Modernization: 1898 – 1935………… ..48
Evolution of the Modern Exemptions in Texas: 1969 – 2009……………………… .52
2.7.1 Modernizing the Constitution and Statutes: 1969 – 1983…………………….. .53
2.7.2 Emerging Financial Protections and the Current Statutes: 1987 – 2007……… 57
Chapter Summation………………………………………………………………… .64
FLORIDA’S CONSTITUTIONAL PROPERTY EXEMPTIONS:
CHANGED INTENT IN UNCHANGED TEXT…………………………………………. 66
3.1 Development of Property Protections for Debtors Before 1868…………………….. 68
3.1.1 Development of Federal Settlement Pre-Emption and Donation Policies:
1791-1822…………………………………………………………………… ...68
3.1.2 Disposition of Federal Lands in Florida by Settlement Pre-Emption…………. 70
3.1.3 The Armed Occupation Act…………………………………………………… 71
3.1.4 Florida Legislation in the Territorial Period: 1822 – 1845……………………. 73
v
3.2
3.3
3.4
3.5
3.6
4.
ALASKA: ACCESSION TO EXEMPTION……………………………………………....97
4.1
4.2
4.3
4.4
4.5
5.
3.1.5 Early Steps Protecting Debtors’ Property in Florida: 1843 – 1868…………… 74
3.1.6 The 1862 Homestead Act………………………………………………………75
Origin of the Florida Constitutional Property Exemptions: The 1868 Constitution…76
3.2.1 The Constitutional Convention of 1868……………………………………….. 76
3.2.2 Implication of the New Exemptions: Inventory of Dr. F.A. Byrd…………….. 79
3.2.3 Statutes and Court Decisions Under the 1868 Constitution……………………80
The 1885 Constitution: Textual Continuity………………………………………… .81
3.3.1 The Public Policy Debate in the Convention of 1885………………………….81
3.3.2 Development of the Law: Decisions, Statutes, and Amendments, 1886–1965.. 86
The Modern Era…………………………………………………………………… ...87
3.4.1 The 1968 Constitution………………………………………………………….87
3.4.2 Proposed Amendments After 1968……………………………………………. 88
3.4.3 Post-1968 Judicial Interpretations and Statutory Developments……………… 90
3.4.4 The Impact of the 2005 Amendments to the Bankruptcy Code………………..91
Change in Property Values Over Time Shows Dependence on
Real Property Values ...................................................................................................93
Chapter Summation………………………………………………………………… .95
1867 – 1884: Accession And Early Federal Control………………………………. ..98
1884 – 1912: Territorial Organization and Adoption of Exemptions……………… 100
4.2.1 The First Organic Act……………………………………………………….. .100
4.2.2 Expansion of the Federal Homestead Laws to Alaska………………………..104
4.2.3 1900: The Alaska Homestead Exemption…………………………………….108
4.2.4 Expansion of Settlement Donation Grants in Alaska……………………… ...111
4.2.5 Territorial Organization: The Second Organic Act…………………………. .111
The Territorial Period: 1912 – 1959……………………………………………… ..112
4.3.1 Changes to the Settlement Donation Laws Affecting Alaska……………… ...112
4.3.2 Changes in Property Exemption Laws……………………………………… ..113
4.3.3 Constitution and Statehood………………………………………………… ...114
Alaska Property Exemptions: 1959 – Present…………………………………… ....115
4.4.1 Property Exemptions: 1962 – 1982…………………………………………...115
4.4.2 The 1982 Exemption Revisions…………………………………………….. ..117
4.4.3 Exemptions to the Present Day………………………………………………. 122
4.4.4 Residual Settlement Donation Law in Alaska………………………………. .124
Chapter Summation……………………………………………………………… ...125
CONCLUSION………………………………………………………………………….. .128
APPENDICES .............................................................................................................................132
A. GLOSSARY………………………………………………………………………… ..132
B. MODERN CONSEQUENCES: A FABLE ..................................................................134
BIBLIOGRAPHY ........................................................................................................................135
BIOGRAPHICAL SKETCH .......................................................................................................153
vi
LIST OF TABLES
Table 1: Relative Value of $1,000 Since 1868 – Calculation Methodology: Consumer Price
Index……………………………………………………………………………………..………94
Table 2: Dr. F.A. Byrd Taxable Property – 1871 – Calculation Methodology: Consumer Price
Index……………………………………………………………………………………..………94
vii
ABSTRACT
This paper argues the creation and development of homestead and personal property
exemptions in state constitutions and statutes exemplify change in public policy concerning the
rights of debtors and creditors, economic development, preservation of families, and property
rights in Texas, Florida, and Alaska. Reserving to a debtor some items of personal property by
express exemption from the reach of general creditors has roots in the historical jurisprudence of
both Spain and Great Britain, influencing the development of similar principles in Mexico and
the United States. Excluding that portion of each debtor’s real property comprised of the
residence and additional land was a new doctrine originating in Mexico in the 1820s, fully
articulated in the Republic of Texas by statute in 1839, and embedded as principle of organic law
in the Texas Constitution of 1845.
Using a similar term in a different context, the federal Homestead Act of 1862 was the
culmination of national discussion on the best manner to develop the vast public lands. Since the
implementation of the Northwest Ordinance in 1787 the United States pursued a policy of
offering tracts of land in new territories at low prices both to raise funds for the federal
government and to encourage economic development through settlement. Occasionally,
provision was made by law for donations of federal land to qualifying settlers, limited to a
specific time and location. The Armed Occupation Act of 1842 was the first law adopted by
Congress offering land grants to any settler who occupied and cultivated parcels of public land,
albeit limited to the Florida peninsula. This Act incorporated part of the emerging principle of
homestead exemption by prohibiting creditors from seizing and selling a land claim to satisfy
debts arising prior to the government issuing its patent conveying title to the parcel. I find this
principle, modified and incorporated into the Homestead Act, had a significant effect on the
development of property exemption laws in territories such as Alaska. Because Texas retained its
public lands upon entering the Union, providing settlement land grants by pre-emption and
donation was a matter of state law. Unlike the Homestead Act, because of the existing state
constitutional homestead exemption the Texas law on settlement donations did not incorporate a
prohibition against seizing claims for pre-existing debts.
The narrative develops the history of the homestead exemption and of the settlement land
donation laws by analyzing the text of the original laws, statutes, and constitutions for each state.
viii
Because some early documents from Mexico were first written in Spanish, the text of original
translations relied upon in Texas as these doctrines were developed is used. By examining the
evolution of homestead and personal property exemptions in each state, together with the
influence of the applicable settlement land donation laws, I argue the use of similar concepts
represented different public policy developments.
The public policy of Texas historically was to prevent family impoverishment by preserving
adequate means for shelter and support. This protection was deemed so important that placement
in the Constitution was necessary to avoid its curtailment without a prior general vote of the
people. Over time, Texas maintained this consistent public policy by changing the language of
the constitutional homestead and statutory personal property exemptions. Although no longer
emphasizing the family farm, the modern, very lengthy homestead exemption continues to
embody a concern to protect ordinary citizens from financial improvidence.
Florida chose a different method of adapting public policy to economic change. Adopting an
early statutory form of property exemptions, Florida did not place homestead and personal
property exemption principles in its Constitution until 1868. The language adopted proved
sufficiently flexible to remain essentially unchanged since then. Expanding on Texas’ example
Florida constitutionally-designated not only the rural homestead but also an urban homestead
without regard to value, both limited solely by area. Unlike Texas, Florida gave express
constitutional protection to a specific value, $1,000, of personal property; also adopted in 1868,
this amount has never been changed. I conclude this unchanged text demonstrates the changed
intent of Florida public policy to rely on increasing land values to provide adequate resources to
support debtors after financial reversals.
Public policy in Alaska deemed statutory structures adequate to protect a debtor’s interests.
Having one of the longest territorial periods before achieving statehood, much of Alaska’s
doctrine on property exemptions developed from the federal laws, including the 1862 Homestead
Act, used to administer the district. As I conclude, changes in Alaskan exemption policy were
reflected in changed statutes.
ix
CHAPTER ONE
INTRODUCTION
All historical questions worth inquiry arise from fact. Some questions examine the direct
consequences of an event,1 some speculate on counterfactual alternatives;2 some are derived
from earlier research, and some from original experience. The pursuit of this thesis began over
twenty years ago as I represented private clients (debtors and creditors) in Florida bankruptcy
proceedings and began to wonder why the Florida Constitution protected the full value of the
debtor’s residence (provided the debtor owned the property) but only $1,000 worth of personal
property such as clothes, furniture, pets, and books. Intriguingly, the Constitution has protected
the identical sum, without change, since 1868.
Resolving the consequences of financial misfortune by balancing the interests of society in
sustainable economic, political, and legal structures with the interests of individual debtors in
continuing to provide a living for themselves and their families has been an issue for every
government. Being no exception in this regard, the United States received many elements of its
various debt resolution and insolvency laws, both federal and state, from the earlier principles
applied by the several European colonial powers, particularly Spain and Great Britain. A
significant policy choice was to protect some assets of debtors from being seized by creditors, no
matter how great the debts. Such allowances by the government provided some means of
continued self-sufficiency; not as a matter of altruism but a pragmatic decision to avoid making
impecunious debtors wards of the state.
Early laws exempting some debtor assets from the reach of creditors were limited to specific
items individuals typically needed to sustain themselves and their families, such as farm tools,
clothes, and some household goods. Protecting land, or “real property,” was less of an issue until
European settlement of North American began in earnest and increasing numbers of settlers
gained the ability to own and hold land. In the nineteenth century two principles emerged that
affected settlement in the United States and the development of wealth. The first was providing
1
E.g., how did the German occupation of the Sudetenland in 1938 affect French foreign policy?
E.g., what would have happened if the “plumbers” remembered to remove the adhesive tape from the door lock
during the Watergate break-in of 1972?
2
1
individuals with the ability to acquire a certain amount of public land donated by the government
if they met requirements for occupying, claiming, and remaining on the land. This was mainly a
matter of federal law as the United States owned most of the “vacant”3 public lands in the
territories and states (with the exception of Texas). The second was a wholly-new principle first
developed in the Republic of Texas: a general protection of land on which a debtor resided, the
“homestead,” regardless of social status or occupation. The homestead exemption, as well as
more traditional exemptions for non-real or “personal” property, was not adopted as a national
policy but left for each state to determine the scope and extent of any protection.
1.1 The Question Presented
Considering the history of property exemptions raised the primary question for this research:
How did the creation, organization in law, and diachronic change of property exemptions
exemplify the public policy of a particular state towards debtors and creditors? The deliberations
of constitutional conventions and legislatures provide some guidance but the central sources for
answering this question are the documents actually produced. The constitutions and laws are the
primary statements of public policy by the people of a jurisdiction at a given time.
Examining the factors contributing to the decisions made about property exemptions requires
considering the impact of land settlement policies in a certain territory or state during the latter
half of the nineteenth century. Different federal laws protected (to an extent) the land claimed by
settlers from being seized for debts predating the final transfer of the property to the claimant.
This leads to a corollary question: What impact did the law of settlement donation land grants
have on the development of property exemption laws within a particular jurisdiction?
1.2 Research Methodology
This study compares the development of homestead and personal property exemptions, both
constitutionally and statutorily, in three separate states: Texas, Florida, and Alaska. As the
homestead exemption originated in Texas, the changes in the sequential versions of the state
constitution as well as all changes shown in the actual language of the statutes were integrated
into a narrative together with the policy discussions from the several Texas constitutional
As commonly used in nineteenth century law on settlement land grants, “vacant” public land was property not
legally transferred or titled to another party but was held for use or disposition by the public sovereign, generally the
United States for land outside of Texas or the State of Texas for land within its borders. As discussed in Chapter
Four, Alaska held some of its land for settlement grants after the end of the federal settlement donation laws.
“Vacant” was not used to disregard actual use or occupancy by Native Americans or others; land was deemed vacant
if there was no legal claimant other than the national or state sovereign. The term is used in this paper with its
contextual legal meaning.
3
2
conventions. Unique among the states, Texas controlled the vacant public lands within its
borders and its laws on settlement donations to land claimants in the context of comparable
federal laws are examined.
Florida in 1868 adopted a constitutional homestead exemption comparable to that of Texas.
The economic conditions and statutes from Florida’s earlier period, both as a territory and as a
state, are examined. In Florida, policy development in part was demonstrated by the subsequent
evolution of exemption statutes as opposed to the substantially unchanged language in the
versions of the constitution, and in part by the lack of change to the constitutional text in
response to the State’s economic evolution.
Alaska is examined as a contrast to the other two states because its legal doctrines developed
primarily under the long period of federal administration. Beginning in 1867, contemporaneously
with the appearance of property exemptions in the Florida Constitution, and ending with
Alaska’s admission to the Union in 1959, federal law and doctrine controlled the development of
property exemption principles in Alaska. The result was a policy of protecting the assets of
debtors through statutory enactments alone and not as part of the foundational law of the state.
State primary sources include the original text of constitutions, statutes, amendments to each,
journals and records of debates for the various legislatures and constitutional conventions. The
primary sources for federal law are the acts of Congress codified in the Statutes at Large.
1.3 A Word About Vocabulary
Several terms of art used throughout this work are defined in the glossary (Appendix A) but
certain critical distinctions bear reiteration. In common legal usage, “homestead” means
variously an individual’s residence, a specific form of property exemption protecting the debtor’s
residence from seizure by creditors, or a type of property acquisition method named for a
particular federal law providing public land to qualifying settlers. Unless referring to the name of
a specific law, I use “homestead” exclusively to mean the legal exemption from seizure by
creditors of an individual’s residence together with a limited amount of land. Legal property
exemptions for assets other than a homestead are referred to as “personal property exemptions.”
When referring to laws providing government land to settlers under specific conditions but not
requiring a purchase price, commonly called “homestead laws,” I substitute the phrase
“settlement donation laws.” Both the federal and Texas governments included a related yet
different concept in their settlement land grant laws: the “pre-emption” of a specific parcel by a
3
particular claimant. “Pre-emption” is used in the same context as in the respective laws: one’s
right to “pre-empt” all others from claiming a parcel of land by completing an initial government
documentation procedure, i.e. filing a claim. As pre-emption was used both in land purchase and
settlement donation laws, I use the term to designate the right to file an exclusive claim.
1.4 A Brief Historiography
As indicated both by the questions presented and the methodology described, the core
historiography for this study is found in the various constitutions of the states examined,
pertinent federal statutes, those laws the states adopted to implement their constitutions, and all
relevant amendments to these documents. In the legislative context, “law” is a bill passed by the
legislature and approved by the chief executive; these typically are organized by the year passed,
the specific legislature enacting the law (usually denominated as the “___nth Legislature under
the Constitution of xxxx”), and the particular session of that legislature. A compilation of “laws”
may be published in pamphlet form for that given year but not indexed and integrated with all
other laws in effect for that jurisdiction, a common practice in the early to mid-nineteenth
century. On the other hand, “statute” denominates a law organized as part of a comprehensive
statutory code comprised of all laws in effect for that particular jurisdiction, integrated and
organized for ready cross reference. Although the legislature must approve a codification of the
laws, and statutes are revised or amended by subsequently-passed laws, the code establishes a
base line for research that greatly reduces the need to consult all the laws for the limited number
actually affecting a specific topic.
Before the major codifications resulting in the United States Code, the Revised Statutes of
Texas, the Florida Statutes, or the Territorial Laws of Alaska, the sources for laws affecting
property exemptions were the various compilations of laws by year. The source for the laws
adopted by Congress is the “Statutes at Large.” In Texas, Gammel’s The Laws of Texas 18221897, first published in 1898, sought to compile all the laws adopted by the Republic of Texas
(that were still in effect) with the laws adopted since 1845 by the State, as well as the
constitutions and laws enacted in Mexico affecting the region, the national constitution of 1836,
and the several versions of the state constitution. In Florida, the Laws of Florida compiled all
laws in effect with some limited indexing. Alaska did not have a territorial legislature until 1912;
the laws of that body were compiled but not codified until after the territory became a state.
4
The laws passed within or for a jurisdiction are based on the underlying foundational, or
organic, law creating the basic form of government and apportioning power between the three
branches of government.4 Texas has been governed under Mexican national and state
constitutions, its own national constitution, and five different state constitutions, including one of
questionable efficacy (adopted in 1866). Florida had a limited form of territorial self-government
followed by six state constitutions; as with Texas, the constitution adopted immediately after the
Civil War and before Congressional Reconstruction in 1867 was of limited effect, if any. The
federal government allowed limited self-rule in Alaska under two different “organic” laws before
adoption of the present state constitution. In conjunction with policy discussions in the journals
of the various constitutional conventions for these three states, as well as journals for their
respective legislative chambers, the decisions on whether or not to revise the texts concerning
property exemptions provide additional insight.
From the nineteenth through the twentieth century, the study of property exemptions,
particularly the homestead exemption, moved from large – scale discussion as a treatise subject
to topical consideration in separate articles or book sections. The first significant treatises on
homestead and property exemption laws began to appear after 1870. Each similarly addressed
the laws and case decisions from every state, typically organizing concurring holdings as one
point with those states reaching different conclusions grouped as a counterpoint. Each work
attempted a comprehensive study of all homestead and exemption laws through the case
decisions of each state with the goal of discerning, identifying, and supporting general principles
common to all such laws. The earliest volume studied for this discussion is Smyth’s The Law of
Homestead and Exemption.5 Smyth argued two principles supported all laws of homestead and
property exemption: 1) protect the home for the benefit of the debtor’s wife and children, and 2)
protect the citizen’s freedom and independence to further the republican interests of each state.
Smyth discussed the different exemption statutes of the various states and their context under the
Congress fulfills its duty to ensure each state a “republican form of government” by approving the constitution for
each new state. U.S. Const., Art. IV, §4. While some hold a republican government is assured simply by providing
for representational democracy in choosing members of the legislature, I disagree. American constitutional
republicanism requires the political power of the people be vested in three separate co-equal branches of
government: legislative, executive, and judicial.
5
John H. Smyth, The Law of Homestead and Exemption, 49 (San Francisco, 1875), at
http://books.google.com/books?id=aM9AAAAIAAJ&printsec=frontcover&dq=constitution+homestead+Florida&lr=&source=gbs_similarbooks_r&cad
=2#v=onepage&q=constitution%20homestead%20Florida&f=false (accessed 9/9/2012).
4
5
Bankruptcy Act of 1867,6 finding key federal concerns impacted the development and efficacy of
exemption laws in that era. First, there was extensive litigation over whether exemption acts
merely altered one of many remedies available to a creditor or actually impaired existing
contracts7 when applied retroactively. In Smyth’s view, states could alter existing remedies
available for debt collection, including extending property exemptions, because the underlying
contract itself was not impaired.8 Second, the use of the phrase “uniformity of bankruptcy laws”
in the U.S. Constitution9 simply meant the federal law must implement the same category of
allowances in each state so that creditors received no more or less than they would realize under
the state law of the debtor’s domicile.10
Writing with the benefit of case decisions rendered subsequent to Smyth’s work, Seymour D.
Thompson drew different, and more accurate, conclusions. He interpreted U.S. Supreme Court
decisions as ruling the adoption of new exemption statutes (or inclusion of property exemption
clauses in the new constitutions generated primarily in the South) could operate only
prospectively to avoid any appearance of impairing the contract rights of creditors. 11 Thompson
used the same analytical approach as Smyth by digesting the various exemption laws and
interpretive decisions in an attempt to summarize common principles. In his preface Thompson
candidly admitted the laws of homestead and property exemptions remained essentially
parochial: “(w)ith few exceptions the courts have not been able to seize upon, or keep hold of,
governing principles.”12
Rufus Waples’ later attempt to develop a systematic treatise on the laws13 similarly sought
elusive general principles to guide state courts and legislatures in applying homestead and
personal property exemptions. Favorably viewing homestead as one of the most beneficial forms
6
The Bankruptcy Act of 1867 was repealed in April, 1878. Elizabeth Lee Thompson, The Reconstruction of
Southern Debtors: Bankruptcy After the Civil War (Athens: The University of Georgia Press, 2004), 135.
7
The U.S. Constitution prohibits the states from adopting any “Law impairing the Obligation of Contracts.” U.S.
Const., Art I, §10. In this context, a law is “retroactive” if applied to contracts and obligations created prior to its
enactment. Similarly, a law is “prospective” if applicable only to contracts created in the future.
8
Smyth, 62 – 66.
9
U.S. Const., Art. I, §8.
10
Smyth, 337.
11
Seymour D. Thompson, A Treatise on Homestead and Exemption Laws, 14 (St. Louis, 1878), at
http://books.google.com/books?id=uU9AAAAIAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false (accessed
9/9/2012).
12
S. Thompson, vi.
13
Rufus Waples, A Treatise on Homestead and Exemptions (Chicago, 1893), at
http://www.archive.org/stream/homesteadexempti00wapl#page/790/mode/2up (accessed 9/9/2012).
6
of legislation adopted,14 Waples thought placing exemptions in a constitution did not change
their fundamental operation but only placed them beyond the reach of legislative meddling.15
Seymour Thompson’s observation about the lack of unifying principles anticipated the
direction taken by legal scholarship during the twentieth century. Discussions in works analyzing
the meaning and impact of property exemption provisions in a particular constitution tended
merely to recite the text without a great deal of historical or policy analysis.16 Works noted for
original insight into doctrinal development of American law placed property exemptions in
context with the scope of property and commercial law with only a brief statement. 17 Analysis of
the purpose and impact of property exemption legislation occasionally appeared in themed
studies or legal histories as a topical reference indirectly supporting a separate point. For
example, one author in part attributes the proliferation of exemption provisions in southern state
constitutions during Reconstruction as an attempt to take full advantage of the provision for
debtor exemptions using state law that was incorporated into the 1867 Bankruptcy Act.18
Another interpreted the same exemptions as a southern predilection to prefer the interests of
debtors over the rights of creditors, leading to diminished investment in the region.19
One author posited homestead and personal property exemption laws arose in reaction to the
developing market economy in the United States during the nineteenth century, with its cycles of
expansion and recession. The nation’s regions adopted these principles at different times. The
South and West moved rapidly to enact property exemption laws during the 1830s and 1840s as
a result of economic downturns and bank failures (a pattern demonstrated in the following
chapters on Texas and Florida). In contrast, the North and Midwest adopted these principles
during better economic times in the 1850s because of the evolution of political parties, such as
the Free-Soil Party, that advocated the protection of families through shielding their homes.20
This analysis also concluded the movement for property exemption laws had conflicting
14
Waples, xcvii.
Waples, 765.
16
E.g., Talbot D. D’Alemberte, The Florida State Constitution: A Reference Guide (Westport, CT: Greenwood
Press, 1991), 138.
17
E.g., Lawrence M. Friedman, A History of American Law (New York, 2005), 177-178.
18
E. Thompson, 4-5, 14-16, 25-26.
19
William M. Wiecek, “‘Old Times There Are Not Forgotten:’ The Distinctiveness of Southern Constitutional
Experience,” in Kermit L. Hall & James W. Ely, Jr. (ed.), An Uncertain Tradition: Constitutionalism and the
History of the South (Athens, University of Georgia Press, 1989), 159 – 197.
20
Paul Goodman, “The Emergence of Homestead Exemption in the United States: Accommodation and Resistance
to the Market Revolution, 1840-1880,” The Journal of American History 80, No. 2, 470-498 (September 1993).
15
7
purposes from the beginning: attempting to reduce risks for individuals, by making the market
“moral” and by protecting families, while at the same time seeking broader access to credit
necessary for economic development.21
In the twentieth century, like the nineteenth, the public policy that balanced the interests of
economic development, and the rights of lenders and investors as creditors, with the property
rights of debtors, and the concomitant interests of society in individual self-sufficiency and
familial support, was articulated by the people through the constitutions adopted and by state
legislatures through the laws passed. Direct and primary interpretation of the property
exemptions and their policy ramifications increasingly became the province of the courts. Given
the general description of property subject to exemption, many states adopted a liberal
construction for homestead and exemption laws, broadening their reach for the benefit of
debtors.22 This was the rule in Florida: "Exemption laws are to be liberally construed in favor of
their beneficent purposes."23
Two rhetorical positions supported the adoption of homestead and personal property
exemption laws. Legislator and jurist alike expounded on the need to protect the family home,
particularly to shelter wives and children from the consequences of poor management,
profligacy, or unfortunate financial loss of the husband.24 The protections also were linked to
another concurrent policy, the settlement donation of public land to settlers. These policies were
intended to protect individual liberty and encourage increased citizen participation in the
government of emerging states.25
Historical analysis comparing the development and implementation of the homestead and
personal property exemptions in different jurisdictions does not appear in the available literature.
Accordingly, this thesis begins in the time before Texas became a separate political entity and
develops the exemption doctrines to the present day. With similar approaches taken for Florida
and Alaska, what emerges is an understanding of the principles common to all such exemptions
and the necessity to implement those principles within the context of the separate experiences of
the people within each state.
21
Goodman, 497.
Waples, 764; Goodman, 487 – 488.
23
McDougall v. Meginnis, 21 Fla. 362, 373, 1881 Fla. LEXIS 22 (1885), quoting Carter's Administrators vs. Carter,
20 Fla. 558.
24
Goodman, 487.
25
Smyth, 49 – 50; S. Thompson, 2 – 3, 602. Both cite Sen. Thomas Hart Benton’s memoir Thirty Years in the
United States Senate, 103 – 104.
22
8
CHAPTER TWO
A NEW LAW FOR THE NATION:
THE RISE OF SETTLEMENT DONATION PRINCIPLES
AND PROPERTY EXEMPTIONS IN TEXAS CONSTITUTIONALISM
The principle of exempting certain types of personal property from the reach of creditors
predates Cortez’s conquest of Mexico, De Soto’s expedition through Florida, or Drake’s
circumnavigation of the globe.26 By 1476, Spanish law protected the tools and livestock of a
farmer from seizure by creditors;27 later statements of law protected artisans’ implements such as
looms or spinning wheels.28 One commentator traced the development of English law exempting
certain property from seizure and the application of this principle in colonial lawmaking until
1732, when Parliament enacted legislation making all of a debtor’s land, movable property, and
slaves subject to debt enforcement.29 In Spain, exempting a farmer’s tools or the arms of a
military officer would have served the Crown’s broader interests in maintaining a stable food
supply and military preparedness, both necessary to support colonial expansion and
administration of the developing empire. In contrast, the 1732 act of the English Parliament
apparently responded to the impact on creditors’ commercial interests of the increasingly
generous protections afforded debtors by the North American Colonies. In short, whether
extending or contracting protections afforded debtors from their creditors, laws exempting assets
from seizure for debt were implemented to further public policy interests.
During the 1820s, increasing numbers of settlers flowed in from the United States to the
northeastern area of the Republic of Mexico known as Texas (actually, the northeastern portion
of the State of Coahuila and Texas). Often seeking a fresh start after prior financial reversals,
some of these settlers were unable to pay their American creditors. At the urging of Stephen
Austin and other empresarios, or settlement organizers, the state legislature in 1829 adopted
Joseph W. McKnight, “Protection of the Family Home from Seizure by Creditors: The Sources and Evolution of a
Legal Principle,” The Southwestern Historical Quarterly 86, No. 3 (January 1983), 369-399.
27
McKnight, 371-372. Lena London, “The Initial Homestead Exemption in Texas,” Southwestern Historical
Quarterly 57, No. 4 (April 1954), 432-453; 441, n. 25, at
http://texashistory.unt.edu/ark:/67531/metapth101152/m1/3/?q=London (accessed 9/11/2012).
28
Circa 1689. Alison D. Morantz, “There’s No Place Like Home: Homestead Exemption and Judicial Constructions
of Family in Nineteenth-Century America,” Law and History Review 24, No. 2, (Summer 2006), 245-295; 252.
29
McKnight, 389-390.
26
9
Decree No. 70,30 a law prohibiting creditors from levying on lands granted to certain immigrants
in order to collect prior debts. While subsequently repealed,31 this decree was the precursor of
the first enactment in North America expressly placing the residence of a family, the
“homestead,” beyond the reach of ordinary creditors.32
In its Constitution of 1836 the Republic of Texas expressly provided for donations of vacant
public land for settlement by claimants meeting certain criteria, continuing an inducement for
settlement and land improvements previously implemented in Mexico.33 The Texas Act of 1839
was a new principle, born of the necessity for settlement and agricultural development that
imbued territorial expansion in North America during this period. After its annexation into the
United States in 1845, Texas became the first state to codify this principle of homestead
exemption in its Constitution, refining the scope and extent of exemptions for the homestead as
well as other property of debtors. These two principles, settlement by donation and exemptions
for property, would foster settlement in the state throughout the nineteenth century. The pace of
change for the statutes implementing constitutional property exemptions would slow, then stop
for almost forty years, leaving the state with exemptions more suited to an agrarian society than a
twenty-first century diversified economy. In this the public policy of Texas appears similar to
that of Florida, described in Chapter Three: over time, state leaders depended more on the
homestead protection and increasing real property values to provide unfortunate debtors with
resources adequate to support their families and recover from economic misfortune. Unlike
Florida, in Texas the adjustment of exemptions for personal property would play a greater role in
protecting the interests of debtors.
“Decree No. 70, enacted by the Congress of the State of Coahuila Y Texas on January 13, 1829,” H.P.N. Gammel,
The Laws of Texas 1822-1897, Vol. 1, 220 (Austin, Gammel Book Co., 1898), at
http://texashistory.unt.edu/ark:/67531/metapth5872/m1/228/?q=decree%2070%201829 (accessed 8/3/2012).
Gammel collected and reprinted in ten volumes translations of the official correspondence and laws from the
Mexican colonial period, the constitution and laws of the Republic of Texas, and the constitutions adopted and laws
passed by the State of Texas. Printed in 1898 and supplemented through 1921, “Gammel’s Laws” finally comprised
twenty volumes. (The shortened reference herein is “(volume) Gammel (page),” accessible through the above link.)
31
Decree No. 173, enacted by the Congress of the State of Coahuila Y Texas (April 28, 1831): 1 Gammel 289.
32
Act approved by the President of the Republic of Texas on January 26, 1839: 2 Gammel 125-126.
33
“Translation of the General Law of Colonization, No. 72” (General Congress of the United Mexican States,
August 18, 1824): 1 Gammel 97; Decree No. 16, “Law for Promoting Colonization in the State of Coahuila and
Texas” (Congress of the State of Coahuila and Texas, March 24, 1825): 1 Gammel 99.
30
10
2.1 The Colonial Period: 1821 - 1836
After gaining independence from Spain in 1821, Mexico went through an initial period of
political turbulence before adopting a federal constitution in 1824.34 In this same period various
individuals sought authority to organize settlements of immigrants on unoccupied lands in the
northeastern part of Mexico under permission from the national and state governments.35 Under
the separate national law for colonization, these organizing emperasarios, or speculators, were
authorized to contract with people to settle these lands but were responsible for the expenses of
moving the settlers into the territory.36
In the General Law of Colonization, the national government not only authorized the terms
under which settlement would be encouraged but also expressed an underlying policy that public
lands dedicated to such use retained a public character. Article 2 of the Law stated its scope:
This law relates to those lands, national property, which, as belonging to no individual,
corporation, or town, may be occupied by settlers.37
Settlers could neither transfer any land obtained to religious communities nor retain any land if
they settled outside of the Republic.38 Restraining the private transfer of lands donated for
settlement demonstrated the government intended the use of public lands to achieve a specific
public purpose. This concept would also underlie the later land grant policies applied in Texas.
Lying west of the Sabine and south of the Red rivers, along the new nation’s border with the
United States, Texas originally was one of three provinces comprising Mexico’s Internal State of
the East39 and subsequently was incorporated into the State of Coahuila and Texas.40 The
Congress for the State of Coahuila and Texas adopted a local colonization law consistent with
the existing federal act, expressing the State’s intent to expand its population and encourage
development of agriculture and commerce.41 Foreign immigrants were entitled to seek and
34
Federal Constitution of the United Mexican States (October 4, 1824): 1 Gammel 72.
1 Gammel 1-21. The first part of this volume reprints the 1829 pamphlet “Laws, Orders and Contract on
Colonization 1821 to 1829,” apparently published by or under the authority of Stephen F. Austin, the empresario of
Austin’s colony near modern-day Austin, Texas. In pages 3-25, Austin introduces the translation of the Mexican
decrees and official correspondence pertaining to the legal titles to land held by the colonists. While a useful
synopsis of the political changes affecting settlement in Texas, this introduction is Austin’s justification for his
actions and status.
36
Art. 14, Translation of the General Law of Colonization (August 18, 1824): 1 Gammel 98.
37
Art. 2, Translation of the General Law of Colonization: 1 Gammel 97 (emphasis supplied).
38
Arts. 13, 15, Translation of the General Law of Colonization: 1 Gammel 98.
39
Art. 7, Constitutive Acts of the Mexican Federation (January 21, 1824): 1 Gammel 61.
40
Title II, Art. 5, Federal Constitution of the United Mexican States (October 4, 1824): 1 Gammel 73.
41
Law for Promoting Colonization in the State of Coahuila and Texas (Congress of the State of Coahuila and Texas,
35
11
receive a grant of vacant State lands upon becoming a citizen. No purchase price was imposed
but each colonist was required to provide the government with “a species of acknowledgment…”
of $30 for each lot42 of pasture land, $2.50 for each subdivision43 of non-irrigated arable land,
and $3.50 for each subdivision of irrigated land; the organizer of the colony, the emperasario,
did not have to pay the acknowledgment. Upon approving a proposed colonization project, the
State government would designate the land to be awarded to the colony. The emperasario was
required to propose a plan for settlement by at least 100 families; if the colony drew 800 or more
families, an additional amount of land would be awarded to the emperasario. Failure to provide
at least 100 families for settlement would void the entire grant for the colony. The Law for
Promoting Colonization specified the amount of land within the grant to be distributed to each
family, provided more land for those bachelors who married Mexican citizens, designated a
much smaller land grant to unmarried men, and established the process to create a town within
these land grants.44
By granting lands to settlers the State of Coahuila and Texas did not intend to provide
complete ownership but controlled the property’s use to meet the goals of economic
development. A settler had six years to begin cultivating the lands or the grant was forfeited back
to the state. Lands granted to a settler who later died could be transferred to that settler’s heirs by
an existing will or by the applicable laws of intestate45 succession; either form of inheritance
required the heirs to take the lands under the same legal obligations for development as the
original settler. Settlers could not transfer or will their lands to a religious community and were
not permitted to retain ownership of their lands if they left the state to live in a foreign country; if
the settler did not sell the land before emigrating to another country the property returned to the
ownership of the state.46 While limiting the ability of a settler to use the granted lands for any
private purpose that did not further the interests of the state in economic development, the law
was silent on any protection of the lands granted from the claims of pre-existing creditors.
March 24, 1825): 1 Gammel 99.
42
“Lot” was defined as a square league of land, 5,000 yards on each side, each yard equal to 3 geometric feet. Art.
11, Law for Promoting Colonization: 1 Gammel 101.
43
“Subdivision” was defined as a square of 1,000 yards on each side. Art. 11, Law for Promoting Colonization: 1
Gammel 101.
44
Arts. 4, 8, 12, 14, 15, Law for Promoting Colonization: 1 Gammel 100-102.
45
A person who dies intestate is one who has not executed a will and whose estate is disposed of solely by
application of specific laws.
46
Arts. 26, 28, 29, 30, Law for Promoting Colonization: 1 Gammel 103.
12
Under these circumstances, if a debtor in the United States failed to pay before emigrating to
Texas, leaving little or no property from which the debt could be paid readily, the creditor faced
a choice: write off the debt or enforce payment in Mexico. Depending on the size of the debt, the
effort could be worthwhile if the debtor received a grant of land and thus had assets from which
the creditor could be satisfied. Enough creditors took the second option that by 1823 Austin
sought to provide a measure of protection for the settlers in his colony, first by an alternative
process to regular court proceedings and later by suggesting the state legislature impose a
twelve-year moratorium on debt collection.47 Anticipating final ratification of a commercial
treaty between the United States and the national government of Mexico, in part providing for
effective enforcement of claims by U.S. creditors to collect debts from Texas immigrants, Austin
in 1828 renewed his efforts for the Congress of the State of Coahuila and Texas to protect
settlers from foreign debts.48
The result was Decree No. 70, adopted by the legislature on January 13, 1829:
The Congress of the State of Coahuila and Texas has thought proper to decree:
Art. 1. The lands acquired by virtue of colonization law, whether general laws of the
Republic or private laws of the State, by native or foreign colonists, and by empresarios,
shall not be subject to the payment of debts contracted previous to the acquisition of said
lands, from whatever source the said debts originate or proceed.
Art. 2. Until after the expiration of twelve years from having held legal possession, the
colonists and empresarios cannot be sued, or incommoded by the judges, on account of
said debts.
Art. 3. After the expiration of the term prefixed in the foregoing article, although they
may be sued for said debts, they shall not be obligated to pay them in lands, implements
of husbandry, or tools of their trade or machines, but expressly in fruits or money in a
manner not to affect their attention to their families, to their husbandry, or art they
profess.
For its fulfillment, the Governor of the State shall cause it to be printed, published, and
circulated.49
Decree No. 70 exempted from the reach of any creditor the lands granted by the State of
Coahuila and Texas to a settler. The debt itself was not voided but collection was delayed for
47
McKnight, 376.
McKnight, 378.
49
Decree No. 70: 1 Gammel 220-221.
48
13
twelve years; even after the expiration of that term the creditor could reach neither the lands nor
the debtor’s farm implements or tools of trade. While the exemption of certain tools and other
articles of personal property was consistent with historic exemption practices under Spanish law,
the general exemption of lands granted by the state for settlement was new. Although repealed
two years later,50 the exemption of lands in addition to the types of personal property protected
from creditors would impact future laws of debtor protection first in the Republic, and later the
State, of Texas. The repeal of Decree No. 70 correlated with the ratification of the commercial
treaty by the national government of Mexico, a logical step because of the primacy of the treaty
as federal law over the limited exemption law of the state.51
2.2 The Homestead Exemption and Land Grants in the Republic of Texas
On March 2, 1836, the people of Texas declared their independence from Mexico and
concurrently adopted the Constitution for the new republic, signed on March 17, 1836.52 The
form of this Constitution shows a hybridization of provisions from the U.S. Constitution and
contemporary state instruments.53 For example, the 1836 Texas Constitution had two separate
articles on the executive branch of government. Article III, §1, is worded very similarly to the
initial executive sections of contemporary state constitutions such as those of Ohio,54
Louisiana,55 Alabama,56 and Missouri.57 In contrast, Article VI discussed the powers and
authority of the President and Vice President in terms and structure very similar to the Article II
in the U.S. Constitution. During the time of the Republic, using constitutional provisions and the
50
Decree No. 173 (April 8, 1831): 1 Gammel 289.
McKnight, 384; Title VI, Section Second, Art. 161, cl. 3, Federal Constitution of the United Mexican States: 1
Gammel 92.
52
“Unanimous Declaration of Independence By The Delegates of the People of Texas, In General Convention, at the
town of Washington, on the 2d day of March, 1836,” at http://tarlton.law.utexas.edu/constitutions/text/CdDecl.html;
Constitution of the Republic of Texas (1836), at http://tarlton.law.utexas.edu/constitutions/text/ccP.html (accessed
8/28/2012).
53
Unlike the United States, the Republic of Texas was not a federation of states but a singular national government.
The regional governmental unit of the Republic was the county. Art. IV, §11, Constitution of the Republic of Texas
(1836). As the government of the Republic would exercise powers similar to those both of the national and state
governments in the U.S., the hybridized nature of the 1836 Constitution is not surprising.
54
“The supreme executive power of this State shall be vested in a Governor.” Art. II, §1, Ohio Const. (1803), at
http://www.ohiohistorycentral.org/entry.php?rec=1858 (accessed 5/8/2012).
55
Art. III, §1, La. Const. (1812), at
http://www.louisianadigitallibrary.org/cdm4/document.php?CISOROOT=/lapur&CISOPTR=25275&CISOSHOW=
15852 (accessed 5/8/2012).
56
Art. IV, §1, Ala. Const. (1819), at http://www.legislature.state.al.us/misc/history/constitutions/1819/1819_4.html
(accessed 5/8/2012).
57
Art. IV, §1, Mo. Const. (1820), at http://clio.missouristate.edu/FTMiller/LocalHistory/Docs/MOConst1820.htm]
(accessed 5/8/2012).
51
14
language of statute, Texans established three doctrines that would inform their laws for the next
century: the protection of the family homestead (with an express emphasis on “family”) from
seizure by creditors, the development of additional exemptions for specific personal property,
and a citizen’s entitlement to settle on vacant public lands.
2.2.1 The Homestead and Personal Property Exemptions
After victory in the Battle of San Jacinto and the establishment of Texas as an independent
nation, the adoption of the first law expressly exempting the homestead of a family from seizure
by creditors was mundanely ordinary.58 On January 26, 1839, the President of Texas signed into
law a short bill filed the previous month and passed with little debate by the Third Congress of
Texas:
Be it enacted by the Senate and House of Representatives of the Republic of Texas in
Congress assembled, That from and after the passage of this act, there shall be reserved to
every citizen or head of a family in this Republic, free and independent of the power of a writ
of fire facias (sic),59 or other execution issuing from any court of competent jurisdiction
whatever, fifty acres of land or one town lot, including his or her homestead, and
improvements not exceeding five hundred dollars in value, all house hold and kitchen
furniture, (provided it does not exceed in value two hundred dollars,) all implements of
husbandry, (provided they shall not exceed fifty dollars in value,) all tools, apparatus and
books belonging to the trade or profession of any citizen, five milch (sic) cows, one yoke of
work oxen or one horse, twenty hogs, and one year’s provisions; and that all laws and parts
of laws contravening or opposing the provision of this act, be and the same are hereby
repealed: Provided, The passage of this act shall not interfere with contracts between parties
heretofore made.60
At first appearing to restore the former Mexican prohibition against seizing a settler’s lands
to satisfy prior debts, the act differed significantly from the earlier law:

The extent of the land protected from creditors was limited by distinguishing between
rural (fifty acres) and urban (one town lot) property.

The protection included the homestead of the debtor.

The protection also included improvements to the land up to a value of five hundred
dollars.
58
McKnight noted that no mention of the Act or its terms appeared in the newspaper that covered the daily actions
of the Congress. McKnight, 395.
59
The correct phrase is “fieri facias,” literally meaning “you ‘cause (it) to be done’.” A writ of execution issued by
the court directing the sheriff to levy on the goods of a judgment debtor to satisfy the amount of a judgment. Black’s
Law Dictionary (4th ed.), 565 (West Publishing Co., 1979).
60
“An act to exempt certain property therein named from execution,” 2 Gammel 125-126 (emphasis added).
15

The protection did not depend on the family status of the debtor, extending the same
protection “to every citizen or head of a family in this Republic….” If there was any
doubt as to the application of the protection to women as well as men, the clause
exempting the homestead negated any such distinction: “including his or her
homestead…..”
The 1839 Act also placed a list of personal property beyond the reach of creditors:

All household and kitchen furniture (to a maximum value of two hundred dollars);

All “implements of husbandry”61 (to a maximum value of fifty dollars);

All tools, apparatus and books pertaining to a citizens’ trade or profession;

Five milk62 cows;

One yoke of work oxen or one horse;

Twenty hogs;

Provisions for one year.
Rather than set a maximum value for the personal property the debtor wanted to retain, the
statute emphasized a public policy preference to preserve the ability of farmers or small-scale
artisans to continue their respective trades. To prevent any constitutional violation the 1839 Act
did not impair the rights of creditors under existing contracts.63 A creditor whose debt previously
was secured by a lien on any property now made exempt would still be able to execute on such
property if necessary.
As previously noted, protecting farm implements or other specific personal property of a
debtor was known in both Spanish and English law well prior to the beginning of settlement in
Texas, but the universal protection of a debtor’s residential property the 1839 Act was unique. In
a parallel to the earlier Decree No. 70 adopted in 1829 by the State of Coahuila and Texas, the
year after its adoption the reach of the 1839 Act apparently was reduced by a law allowing levy
on the homestead after all other assets were exhausted.64 An 1842 enactment restored the
“Implements of husbandry” meant the tools and equipment used in farming or livestock raising. A summary of the
definition and brief synopsis of Texas rulings on the subject, dating back to the nineteenth century, is found in a
1987 opinion of the Texas Attorney General, Opinion JM-718, at
https://www.oag.state.tx.us/opinions/opinions/47mattox/op/1987/htm/jm0718.htm (accessed 8/24/2012).
62
Originally the statute used the archaic form “milch,” a use continued in the various forms of the statute until 1925.
63
Similar to the U.S. Constitution, the Constitution of the Republic of Texas prohibited laws impairing the
obligations of contract. Declaration of Rights, §16, Texas Constitution (1836) at
http://tarlton.law.utexas.edu/constitutions/text/ccRights.html (accessed 8/8/2012).
64
“An Act Concerning Executions,” §4 (approved by the President on February 5, 1840): 2 Gammel 268.
61
16
previous laws exempting property from execution.65 One commentator viewed this sequence of
reversals as the Congress of Texas having second thoughts about the extent of the homestead
exemption but later choosing to continue protecting colonists from prior foreign debts.66
A more likely interpretation is that the law passed in 1840 expressly dealt with the judicial
process of executing on a debtor’s property to satisfy a judgment but inadvertently restricted the
accepted protection for homestead, an oversight corrected in 1842. This conclusion is supported
by Rule 4 of the national bankruptcy code adopted by Texas in 1841,67 expressly allowing
certain debtors a homestead exemption substantially the same as that in the 1839 Act as well as
personal property similar in type and quantity. A debtor68 filing bankruptcy who was a married
man, or who had children to support, or who was an unmarried woman, could exempt up to fifty
acres of land together with the homestead and other improvements, regardless of value. These
debtors also were entitled to retain as personal property provisions for one year, up to three milk
cows and their calves, no more than two horses, mules, or other stock to work the land,
“sufficient” household and kitchen furniture, farming utensils, and one or more beds and bedding
(depending on the number in the family). The presiding judge had discretion to decide the
quantity and quality of clothes, professional books or tools, or other implements of art or trade
the debtor could retain, but two notable items were mandatorily exempt: the family Bible and the
musical instruments of a wife or single woman (men were allowed no comparable musical
instrument exemption).69 In contrast, a debtor who was an unmarried man with no dependent
wife or children was entitled only to occupy his homestead for one additional year, a year’s
provisions, one horse with its saddle and tack, and his clothes, professional books or tools, and
implements of his art or trade. By extending fewer property protections to unmarried men, the
bankruptcy code furthered the public policy of establishing exemption laws primarily to benefit
families.
The Texas bankruptcy code was contemporaneous with the United States Bankruptcy Act of
1841 adopted partly in response to the continuing economic down turn experienced since 1837.70
“An Act to reduce into one, and amend the several Acts, concerning Executions,” §24 (approved by the President
on January 27, 1842): 2 Gammel 743.
66
McKnight, 395.
67
“An Act Creating a system of Bankruptcy and regulating the Collection of Foreign Debts,” (January 19, 1841): 2
Gammel 502.
68
All male debtors were required to be twenty-one years or older; female debtors eighteen or older. Id.
69
2 Gammel 504.
70
Ch. 9, “An Act to establish a uniform system of bankruptcy throughout the United States,” 5 Stat. 440, at
65
17
While apparently similar in their intent to provide debtor relief during an economic crisis, the
two acts differed in the property a debtor could reserve. The U.S. act made no mention or
allowance for homestead, instead allowing debtors to retain “necessary household and kitchen
furniture…” and other property a debtor would set apart as allowed by the court after considering
the circumstances of the family, up to a total value of $300, together with the clothes of the
debtor and family.71 Unlike the future Bankruptcy Act of 1898 and the present Bankruptcy Code,
the 1841 U.S. Act did not allow debtors to assert any property exemptions allowed under state
law. The Texas bankruptcy code thus intentionally asserted a modified form of the exemptions
originally spelled out in the 1839 Act and provided more comprehensive debtor protection than
its U.S. counterpart.
2.2.2 The Law of Settlement Donations
The 1836 Constitution did not provide exemptions protecting debtors’ property but did
incorporate the principle of providing public land for settlement, a precursor of the future
settlement donation law. Section 10, General Provisions of the Constitution, extended to those
defined as citizens72 an entitlement to vacant land on approximately the same terms as previously
extended by the government of the State of Coahuila and Texas:
All citizens now living in Texas, who have not received their portion of land, in like manner
as colonists, shall be entitled to their land in the following proportion and manner: Every
head of a family shall be entitled to one league and labor of land, and every single man of the
age of seventeen and upwards, shall be entitled to the third part of one league of land. All
citizens who may have, previously to the adoption of this Constitution, received their league
of land as heads of families, and their quarter of a league of land as single persons, shall
receive such additional quantity as will make the quantity of land received by them equal to
one league and "labor" and one-third of a league, unless by bargain, sale, or exchange, they
have transferred, or may henceforth transfer their right to said land, or a portion thereof, to
some other citizen of the Republic; and in such case the person to whom such right shall have
been transferred, shall be entitled to the same, as fully and amply as the person making the
transfer might or could have been.73
http://constitution.org/uslaw/sal/005_statutes_at_large.pdf (accessed 8/9/2012). The U.S. act was signed into law on
August 19, 1841, some seven months after its Texas counterpart. The U.S. act was repealed on March 3, 1843. All
references herein to the U.S. Statutes at Large may be accessed through
http://www.constitution.org/uslaw/sal/sal.htm.
71
5 Stat. 443, §5.
72
In the immediately-preceding section 9 Texas unequivocally recognized and validated the institution of slavery
within the nation. Section 10 of the General Provisions thus expressly excluded “Africans, the descendants of
Africans, and Indians” from citizenship.
73
General Provisions, §10, 1836 Texas Constitution.
18
Those citizens acquiring land under this provision were required to have the property boundaries
properly marked but, unlike future settlement laws, they were not required to reside on the land.
On January 4, 1841, the President of Texas signed into law “An Act Granting Land to
Emigrants,”74 which had two purposes. The second part of the Act, sections 4 through 13,
authorized the President to enter a contract with certain individuals for them to secure a specific
number of families to settle, or colonize, a particular area of vacant land held by the Republic.
Similar to the earlier colonization laws of Mexico, these contractors were required to begin
settlement within a fixed period of time and meet certain conditions, such as settling one-third of
the families on the land grant within one year of the date of the contract, or the agreement was
forfeit. But the first three sections of the Act are more significant because they set the pattern for
individual settlement donation land grants in Texas and, arguably, the United States.
The initial provision for individual settlement donation claims was limited to heads of
families (presumably male) and single men immigrating into Texas between January 1, 1840 and
January 1, 1842. Families would be entitled to settle a maximum of 640 acres, were required to
reside on and cultivate the land for three years, the cultivated area had to be at least ten acres,
and the settlers were required to have the land surveyed and plainly marked. Single men could
settle no more than 320 acres under the same terms. At the end of the occupation period a settler
could obtain a patent (government-issued title) by providing the required proof of occupancy to
the chief judge of the local district court.
Predating the initial settlement donation law enacted by the United States in an attempt to
create a buffer between settlements in Florida and the Seminoles,75 the Texas law established
certain principles characterizing future settlement donation laws both in Texas as well as the
United States. Settlers could obtain a significant amount of land but were required to occupy and
cultivate the property for a minimum period, have the land surveyed, and mark their own
borders. Finally, after the minimum occupation period the settler could obtain clear title to the
property upon providing the proof required under the statute.
The Republic subsequently adopted a permanent and, arguably, more equitable settlement
act. The new law entitled any individual who settled on and improved part of the vacant public
74
2 Gammel 554.
Ch. 122, “An Act to provide for the armed occupation and settlement of the unsettled part of the peninsula of East
Florida”, 5 Stat. 502 (August 4, 1842) (“Armed Occupation Act”). See section 3.1.3, below.
75
19
lands, not subject to any valid claim or certificate, to claim up to 320 acres. 76 Settlers were
required to obtain a certificate of their claim from the government within three years of
occupying the property (or three years from the date of the act for those already occupying their
claims) and to comply with applicable laws for surveying and marking their boundaries. If the
settler died before obtaining a patent for the land, the settler’s widow and other heirs, if any,
were entitled to assert the full claim. As written, this law provided the same extent of property to
unmarried as well as married individuals and could be interpreted to apply to female as well as
male heads of families.
2.3 1845: Annexation, Statehood, and the Constitutional Homestead
The 1819 Treaty with Spain not only ceded East and West Florida to the United States but
fixed the boundary between Spanish and American territory west of the Mississippi.77 From the
mouth of the Sabine River, north to the Red, and finally north and west along the Arkansas, the
divide generally traced the southwestern extent of the Louisiana Purchase and excluded the area
being settled as Texas. As the U.S. continued to assimilate Florida and the territory of the
Louisiana Purchase, interest in southwestern expansion followed American settlers into Mexico.
Efforts to purchase Texas from Mexico began in the 1820s and Andrew Jackson remained
interested in expanding the U.S. into the territory during his presidency. 78 The Texas Revolution
did not end the Republic’s struggles with Mexico, which refused to recognize the new nation,
and for the next ten years Texas foreign policy was influenced on the one hand by those seeking
annexation by the United States (both to increase immigration, and thus land prices, and to hope
for U.S. assumption of the Texas national bond debt) and on the other by the prospect of a
strong, independent Texas as a continental power and counterbalance to the expansionist U.S.
(an interest of the British Government).79
Whether to prevent the development of an independent Texas aligned economically and
militarily with Great Britain, to expand the number of states supporting the practice of slavery, or
to further a long-held goal of western territorial expansion, Texas annexation was the subject of
secret negotiations between the two governments in 1843, a failed treaty in 1844, and resurgent
“An Act Granting to settlers on vacant public domain pre-emption privileges,” 2 Gammel 1073 (January 22,
1845).
77
“Treaty With Spain (1819),” Art. III, in Charles W. Eliot (ed.), American Historical Documents (P.F. Collier &
Son, NY 1910, reprinted by P.F. Collier & Son Corp. 1938), 269.
78
Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815 – 1848 (Oxford
University Press, NY, 2007), 660, 669-671.
79
Howe, 671-672.
76
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as a key issue in the election of James K. Polk as U.S. President later that year.80 Interpreting the
U.S. Constitution as authorizing Congress to admit Texas as a state without the necessity of a
prior treaty,81 the proponents of annexation pushed through a Joint Resolution authorizing the
formation of a new state in the territory of the Republic that was signed by President Tyler just
prior to President Polk’s inauguration.82 The Joint Resolution conditioned admission on the
adoption by the people of Texas of state constitution providing a republican form of government,
to be presented to the U.S. Congress no later than January 1, 1846. The new state would cede
certain public property to the U.S. (fortifications, barracks, ports, etc.) but would retain all vacant
land belonging to the Republic (as well as all public debts),83 a condition that would leave future
grants of land to settlers in the hands of the State of Texas.
In response, on May 5, 1845, the President of Texas by proclamation called for the election
of delegates to a convention for the purpose of drafting a state constitution.84 A Joint Resolution
of the Ninth Congress of Texas approved the first two sections of the March 1 Joint Resolution
of the U.S. Congress as the terms for annexation and consented to the calling and convening of
the constitutional convention.85 Meeting in Austin on July 4, 1845, the Convention first adopted
an Ordinance approving the annexation of Texas into the United States and the terms for such
admission provided in the U.S. Joint Resolution.86 Work on the State Constitution was completed
and the proposed text unanimously adopted by the Convention on August 28, 1845.87 The
document was ratified by the people of Texas on October 13, 1845, and submitted to the U.S.
Congress,88 which voted to admit the State of Texas into the Union on December 29, 1845.89
80
Howe, 678-690.
“New States may be admitted by the Congress into this Union…” U.S. Const., Art. IV, §3, cl. 1. Eschewing a
treaty avoided the necessity of a two-thirds vote of approval in the Senate. U.S. Const., Art. II, §2,cl. 2.
82
“Joint Resolution for annexing Texas to the United States,” 5 Stat. 797 (March 1, 1845).
83
Joint Resolution, §2; 5 Stat. 797-798.
84
“Proclamation of the President, Calling a Convention (May 5, 1845),” in William F. Weeks (Rptr.), Debates of the
Texas Convention (Houston, 1846), at http://tarlton.law.utexas.edu/constitutions/pdf/pdf1845debates/00000001.pdf
(accessed 8/11/2012).
85
“Joint Resolution Giving the consent of the existing Government to the annexation of Texas to the United States
(June 23, 1845),” 2 Gammel 1225. Under the discretionary authority provided in the March 1 Joint Resolution, the
U.S. President had sent only the first two sections of the Joint Resolution as the terms for annexation and statehood.
2 Gammel 1303.
86
Journals of the Convention, Assembled at the City of Austin on the Fourth of July, 1845, for the Purpose of
Framing a Constitution for the State of Texas, Day 1 (July 4, 1845), 9-11, at
http://tarlton.law.utexas.edu/constitutions/pdf/images/00000001.pdf (accessed 8/11/2012). The vote was 55 for
annexation, 1 against.
87
Journals of the Convention (1845), 338.
88
November 10, 1845, transmittal Letter from Joseph C. Eldridge, Secretary of State, Republic of Texas, to
President James K. Polk, at http://tarlton.law.utexas.edu/constitutions/text/DLet2.html (accessed 8/11/2012).
81
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The 1845 Texas State Constitution differed from the 1836 Constitution of the Republic on
the protection of debtors and settlement of the public lands. Where the 1836 Constitution was
silent on protecting certain property of debtors, the 1845 Constitution incorporated the principle
of protecting the homestead of a family into the foundational law of the State:
The legislature shall have power to protect by law, from forced sale, a certain portion of the
property of all heads of families. The homestead of a family, not to exceed two hundred acres
of land, (not included in a town or city, or any town or city lot or lots,) in value not to exceed
two thousand dollars, shall not be subject to forced sale for any debts hereafter contracted;
nor shall the owner, if a married man, be at liberty to alienate the same, unless by the consent
of the wife, in such manner as the legislature may hereafter point out.90
Unlike the original 1839 Act, this constitutional provision placed a maximum value on the
property that could be protected as homestead. The legislature was authorized to identify and
protect other property belonging to the head of a family (continuing the dichotomy between
rights afforded debtors based on whether they had dependents) and to determine the manner in
which a wife could consent to the sale or transfer of the homestead; because the Constitution
expressly specified the extent and value of an individual’s homestead, the legislature could not
enact laws decreasing the protection.
The new language also restricted a husband’s ability to sell or transfer the homestead
property without the wife’s legal joinder. This appears to have been an evolution of principles
recognizing the separate interest of women in property. Austin’s original discussions in 1821
with Spanish provincial authorities included the amount of land to be allocated to each man,
married or single (640 acres); in addition, a husband would receive an additional 320 acres for
the wife, fathers of dependent children would receive an additional 160 acres per child, and
slaveholders would receive an additional 80 acres for each enslaved person.91 As discussed
above in section 2.2.2, families (presumably including a husband and wife) were entitled to
claim larger land donation grants than single men, and the 1839 Act contemplated a woman
being the head of a family entitled to legal protection of the homestead. These doctrines
recognized not only that a family needed more resources to provide for the additional members
but that women brought tangible value to the marriage. The 1845 Constitution expressly
recognized and protected a woman’s rights in the property she owned separately prior to the
“Joint Resolution for the Admission of the State of Texas into the Union,” 9 Stat. 108 (December 29, 1845).
Art. VII, §22, Texas Constitution (1845).
91
1 Gammel 5-6.
89
90
22
marriage and further recognized the concept of spouses having a community interest in property
acquired during the marriage.92 The restriction on a husband’s ability to alienate the homestead
thus is consistent both with public policy to protect the basic sustenance and shelter for the
family and the recognized property rights of women.
Creating the homestead protection in this fashion had not been done before, reflecting the
concern voiced in the convention debate on the article that if such exemptions were prudent
public policy they should be placed permanently in the Constitution “…and not leave them
subject to the whim and caprice of the Legislature.”93 During the same debate some delegates
raised concerns about applying the exemptions without regard to marital status or the presence of
dependents; some objected to a value maximum as discouraging owners from improving their
property while others argued the necessity of the maximum due to widely varying values for the
same amount of property. The primary motivation for the express protection of homestead was
the perceived need to protect families from the economic failure of the father, whether due to
misfortune or ineptitude.94
At times the debate on the homestead provision gave way to rhetorical license. Delegate
Baylor gave a long opinion about the salutary nature of protecting the homestead based in part on
his representation about the actions taken by the Alabama Legislature to provide a homestead of
160 acres and additional extensive property protections.95 However, Alabama would not adopt
the concept of homestead protection into its laws until 1850.96 (One nineteenth-century treatise
92
Art. VII, §19, Texas Constitution (1845).
Statement of Convention President Thomas J. Rusk, Debates of the Texas Convention (1845), 421 (August 5,
1845).
94
Debates of the Texas Convention (1845), 417-425 (August 5, 1845).
95
Debates of the Texas Convention (1845), 424-425 (August 5, 1845).
96
As of 1833, Alabama exempted from levy and execution certain items of personal property of a primarily agrarian
nature, e.g. “ … two beds and furniture, two cows and calves, two spinning-wheels, two axes, two hoes, five
hundred weight of meat, one hundred bushels of corn, all the meal that may at any time be on hand, two ploughs,
one table, one pot, one oven, two water vessels, two pair cotton cards, all books, one churn, three chairs, one work
horse, mule, or pair of oxen, one horse or ox cart, one gun, all tools or implements of trade, and twenty head of
hogs.” John G. Aikin, A Digest of the Laws of the State of Alabama: Containing All the Statutes of A Public And
General Nature in Force At The Close Of The Session Of The General Assembly, In January, 1833 (Philadelphia,
1833),167, §42, at
http://books.google.com/books?id=64NPAQAAIAAJ&printsec=frontcover&dq=Aikin's+digest+of+the+laws+of+th
e+state+of+Alabama&source=bl&ots=1clt7dyily&sig=-psqY-NCOFkF0HNTtAHG5gfvBk&hl=en&sa=X&ei=GrYGULL1LoKu9ASGsoDZBw&ved=0CDkQ6AEwAA#v=onepage&q=
Aikin's%20digest%20of%20the%20laws%20of%20the%20state%20of%20Alabama&f=false (accessed 8/12/2012).
The first statutory exemption protecting a debtor’s homestead of 40 acres, to a maximum value of $500, appeared in
the 1852 Code of Alabama. Jon J. Ormond, Arthur P. Bagby, George Goldthwaite, The Code of Alabama (Published
per act of the Alabama General Assembly, Montgomery, AL, 1852), 453, §2462, cl. 4, at
93
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observed that the first state to adopt a statutory homestead protection after the Texas 1839 Act
was Vermont in 1849.97) Mr. Baylor may have meant to refer to an act passed earlier in 1845 by
the Territorial Legislative Council of Florida just before that Territory was admitted as a State,
providing farmers a homestead exemption of 40 acres with a maximum value of $200.98
The 1845 Constitution was also notable for not including the constitutional entitlement to a
specific portion of the vacant public lands found in section 10 of the General Provisions in the
1836 Constitution of the Republic. The 1836 Constitution addressed the granting of public lands
for settlement; section 10 provided a positive entitlement while the separately-included Schedule
discussed at length and expressly voided specific grants to individual empresarios based on
concerns for fraud. During the debate on land grant issues, the 1845 Convention delegates were
concerned not only about accounting for then-pending land claims and the potential for
fraudulent claims but also about a proper inventory of the remaining vacant lands that the State
would retain after annexation.99 Consequently, the Convention adopted provisions for certain
disputed land claims to be resolved by July 1, 1847 and separately provided for a statewide
general land office authorized to convey title to government lands.100 To provide continuity in
the law when Texas became a state, all laws of the Republic then in effect that were not in
conflict with the U.S. Constitution, the joint resolutions providing for annexation, or the 1845
Constitution, continued in full force and affect until amended or repealed by the legislature; this
included the laws on exempt property and providing for settlement on the public lands.101
2.4 Early Statehood, Secession, and the Post-War Constitution: 1845 – 1866
2.4.1 The 1845 Texas Constitution
For the first fourteen years of statehood debtor property exemptions continued to be
controlled by the 1839 Act, as amended indirectly by Article VII, §22, of the 1845 Constitution.
The new constitutional maximums for protecting homestead property, distinguished between
rural (200 acres) and urban (a lot or lots not exceeding $2,000 in value) effectively wrote out of
the statute the smaller limits enacted by the Republic. While the Texas Legislature could have
http://archive.org/stream/codeofalabamapre00alab#page/452/mode/2up/search/453 (accessed 8/28/2012).
97
Seymour D. Thompson, A Treatise on Homestead and Exemption Laws (St. Louis, 1878), v, n. 2.
98
No. VIII, “An Act to exempt Homesteads from Execution, Attachment and Distress,” The Acts and Resolutions of
the Legislative Council of the Territory of Florida, Twenty-Third Session, 23 (March 11, 1845), at
http://books.google.com/books?id=ZbMwAQAAMAAJ&q=VIII#v=snippet&q=VIII&f=false (accessed 9/3/2012).
99
Debates of the Texas Convention (1845), 352, 367-390.
100
Arts. XI and XII, Texas Const. (1845).
101
Art. XIII, §3, Texas Const. (1845).
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conformed the statute to the Constitution, such action was not mandatory because the
constitutional clause was “self-executing:” no additional legislation was needed to create the new
exemption limits.
The laws authorizing settlement by donation of public lands received more attention. The
legislature supplemented the 1845 Act adopted by the Republic to clarify the land patent could
issue only on the certificate from the Clerk of the County Court where the land was located,
establishing the settler or settler’s assignees had resided on and cultivated the land claim for
three years. An additional fee of twenty dollars payable to the General Land Office was imposed
for each claim of 320 acres (applicants for smaller claims paid a fee of ten dollars).102 In 1854
the legislature reduced both the maximum size of an allowed claim, from 320 to 160 acres, and
the time for settlers to file their initial claims with the county, from twelve to eight months from
passage of the act or the commencement of occupation of the property. 103 Settlers still had to
occupy and work the property for three years and have the claim properly surveyed. Apparently
there were operational problems with this land grant system: settlers forgot to file the final
paperwork for their patents, surveyors neglected to file the required field notes in the proper
place or within the time required by law or failed to perform the surveys in the first place, and
the Land Office had issues with fraudulent claims. The legislature several times extended the
deadline for certain settlers to complete their claims, even after secession in 1861,104 and
separately created a Commissioner of Claims to resolve continuing claims issue both about land
102
1853 Texas General Laws, Ch. XXIII: 3 Gammel 1317.
1854 Texas General Laws, Chapter LXXVIII: 3 Gammel 1550. Section 5 of this act repealed the acts of 1845 and
1853.
104
“An Act for the relief of certain Pre-emption Settlers within the Houston Land District,” 1856 Texas General
Laws, Ch. CXLIX: 4 Gammel 498 (extension of 8 months to reestablish lost records); “An Act to provide Relief for
Pre-emption Settlers and their Assignees under the Act of the 22d January, 1845; the Act of the 7 th February, 1853,
and the act of the 13th February, 1854, and actual Settlers in the Mississippi and Pacific Railroad Reservation,” 1858
Texas General Laws, Ch. 118: 4 Gammel 1024 (extension to January 1, 1859); “An Act supplementary to, and
amendatory of an act entitled ‘An Act to provide relief or Pre-emption Settlers and their Assignees under the Act of
the 22d January, 1845; the Act of the 7th February, 1853, and the act of the 13th February, 1854, and actual Settlers
in the Mississippi and Pacific Railroad Reservation,’” 1860 Texas General Laws, Ch. 22: 4 Gammel 1384 (extension
to January 1, 1861; bill was passed after legislative override of the Governor’s veto); “An Act to extend the time for
the return of Pre-emption Field Notes,” 1861 Texas General Laws, Ch. XII: 5 Gammel 348 (extension to January 1,
1862); “An Act for the relief of pre-emption settlers, and to extend the time for the return of filed (sic) notes, and to
extend the time for the payment of all dues by settlers, under the acts authorizing the sale of the public domain,”
1862 Texas General Laws, Ch. XLIV: 5 Gammel 479 (extension to January 1, 1864); “An Act for the Relief of Preemption Settlers and to extend the time for the return of the field notes, and to extend the time for payment of all
dues by settlers, under Acts authorizing the Sale of the Public Domain,” 1863 Texas General Laws, Ch. IV: 5
Gammel 658 (extension to January 1, 1866).
103
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titles and the public debt.105 After Texas passed its ordinance of secession and committed forces
to the Confederacy, a separate bill was passed to suspend the time required to comply with the
settlement donation laws for those settlers who entered the military service of the State or the
Confederate States.106 Public policy during this time focused considerably more attention on the
management of public assets and the clear and timely granting of title to lands than on refining
the laws protecting the interests of debtors.
One refinement was made to the homestead exemption statute. The legislature sought to
clarify the valuation of urban property protected as homestead, stating the constitutional
maximum value of $2,000 was calculated at the time the property was designated as homestead
and any subsequent increase in value of the property above that maximum did change the exempt
nature of the property.107 This provision limiting the effect of the increased value of
improvements on the application of the exemption ultimately was stricken by the Texas Supreme
Court.108
2.4.2 The 1861 Texas Constitution
On March 2, 1861, Texas seceded from the Union109 and on March 25, 1861, completed
amending the 1845 Constitution.110 Article VII, §22 of the 1861 version of the Constitution,
creating the homestead exemption for debtors and providing authority for the legislature to
exempt personal property by statute, was substantially identical to the text of the 1845 original,
with one exception. The 1845 provision defined the extent of a protected homestead as “not to
exceed two hundred acres of land, (not included in a town or city, or any town or city lot or lots,)
in value not to exceed two thousand dollars….” While the 1861 Convention of Secession did not
amend Article VII, §22, the printed version of the 1861 Constitution recited this passage as “not
to exceed two hundred acres of land, (not included in a town or city;) or any town or city lot or
“An Act to ascertain the legal claims for money and lands against the State,” General Laws of the Sixth
Legislature of the State of Texas, Adjourned Session, Ch. XCIII (August 1, 1856): 4 Gammel 432.
106
“An Act for the relief of Pre-emption Settlers,” 1862 Texas General Laws, Ch. LXXVIII: 5 Gammel 497.
107
“An Act to define the Homestead in a town or city,” 1860 Texas General Laws, Ch. 38 (February 2, 1860): 4
Gammel 1396.
108
Walker v. Darst, 31 Tex. 681; 1869 Tex. LEXIS 48 (1869). The Court was interpreting the effect of the statute on
a judgment obtained in 1860 on property claimed as homestead.
109
The Convention to consider secession convened on January 28 and passed both the Ordinance of Secession and a
separate ordinance providing for a popular election on February 23 to ratify the Ordinance. The votes were counted
and Texas seceded on March 2, 1861. Journal of the Secession Convention (1861), 48, 58-59, 87-88, at
http://tarlton.law.utexas.edu/constitutions/pdf/pdf1861/index1861.html (accessed 8/13/2012).
110
Journal of the Secession Convention, 251. Technically, the Convention only conformed the 1845 Constitution to
the ordinance of secession and Texas’ entry into the Confederacy; even the date of signing the Constitution
remained printed as August 27, 1845.
105
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lots, in value not to exceed two thousand dollars…. 111 The change in punctuation appeared to
alter the application of the value limit from the allowed two hundred acres of rural property to
only the town or city lots claimed as homestead. Because Article VII, §22, was not expressly
discussed during the Convention debates, this textual change appears to be a scrivener’s edit. The
revised punctuation applied the value limit only to lots in a town or city, a reading confirmed as
the original intent of this provision in a later decision of the Texas Supreme Court.112
2.4.3 The 1866 Texas Constitution
With the end of the Civil War the people of Texas elected delegates to a convention
beginning on February 7, 1866,113 to repeal the ordinance of secession114 and consider
amendments to the 1861 Constitution. The Convention defined the Constitution as the version in
force on January 28, 1861 (the 1845 Constitution, as amended to that date) together with
ordinances voiding the ordinance of secession, voiding the debt incurred by the State to support
the war effort, assuming the State’s proportional share of the tax assessed by the U.S. Congress
on each state in 1861 to support the federal war effort, and the ordinance prohibiting slavery and
substituting Article VIII, “Freedmen,” for the former Article VIII that affirmed slavery. 115 The
remaining amendments to this defined document were passed and signed as of April 2, 1866,116
and ratified by vote of the people on held on June 23, 1866.117
The 1866 Texas Constitution once again exempted the homestead from forced sale to satisfy
debts, limited the homestead to 200 rural acres regardless of value or urban lot(s) not to exceed
$2,000 in value, prohibited a married man from selling or otherwise transferring any interest in
the homestead without the legal consent of the wife, and authorized the legislature to provide
111
Art. VII, §22, Texas Const. (1861), at http://tarlton.law.utexas.edu/constitutions/text/EART07.html (accessed
8/13/2012).
112
Walker v. Darst, supra at 686.
113
Journal of the Constitutional Convention, 1866, 3, at
http://tarlton.law.utexas.edu/constitutions/pdf/pdf1866/index1866.html (accessed 8/13/2012).
114
The Convention repealed the ordinance of secession on March 15, 1866. “Ordinance Number 1, Declaring the
Ordinance of Secession Null and Void,” at http://tarlton.law.utexas.edu/constitutions/text/image/F33.html (accessed
8/13/2012).
115
Ordinance No. 9, Defining the Constitution of the State of Texas (March 27, 1866), at
http://tarlton.law.utexas.edu/constitutions/text/image/F40.html (accessed 8/15/2012).
116
Joseph Walker (State Printer), The Constitution, as Amended and Ordinances of the Convention of 1866,
Together with the Proclamation of the Governor Declaring the Ratification of the Amendments to the Constitution,
and the General Laws of the Regular Session of the Eleventh Legislature of the State of Texas (Austin, 1866), 31, at
http://tarlton.law.utexas.edu/constitutions/text/image/F31.html (accessed 8/14/2012).
117
James W. Throckmorton, Gov., “Proclamation by the Governor on the Amendments to the Constitution”
(October 8, 1866), at http://tarlton.law.utexas.edu/constitutions/text/image/F32.html (accessed 8/14/2012).
27
exemptions for additional property (real or personal) of debtors.118 Once again, the punctuation
of the language defining the extent of the homestead was altered from the previous printed
version, to read “not to exceed two hundred acres of land (not included in a town or city) or any
town or city lot or lots, in value not to exceed two thousand dollars…,” which later would be
interpreted as another stylistic alternative that stated the same substantive intent: the value
limitation applied only to the urban property.119 However, this time the language of the
exemption section was retained only after extensive debate and proposals to expand the
protection.
One proposal would have specified the following exempt property in the text of the
Constitution:
One additional horse or yoke of oxen, twenty head of hogs, twenty-five head of sheep,
twenty head of stock cattle, one wagon; the proceeds of the farm, in addition to the year’s
allowance now exempted, not to exceed five hundred dollars.120
Also articulated was the countervailing view that the authorization for the legislature to
determine additional property exemptions was sufficient to protect the interests of debtors.121
The Convention’s Committee on the General Provisions later was directed to consider additional
exemptions benefitting those primarily involved in the raising of livestock: 300 head of cattle, 50
head of horses, 500 head of sheep.122 Another proposal would have created additional
exemptions from forced sale for factories, machinery, and manufactured goods to encourage the
growth of industry in Texas.123 For each proposal to expand the constitutional exemption of
certain property from forced sale the response of the majority of the Convention was the same:
additional enumerated exemptions were not necessary because of the authority given the
legislature to expand exemptions by statute.124
The delegates adopted a new section that would impact private property rights and the future
development of the State. Proposed on March 19, 1866, and passed on the last day of the
Convention, Article VII, §39 released to the owner of the surface land “all mines and mineral
substances, that may be on the same, subject to such uniform rate of taxation, as the legislature
118
Texas Const., Art. VII, §22 (1866).
Walker v. Darst, supra at 686.
120
Journal of the Convention (1866), 76 (February 23, 1866).
121
Journal of the Convention (1866), 92-93 (February 24, 1866).
122
Journal of the Convention (1866), 106 (February 28, 1866).
123
Journal of the Convention (1866), 115 (March 3, 1866).
124
Journal of the Convention (1866), 112, 115, 189.
119
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may impose.”125 This left no doubt that substrate mineral resources, such as salt, gold, or oil,
belonged to the landowner.126 In contrast, because the Homestead Act of 1862127 was silent on
the issue of mineral rights, the federal government expressly treated these rights differently by
adopting a mining resources act in 1872128 and expressly reserving mineral rights in other landgrant laws, particularly those granting land for development of railroads.129
Convention proposals to expand the scope of property exemptions in the Constitution
stemmed in part from economic uncertainty in the wake of the defeat of the Confederacy. The
Convention declared void all debts incurred by the State in support of the war; 130 investors in
State bonds issued for war purposes thus lost their money. Texas also was responsible for its
share of the direct tax imposed proportionally among the states by the U.S. Congress in 1861 to
pay the costs of the war.131 Concerned about the inability of people to pay their debts, proposals
were made to include a separate personal property exemption of $1,000,132 to clarify the rules of
evidence to allow a party to a contract to prove the intent was for payment in Confederate, not
U.S., dollars (thus making the measure of damages the market, not face, value in U.S. dollars of
the contract at the time it matured),133 and to authorize the legislature to adopt laws staying the
execution of judgments against debtors for as long as an additional four years from the entry of
the judgment, subject to certain conditions.134 None of these proposals were included in the final
125
Texas Const., Art. VII, §39 (1866); Journal of the Convention (1866), 214, 360.
Because the right to develop and extract certain minerals below the land surface may be severed (separated) from
the ownership of the surface land, questions could arise whether the government patent included ownership of such
underlying resources. Texas clarified its intent for the land grant to include the underlying mineral rights.
127
12 Stat. 392.
128
Ch. 152, “An Act to promote the Development of the mining Resources of the United States,” 17 Stat. 91 (May
10, 1872). The law officially authorized the exploration, claim, and development of valuable mineral resources in
U.S. lands, authorizing claimants to file for patent on the mining as well as surface rights.
129
Ch. 120, “An Act to aid in the Construction of a Railroad and Telegraph Line from the Missouri River to the
Pacific Ocean, and to secure to the Government the Use of the same for Postal, Military, and Other Proposes,” §3,
12 Stat. 489 (July 1, 1862); Ch. 299, “An Act Extending the homestead laws and providing for right of way for
railroads in the District of Alaska, and for other purposes,” §2, 30 Stat. 409 (May 14, 1898); Ch. 9, “An Act To
provide for stock-raising homesteads, and for other purposes,” 39 Stat. 862 (Dec. 29, 1916).
130
Ordinance No. 2 Declaring the War Debt Void, and for Other Purposes, at
http://tarlton.law.utexas.edu/constitutions/text/image/F33.html (accessed 8/14/2012).
131
Ordinance No. 6, Relative to the Direct Tax Levied upon the State of Texas by the United States, at
http://tarlton.law.utexas.edu/constitutions/text/FOrd06.html (accessed 8/14/2012). On November 13, 1866, the
legislature passed a law authorizing the Governor to assess the tax on real property at the rate of 28 cents for each
$100 of value. “An Act to assess and collect the Direct Tax due to the United States Government for the year 1861,
etc.,” 1866 Texas General Laws, Ch. CXC: 5 Gammel 1175, at
http://texashistory.unt.edu/ark:/67531/metapth6727/m1/1191/ (accessed 8/15/2012).
132
Journal of the Convention (1866), 139 (March 8, 1866).
133
Journal of the Convention (1866), 105-106.
134
Journal of the Convention (1866), 159 (March 12, 1866). The Convention adopted Ordinance No. 28, staying
126
29
text of the revised Constitution but their submission and discussion shows some delegates were
sufficiently concerned that the existing debtor protections in the Constitution, and scope of
authority given to the legislature, were not sufficient to protect the interests of the citizens.
Taking up this concern after the 1866 Constitution was ratified, the Texas Legislature
enacted the first comprehensive revision of the property exemption statute since 1839. The first
section of the new act conformed the homestead exemption to the constitutional requirements: up
to 200 rural acres, or town or city lot(s) with a maximum value of $2,000. The legislature
retained the provision from the 1860 law preventing future increases in the value of the
homestead from placing the property at risk of being sold and that part of the value in excess of
the protected amount being used to satisfy claims of creditors.135 The new statute also expanded
the specific items of personal property reserved to the head of a family or householder in Texas:

Household and kitchen furniture with a total maximum value of $500;

All implements of husbandry;

All tools, apparatus, books of any trade or profession;

5 milk cows;

2 yoke of working oxen;

2 horses;

One wagon;

20 hogs;

20 sheep;

One year’s supply of provisions;

All saddles, bridles, and harness necessary for use of the family.
Section 2 of this act created a separate, more limited set of personal property exemptions for
citizens who were not the heads of families:

1 horse;

1 bridle and saddle;

All clothes;
execution on all judgments until after adjournment of the first legislature held under the 1866 Constitution, to allow
that body time to consider additional debtor relief. Interestingly, this Ordinance did not apply to Hunt County.
Ordinance No. 28 at http://tarlton.law.utexas.edu/constitutions/text/image/F52.html (accessed 8/16/2012).
135
Again, stricken down by the Texas Supreme Court in 1869. Walker v. Darst.
30

All tools, books, apparatus belonging to debtor.136
At first blush this distinction in personal property exemptions appears to continue the marital
status dichotomy created in the laws of the Republic for settlement on donated public land, but
there were significant differences. The more extensive exemptions for homestead and personal
property applied to both men and women who either were heads of families or householders.
Giving full effect to each word in this provision, “family” was not synonymous with
“householder;” the first based the exemptions on discernible social relationships (apparently
presuming there was at least one person dependent on the debtor), the latter on whether the
debtor at least occupied residential property. One could be the head of a family, or even a single
person, occupying rented or leased property and satisfy the requirements for the more generous
personal property exemptions. However, a person with no dependents or household would retain
only the basic property necessary for self-support after financial reversals. While consistent with
the established public policy for the homestead exemption to protect basic support for families,
using the more expansive term “householder” may have been a response to the social and
economic uncertainties in Texas, and the southern states in general, after the Civil War. As
discussed below and in section 2.5.1, civil government would be suspended by military
occupation and then followed by a period of factional political struggle. Northern creditors
would seek recovery of pre-War debts and southerners would turn to the Bankruptcy Code of
1867, enacted as part of the Reconstruction Laws, for relief from such claims.137 Expanded
personal property exemptions thus would benefit Texans threatened with seizure of goods and
equipment necessary to continue earning a living even if they lacked an existing homestead.
The 1866 Convention also considered reinstating to the Constitution a provision entitling
residents to claim a limited allocation of vacant public land. On March 13, 1866, the Committee
on Public Lands introduced an ordinance that would have entitled a settler to claim up to 320
acres as a single parcel, conditioned on actual improvement and occupation of the property
continuously for three years, the payment of fees required for surveying and patenting the
“An Act to exempt certain property therein named from forced sale,” 1866 Texas General Laws, Ch. CXXXV: 5
Gammel 1078, at http://texashistory.unt.edu/ark:/67531/metapth6727/m1/1094/ (accessed 8/15/2012).
137
See Chapter 3, n. 275, 276.
136
31
property, and compliance with regulations enacted by the legislature. 138 The ordinance was read
a second time but never put to final vote and was not included in the amended Constitution.139
The legislature convened after ratification of the 1866 Constitution also revised the
settlement donation law. Two changes were made in updating the 1854 settlement law: claimants
either had to be the head of a family or at least 21 years old, and they had to be white.140 This
attempt to prohibit newly-freed individuals from acquiring their own homes and farms through
the settlement donation law was not an isolated event. The legislature provided basic property
rights to African-Americans, including the power to contract, sue, purchase real and personal
property, execute wills, inherit property, and exercise all legal remedies to protect their rights,
but denied them the right to vote, hold office, or serve on a jury.141 In another example, the act
incorporating the town of Carthage, Texas, reinforced this provision by expressly authorizing
only white citizens to vote or hold office.142 Further evidencing its objections to Congressional
action, the legislature not only failed to ratify the Fourteenth Amendment to the U.S.
Constitution but made a point of expressly rejecting the article.143
The refusal of Texas and other states in the former Confederacy to guarantee full rights to
African-Americans was seen by the Radical Republicans in Congress as a failure of civil
government to protect the rights and property of all citizens. On March 2, 1867, declaring that no
legal state government existed in Texas, Florida, and eight other former Confederate states
(excluding Tennessee), the U.S. Congress passed “An Act to provide for the more efficient
Government of the Rebel States” over the presidential veto and placed these states under military
occupation. A state’s civil government would be restored only after 1) a convention of delegates
elected by all eligible male citizens of the state, regardless of “race, color, or previous
condition,” adopted a constitution in full conformity with the U.S. Constitution, which was in
turn ratified by the people and approved by Congress, 2) the state legislature subsequently
138
Journal of the Convention (1866), 166 (March 13, 1866).
Journal of the Convention (1866), 350-35 (March 31, 1866).
140
“An Act donating one hundred and sixty acres of land to actual settlers upon the Public Domain,” 1866 Texas
General Laws, Ch. CLXIV: 5 Gammel 1121, at http://texashistory.unt.edu/ark:/67531/metapth6727/m1/1137/
(accessed 8/15/2012).
141
“An Act to define and declare the rights of persons lately known as Slaves, and Free Persons of Color,” 1866
Texas General Laws, Ch. CXXVIII: 5 Gammel 1049, at
http://texashistory.unt.edu/ark:/67531/metapth6727/m1/1065/ (accessed 8/15/2012).
142
1866 Texas General Laws, Ch. XLVI: 5 Gammel 1303, at
http://texashistory.unt.edu/ark:/67531/metapth6727/m1/1319/ (accessed 8/15/2012).
143
“Joint Resolution, refusing to ratify the Constitutional Amendment,” 1866 Texas General Laws, Joint Resolution
No. 13: 5 Gammel 1184, at http://texashistory.unt.edu/ark:/67531/metapth6727/m1/1200/ (accessed 8/15/2012).
139
32
adopted what would become the Fourteenth Amendment to the U.S. Constitution, and 3) the
Amendment was finally adopted into the Constitution.144 The commanding general of each
military district was to register all male citizens twenty-one years or older who made the required
loyalty oath,145 conduct an election of delegates on the question of whether to call a convention
to draft a new constitution for the state, and within sixty days of the election approving the
convention order the delegates to assemble at a specific time and place.146
The Congressional finding that Texas, Florida, Georgia, and other states of the former
Confederacy lacked civil government, and military control thus was necessary, did not imply any
repeal of the existing laws in those states. The U.S. Supreme Court later would rule that a
creditor obtaining a judgment in Georgia during this period did so subject to that state’s laws on
exempt personal property in effect at the time of the judgment, not to be limited by subsequent
adoption of the Georgia Constitution (and Congressional approval) containing more expansive
property exemptions.147 The homestead and personal property exemptions available to Texas
debtors continued unabated until properly revised by constitutional provision or statute.
2.5 Chaos, Reconstruction, and Reassertion of Power by the Old Guard: 1868 - 1876
The reconstruction of Texas under military occupation was a contentious period marked by
factional struggles over the fashioning of a new Constitution and the control of state government.
The principles of providing homestead and personal property exemptions and the process of
settlement by donation remained largely outside the political fray, aside from disputes about
allowing settlement on public lands by African-Americans. The general acceptance of these laws
would continue past the end of Reconstruction and the wresting of political control by the
conservative Democrats.
2.5.1 The 1869 Constitution
The military commander for the Fifth Military District duly called an election open to all
qualified voters to elect delegates for a Reconstruction Convention. The delegates convened on
“An Act to provide for the more efficient Government of the Rebel States,” 14 Stat. 428.
“An Act supplementary to ‘An Act to provide for the more efficient Government of the Rebel States,’ passed
March second, eighteen hundred and sixty-seven, and to facilitate Restoration,” 15 Stat. 2. Those taking the oath
swore they were citizens residing in the state and that county or parish for a specified time, were 21, had not
supported the rebellion, were never a state or federal legislator or officer and subsequently engaged in rebellion or
supported the enemies of the U.S., and would faithfully support the Constitution and laws of the United States. The
impact of the oath requirements would bar a number of former state leaders from participating in drafting the new
constitutions and in the restored civil government.
146
15 Stat. 3.
147
Gunn v. Barry, 82 U.S. 610 (15 Wall. 610) (1873).
144
145
33
June 1, 1868, remained in session until August 31, then reconvened on December 7 and finally
concluded the Convention on February 6, 1869. During this period the Convention acted as the
legislative body for the provisional government, passing a large number of ordinances that had
little to do with forming the new Constitution. For example, on June 23, 1868, the Convention
passed a resolution appropriating up to $15,000 to pay amounts due to government officials and
requesting the approval of the District’s military commander.148 By ordinance the Convention
approved and incorporated a private company to construct rail service within the City of
Houston.149 Among other legislative grants, the Convention later created the County of San
Jacinto,150 authorized the county courts to levy a tax to pay for their operations,151 and granted an
individual the right to construct and operate a ferry and collect tolls.152 The Convention was at
times unruly. Members reportedly challenged each other to duels,153 refused to vote and were
arrested by the Convention Sergeant-at-Arms,154 one member was charged with attempted
rape,155 and the Assistant Doorkeeper of the Convention allegedly assaulted a member.156
These problems in part reflected issues in the general population. In his letter submitted to
the Convention at its opening, Provisional Governor E.M. Pease favorably referenced the
enfranchisement of the African-American population as required by the Reconstruction Act,
observing that together with the citizens who had remained loyal to the Union they presumably
constituted the majority of the electorate in the State, but that opposition to the terms for
reincorporation into the national government had led to the inability to reestablish civil
government prior to military control. As a result, there was a significant increase in homicides,
particularly against the existing African-American population, ongoing inability to protect
“Resolution Appropriating fifteen thousand dollars for the payment of the Civil Officers of the State appointed by
Provisional Governor A.J. Hamilton,” Ordinances of the Constitutional Convention 1868: 6 Gammel 24.
149
“Declaration for the incorporation of the Houston City Railroad Company,” Ordinances of the Constitutional
Convention 1868: 6 Gammel 34.
150
“Declaration creating the county of San Jacinto,” Ordinances of the Constitutional Convention 1868: 6 Gammel
78.
151
“Declaration authorizing the County Court to levy a special tax,” Ordinances of the Constitutional Convention
1868: 6 Gammel 88.
152
“Declaration granting the right to build a ferry across the Neeches river,” Ordinances of the Constitutional
Convention 1868: 6 Gammel 122.
153
Journal of the Reconstruction Convention (Austin, 1870), 570, at
http://tarlton.law.utexas.edu/constitutions/pdf/pdf1868recon-1/ (accessed 8/16/2012). The Convention chose not to
investigate.
154
Journal of the Reconstruction Convention, Second Session (Austin, 1870), 301-302, at
http://tarlton.law.utexas.edu/constitutions/pdf/pdf1868recon-1/ (accessed 8/16/2012).
155
Journal of the Reconstruction Convention, Second Session, 442.
156
Journal of the Reconstruction Convention, Second Session, 458.
148
34
settlers on the frontier from attacks by native tribes, general lawlessness, and a resort to public
vigilantism. He urged the Convention to ensure all discriminatory laws were repealed and equal
rights secured throughout the State.157
In the course of the Convention’s first session the delegates discussed at length different
alternatives for settlement by donation of vacant public lands. Some members proposed
provisions authorizing granting no more than 160 acres for each donation claim, eliminating the
statutory racial limitation, or even providing an additional settlement donation right for AfricanAmericans to assist the transition from slavery to full citizenship. Others, particularly the
Committee on Public Lands, argued such concepts were better considered, adopted, and adapted
by the legislature and should be excluded from the Constitution.158 The 1869 version of the
Constitution restructured as Article X the provisions on the General Land Office of the State and
provided conditions controlling settlement donations in sections VI and VIII:
SECTION VI. The Legislature shall not hereafter grant lands to any person or
persons, nor shall any certificate for land be sold at the Land Office, except to actual
settlers upon the same, and in lots, not exceeding 160 acres.
SECTION VIII. To every head of a family, who has not a homestead, there shall be
donated one hundred and sixty acres of land, out of the public domain, upon the
condition that he will select, locate, and occupy the same for three years, and pay the
office fees on the same. To all single men, twenty-one years of age, there shall be
donated eighty acres of land, out of the public domain, upon the same terms and
conditions as are imposed upon the head of a family.
Article X also incorporated the State’s release of substrate mineral rights to landowners.159
The first session of the Convention also saw extensive discussion about the scope of the
homestead and personal property exemptions to be included in the Constitution. One proposal
would limit the homestead protection to a maximum value of $2,000 regardless of the amount of
land; another reasserted in part the terms of Article VII, §22 from the 1845 Constitution, a third
suggested increasing the value protected to $5,000, and yet another to allow liens enforceable
against the property for debts incurred for the purchase of the property, labor and materials
Journal of the Reconstruction Convention, 12. See also “Report of Committee on Lawlessness and Violence,”
Journal, 193.
158
Journal of the Reconstruction Convention, 157, 214, 716, 895, 940.
159
Texas Const., Art. X, §§VI, VIII, IX (1869), at http://tarlton.law.utexas.edu/constitutions/text/image/G32.html
and http://tarlton.law.utexas.edu/constitutions/text/image/G33.html (accessed 8/16/2012). See, section 2.4.3 and the
discussion of Art. VII, §39, Texas Constitution (1866).
157
35
necessary to improve the property, State taxes, or municipal purposes. 160 The final form included
as Article XII, §XV, differed from prior iterations of the constitutional protection as follows:

The legislature now had the express duty to protect from forced sale a portion of the
property of the head of a family;

Homestead protection was extended to lots in cities, towns, or villages with a
maximum value of $5,000 (retaining the 200 acre limit, with no maximum value, for
rural property);

The value of the urban homestead was determined as of the time the owner first
designated the property as homestead, without regard to the value of the
improvements on the property;

Three types of debts were excepted from the blanket prohibition against forced sale of
the homestead: debts incurred to purchase the property, for taxes assessed, or debts
for labor and materials necessary to repair or improve the property.161
The Convention affected a debtor’s retention of exempt personal property by providing
skilled laborers with an early form of mechanic’s lien. One providing labor and materials to
manufacture or repair an article of personal property had a lien as a matter of constitutional right
and the legislature was required to adopt statutes for the enforcement of such liens. 162 This
provision recognized the need for skilled workers to have some security for their fees and costs
when they could not reasonably retain the customer’s property.
The proposed Constitution was ratified by the qualified voters in an election held on
November 30, 1869.163 The Texas Legislature subsequently convened under the 1869
Constitution, ratified the fourteenth and fifteenth amendments to the U.S. Constitution, and
Texas was restored to full representation in the U.S. Congress.164
160
Journal of the Reconstruction Convention, 238, 737-740.
Texas Const., Art. XII, §XV (1869), at http://tarlton.law.utexas.edu/constitutions/text/image/G36.html (accessed
8/16/2012).
162
Texas Const., Art. XLVII (1869), at http://tarlton.law.utexas.edu/constitutions/text/image/G42.html (accessed
8/16/2012).
163
“An act authorizing the submission of the constitutions of Virginia, Mississippi, and Texas, to a vote of the
people, and authorizing the election of State officers provided by the said constitutions, and members of Congress,”
16 Stat. 40 (April 2, 1869); Presidential Proclamation No. 6 (July 15, 1869), 16 Stat. (Appendix) 1129.
164
“An Act to admit the State of Texas to Representation in the Congress of the United States,” 16 Stat. 80 (March
30, 1870).
161
36
2.5.2 Settlement by Donation: 1870 – 1875
In its first regular session beginning on April 26, 1870,165 the legislature conformed the law
on settlement donations to the revisions in the 1869 Constitution. The same act provided
procedures to acquire property either through settlement donation or purchase. Settlement by
donation was further divided into two categories: the head of a family (without an existing
homestead) was entitled to claim up to 160 acres but single men, aged 21 or older, were entitled
only to claim a maximum of 80 acres, apparently continuing the presumption that a single person
required less land for support than a family with dependents. All settlers claiming land by
donation were required 1) to have their claims surveyed and file the survey with the General
Land Office within twelve months of settling on the claim, 2) occupy the land for three years, 3)
prove their occupation both with their own affidavit and with the affidavits of “two disinterested
and credible citizens of the county …,” all sworn before the district clerk, and 4) pay all statutory
fees and file the affidavits with the Land Office in order to receive the patent to their claims.
Alternatively, individuals could purchase a total of 160 acres (at $1 per acre) on proof of actual
settlement (usually based on the certificate of the county or district surveyor); purchasers were
not limited by sex or marital status. The act provided an opportunity for those already settled on
public lands to add to their claims within the first twelve months after the new law took effect.
The act also created a final time limit to assert valid, existing land claims against the State:
individuals with existing claims who had not yet obtained their land were allowed to locate,
survey, and return their certificates to the Land Office no later than January 1, 1875, or the claim
was barred (apparently, actual occupancy was not a requirement for these older, unfulfilled
claims). To prevent legal conflicts the act generally repealed any provision conflicting with its
terms.166
Over the next few years the legislature continued to refine the law. A supplemental law
passed in 1871 entitled present residents complying with the requirements for occupancy,
surveying, and proof of meeting the statutory conditions to the prompt issuance of their patents.
Claimants previously forced off their lands who returned within the year after passage of the
supplemental act and completed the required occupancy were entitled to receive a patent. Heirs
165
House Journal of the Twelfth Legislature, First Session (Austin, 1870), 3, at
http://www.lrl.state.tx.us/collections/journals/journalsHouse12_1.cfm (accessed 8/17/2012).
166
“An Act to regulate the disposal of public lands of the State of Texas,” 1870 Texas General Laws, Ch. LIII: 6
Gammel 242.
37
could inherit the right to complete a settler’s requirements for a claim and receive the patent.
Finally, a party purchasing property from a settler who had occupied the land for the requisite
three years was entitled to obtain the patent for the land on the same statutory terms.167 A
subsequent act excluded lands reserved for railroad development and islands from entry for the
purpose of donation settlement.168 Providing some relief to settlers who neglected or were unable
to survey their property and file their initial claims within the required twelve months, in 1873
the legislature extended for another twelve months the time for present occupants to file their
claims; addressing a continuing problem of surveyors not performing their work in a timely
manner, the same act made certain failures to act punishable as misdemeanors, including failing
to survey a claim within one month of the settler’s application and failing to correct field notes
within ten days of their return by the General Land Office because of errors.169
In this period the public lands available for donation settlement were increased by the return
of certain lands ceded to the U.S. in February, 1856, for use as Indian reservations, conditioned
on their return to state control if not so used. The lands were never used for reservations, settlers
moved in and occupied them, and the U.S. ceded the properties back to Texas. The settlement
donation laws were extended to permit settlers to patent these lands.170
2.5.3 Homestead and Personal Property Exemptions 1870 – 1875
The legislature conformed the homestead property exemption by reiterating the terms of the
constitutional provision. Up to 200 acres of rural property was protected without reference to its
value. Homesteads located in a city, town, or village were protected up to a value of $5,000,
determined as of the date the owner designated the property as protected homestead and
calculated without including the additional value of the improvements on the land. The law
reflected the other major constitutional change by allowing forced sale of the property for the
three specific types of debts.171 The 1869 Constitution also created an affirmative duty to protect
additional property of the head of a family and the legislature responded by expanding the
detailed list of exempted personal property already in the law. The 1866 list was revised by
removing the value limitation on the household and kitchen furniture of the head of a family; all
167
1871 Texas General Laws, Ch. XXII (March 24, 1871): 6 Gammel 918.
1871 Texas General Laws, Ch. XCVI (became law without the Governor’s approval, May 16, 1871): 6 Gammel
995.
169
1873 Texas General Laws, Ch. LXVII: 7 Gammel 553
170
1875 Texas General Laws, Ch. V: 8 Gammel 4.
171
Debts for the purchase of the property, taxes, or materials and labor used to improve or repair the property.
168
38
was now exempt. In addition, a family head could protect one carriage or buggy, one gun, and
“all provisions and forage on hand for home consumption;” the act protected more than a year’s
worth of food and all feed for livestock that the family had on the property when a creditor came
to collect. The more limited amount of personal property for someone not the head of a family
remained the same.172 An early attempt to exempt part of the earnings of a laborer or skilled
worker was raised in the Texas House of Representatives but did not become law.173
The homestead protection was refined by adoption of two additional laws. The first
implemented the constitutional provision for liens of mechanics, contractors, builders, and other
debts created by providing labor or materials to repair or improve the property. 174 The second
created a process for a debtor to designate the extent of the protected property if the debtor had
more land than could be protected by the homestead exemption.175
2.5.4 The Constitutional Convention of 1875
By 1875 Texans had over fifty years of experience with settlement by donation of public
lands and property exemptions. An individual’s entitlement to settle on a specified amount of
vacant public land was first provided by law, then the State Constitution, briefly devolving back
to statute before reappearing as a detailed constitutional provision. The right to protect a specific
homestead from creditors was included in every iteration of the State Constitution, as was the
expectation for legislative action to protect some personal property of every debtor. The
Constitution also protected the commercial interests of lenders, builders and skilled workers, and
suppliers, not to mention governmental taxing authorities, by allowing certain liens on otherwise
protected real and personal property. These principles were generally accepted by the majority of
political interests in the State, as shown by the retention of these principles in the 1876
Constitution that rejected the Reconstruction Constitution of 1869 and reasserted the authority of
the traditional political elites.
In a measure approved on March 13, 1875, the legislature called for a convention to frame a
new Constitution in reaction to the perceived excesses of governmental power created under the
“An act defining the homestead and other property exempt from forced sale in this State,” 1870 Texas General
Laws, Ch. LXXVI: 6 Gammel 301.
173
Senate bill No. 130, to be entitled “An act to exempt the earnings of laborers, mechanics and artizans, to a certain
extent, from the payment of debt, by legal process,” Journal of the House of Representatives, Fourteenth
Legislature—Second Session, 201 (January 26, 1875), at http://www.lrl.state.tx.us/collections/journals/journals.cfm
(accessed 8/18/2012).
174
1871 Texas General Laws, Ch. XXXIV: 7 Gammel 30.
175
1873 Texas General Laws, Ch. XLIX: 7 Gammel 516.
172
39
1869 Constitution.176 The ninety delegates so elected convened in Austin from September 6 to
November 24, 1875 and the substantially-revised Constitution was ratified by vote of the people
on February 15, 1876.177
The Convention considered a number of proposed revisions to settlement by donation and
property exemptions. One suggestion was to extend the protection of homestead to all unmarried
men and women.178 Delegate Davis (from Brazos) submitted a resolution providing that on the
death of one or both spouses the homestead would descend and vest the same as other property
of the deceased, except that it could not be partitioned among the heirs as long as the surviving
spouse (if any) or the guardian of the minor children of the deceased elected to occupy the
property as homestead.179 A resolution submitted on November 2, 1875, would authorize the
legislature by law to exempt from garnishment the wages of laborers who were heads of families,
as well as single persons under particular limitations.180 Because some outstanding land claims
against the State remained unresolved, one proposal would have allowed these certificates to be
satisfied from vacant public lands at any time while such lands were available but would void the
certificates once all the lands were distributed.181
Some proposals were included in the revisions reported by the Committee on General
Provisions. Much longer than prior Articles on General Provisions, this draft recommended
protecting the separate property a woman owned before marriage, conducting trials in Spanish in
those counties bordering the Rio Grande, protecting wages from garnishment, continuing the
express provision for mechanics’ liens, continuing the homestead and personal property
exemption provisions in substantially the same form as the 1869 Constitution, and required the
1875 Texas General Laws, “Joint Resolution providing for a Convention to frame a Constitution for the State of
Texas,” [No. 16] (March 13, 1875): 8 Gammel 573. See also Patrick Williams, “Rutabagas and Redeemers:
Rethinking the Texas Constitution of 1876,” The Southwestern Historical Quarterly 106, No. 2 (October 2002),
231-254, at 242. The introduction of the proposed resolution in the State Senate referred to “the dangers of
usurpation which now threaten the States of Louisiana, Arkansas, Mississippi, and Texas…” and “that the said
amendments [to be framed by the proposed Convention-author], if accepted by the people, may be ratified, and the
evils now existing be removed….” Remarks of Senator Morris, Journal of the Senate of Texas, Fourteenth
Legislature—Second Session, 294 (February 10, 1875) (emphasis supplied), at
http://www.lrl.state.tx.us/collections/journals/journals.cfm (accessed 8/18/2012).
177
Gammel, 8 Vol. 779.
178
Journal of the Constitutional Convention of the State of Texas, 1875 (herein “1875 Journal), 54-55 (September 11,
1875), at http://tarlton.law.utexas.edu/constitutions/pdf/pdf1875/index1875.html (accessed 8/19/2012). There was a
separate proposal for women’s suffrage that did not progress. 1875 Journal, 196.
179
1875 Journal, 133.
180
1875 Journal, 535.
181
1875 Journal, 50.
176
40
legislature to provide by law for the registration and designation of property as homestead. 182
Eleven members of the Committee objected to the proposed form of the homestead provision as
not expressly prohibiting the mortgaging of the property for any purpose other than purchase.
The subsequent debate on the draft emphasized the purpose of homestead continued to be the
protection of the residence for the benefit of the family.183 A later proposal would significantly
expand the nature of the exemption by protecting both the residence and the primary place where
the “calling” of the head of household was “exercised.” Practically speaking, this meant not only
the land for the house, outbuildings, garden, and tilling or grazing for family use but also the
separate land on which sat a blacksmith’s forge, a tanner’s plant, or a craftsman’s factory.184
There were moments of erudition. At the opening of the daily session on October 12, 1875,
Delegate Weaver moved to reconsider an earlier amendment to the Rules of the Convention that
imposed a five minute limit on debates. Attributing a quote to Percy Bysshe Shelley (the
nineteenth century poet and essayist), Weaver is recorded as saying “the man who dares not
reason is a coward, the man who will not reason is a bigot, and the man who cannot reason is a
fool,” while arguing that the making of a constitution is sufficiently serious business as to merit
allowing each member complete comment on every point under consideration so to take full
advantage of the learning and expertise represented at the Convention. The delegates adopted the
motion to reconsider and by subsequent vote defeated the debate time constraint.185
The final form of the 1876 Constitution included the following provisions affecting property
exemptions and settlement donation:

No imprisonment for debt.186
182
1875 Journal, 553-561.
1875 Journal, 569-570.
184
1875 Journal, 709-711.
185
1875 Journal, 333-334. The quote appears to be a paraphrase of the original “he that will not reason is a bigot; he
that cannot reason is a fool; and he that dares not reason is a slave,” by William Drummond, K.C., F.R.S., F.R.S.E.,
in his Academical Questions, Vol. 1, page xv (London, 1805) at
http://books.google.com/books?id=U9FOAAAAYAAJ&printsec=frontcover&dq=Academical+questions+drummon
d&source=bl&ots=jo8v5CLWHH&sig=M6BkILVBvg68jnHOYPvDrnrjGX4&hl=en&sa=X&ei=_0gRUKqNH4ak8
AS5lIGwDg&ved=0CDUQ6wEwAA#v=onepage&q=bigot&f=false (accessed 7/26/2012). Shelley may not have
written the paraphrase but was familiar with Drummond’s work, referring to “Sir William Drummond” in “Peter
Bell the Third,” Part VI, stanza xv (presenting an interesting symmetry with the preface page number in Academical
Questions on which Drummond’s quote appears.) A literary analysis for the source of Weaver’s quote is outside the
scope of this paper; suffice to say, delegates to this Convention were not entirely parochial, at least in their reading if
not their rhetoric.
186
Art. I, §18, Texas Const. (1876).
183
41

Existing land grants that remained unsatisfied on the date the Constitution was
ratified were required to be located on a parcel of vacant public land, surveyed, and
filed with the General Land Office within five years from the date the Constitution
was ratified by the people or be forever barred. Settlers with claims granted by Spain
or Mexico in lands south of the Nueces River and north of the Rio Grande, who were
unable to complete the conditions for a patent because of “the unsettled condition of
the country,” were allowed to complete their surveys and file their claims on or
before January 1, 1880.187

Every head of a family (no age limit or gender) without a homestead was entitled to
settle and claim a maximum of 160 acres. Unmarried men (not women) eighteen
years or older could claim a maximum of 80 acres.188

A woman retained ownership and control of her separate property she owned or
claimed before the marriage or that she separately acquired by gift or inheritance. An
individual’s wages could not be garnished by creditors and the
provision for
mechanics’ liens was retained.189

Instead of the prior single section on exemptions contained in the Constitutions of
1845, 1861, 1866, and 1869, the 1876 Constitution expanded the exemption
principles into four separate sections:190
 Section 49 not only authorized but expressly made it the duty of the legislature to
protect from forced sale part of the personal property of all people, unmarried
men and women as well as heads of households.
 Section 50 restated and clarified the existing principles of the homestead
exemption: the exemption from forced sale, the three types of debts that were
excluded from the exemption (purchase, taxes, labor and materials for
improvements), and the restriction on a husband selling the homestead without the
legal consent of the wife. New provisions included a requirement that if a creditor
wanted to enforce against the homestead a lien for labor and materials the
obligation had to be in writing signed by both husband and wife, in the same
187
Art. XIV, §§2, 8, Texas Const. (1876).
Art. XIV, §6, Texas Const. (1876).
189
Art. XVI, §§15, 28, 37, Texas Const. (1876).
190
Art. XVI, §§49, 50, 51, 52, Texas Const. (1876).
188
42
manner as required for a legal sale, and a prohibition on any mortgage other than
for one of the three types of allowed debts.
 Section 51 modified the extent and character of the land protected as homestead.
The rural allowance was modified to allow the maximum 200 acres to be in
separate parcels. The urban homestead was still subject to a maximum value of
$5,000 that was calculated at the time the property was designated as homestead
and did not include the value of later improvements. The major change to the
protection for both rural and urban homesteads was the requirement that the land
be used either for the debtor’s home or where the head of the family conducted
the trade or business that supported the family. This section also provided
flexibility in managing the property by allowing the homestead to be rented
temporarily without losing the exemption (provided no other property was
purchased and used as a homestead.)
 Section 52 incorporated the draft provision for disposition of the homestead after
the death of either spouse, restricting its division among the heirs if the property
was still occupied as homestead by the surviving spouse or used as a home for the
deceased’s surviving minor children by their guardian if so permitted by the
proper court (apparently, families of minor children being orphaned was a
recurring issue during this period).
The 1876 Constitution was notable in rejecting the stronger government of the
Reconstruction version adopted in 1869, emphasizing limits on the rates of taxation, restrictions
on salaries for government officials and on state debt, rejecting a poll tax to reduce suffrage,
limiting the governors to a term of two years and the legislature to biennial sessions. The
majority of the delegates were Democrats; one analytical view of the composition of the
Convention and the resulting document is that a unified bloc of like-minded delegates, primarily
members of the Patrons of Husbandry (the Grange), forced those provisions favorable to agrarian
interests at the expense of other commercial development. This would seem consistent with
adopting sections in Article XII that strengthened exemptions for wages, personal and homestead
property, and extended the time to resolve outstanding land claims. One commentator more
closely examined the various votes of the members and, contrary to traditional narratives about
the Convention, posited there was no single unified bloc dominating all policy. Instead, alliances
43
shifted depending on the issue of the moment and there was no one “uniform agenda” pursued by
agricultural interests. He suggested Texas’ still-abundant public land holdings were the key to
understanding how even those more interested in commercially developing the State could
support severe limits on issues such as education funding and taxes. Instead of increasing taxes
for revenues necessary to implement preferred public policies, public land grants presumably
could simultaneously further the public goals of expanded settlement and development while
providing a source either of funds for public purposes (for example, certain lands were dedicated
exclusively for the support of public schools) or capital for commercial pursuits.191 Whether one
takes the traditional interpretation of the Convention’s dynamics or an approach emphasizing the
use of public lands to fund public needs, the continuation of Texas’ settlement donation process
and strong protections for debtors’ property were consistent with public policy.
The constitutional provisions on personal and homestead property exemptions would remain
unchanged until 1970. For the next ninety-four years the Texas Legislature would act through
statutory changes to amend the exemption laws in response to changing economic circumstances.
2.6 Codification and Evolution of the Laws Under the 1876 Constitution
Lawyers like codes. Whether substantially-related laws are organized as sequentiallynumbered statutes or divided into wholly-separate topics, adoption of a code of laws by the
legislature establishes a baseline for legal research. Unless affected, amended, or repealed by
subsequent enactment, a statute remains the current statement of the law on a given point. With a
code of statutes, the lawyer’s task is simplified: find the section applicable to the issue at hand,
review subsequent legislative acts to determine any changes to the statute or its interaction with
other statutes, review the controlling legal decisions interpreting the section, et voilá! one arrives
at the answer.192 Since independence in 1836, each law of Texas was organized under the
particular legislature enacting the provision; research involved access to all the laws passed and
then a tedious search through each law to find those pertaining to the immediate issue. To
facilitate access to the laws both by legal and legislative researchers, from 1876 to 1925 the
Texas Legislature would adopt four different codifications of the State’s laws. This period also
saw the close of settlement donations as the supply of available public land was exhausted.
Patrick Williams, “Rutabagas and Redeemers: Rethinking the Texas Constitution of 1876,” The Southwestern
Historical Quarterly 106, No. 2 (October 2002), 231-253.
192
No citation necessary. While the description is simplified, this is a routine procedure I’ve followed hundreds of
times while practicing law since 1984.
191
44
2.6.1 Development and Revision of the Initial Statutory Code: 1876 – 1895
Clarifying the new constitutional requirement for certain liens on the homestead to be created
in writing, the legislature mandated such a document must be a contract, executed at the time the
labor was to be performed or the materials furnished, signed by both spouses, and acknowledged
by the wife in the same manner as a deed transferring the property (i.e. her signature was to be
notarized). To perfect the lien, the party providing labor or materials (or both) to improve the
homestead was required to record the contract in the public records of the county where the
property was located.193 In another attempt to provide settlers an opportunity to complete the
requirements for a patent to their lands, in 1879 the legislature enacted a further extension of
twelve months from the date of the law (April 24, 1879) for settlers to file a claim.194
The Texas Legislature began the process of codifying the civil laws, including those
pertaining to settlement donations and property exemptions, by authorizing the governor to
appoint a commission (with the advice and consent of the State Senate) to review, edit, and
organize the civil and criminal laws into separate codes, and to present their recommendations in
two separate bills for legislative consideration.195 This Commission completed its work, the
resulting bills were submitted, and on February 21, 1879, the legislature passed the Revised
Statutes of the State of Texas.196 Separate provisions of law were stated in sequentiallynumbered articles organized in chapters under main topics, or titles.
The laws on property exemptions were codified together under Title XL of the Revised
Statutes.197 For every family, article 2335 specified the following sixteen types of protected
property:
1. The homestead of the family.
2. All household and kitchen furniture.
3. Any lot or lots in a cemetery held for the purpose of sepulture.
4. All implements of husbandry.
193
1876 Texas General Laws, Ch. LXXXI: 8 Gammel 927.
1879 Texas General Laws, Ch. CXLV: 8 Gammel 1461.
195
1876 Texas General Laws, Ch. LX: 8 Gammel 894.
196
Journal of the Senate of the State of Texas, First Session of the Sixteenth Legislature, 334-335, at
http://www.lrl.state.tx.us/collections/journals/journalsSenate16.cfm (accessed 9/12/2012); Journal of the House of
Representatives of the State of Texas, First Session of the Sixteenth Legislature, 475, at
http://www.lrl.state.tx.us/collections/journals/journalsHouse16.cfm (accessed 9/12/2012); Revised Civil Statutes of
the State of Texas, Introduction, at http://www.sll.state.tx.us/codes/1879/1879.html (accessed 8/20/2012).
197
Title XL, “Exemptions,” Tex. Civ. Stat. (1879).
194
45
5. All tools, apparatus and books belonging to any trade or profession.
6. The family library and all family portraits and pictures.
7. Five milk cows and their calves.
8. Two yoke of work oxen, with necessary yokes and chains.
9. Two horses and one wagon.
10. One carriage or buggy.
11. One gun.
12. Twenty hogs.
13. Twenty head of sheep.
14. All saddles, bridles and harness necessary for the use of the family.
15. All provisions and forage on hand for home consumption; and,
16. All current wages for personal services.
Individuals who were not “constituents of a family…” were allowed more limited exemptions:
1. A lot or lots in a cemetery, held for the purpose of sepulture.
2. All wearing apparel.
3. All tools, apparatus and books belonging to any trade or profession.
4. One horse, saddle and bridle.
5. Current wages for personal services
Both lists of exempt property incorporated the constitutional protection of wages from
garnishment as well as the items protected by law since 1870. The addition of cemetery lots
shows a legislative determination of real property to be protected in addition to a homestead.
The legislature restated the extent of the constitutionally-protected homestead and the familiar
three types of debts which could result in liens against the property198 and provided procedures to
determine and set apart the protected homestead if the debtor owned real property in excess of
the constitutional maximum amount or value.199 An exemption for operators of ferries was added
(one ferry-boat or flat-boat, with necessary tackle, all not to exceed $500 in value),200 apparently
to protect transportation services, and others for property of local governments and public
libraries.201 In a public policy decision to balance the goal of providing debtors with adequate
198
Title XL, arts. 2336, 2341, Tex. Civ. Stat. (1879).
Title XL, Ch. 2, Tex. Civ. Stat. (1879).
200
Title XL, art. 2338, Tex. Civ. Stat. (1879).
201
Title XL, arts. 2339, 2340, Tex. Civ. Stat. (1879).
199
46
assets for self-sufficiency with commercial interests, exceptions were made limiting the extent of
the protections for personal property (not protected from a landlord’s lien for unpaid rents or
debts secured by a lien on the item) or that of a ferry operator (the special exemption did not
prevent recovery of damages for the operator’s negligence, for example).202
Settlement by donation was incorporated under Title LXXIX, The Public Lands. Articles
3924 through 3936 provided the requirements and procedure for a settler to occupy, claim, and
purchase vacant, unappropriated public lands, including the right to locate previously-unsatisfied
land grant certificates on a specific parcel.203 The ability of a settler to receive a patent for lands
after occupying and cultivating the property for three years (in addition to the other
requirements), in lieu of cash payment, was set out separately in Chapter 9 of the same title.204
Codification brought a measure of stability to the law. Over the next sixteen years the most
significant change affecting the property exemption statutes was a revision to the law on
mechanics’ liens. As with the law codified in 1879, the revision provided that a lien properly
recorded benefited not only the immediate contractor for the construction of the improvements to
the homestead but also all subcontractors and material suppliers to the contractor. However, the
recorded lien expired twelve months after recording unless suit was brought to enforce it before
that time.205 This expiration protected the owner(s) of a homestead from such liens lingering long
after payment was made, thus clouding title to the property, because elimination of the lien did
not depend on the lienor executing and recording a release; the lien simply expired on its terms
unless there was a lawsuit for failure to pay under the contract. In the area of settlement by
donation the legislature revisited the problem of county surveyors failing to file their notes of the
official survey within the statutory requisite twelve months, thus preventing settlers who had
properly performed all requirements within their control from obtaining patents. Instead of
another extension, this statutory amendment authorized the General Land Office to issue patents
where the applicant could show good faith, substantial compliance with the law, and the
technical failure of the surveyor.206
The civil statutes were revised, renumbered, and re-codified in 1895. The property exemption
statutes were renumbered as Title XLII, chapter 1, articles 2395 – 2402; the only changes to the
202
Title XL, arts. 2338, 2342, Tex. Civ. Stat. (1879).
Title LXXIX, Ch. 8, Preemptions, Tex. Civ. Stat. (1879).
204
Title LXXIX, Ch. 9, Homestead Donations, Tex. Civ. Stat. (1879).
205
1889 Texas General Laws, Ch. 98: 9 Gammel 1138.
206
1895 Texas General Laws, Ch. 95: 10 Gammel 879.
203
47
text were technical revisions to conform internal references to the renumbered articles. 207 The
laws pertaining to settlement donation lands were also renumbered as part of the public land
statutes but the former sections authorizing general purchasing of land under rights of preemption, as opposed to specific purchases from lands dedicated for the funding of public school,
were not retained in the updated code.208
2.6.2 The End of the Frontier and Statutory Modernization: 1898 – 1935
The Texas frontier was closed on May 23, 1898. As the United States readied for war with
Spain, beginning an era of overseas engagement, the Texas Supreme Court ruled no public land
remained for donation to hardy pioneers to occupy, claim, and build into homes and farms.209
Claims under the pre-emption statutes, purchase and donation, totaled 4,847,136 as of that
date.210 The remaining public lands would be sold over time211 but acquiring a homestead by
claim, sweat, and endurance had merged into the lore of the past.
The legislature acted to resolve the claims of those who settled on public lands and began the
claim process prior to May 23, 1898. An 1899 act directed the General Land Office to issue
patents for claims where the applicant had tendered the purchase price under the general pre207
Title XLII, Ch. 1, Tex. Rev. Stat. (1895), at http://www.sll.state.tx.us/codes/1895/1895.html (accessed
8/28/2012).
208
Title LXXIX, Ch. 8, Homestead Donations, Tex. Rev. Stat. (1895).
209
Hogue v. Baker, 92 Tex. 58, 45 S.W. 1004 (1898), at
http://books.google.com/books?id=684aAAAAYAAJ&pg=PA65&lpg=PA65&dq=texas+hogue+v.+baker+1898&s
ource=bl&ots=DGklhZaRFi&sig=1Feh4V92tIj1PNXrkK9AS_W2564&hl=en&sa=X&ei=dHsxUPHXGobM9gTd_
4H4DQ&ved=0CFwQ6AEwBw#v=onepage&q=texas%20hogue%20v.%20baker%201898&f=false (accessed
8/19/2012). Petitioner Hogue argued he had fulfilled all statutory requirements for a patent to the 160 acres he
occupied and sought a writ of mandamus compelling Baker, the Commissioner of the General Land Office, to
perform the merely ministerial duty of issuing the patent. Baker had refused on the grounds that the land Hogue
claimed belonged within the public school fund and as such could only be purchased, not obtained by settlement. He
argued that because Article VII, §2, of the 1876 Constitution required one half of the public domain (among other
assets) to be set aside as the public school fund, and because all prior grants, certificates, and patents issued since the
adoption of the 1876 Constitution accounted for more than half of the remaining public domain, no lands remained
available outside the school fund and there was no land for Hogue to claim. The Supreme Court agreed; once the
lands available for such settlement were exhausted, as conceded by the State, no further claim could be made.
210
“Report of the Commissioner of the General Land Office (1908-1910),” 30, at
http://books.google.com/books?id=j2jOAAAAMAAJ&pg=RA1-PA3&lpg=RA1PA3&dq=texas+commissioner+land+office+report+1910&source=bl&ots=ZYdtp1MhQR&sig=5PjFjsZGm706Ux
MBer09dZLzChM&hl=en&sa=X&ei=hEkxUNvOL4ii9QSQsIDACg&ved=0CDkQ6AEwAQ#v=onepage&q=texas
%20commissioner%20land%20office%20report%201910&f=false (accessed 8/21/2012). Reuben McKitrick, “The
Public Land System of Texas, 1823 – 1910,” Bulletin of the University of Wisconsin, Economics and Political
Science Series, Vol. 9, No. 1 (February, 1918), 51, at
http://books.google.com/books?id=7mvUAAAAMAAJ&printsec=frontcover&dq=McKitrick+public+land+system+
texas&source=bl&ots=WvxbIbUk1&sig=_nBFkBW0m2i3MTbLtzcTONNCXqk&hl=en&sa=X&ei=2jkxUNGgH4GC8QTMmYHQCw&ved=0C
DYQ6AEwAA#v=onepage&q=McKitrick%20public%20land%20system%20texas&f=false (accessed 8/19/2012).
211
1899 Texas General Laws, Ch. CLXXIII: 11 Gammel 347.
48
emption laws but the land later was determined to be within the public domain allotted to the
school fund; the proceeds would be deposited to the school fund. This act was repealed and
replaced the following year by a more comprehensive law that transferred all remaining vacant
public lands into the school fund, made an additional cash deposit, provided claimants a
preference period of six months to purchase the land claimed at one dollar per acre, and revised
the direction for the Commissioner to issue patents to include “all homestead donation, preemption, or others…” who had their claims surveyed and filed with the Land Office before May
23, 1898 (and would have received their patents but for the Supreme Court decision), provided
the claimant filed proof of proper payment before January 1, 1902.212 Subsequent legislation
eliminated this deadline.213
The 1911 revision of the civil statutes renumbered the property exemption provisions but
otherwise retained the substantive text from the 1895 statutes. The most significant change to the
exemptions acknowledged the increasing mobility of the population by protecting the proceeds
from a sale of the homestead: for six months from a voluntary sale of the homestead the proceeds
of the sale could be neither garnished nor otherwise seized by creditors. 214 Revision of the civil
code in 1925 once again renumbered the exemption sections but made no other changes.215
Changes to personal property exemptions came slowly. In 1929 the legislature passed a bill
creating an exemption for the cash surrender value of a life insurance policy if a family member
or members of the insured was a beneficiary. The exemption did not affect debts arising under
the policy or secured by a lawful assignment of the policy and applied only after a policy was in
force for more than two years.216 During the onset of the Great Depression unavailing attempts
212
1900 Texas General Laws, Ch. XI: 11 Gammel 654. In this bill the legislature found that when the 1876
Constitution was adopted there remained 41,861,132.66 acres in the public domain (of which 13,674,448.9 acres
were vacant and unappropriated) and under the 1876 Constitution the school fund was entitled to 20,934,566.33 total
acres (6,837,224.49 acres of the vacant and unappropriated lands). Under this act the school fund received 4,444,195
acres and cash of $17,180.27; all lands in the school fund would be available only for sale.
213
1903 Gen. Laws CXXXIX: 12 Gammel 258, later included as Title 79, Ch. 6, art. 5377, Texas Revised Statutes
(1911), at http://www.sll.state.tx.us/codes/1911/1911.html (accessed 8/21/2012).
214
Title 55, Ch. 1, art. 3787, Texas Rev. Stat. (1911), at http://www.sll.state.tx.us/codes/1911/1911.html (accessed
8/21/2012). According to the historical note for the statute, this provision was passed in 1897 but included as a
clause at the end of art. 2396. The 1911 revision placed the statutory principle in a separate article from the
definition quoted from the Constitution.
215
Title 57, Ch. 1, arts. 3832 – 3840, Texas Rev. Stat. (1925), at http://www.sll.state.tx.us/codes/1925/1925.html
(accessed 8/21/2012).
216
Title 57, Ch. 1, art. 3832a, Texas Rev. Stat. (1925), created by Ch. 43, Texas Session Laws 1929, General and
Special Laws of Texas Passed by the Second Called Session of the Forty-First Legislature, 78, at
http://www.lrl.state.tx.us/legis/BillSearch/BillDetails.cfm?legsession=412&billTypeDetail=SB&billNumberDetail=19 (accessed 8/29/2012).
49
were made to extend the homestead protection to single individuals217 and to revise the allowed
personal property exemptions in 1931,218 1933,219 and 1934.220 Responding to the hardships
many citizens experienced during the Depression, in 1935 the legislature amended the statute to
protect additional personal property of a family from creditors. While declining to protect the
“family automobile,” the legislature substituted “two mules” for “two yoke of work oxen with
necessary yokes and chains,” and added the following property to the list of exemptions:

All wearing apparel;

Twenty head of goats;

Fifty head of chickens;

Thirty head of turkeys;

Thirty head of ducks;

Thirty head of geese;

Thirty head of guineas;

One dog.221
Emphasizing exemptions for working animals such a mules or horses during this period
acknowledged their continuing utility to a larger number of farmers and ranchers, not necessarily
the poorest. Mechanization of farm labor had begun before World War I but a significant number
of farmers, particularly those with smaller holdings who could not readily afford to purchase
tractors and related equipment, continued to rely on the power of draft animals.222
217
House Joint Resolution No. 45, Journal of the House of Representatives of the Regular Session of the FortyThird Legislature of the State of Texas (1933), Vol. 1, 917, 2656, at
http://texashistory.unt.edu/ark:/67531/metapth193846/m1/921/?q=forced (accessed 7/31/2012).
218
House Bill No. 369, Journal of the House of Representatives of the Regular Session of the Forty-Second
Legislature of the State of Texas (1931), Vol. 1, 236, 2611, at
http://texashistory.unt.edu/ark:/67531/metapth193847/m1/1203/?q=forced (accessed 7/31/2012).
219
House Bill No. 137, Journal of the House of Representatives of the Regular Session of the Forty-Third
Legislature of the State of Texas (1933), Vol. 1, 125, at
http://texashistory.unt.edu/ark:/67531/metapth193851/m1/129/?q=forced (accessed 7/31/2012).
220
House Bill No. 130, Journal of the House of Representatives of the Second Called Session of the Forty-Third
Legislature of the State of Texas (1934), 247, 300, at
http://texashistory.unt.edu/ark:/67531/metapth193849/m1/251/?q=130 (accessed 8/21/2012).
221
House Bill No. 166, Journal of the House of Representatives of the Regular Session of the Forty-Fourth
Legislature of the State of Texas (1935), 1153-1155, at
http://texashistory.unt.edu/ark:/67531/metapth193855/m1/1157/?q=forced (accessed 7/31/2012); Ch. 145, Texas
Session Laws 1935, General and Special Laws of Texas Passed by the Forty-Fourth Legislature, Regular Session,
384, at http://www.lrl.state.tx.us/legis/BillSearch/BillDetails.cfm?legsession=440&billTypeDetail=HB&billNumberDetail=166 (accessed 8/28/2012).
222
My mother, Ruth Kingsbury Miller, was born and grew up on family farms in western New Jersey during the
1930s and ’40s and well remembers her father and older brothers working with “Dick and Dan,” the team of draft
50
1935 marked the last changes to the Texas personal property exemption statutes for almost
forty years. While policies were proposed223 and specific property exempted to further policies in
other areas,224 the legislature would consider a comprehensive revision of personal property
exemptions only after significant revision of other outdated statutes and the first major
amendments to the constitutional provisions.
horses on which the farm relied. My grandfather did not purchase his first tractor until 1942.
223
For example, in 1939, the House proposed an amendment to Art. XVI, §49 of the 1876 Constitution to include
certain personal property; the Senate declined. Journal of the House of Representatives of the Regular Session of the
Forty-Sixth Legislature of the State of Texas, Vol. 1, 1647, at
http://texashistory.unt.edu/ark:/67531/metapth193857/m1/1651/?q=forced; Journal of the Senate of the Regular
Session of the Forty-Sixth Legislature of the State of Texas, 865, 2313, at
http://texashistory.unt.edu/ark:/67531/metapth145993/m1/2313/?q=forced. In 1943, a Senate proposal to limit the
amount of wages protected from garnishment was unsuccessful. Journal of the Senate of the Regular Session of the
Forty-Eighth Legislature of the State of Texas, 302, at
http://texashistory.unt.edu/ark:/67531/metapth142189/m1/1/?q=Forty-Eighth Legislature (accessed 9/12/2012). In
1961, House Bill No. 227 once again proposed to add the family car to the list of protected property and noted the
exemptions had not been revised since 1935; it died in committee. Journal of the House of Representatives of the
Regular Session of the Fifty-Fifth Legislature of the State of Texas, Vol. 1, 173, 2950, at
http://texashistory.unt.edu/ark:/67531/metapth193869/m1/177/?q=forced. In 1967, House Bill No. 993 proposed to
exempt from forced sale certain property belonging to persons who were not constituents of a family; this bill also
died in committee. Journal of the House of Representatives of the Sixtieth Legislature of the State of Texas, Regular
Session, Vol. 2, and First Called Session, 670, 3489, at
http://texashistory.unt.edu/ark:/67531/metapth193874/m1/674/?q=993. The staff analysis for HB 993 (1967)
confirmed the personal property exemptions had not been revised since 1935. Analysis at
http://www.lrl.state.tx.us/legis/billsearch/text.cfm?legSession=600&billtypeDetail=HB&billNumberDetail=993&billSuffix=&startRow=1&IDlist=&unClicklist=&number=100. (All
documents referenced in this note accessed 7/31/2012, except where noted).
A word on the use of state legislative staff analyses. Most state legislative committees only vote on whether the form
and substance of a particular bill and any amendments will be referred for further consideration by another
committee and, ultimately, for final vote by the entire chamber. Unlike committee reports in Congress, which are
officially voted on and adopted by the committee members, state legislative staff analyses are prepared by one or
more analysts employed by the legislative chamber (usually serving at the pleasure of the presiding officer such as
the Speaker of the House or the President of the Senate) and only represent the research conclusions of those staff
members. State legislative staff analyses thus are useful for the history of what facts and conclusions were provided
to the membership but are not proof of the legislature’s intent in adopting a particular bill. The general rule is that
statutes must be interpreted to give full effect to the intent of the legislature and that legislative intent is determined
from the language approved and passed by the legislature.
224
In 1963 the laws for the Texas National Guard were amended to exempt the equipment, arms, and supplies issued
by the State to members of the State Military Forces. Ch. 112, §5, Texas Session Laws 1963, General and Special
Laws of Texas Passed by the Fifty-Eighth Legislature, Regular Session, 209, at
http://www.lrl.state.tx.us/legis/BillSearch/BillDetails.cfm?legsession=580&billTypeDetail=SB&billNumberDetail=279 (accessed 8/28/2012). Amounts due to an individual from the
Municipal Pension System were exempted from levy and execution. Ch. 107, §20, Texas Session Laws 1965,
General and Special Laws of Texas Passed by the Fifty-Ninth Legislature, Regular Session, 246, at
http://www.lrl.state.tx.us/legis/BillSearch/BillDetails.cfm?legsession=590&billTypeDetail=SB&billNumberDetail=123 (accessed 8/28/2012).
51
2.7 Evolution of the Modern Exemptions in Texas: 1969 - 2009
Despite the relatively rapid change of constitutions in Texas during the mid-nineteenth
century (1836, 1845, 1861, 1866, 1869, and 1876) and the frequency of amending the 1876
document since its adoption,225 the sections governing homestead exemptions remained
unchanged until 1970. As of this writing, Article XVI, §49, concerning legislative exemptions of
personal property, had never been revised. The statutes pertaining to personal property
exemptions, like those governing settlement donation, were changed more frequently as shown
in the preceding sections. Yet no such statutory amendments were enacted after 1935 even in
response to the changes in the economy and population that characterized the period after World
War II. The lack of change to the constitutional provisions is not surprising, although a $5,000
maximum value for urban homesteads clearly restricted the size of the property a debtor could
retain compared to the reservation for a homeowner in 1876, because the homestead articles
continued to articulate the accepted public policy of restraining economic choices that could
imperil the homestead, and thus the family. Article XIV, §49, simply mandated the protection of
some personal property of debtors but left decisions on the type and value of such items to the
legislature. Texans were accustomed to stability in the property exemption laws as major
revisions occurred only periodically (1839, 1866, 1879) with intermittent changes such as last
occurred in 1935, but by the same token the property concerned remained relevant to an
agricultural economy that was fading by the mid-twentieth century. Even the provisions in
Article XIV of the 1876 Constitution about granting public lands to settlers endured until 1969,
despite the 1898 ruling ending such dispositions. Evidently, during the social and economic
transformation of post-World War II America the Texas Legislature chose to presume the value
of rural property would increase and those values, in turn, would provide sufficient assets to
those in rural areas who suffered financial reversals, and the basic personal property exempted in
the statutes was sufficient to protect the interests of urban dwellers. Subsequent changes both to
the 1876 Constitution and the statutes reflected a new intent to modernize the exemption laws.
225
In its March 2012, summary the Texas Legislative Council found some 474 amendments to the 1876 Constitution
were approved by the voters over the years. Texas Legislative Council, “Amendments to the Texas Constitution
Since 1876” (Austin, 2012), Introduction, at http://www.tlc.state.tx.us/pubsconamend/constamend1876.pdf
(accessed 8/22/2012).
52
2.7.1 Modernizing the Constitution and Statutes: 1969 - 1983
Under Article XVII, the 1876 Constitution could be amended only by the legislature adopting
a proposed amendment during a regular session followed by voter ratification. An amendment in
1972 provided in addition for the legislature, during a special legislative session, to propose
amendments concerning matters within the scope of the special session; the amendment also
refined the notice and voting procedure for proposed amendments.226 Still, the Texas
Constitution was, and is, amended only on legislative initiative.
The Texas Legislature began updating the homestead and personal property exemptions by
first increasing the protected value of the urban homestead from $5,000 to $10,000 through an
amendment to the existing statute.227 In the same session the legislature proposed a constitutional
amendment providing the same increase in protected value, subsequently ratified by the people
on November 3, 1970.228 The timing of these two provisions shows an interesting juxtaposition
of policies. While the legislature could create new property exemptions under Article XVI, §49,
it could not expand the constitutional limit on the value of an urban homestead. Until the
constitutional amendment was passed, the additional $5,000 of value in an urban homestead
could be protected only if a court found it comprised part of the debtor’s personal property, such
as if the property was sold and the debtor asserted the additional statutory protection to the
remaining proceeds. 1969 was notable also for amendments the people adopted to remove from
the 1876 Constitution the obsolete provisions pertaining to settlement by pre-emption and
donation (Art. XIV, §4) and land grants to heads of families and single men (Art. XIV, §6), all of
which had been inoperative since 1898.229
With the continuation of the War in Vietnam the legislature passed a law providing a
procedure for one spouse to sell, convey, or encumber the family homestead if the other spouse
226
H.J.R. 68, General and Special Laws of the State of Texas Passed by the Regular Session of the Sixty-Second
Legislature, 4141, at http://texashistory.unt.edu/ark:/67531/metapth221767/m1/1992/ (accessed 8/22/2012).
227
Title 57, Ch. 1, art. 3833, amended by Ch. 841, Texas Session Laws 1969, General and Special Laws of the State
of Texas Passed by the Regular Session of the Sixty-First Legislature, 2518, at
http://www.lrl.state.tx.us/scanned/sessionLaws/61-0/SB_757_CH_841.pdf (accessed 8/28/2012).
228
S.J.R. 32, General and Special Laws of the State of Texas Passed by the Regular Session of the Sixty-First
Legislature and The First and Second Called Sessions of the Sixty-First Legislature, Vol. 2, 3229, at
http://texashistory.unt.edu/ark:/67531/metapth221768/m1/63/?q=homestead (accessed 7/31/2012). The adoption is
recorded in “Amendments to the Texas Constitution,” 102.
229
H.J.R. 3, General and Special Laws of the State of Texas Passed by the Regular Session of the Sixty-First
Legislature and The First and Second Called Sessions of the Sixty-First Legislature, Vol. 2, 3230, at
http://texashistory.unt.edu/ark:/67531/metapth221765/m1/1038/ (accessed 8/22/2012). The repeal of both sections is
recorded in “Amendments to the Texas Constitution,” 90.
53
was missing in action or a prisoner of war. The original law required the homestead to be
community property, meaning it was acquired after the marriage with common funds and not
brought in as part of either spouse’s separate property. The spouse seeking to sell, transfer, or
encumber (agree to a creditor’s lien) the property was required to file a petition in the district
court where the property was located, reciting why the action was necessary or desirable without
the required joinder of the absent spouse. The court was required to appoint an attorney to
represent the interests of the absent spouse (the court would impose a reasonable fee against the
petitioning spouse for these services as part of the costs of the proceeding). A hearing was
required; after considering the evidence the court could grant the petitioning spouse permission
to sell, transfer, or encumber the property on terms “the court deemed advisable,” including any
conditions found necessary to protect the interests of the absent spouse such as requiring a bond
to ensure proper administration of the proceeds from the transaction or actually requiring the
funds to be deposited with the court pending further directions from the judge.230 This statute
showed the legislature balanced the constitutional restrictions on transferring or encumbering
homestead property, intended to protect the family from overextending their financial resources,
with the pragmatic need for one spouse to manage that asset efficiently in response to changed
family circumstances (such as relocation for employment or needing to borrow funds to repair
the home) despite the long-term absence of the other spouse due to specific consequences of
military service rendering that spouse unable to participate in the transaction.
In 1973 the legislature significantly altered homestead and personal property exemptions in
Texas. A separate bill filed in 1969 proposed an amendment to the Constitution extending the
homestead exemption to unmarried adults.231 That bill died but the concept was brought back in
1973, passed,232 and the amendment ratified later that year.233 In a separate bill the legislature
230
Ch. 884, §2, Texas Session Laws 1971, General and Special Laws of Texas Passed by the Sixty-Second
Legislature, Regular Session, at http://texashistory.unt.edu/ark:/67531/metapth221767/m1/563/?q=homestead
(accessed 7/31/2012). Elements created by this law are contained in the contemporary statutes: Texas Family Code,
Title 1, Subtitle B, Chapter 5, Subchapter B, §5.101: “Sale of Separate Homestead Under Unusual Circumstances,”
§5.102: “Sale of Community Homestead Under Unusual Circumstances,” §5.104: “Appointment of Attorney,”
§5.106, Court Order; at http://www.statutes.legis.state.tx.us/ (accessed 8/23/2012).
231
H.B. 110, Journal of the House of Representatives of the Sixty-First Legislature of the State of Texas, Regular
Session, Vol. 1, 174, at http://texashistory.unt.edu/ark:/67531/metapth193877/m1/178/?q=forced (accessed
9/12/2012). The staff analysis for the bill reiterated the lack of statutory change since 1925. Committee on Judiciary
Staff, “Bill Analysis, H.B. 110,” at http://www.lrl.state.tx.us/legis/BillSearch/text.cfm?legSession=610&billtypeDetail=HB&billNumberDetail=110&billSuffix=&startRow=1&IDlist=&unClicklist=&number=100
(accessed 8/25/2012).
232
H.J.R. 7, General and Special Laws of the State of Texas Passed by the Regular Session of the Sixty-Third
54
passed the first amendments to the personal property exemptions since 1935; indeed, this was the
first comprehensive revision of the exemptions since 1879.
The act234 renumbered and amended certain existing statutes on exemptions. The statutory
homestead protection was conformed to the constitutional extension of homestead to unmarried
individuals and the increased value of the urban homestead. However, while the rural homestead
of a family remained as the traditional 200 acres, a single person was limited to 100 acres. 235 In
basing the extent of protected land on marital status the legislature interpreted the first clause of
Article XVI, §51, “(t)he homestead, not in a town or city, shall consist of not more than two
hundred acres of land, which may be in one or more parcels, with the improvements thereon…,”
as authorizing limitations on the extent of homestead and thus supporting a lesser protected
amount for single individuals.
The itemization of exempt personal property was revised extensively. For the first time the
legislature imposed a maximum aggregate fair market value on all personal property exempted
under the statute: $30,000 for a family, $15,000 for a single adult. The listing of personal
property available for exemption included:
(1) Furnishings of a home, including family heirlooms, and provisions for consumption;
(2) All of the following which are reasonably necessary for the family or single, adult person,
not a constituent of a family: implements of farming or ranching; tools, equipment,
apparatus (including a boat), and books used in any trade or profession; wearing apparel;
two firearms and athletic and sporting equipment;
(3) Any two of the following categories of means of travel: two animals from the following
kinds with a saddle and bridle for each: horses, colts, mules, and donkeys; a bicycle or
motorcycle; a wagon, cart, or dray, with harness reasonably necessary for its use; an
automobile or station wagon; a truck cab; a truck trailer; a camper-truck; a truck; a
pickup truck;
Legislature, Vol. 2, 2478, at http://texashistory.unt.edu/ark:/67531/metapth221793/m1/1386/?q=forced (accessed
8/22/2012).
233
Nov. 6, 1973: “Amendments to the Texas Constitution,” 102.
234
Ch. 588, General and Special Laws of the State of Texas Passed by the Regular Session of the Sixty-Third
Legislature, Vol. 2, 1627, at http://texashistory.unt.edu/ark:/67531/metapth221793/m1/535/?q=588 (accessed
8/22/2012).
235
Ch. 588, §§1, 2, Texas Session Laws 1973, revising arts. 3833, 3835, Tex. Rev. Stat. (1925).
55
(4) Livestock and fowl not to exceed the following in number and forage on hand reasonably
necessary for their consumption: 5 cows and their calves, one breeding-age bull, 20 hogs,
20 sheep, 20 goats, 50 chickens, 30 turkeys, 30 ducks, 30 geese, 30 guineas;
(5) A dog, cat, and other household pets;
(6) The cash surrender value of any life insurance policy in force for more than two years to
the extent that a member or members of the family of the insured person or a dependent
or dependents of a single, adult person, not a constituent of a family, is a beneficiary
thereof;
(7) Current wages for personal services.236
The legislature retained many of the personal property exemptions long extant in Texas law,
such as home furnishings, provisions, farming implements, and a detailed list of protected
livestock, while exempting a number of items deemed important for modern daily life, including
different types of motor vehicles, sporting equipment, and household pets. Not all of these
exemptions were automatic; the statute did not provide any guidance as to how to interpret the
phrase “…reasonably necessary for the family or single, adult person…” and each debtor
attempting to retain tools or a boat would have to prove the necessity for that item in the debtor’s
particular situation. These amendments show four public policy decisions by the legislature: first,
debtors would be allowed to exempt a wide range of personal property in order to continue being
self-supporting; second, the traditional protections for farmers and ranchers were intentionally
preserved apparently because of their perceived continuing importance to the State; third, those
who were single did not need to retain as much property as those who were supporting families;
and finally, the specified maximum values would ensure sufficient resources for the recovery of
financially-distressed debtors.
The 1973 amendments to the exemption laws were a prelude to the restructuring of the
statutes ten years later.237 In 1963, the legislature had instituted a comprehensive statutory
236
Ch. 588, §3, 1973 Texas Session Laws, revising art. 3836, Texas Rev. Stat. (1925).
In 1975 the legislature adopted Senate Joint Resolution 11, placing 8 proposed amendments before the people
that, if ratified, would have replaced the 1876 Constitution and become the new organic law of the state. In this
document the exemptions from forced sale or seizure of homestead, personal property, and wages were renumbered
under proposed Article X as sections 12, 13, and 14, were somewhat reworded, but remained substantially the same
as the existing protections in the 1876 Constitution (with the exception that the legislature no longer had a positive
duty to protect personal property of debtors). S.J.R. 11, General and Special Laws of the State of Texas Passed by
the Sixty-Fourth Legislature, Regular Session, (enrolled version of bill, 132-134), at
http://www.lrl.state.tx.us/legis/BillSearch/text.cfm?legSession=640&billtypeDetail=SJR&billNumberDetail=11&billSuffix=&startRow=1&IDlist=&unClicklist=&number=100
237
56
revision program through the Texas Legislative Council addressing over time the separate
substantive codes comprising the statutes.238 By 1983 the revision of the Property Code was
complete, including the restructuring of the homestead and property exemptions.239 As the stated
purpose of the recodification was technical, not substantive revision, the new statutes made only
minor adjustments to the text of the 1973 revisions. The subsection on vehicles was revised to
coordinate with the Uniform Act Regulating Traffic on Highways to limit the exemption’s
applicability to passenger cars and light trucks “not held or used for the production of
income….” The resulting revisions constitute the modern Texas Property Code.
The constitutional homestead protection also was revised. A proposed amendment passed by
the legislature and ratified in November, 1983, changed the size of the protected urban
homestead to a lot or lots containing a maximum of one acre but deleted the limitation on
value.240 This conformed the protection of the urban homestead to that for the rural; by limiting
the total value of personal property, and allowing debtors the benefit of real property value
increases, the legislature continued a preference for the homestead to be the primary asset
supporting a debtor’s recovery from financial reversal.
2.7.2 Emerging Financial Protections and the Current Statutes: 1987 – 2007
In the last quarter of the twentieth century the Texas Legislature responded to the increasing
sophistication of financial assets and programs available to consumers by passing a series of
statutory and constitutional amendments designed to allow individuals the flexibility to take
advantage of this diversification while retaining some protection from general creditors. A new
statute passed in 1987 protected a debtor’s interest in certain types of retirement plans exempt
(accessed 8/26/2012). The amendments were rejected in a vote held on November 4, 1975; “Amendments to the
Constitution,” 108. Because the proposed revised Constitution would have made minimal impact on the exemptions,
and because the defeat of the revision left the 1876 Constitutional protections intact, the development and policy
concerns underlying the revision are outside the scope of this paper and not included in the main narrative.
238
Texas Property Code, Title 1, Ch. 1, §1.001, “Purpose of Code,” enacted by Ch. 576, Texas Session Laws 1983,
General and Special Laws of Texas Passed by the Sixty-Eighth Legislature, Regular Session, 3475, at
http://www.lrl.state.tx.us/legis/BillSearch/BillDetails.cfm?legsession=680&billTypeDetail=SB&billNumberDetail=748 (accessed 7/30/2012).
239
The laws on the homestead exemption were restated in the Property Code, Title 5: “Liens and Exempt Property,”
Subtitle A: “Exempt Property,” Chapter 41: “Homestead.” The personal property exemptions were place under the
same Title 5, Subtitle A, as Chapter 42: “Personal Property.” Ch. 576, Texas Session Laws 1983, 3517-3525.
240
H.J.R. 105, General and Special Laws of the State of Texas Passed by the Regular Session of the Sixty-Eighth
Legislature, Vol. 3, 6724, at http://texashistory.unt.edu/ark:/67531/metapth221805/m1/2136/ (accessed 8/22/2012).
Ratification at “Amendments to the Texas Constitution,” 102.
57
from federal income taxation.241 A 1989 amendment to the new section clarified the exemption
to coordinate with the federal requirements for certain types of plan rollover contributions.242
Two significant changes to the statutes on exempt personal property were made in 1991. The
legislature increased the maximum value for the total personal property a debtor could protect to
$60,000 for a family and $30,000 for a single adult.243 The bill analysis by the staff of the Senate
Committee on Jurisprudence reported economic research information prepared by the University
of Texas that estimated the $30,000 maximum exemption amount provided for a family should
be adjusted to “between $76,000 and $80,000 to maintain the same dollar value…;” for the same
reason that of a single adult should be adjusted to between $38,000 and $40,000.244 The increase
in the total value of protected personal property reflected a determination that the average debtor
required a greater amount of assets to recover from financial distress. The legislature also
adopted a new statute allowing liens for child support to apply to otherwise-protected personal
property.245 The exclusion of child support liens from the normal exemptions represented a
public policy decision to prevent debtors from retaining significant assets at the expense of their
court-ordered obligations to provide for their children.
A similar public policy determination was the basis for a somewhat arcane statutory
amendment in 1993. Under the Bankruptcy Code a debtor may remove, or “avoid,” certain liens
that diminish or “impair” the debtor’s interest in exempt property.246 In some circumstances
241
Title 5, Ch. 42, §42.0021, Tex. Rev. Stat., created by Ch. 376, §1, Texas Session Laws 1987, General and Special
Laws of Texas Passed by the Seventieth Legislature, Regular Session, 1877, at
http://www.lrl.state.tx.us/legis/billsearch/BillDetails.cfm?legsession=700&billTypeDetail=HB&billNumberDetail=736 (accessed 8/23/2012).
242
Ch. 1122, §1, Texas Session Laws 1989, General and Special Laws of Texas Passed by the Seventieth
Legislature, Regular Session,4627, at http://www.lrl.state.tx.us/legis/billsearch/BillDetails.cfm?legsession=710&billTypeDetail=HB&billNumberDetail=2295 (accessed 8/23/2012). A “rollover” occurs when the holder of a
retirement account, such as an Individual Retirement Account (IRA), closes the existing account and moves the
funds to a similar IRA. Tax laws typically provide a limited time from closing the former account to move the funds
without incurring an obligation for taxes and penalties due for closing the former IRA.
243
Ch. 175, General and Special Laws of the State of Texas Passed by the Regular Session of the Seventy-Second
Legislature, Vol. 1, 789, at http://texashistory.unt.edu/ark:/67531/metapth221819/m1/821/?q=175 (accessed
8/22/2012).
244
Senate Committee on Jurisprudence, “Bill Analysis, S.B. 654,” at
http://www.lrl.state.tx.us/scanned/srcBillAnalyses/72-0/SB654.pdf (accessed 8/25/2012). Again, this is a record of
information provided to the Senate committee and is not a finding or statement of intent by the legislature.
245
Technically, liens for child support were an exception to the statutory exemption of personal property from
creditors’ levy and execution. The new statute was Title 5, Ch. 42, §42.005, Texas Property, created by Ch. 15,
§4.07, Texas Session Laws 1991, General and Special Laws of Texas, Passed by the Seventy-Second Legislature,
First Called Session, 310, at http://www.lrl.state.tx.us/legis/BillSearch/BillDetails.cfm?legsession=721&billTypeDetail=HB&billNumberDetail=7 (accessed 8/24/2012).
246
11 U.S.C. §522(f).
58
Texas bankruptcy debtors were able to avoid previously-valid liens against personal property.
The legislature amended the affected statute247 to clarify that a security interest or lien allowed
by law to be placed on personal property could not be avoided in bankruptcy by the debtor
merely because the property was exempt from general creditors under State law.248
Since 1869 the Texas Constitution prohibited any liens against the homestead except for
debts for its purchase, assessed taxes, or furnishing labor or materials to improve the property.
Liens for certain actions, such as obligations resulting from partitioning a couple’s interests in
the homestead as part of divorce resolution, were prohibited even if the encumbrance was in the
best interests of both parties. Recognizing the advantage of providing a mechanism for one party
in a divorce or property settlement to place a lien on the homestead in order to “buy” the other
party’s ownership interest, the legislature approved a proposed amendment (subsequently ratified
by the voters on November 7, 1995) for owners to place an additional type of voluntary lien on
the homestead: a lien (most often in the form of a mortgage) to secure a debt arising from an
“owelty of partition” imposed against the property by court order or an agreement disposing of
the homestead between its multiple owners, each with an undivided ownership of the whole
property, or the refinancing of certain prior liens against the property. 249 The House analysis for
the bill explained an owelty of partition occurred most often in divorce or probate situations
involving a piece of property owned jointly by two or more people, each with an undivided
interest in the property. In an undivided ownership, each person owns the whole property subject
to the interests of the others who also own the whole property. If one owner sought to buy out
another, and tried to finance that purchase, the lender often would require a mortgage not only on
the interest being acquired but also on every other ownership interest in the property. “In other
words, the bank requires all interests in the property to be used as security for a loan to purchase
247
Title 5, Ch. 42, §42.002, Texas Rev. Stat. (1993).
Ch. 216, General and Special Laws of the State of Texas Passed by the Regular Session of the Seventy-Third
Legislature, Vol. 1, 460, at http://texashistory.unt.edu/ark:/67531/metapth221822/m1/491/?q=216 (accessed
8/23/2012). An analysis of the bill by the House Research Organization briefly describes the legal history on the
issue; this is only informative, not dispositive of the legislature’s intent, because the committee analysis was not
voted on by the legislature. House Research Organization, “Bill analysis for HB 1828” (4/5/1993), at
http://www.lrl.state.tx.us/legis/BillSearch/BillDetails.cfm?legsession=730&billTypeDetail=HB&billNumberDetail=1828 (accessed 8/24/2012).
249
S.J.R. 46 (1995), enrolled bill text at
http://www.capitol.state.tx.us/BillLookup/Text.aspx?LegSess=74R&Bill=SJR46 (accessed 8/25/2012). Ratification
at “Amendments to the Texas Constitution,” 101.
248
59
only partial interest in the property. This process is known as an owelty of partition.” 250 The
legislature also conformed the statutory sections on the homestead protection to the proposed
amendment.251 A separate bill clarified the effect of changes in the federal tax code to the
personal property exemption for certain retirement accounts.252
From 1997 through 2007 the legislature proposed, and the people ratified, a series of
amendments adapting the homestead exemption to the increasing complexity of consumer
finance transactions affecting residential real property, in the process rendering the constitutional
homestead provisions some of the longest and most detailed in the country. The 1997
amendment to Article XVI, §50, again expanded the roster of allowed liens against the
homestead to include encumbrances for home equity loans and reverse mortgages253 and revised
the traditional lien for labor and materials. The amendment to Article XVI, §50(5), limited the
lien for construction of improvements only to those contracts that met the new, specific terms
placed in the Constitution, such as a strict time limit for executing the contract (with an allowed
deviation for emergencies), a three-day “cooling off” period for the consumer to rescind the
contract, and expressly specifying the physical locations where the contract could be signed.
New §50(6) permitted liens securing home equity loans but incorporated very specific details for
such loans, including the precise text of the one-page disclaimer lenders were to give each
borrower. The new authorization for reverse mortgages in §50(7) was also very detailed,
including a Texas-specific definition of “reverse mortgage.”254
The provision of liens for home equity loans was refined in 2003 by an amendment
authorizing a home equity line of credit, providing for interpretation of home equity lending law
House Research Organization “Bill Analysis for SJR 46” (5/23/1995), at
http://www.lrl.state.tx.us/scanned/hroBillAnalyses/74-0/SJR46.PDF (accessed 8/23/2012).
251
Title 5, Ch. 41, §41.001, Texas Rev. Stat. (1995), as amended by Ch. 121, Texas Session Laws 1995, General
and Special Laws of Texas, Passed by the Seventy-Fourth Legislature, Regular Session, 933, at
http://www.lrl.state.tx.us/legis/BillSearch/BillDetails.cfm?legSession=740&billTypeDetail=SB&billnumberDetail=1032 (accessed 8/24/2012).
252
Ch. 963, Texas Session Laws 1995, General and Special Laws of Texas, Passed by the Seventy-Fourth
Legislature, Regular Session, 4788, at http://www.lrl.state.tx.us/legis/billsearch/BillDetails.cfm?legsession=740&billTypeDetail=HB&billNumberDetail=3207 (accessed 8/25/2012).
253
In a home equity loan the owner typically borrows against the value of the property over and above the balance
of all outstanding mortgages; depending on the terms the proceeds may be distributed as a cash payment or to secure
a line of credit. A reverse mortgage allows an older consumer to borrow against the equity in their home over time,
with the interest accruing as part of the mortgage balance, and the loan is resolved at the time the property is sold or
disposed as part of a probate estate.
254
Title 5, Ch. 41, §50, Texas Rev. Stat., as amended by H.J.R. 31, General and Special Laws of the State of Texas
Passed by the Regular Session of the Seventy-Fifth Legislature, Vol. 6, 6739, at
http://texashistory.unt.edu/ark:/67531/metapth221825/m1/1215/ (accessed 8/22/2012).
250
60
by an administrative agency, and otherwise relating to the making, refinancing, repayment, and
enforcement of home equity loans.255 A separate amendment allowed refinancing of a home
equity loan with a reverse mortgage.256 Further refinements by amendment in 2007 related to the
making of a home equity loan and the use of home equity loan proceeds.257 The language on
reverse mortgages was clarified by an amendment adopted in 1999;258 additional methods,
together with new restrictions, on the drawing of line-of-credit advances under a reverse
mortgage were added in 2005.259
The reasons for the extensive contract details written into the Constitution in 1997 were not
stated in the proposed amendment but the final text may reflect the divergent testimony provided
during consideration of the bill by the House of Representatives. Among other positions,
proponents argued Texans should be able to take full advantage of the value of their homesteads
through responsible lending and borrowing practices and the State should not perpetuate a
paternalistic prohibition on owners’ ability to obtain financing using one of their most valuable
assets. The terms of home equity loans could be legally constrained to protect borrowing
homeowners, including penalizing lenders who fail to follow the laws. The argument to permit
reverse mortgages on homesteads was more compelling: such mortgages would be allowed only
if the borrower was over a certain age and there were no existing mortgages or liens on the
property because state and federal laws already protected consumers placing first priority liens
on their homes. Opponents argued these recent forms of consumer financing created even greater
need to retain the traditional protections of homestead because of the “rising pressures on
255
S.J.R. 42, Texas Session Laws 2003, General and Special Laws of the State of Texas Passed by the Regular
Session of the Seventy-Eighth Legislature, Regular Session, 6219, at
http://www.lrl.state.tx.us/scanned/sessionLaws/78-0/SJR_42.pdf (accessed 8/2/2012). Ratification at “Amendments
to the Constitution,” 102.
256
H.J.R. 23, Texas Session Laws 2003, General and Special Laws of the State of Texas Passed by the Regular
Session of the Seventy-Eighth Legislature, Regular Session, 6230, at
http://www.lrl.state.tx.us/legis/billsearch/BillDetails.cfm?legSession=780&billTypeDetail=HJR&billnumberDetail=23&submitbutton=Search+by+bill (accessed 8/23/2012). Ratification at
“Amendments to the Constitution,” 102.
257
H.J.R. 72, General and Special Laws of the State of Texas Passed by the Regular Session of the Eightieth
Legislature, Vol. 6, 6138, at http://texashistory.unt.edu/ark:/67531/metapth221837/m1/1238/ (accessed 8/22/2012).
Ratification at “Amendments to the Constitution,” 102.
258
S.J.R. 12, General and Special Laws of the State of Texas Passed by the Regular Session of the Seventy-Sixth
Legislature, Vol. 6, 6599, at http://texashistory.unt.edu/ark:/67531/metapth221830/m1/1173/ (accessed 8/22/2012).
Ratification at “Amendments to the Constitution,” 102.
259
S.J.R. 7, Texas Session Laws 2005, General and Special Laws of the State of Texas Passed by the Regular
Session of the Seventy-Ninth Legislature, Regular Session, 5406, at
http://www.lrl.state.tx.us/scanned/sessionLaws/79-0/SJR_7.pdf (accessed 8/26/2012). Ratification at “Amendments
to the Constitution,” 102.
61
consumers to incur debt…” and the fact that an economic downturn would lead to the loss by
many of their homes through foreclosure if they were unable to continue the debt payments. 260 In
the expanding economy of 1997 the argument for greater financial flexibility became public
policy through the amendments allowing home equity and reverse mortgage liens. To
accommodate the opposing concerns, the drafters incorporated the specific contract requirements
into the Constitution itself.
This was another example of a principle dating back to the
constitutional convention debate in 1845: if a provision affecting the homestead truly was
prudent public policy it should be placed in the Constitution, away from the legislative ability to
change statutes readily. (With the increasing rate of defaults on home mortgages nationally
leading to an explosion of residential foreclosures, and the collapse of the housing market
contributing to the severe recession of 2008 – 2009, those opposing the amendment may have
been prescient in their concern about the impact of increasing consumer debt burdens.)
Two other significant amendments to the constitutional homestead protection were ratified
during this period. The extent of the urban homestead was revised in 1999 to a maximum of ten
acres in one or more contiguous lots, differentiating the protection from a rural homestead that
could be in separate parcels.261 In another adaptation of the 1876 Constitution to newer forms of
consumer financial transactions, Article XVI, §50(8), was created in 2001 to allow the forced
sale of a homestead for a debt created when a personal property lien secured by a manufactured
home is converted to and financed as a real property lien; the amendment also revised the
contractual deadlines relating to the labor and material exception under Article XVI, §50(5).262
The exempt property statutes periodically were amended to address issues different from
those in the constitutional refinements. An additional personal property exemption was added to
protect payments received by a debtor for alimony, support, or separate maintenance of the
debtor or to support a dependent.263 To resolve an apparent conflict arising from certain
House Research Organization, “Bill Analysis, HJR 31” (5/9/1997), at
http://www.lrl.state.tx.us/scanned/hroBillAnalyses/75-0/HJR31.PDF (accessed 8/25/2012).
261
S.J.R. 22, General and Special Laws of the State of Texas Passed by the Regular Session of the Seventy-Sixth
Legislature, Vol. 6, 6603, at http://texashistory.unt.edu/ark:/67531/metapth221830/m1/1177/ (accessed 8/22/2012).
Ratification at “Amendments to the Constitution,” 102.
262
H.J.R. 5, Texas Session Laws 2001, General and Special Laws of the State of Texas Passed by the Regular
Session of the Seventy-Seventh Legislature, 6701, at
http://www.lrl.state.tx.us/legis/billsearch/BillDetails.cfm?legSession=770&billTypeDetail=HJR&billnumberDetail=5&submitbutton=Search+by+bill (accessed 8/23/2012). Ratification at
“Amendments to the Constitution,” 102.
263
Title 5, Ch. 42, §42.001(b)(3), added by Ch. 1046, §1, Texas Session Laws 1997, General and Special Laws of
260
62
Bankruptcy Court decisions264 finding the cash surrender value of a life insurance policy insuring
the debtor was exempt as personal property under the Texas Property Code, 265 thus subject to the
value maximum in that statute, instead of a separate exemption without value limit as provided in
the Texas Insurance Code,266 in 1999 the legislature removed this exemption from the personal
property statute, leaving the provision in the Insurance Code as a separate exemption for this
type of asset.267 The exemption for certain retirement plans was adjusted in response to further
changes in the federal internal revenue code,268 and later was revised by an additional exemption
for certain health savings plans with a corresponding change in the name of the section.269 In
2003 college savings plans were exempted from forced sale or seizure. 270 Finally, the traditional
exemption afforded for the family Bible was revised and expanded in 2007 to apply generally to
all sacred writings, unless the book was taken by a landlord exercising a right to seize personal
property of the tenant who breached the lease or abandoned the property.271
the State of Texas Passed by the Regular Session of the Seventy-Fifth Legislature, 3980, at
http://www.lrl.state.tx.us/legis/BillSearch/BillDetails.cfm?legsession=750&billTypeDetail=SB&billNumberDetail=1098 (accessed 8/24/2012).
264
House Research Organization, “Bill Analysis, CS/HB 1805” (5/12/1999), 2, at
http://www.lrl.state.tx.us/scanned/hroBillAnalyses/76-0/HB1805.PDF (accessed 8/26/2012).
265
Title 5, Ch. 42, §42.002(a)(12), Texas Property Code (1998).
266
Article 21.22, Texas Insurance Code (1998). The Insurance Code was reorganized and renumbered in 2001[Ch.
1419, Texas Session Laws 2001, General and Special Laws of the State of Texas Passed by the Regular Session of
the Seventy-Seventh Legislature, 3658, at http://www.lrl.state.tx.us/scanned/sessionLaws/770/HB_2811_CH_1419.pdf (accessed 8/26/2012)] and is now codified at Title 7, Ch. 1108, §1108.051, Texas
Insurance Code, at http://www.statutes.legis.state.tx.us/Docs/IN/htm/IN.1108.htm#1108.051 (accessed 8/26/2012).
267
Ch. 846, Texas Session Laws 1999, General and Special Laws of the State of Texas Passed by the Regular
Session of the Seventy-Sixth Legislature, 3510, at
http://www.lrl.state.tx.us/legis/billsearch/BillDetails.cfm?legsession=760&billTypeDetail=HB&billNumberDetail=1805 (accessed 8/23/2012).
268
Title 5, Ch. 42, §42.0021, amended by Ch. 106, §1, Texas Session Laws 1999, General and Special Laws of the
State of Texas Passed by the Regular Session of the Seventy-Sixth Legislature, 543, at
http://www.lrl.state.tx.us/legis/billsearch/BillDetails.cfm?legsession=760&billTypeDetail=HB&billNumberDetail=76 (accessed 8/23/2012).
269
Title 5, Ch. 42, §42.0021, amended by Ch. 130, Texas Session Laws 2005, General and Special Laws of the State
of Texas Passed by the Regular Session of the Seventy-Ninth Legislature, 263, at
http://www.lrl.state.tx.us/legis/billsearch/BillDetails.cfm?legsession=790&billTypeDetail=HB&billNumberDetail=330 (accessed 8/23/2012).
270
Title 5, Ch. 42, §42.0022, created by Ch. 113, Texas Session Laws 2003, General and Special Laws of the State
of Texas Passed by the Regular Session of the Seventy-Eighth Legislature, 159, at
http://www.lrl.state.tx.us/legis/BillSearch/BillDetails.cfm?legsession=780&billTypeDetail=SB&billNumberDetail=1588 (accessed 8/24/2012).
271
Title 5, Ch. 42, §42.001(b)(4), amended, and §42.001(e), created by Ch. 444, Texas Session Laws 2007, General
and Special Laws of the State of Texas Passed by the Regular Session of the Eightieth Legislature, 790, at
http://www.lrl.state.tx.us/scanned/sessionLaws/80-0/HB_167_CH_444.pdf (accessed 8/26/2012).
63
2.8 Chapter Summation
The settlement of Texas beginning in the 1820s led to the development of two significant
principles that greatly impacted property law in the United States. First was the donation of
vacant public land to individuals willing to settle, farm, and build up the economy of the region.
The second was the protection of the homestead from the demands of creditors.
The colonization laws adopted by the early Mexican governments after independence from
Spain, just as the later U.S. laws implementing settlement donation, sought to leverage a surfeit
of public lands into economically-viable communities. Unique among the states, Texas faced the
same legal and implementation issues because it retained its public lands upon annexation into
the Union. Unlike the later U.S. laws granting settlement donations, Texas did not depend on a
prohibition in the settlement donation laws to prevent creditors from seizing land claimed by a
settler; that protection was provided by the homestead exemption.
The homestead exemption doctrine originally arose in the Mexican State of Coahuila and
Texas to prevent creditors from satisfying pre-existing debts by seizing the public lands ceded to
settlers but was transformed in the Republic of Texas to a general protection of specific property
occupied as the family residence regardless of the owner’s source of title. Within a few years this
doctrine spread to U.S. jurisdictions and was adopted by statute in places such as the Territory of
Florida and the State of Alabama. By this time Texas had already adopted the next major
development for property exemptions: express incorporation into the state constitution. During
the debates on drafting the 1845 Constitution, Convention President Thomas J. Rusk stated the
logic for including the exemption doctrines in the Constitution: doing so removed them from the
political machinations that often led to legislative revision or repeal of previously-favored
policies; if such exemptions were prudent public policy they should be placed permanently in the
Constitution “…and not leave them subject to the whim and caprice of the Legislature.”272
The distinction between rural and urban lands in the constitutional homestead exemption and
emphasis on items such as farming implements, livestock, and household necessities showed two
policies underlying exemption law in Texas. First was the primary intent to protect families from
destitution in the face of financial reversal, providing the means for continued self-support.
Second was the recognition that a significant part of the economy depended on cultivation and
ranching. Both policies supported retaining the express provision for property exemptions in
272
Debates of the Texas Convention (1845), 421.
64
both the Constitution and statute, particularly during the tumultuous period of constitutional
reform after the Civil War, but at the same time they delayed revisions responding to changed
social and economic circumstances. The emphasis on protecting the family delayed revising the
Constitution to provide homestead protection for single individuals until 1973, despite statutory
protection for their personal articles since 1866 and the ability of single men to claim land by
settlement donation since the days of the Republic (albeit in lesser amounts than a family). While
exempting personal property crucial to continued operation of the family farm originally was a
practical policy to support both economic and social stability from the nineteenth century
through the 1930s, the lack of significant revisions responding to regional and national economic
and social advancement for almost forty years indicates a public policy decision to rely more on
the value of real estate than on preserving personal property to provide sufficient assets for
debtors to recover from financial reversals.
The changes in the Constitution and the statutes after 1969 show a resurgent intent of the
legislature to protect the economic interests of the individual from both general creditors and
governmental caprice. Updating the personal property exemption statutes to protect assets more
relevant to the lives of non-rural individuals and families acknowledged the larger population
had moved away from economic dependency on agriculture. The extensive amendments to the
constitutional homestead exemption show the continuity of Thomas Rusk’s statement; while
Texans will allow additional burdens on their homesteads in response to increasing financial
sophistication, the creation and scope of those burdens will be controlled by specific, narrow
language in the Constitution itself and not left to legislative discretion. While the history of
property exemptions in Texas shows examples of revised legislative intent demonstrated by not
altering the controlling constitutional or statutory text, Texas primarily amended the language of
these protections to articulate changes in public policy.
65
CHAPTER THREE
FLORIDA’S CONSTITUTIONAL PROPERTY EXEMPTIONS:
CHANGED INTENT IN UNCHANGED TEXT273
Florida was a former Spanish colony that moved directly from Spanish control to occupation
as an American territory. The former holdings of the Spanish crown in Florida became federal
lands and the development of Florida, at least as to its government, statehood, and disposition of
the public lands, more closely resembled other American territories rather than Texas. Florida
was unique in one regard: it was the first territory for which Congress enacted a form of general
settlement donation law under which prospective settlers could claim land by occupation and
improvement and not simply purchase. A clause in the law enacted for Florida provided a limited
form of protection from liabilities sought to be imposed against the land claim for debts incurred
before issuance of the patent, a form of which was included in the later version of the Homestead
Act of 1862. This provision would impact the later development of exemption laws in territories
such as Alaska; in Florida the clause would provide protection concurrently with statutory and
constitutional provisions for exemptions. The settlement donation and pre-emption laws in Texas
never placed restrictions on debts enforceable against the land because of the homestead
exemption in place since 1839.
In 1868 Florida adopted a new constitution that for the first time expressly protected certain
property of debtors from forced sale to satisfy the claims of creditors. These included an allowed
homestead in land on which the debtor and debtor’s family resided as well as any personal
property with a total value of one thousand dollars.274 As increasing numbers of southern debtors
turned to the new federal Bankruptcy Act of 1867 for relief from their financial burdens,275
Floridians were entitled to assert these new constitutional protections, called “exemptions,” in
Portions of this Chapter appear in Eric H. Miller, “Florida’s Constitutional Property Exemptions: Changed Intent
in Unchanged Text,” (pending publication in The Florida Historical Quarterly).
274
Art. IX, Fla. Const. (1868).
275
Elizabeth Lee Thompson, The Reconstruction of Southern Debtors: Bankruptcy After the Civil War, 4 – 5
(Athens: The University of Georgia Press, 2004). This work is notable both for its research methodology and for
delving into the economic and political impact of the Bankruptcy Act of 1867.
273
66
their own bankruptcies to protect the same kind and amounts of property as they emerged from
the economic devastation of the Civil War.276
By 2009, Florida twice replaced its constitution and considered further changes in the
Constitution Review Commissions of 1977 and 1997 and the Taxation and Budget Reform
Commissions of 1990 and 2007. Floridians continued to enjoy constitutional protection for real
property comprising a homestead and of personal property with a separate total value of … one
thousand dollars.277 With no allowance for changing values over the past 144 years, the Florida
Constitution today protects the same amount of land and total value of items as in 1868. Despite
a lack of express declarations of policy from the various constitutional conventions or revision
commissions, other than their rejection of alternatives in the written final products, the reasons
for this continuity may be discerned from the convention debates, commission reports, proposed
constitutional amendments, legislation adopted to implement the constitutional protections, and
judicial decisions made over time.
At times, such as the debates during the 1885 Constitutional Convention, Florida
policymakers wrestled extensively with the very concept of these exemptions as well as their
extent. Other occasions for considering the constitutional protections exhibit little discussion of
their propriety or extent, as in the revisions leading to the 1968 Constitution and subsequent
study commissions. The unchanged constitutional language shows Florida public policy
developed from 1868 to 2009 by relying primarily on the value of homestead real estate to
provide assets sufficient to give debtors a “fresh start” after financial reversals or bankruptcy.
276
Bankruptcy Act of 1867, §14. Initially the Act only permitted the exemptions which were in effect in the
particular state as of 1864. This was later amended in 1872 to allow exemptions existing as of 1871. Thompson, 25.
277
“Homestead; exemptions.—
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall
be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase,
improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the
following property owned by a natural person:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and
improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in
a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the
exemption shall be limited to the residence of the owner or the owner’s family;
(2) personal property to the value of one thousand dollars.”
Art. X, §4(a), Fla. Const. (1968). Other provisions in the Constitution intended to protect the homestead include a
partial exemption from real estate taxes and limitations on an owner’s ability to transfer, or “alienate,” the
homestead if currently married or if the owner has minor children. Art. VII, §3, & Art. X, §4(c), Fla. Const. (1968).
67
3.1 Development of Property Protections for Debtors Before 1868
As discussed in Chapter Two, the concept of protecting a portion of a debtor’s property from
the reach of creditors arose in different jurisdictions and predated the development of exemption
laws in Florida. By the time the United States acquired Florida from Spain 278 limited protections
for some personal property were utilized in Spanish, English, and American law. The Legislative
Council for the Territory of Florida would enact exemption laws influenced by these known
practices, the emerging law for the disposition of vacant federal lands, and the general homestead
exemption developed in Texas.
Homestead and exemption laws in the states arose partly in reaction to the developing market
economy in the United States during the nineteenth century, with its cycles of expansion and
recession. One author observed divergence between the nation’s regions as to the timing for
adopting these principles. The South and West moved rapidly to enact property exemption laws
during the 1830s and 1840s as a result of economic downturns and bank failures. In contrast, the
North and Midwest adopted these principles during better economic times in the 1850s because
of the evolution of political parties, such as the Free-Soil Party, which advocated the protection
of families through shielding their homes.279 The movement for homestead and exemption laws
had conflicting purposes from the beginning: attempting to reduce risks for individuals by
making the market “moral” and thus protecting families, while at the same time seeking broader
access to credit necessary for economic development.280
3.1.1 Development of Federal Settlement Pre-Emption and Donation Policies: 1791 – 1822
The Treaty with Great Britain executed in Paris in 1783 recognized the territory of the United
States generally extended north to the Great Lakes, west to the Mississippi River, and south to
the possessions of East and West Florida.281 Great Britain having ceded all claim and title in
these lands to the United States, the national government had the exclusive power over and
responsibility for the organization, administration, and disposition of the lands outside the
“Treaty With Spain (1819),” in Charles W. Eliot (ed.), American Historical Documents (P.F. Collier & Son, NY
1910, reprinted by P.F. Collier & Son Corp. 1938), 268.
279
Paul Goodman, “The Emergence of Homestead Exemption in the United States: Accommodation and Resistance
to the Market Revolution, 1840-1880,” The Journal of American History 80, No. 2 (Sep., 1993), 470-498.
280
Id., 497.
281
“Treaty With Great Britain (1783),” Art. II, in Eliot, 174. By a separate treaty forming part of the agreements
formally concluding the American Revolution, Britain ceded East and West Florida back to Spain in 1783. Charlton
W. Tebeau and William Marina, A History of Florida, 3d ed. (University of Miami Press, Miami, FL, 1999), 78.
278
68
boundaries of the respective thirteen states.282 Complete title to lands under federal dispositional
authority could only be passed by governmental patent;283 until the patent issued title remained in
the government.284
The Northwest Ordinance of 1787285 set out the basic pattern for territorial administration in
conjunction with which Congress developed laws for the settlement and distribution of federal
public lands. The First Congress under the newly-ratified U.S. Constitution enacted a law
granting settlers limited amounts of unclaimed federal lands in specific areas of present-day
Illinois and Indiana, including the outright donation of 400 acres of public land to heads of
families meeting certain qualifications and a requirement that certain other claimants must assert
their rights to land under the act within five years or their claims were forfeit back to the U.S. 286
Certain elements of this law recurred in subsequent federal legislation, including the donation of
the land as opposed to sale, the preferential treatment of heads of households, and the
consequence of completely forfeiting the claim if the required conditions were unmet.
A 1796 law provided for surveying the eastern portion of the lands north of the Ohio River
and sale of the lands to the general public (each public sale would be for eight sections of one
square mile each, at $2.00 an acre). If unable to pay the whole balance (and immediately receive
a patent to the land purchased) the buyer would receive a certificate establishing an exclusive
right to complete the sale by paying the balance within one year; failure to do so forfeited the
lands back to the government.287 This is an early instance of a governmental preference in the
disposition of public land: one meeting certain initial criteria to receive a complete transfer of
public lands would qualify for an exclusive right to complete the remaining requirements within
282
Lessee of Johnson v. McIntosh, 21 U.S. 543 (1823). In this opinion Chief Justice Marshall examined the history
and prevalent rationale for the vesting of exclusive ownership and sovereign power by the European powers over the
lands of North America, leading ultimately to the exclusive authority of the federal government. The issue in the
case was whether title to lands based on a pre-1783 grant from the Native American tribe occupying the land was
superior to a later patent issued by the U.S. government for the same property. Because Great Britain previously
acquired the exclusive authority to grant title to the land but did not do so before ceding its rights to the U.S., and in
a treaty the tribe ceded its interest in the land to the federal government without any reservation for the grant, the
U.S. acquired the sole authority to grant title. Accordingly, the tribal grant was void and the party receiving the
federal patent owned the land.
283
Wilcox v. Jackson, 38 U.S. 498 (1839).
284
Bagnell v. Broderick, 38 U.S. 436, 450 (1839).
285
“An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio” (July 13,
1787), at http://avalon.law.yale.edu/18th_century/nworder.asp (accessed 9/2/2012).
286
Ch. 27, “An act for granting lands for the inhabitants and settlers at Vincennes and the Illinois country, in the
territory northwest of the Ohio, and for confirming them in their possessions,” 1 Stat. 221 (March 3, 1791).
287
Ch. 29, “An Act providing for the Sale of the Lands of the United States, in the territory northwest of the river
Ohio, and above the mouth of the Kentucky river,” 1 Stat. 464 (May 18, 1796).
69
a specific time. Congress would denominate an exclusive right to obtain specified lands for a
given period of time a right of “pre-emption” in a separate law.288 An amendment to the general
survey and sale law of 1796 for the first time afforded a right of pre-emption by prior settlement:
a settler on vacant public lands would be entitled to the exclusive right to buy the land by
registering the claim with the regional federal land office prior to all the vacant lands in that area
being offered for public sale.289 Pre-emption effectively was a bounty offered by the government
for settlement and development of public lands;290 the reward was the right to choose, occupy,
and purchase the land to the exclusion of all others (if one survived).
By 1813 Congress refined the process of obtaining rights in public lands by settlement preemption. A settler on a parcel of vacant public land in the Illinois Territory could claim a right of
pre-emption to purchase that parcel from the government on the same terms and conditions as
made available to a general purchaser without a prior land claim. The settler filed a written claim
in the federal district land office, identifying the parcel sought, with payment of the required fees
and at least 20% of the purchase price. With the approval of the official in the land office
responsible for collecting payments, the claimant then noted the pre-emption to the specified
land at least two weeks prior to the commencement of public sales in the area. While a settler
could purchase any amount of land under the conventional statutes, pre-emption claims were
limited to a maximum of 160 acres (one quarter of a square-mile section).291
3.1.2 Disposition of Federal Lands in Florida by Settlement Pre-Emption
Florida became an American possession in 1819292 and Congress adapted the laws for
settlement pre-emption to include the new territory. To resolve early claims of settlers to the
lands they occupied, Congress authorized the commissioners authenticating title to lands in
Ch. 34, “An act to authorize the sale of certain lands between the Great and Little Miami rivers in the territory of
the United States northwest of the Ohio; and for giving a pre-emption to certain purchasers and settlers,” 1 Stat. 728
(March 2, 1799). This particular act gave certain purchasers of land from one John Cleves Symmes, who apparently
contracted with a number of people to sell vacant public land not included within his own federal patent, a period of
time to buy the land from the U.S. and required them to give notice of claiming the benefit of “pre-emption”
afforded by the law.
289
Ch. 55, “An Act to amend the act intituled (sic) ‘an act to authorize the sale of certain lands between the Great
and Little Miami rivers in the territory of the United States northwest of the Ohio; and for giving a pre-emption to
certain purchasers and settlers,’” 2 Stat. 73 (May 10, 1800). The pre-emption by settlement was created in §16 of the
act for those that had settled and built, or were building, grist- or saw-mills.
290
“The right of pre-emption was a bounty extended to settlers and occupants of the public domain.” Wilcox v.
Jackson, supra at 514.
291
Ch. 20, “An act giving the right of pre-emption, in the purchase of lands, to certain settlers in the Illinois
territory,” 2 Stat. 797 (February 5, 1813).
292
Treaty With Spain (1819); see Chapter 2, note 77.
288
70
Florida to consider claims based on occupation and cultivation by individuals who did not assert
ownership based on any written evidence of a grant of title from Spain or Great Britain. The head
of a family, at least twenty-one years old, who occupied and cultivated land in Florida as of
February 22, 1819 (the date the Treaty with Spain was concluded), and still resided in the
Territory, could receive up to 640 acres. Individuals occupying and cultivating property between
February 22, 1819, and July 17, 1821 (the date actual control of the Territory was ceded to the
U.S.) were also authorized to claim the land on which they settled.293 A later law authorized
Florida settlers to purchase their claims on a pre-emption basis. The head of a family or any
person at least twenty-one years old, who occupied and cultivated land in Florida prior to
January 1, 1825, and still resided in the Territory, had a right of pre-emption to purchase that
land on the same terms as authorized for settlers under the 1813 act for settlers in the Illinois
Territory.294
Congress in 1830 adopted a more general act applicable to all settlers. One who occupied and
cultivated public lands prior to the passage of the act, and was still in possession of the land,
could register a claim to that property with the district land office. If the claimant provided proof
of settlement, paid the necessary fees, and did so before commencement of public sales, the
claim would pre-empt any later competing application. Notably, for the first time Congress
included a clause reminiscent of Declaration No. 70 adopted the year before by the State of
Coahuila and Texas in Mexico: “all assignments and transfers of the right of pre-emption given
by this act, prior to the issuance of patents, shall be null and void.” 295 This clause would appear
in a more comprehensive protection in the first settlement donation law applicable to Florida
and, arguably, to any American territory.
3.1.3 The Armed Occupation Act
Responding to the continuing fears of renewed conflict with the Seminoles after the long and
costly Second Seminole War, on August 4, 1842, Congress passed and the President approved
the Armed Occupation Act.296 Unlike the earlier donation and pre-emption laws the Armed
Ch. 164, “An Act granting donations to certain actual settlers in the territory of Florida,” 4 Stat. 47.
Ch. 28, “An Act giving the right of pre-emption in the purchase of lands to certain settlers in the states of
Alabama, Mississippi, and territory of Florida,” 4 Stat. 154 (April 22, 1826). Section 1 of this Act by express
reference incorporated the terms and conditions of the earlier law.
295
Ch. 208, “An Act to grant pre-emption rights to settlers on the public lands,”§3, 4 Stat. 420-421.
296
Ch. 122, “An Act to provide for the armed occupation and settlement of the unsettled part of the peninsula of
East Florida,” 5 Stat. 502 (August 4, 1842). See, Glenn Boggs, “Free Florida Land: Homesteading for Good Title,”
The Florida Bar Journal 83, No. 1, (January 2009), 11, at (cont’d on next page)
293
294
71
Occupation Act was not limited to settlers already in place. Qualifying claimants could occupy
and receive clear title to one-quarter of a section of land (160 acres) as a donation from the
federal government upon fulfilling certain requirements. Eligibility for claimants was expanded
to heads of families and single men at least eighteen years old but other qualifications were more
restrictive: applicants had to be able to bear arms, actually settle the chosen property within one
year from the date Congress passed the law, and could not own 160 acres in Florida at the time
the act passed. The land available for donation was limited to the area of the peninsula south of
modern Gainesville, Florida.297 The claimant had to reside for five years south of the township
line described in the Act; obtain a permit from the land office for the district where the parcel
was located; clear, enclose, and cultivate at least 5 acres; build a house fit for human habitation;
and occupy and work the claim for four years from the date of the permit “…if he or she shall so
long live.”298 The claim could not be located within two miles of a permanent U.S. military post
existing at time of settlement. Each settler had to prove occupancy meeting the terms of the Act
within one year after the land was surveyed and the federal land office for that district was
opened; on completion of the full five years the settler then had six months to prove completion
of the statutory requirements; if so, patent for the land would issue.
Passage of the Armed Occupation Act was a step in the process eventually culminating in the
adoption of The Homestead Act in 1862.299 Some scholars attribute Congress’ long-held
preference for selling public lands, rather than encouraging settlement expansion through
donating smaller parcels for individual farming, to the tension between Northeastern states
wanting to maintain relatively high land prices in order to control growth and maximize the
value of the public lands and the interests of Southern and Western states in reducing the large
http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/Articles/4D91AABEBC94D4A48525752F00546557
(accessed 9/3/2012).
297
“within that part of Florida situate and being south of the line dividing townships numbers nine and ten south,
and east of the base line…,” 5 Stat. 502. The use of “base line” appears to be a misnomer, as townships run east and
west from an established meridian of longitude and the base line (for surveying purposes) runs east and west;
townships are organized in ranges described as “north” or “south” in relation to the base line. In Florida the
surveying meridian runs north and south from a point in Tallahassee and Meridian Road follows this line for the
most part. The Florida Base Line describes an east-west line from the Atlantic coast to the Perdido River,
intersecting the meridian in the southern part of Tallahassee. Properly read, the law described the entire Florida
peninsula lying south of a line approximately beginning in Dixie County just south of the mouth of the Steinhatchee
River (near the modern town of Jena), running east near Gainesville and Palatka, and terminating on the Atlantic
coast just south of Matanzas Inlet. See, Asher and Adams, “Map of Florida” (1877), at
http://fcit.usf.edu/florida/maps/1800c/m011402.htm (accessed 9/3/2012).
298
5 Stat. 503. With this phrase the Act clearly contemplated claims by female heads of families as original settlers.
299
Ch. 75, “An Act to secure Homesteads to actual Settlers on the Public Domain,” 12 Stat. 392 (May 20, 1862).
72
inventory of vacant federal land (contributing neither to local economic development nor the tax
base of the state).300 Senator Thomas Hart Benton from Missouri was an early and avid
advocate301 for settlement donation principles and was the driving force behind the Armed
Occupation Act.
A number of settlers took advantage of the terms and conditions in the Armed Occupation
Act and settled on claims in Florida; whether the Act fully realized Sen. Benton’s desire of
establishing a line of “sturdy yeoman farmers” able to act as a check on the Seminoles is
debatable, particularly as these settlers were more likely to flee to the nearest military installation
at any sign of hostilities.302 However, the Act is notable not only for contemplating female heads
of households as claimants but for establishing two principles that provided significant protection
from creditors both to claimants and to their families. For the first time Congress included a
complete prohibition against attempting to place any lien against a claim under the Act, whether
by judgment and execution or through a voluntary contract with the claimant, at any time before
the patent issued.303 The second principle was a provision permitting the widow or heirs of the
settler to establish the settler’s compliance with the Act up to the time of death and thus acquire
the patent.304 The Act was amended two years later to resolve some practical issues arising from
actual land claims but these principles remained intact.305 While the sale of federal lands
continued concurrently with Armed Occupation Act,306 some landowners enjoyed a form of
protecting residential real property from claims of creditors.
3.1.4 Florida Legislation in the Territorial Period: 1822 - 1845
Congress established the first territorial government for Florida in 1822.307 In addition to a
governor (appointed by the President) and a basic court structure, the act created a Legislative
Council composed of the governor and thirteen U.S. citizens residing in the Territory and
annually appointed by the President. The Legislative Council was authorized to adopt laws for
John Bell Sanborn, “Some Political Aspects of Homestead Legislation,” The American Historical Review 6, No. 1
(October 1900), 19-37.
301
Sanborn, 22-26.
302
Boggs, 15-16.
303
Ch. 122, §4, 5 Stat. 503.
304
Ch. 122, §5, 5 Stat. 503.
305
Ch. 71, “An Act to amend an act entitled ‘An Act to provide for the armed occupation and settlement of the
unsettled part of the peninsula of East Florida,’” 5 Stat. 671 (June 15, 1844).
306
Ch. 271, “An Act to establish an additional land office in Florida,” 5 Stat. 567 (August 30, 1842).
307
Ch. 13, “An Act for the establishment of a territorial government in Florida,” 3 Stat. 654 (March 30, 1822).
300
73
the Territory, required to be submitted annually to the President who in turn filed them with
Congress. If Congress disapproved, the law was invalid from the date of disapproval.308
3.1.5 Early Steps Protecting Debtors’ Property in Florida: 1843 - 1868
A financial crisis during the territorial period coincided with the Panic of 1837, creating
public demand for individual debt relief. One of the principal disputes between planters, with
extensive land holdings and numbers of enslaved people, and smaller farmers with few, if any,
enslaved people, was the creation and operation of the Union Bank. The Bank was formed to
provide credit and funding to benefit plantation owners but the resulting obligations were treated
as debts of the entire territorial population. By 1840, the Bank’s liabilities exceeded its ability to
secure new capital and many individual debts became delinquent. As the economic hardship
spread residents sought passage of stay laws: temporary measures adopted to prevent creditors
from seizing assets and leaving the debtor with no means to earn a living or support a family.309
The first legislation by Florida to exempt certain property from creditors appeared in 1843,
protecting specified personal property, such as apparel, bedding, or the kitchen furniture
necessary for a family.310 Debtors could declare additional property exempt at the time a creditor
sought to execute on a judgment, other than for criminal penalties. Particular exemptions were
provided for debtors to retain basic implements necessary for an identified profession or trade,
such as a horse and its tack by a clergy member or the boat and gun of a fisherman. The law
provided a procedure to value the property claimed as exempt.311 In 1845 the Territorial
Legislative Council enacted a statute exempting a farmer’s homestead of forty acres, provided at
least ten were cultivated and the total value of the land and improvements did not exceed two
hundred dollars. The act excluded certain obligations from the exemption, including debts for
criminal fines and for taxes due the county or Territory.312
308
Ch. 13, §5, 3 Stat. 654. Subsequent laws amending the territorial governmental, particularly the election of
members to the Legislative Council and the structure of the courts, did not change this legislative oversight function
of Congress. The last statement on Congressional approval was in 1823. Ch. 28, “An Act to amend ‘An Act for the
establishment of a territorial government in Florida,’ and for other purposes,” 3 Stat. 750. See also Ch. 163, 4 Stat.
45; Ch. 46, 4 Stat. 164; Ch. 96, 4 Stat.403; Ch. 52, 4 Stat. 500.
309
Edward E. Baptist, Creating an Old South: Middle Florida's Plantation Frontier Before the Civil War (Chapel
Hill, University of North Carolina Press, 2002), 174-175.
310
No. 65, “An Act exempting certain property from Execution, Attachment and Distress,” The Acts and Resolutions
of the Legislative Council of the Territory of Florida, Twenty-First Session, 55 (March 15, 1843), at
http://books.google.com/books?id=OrMwAQAAMAAJ&q=LXV#v=onepage&q=LXV&f=false (accessed
9/3/2012).
311
Id., §§1-3.
312
No. VIII, “An Act to exempt Homesteads from Execution, Attachment and Distress,” The Acts and Resolutions
74
Florida was admitted into the Union in 1845 under the constitution adopted by the Territorial
Convention begun in December 1838 and concluded on January 11, 1839.313 The 1838
Constitution314 was silent on the issue of homestead and exemptions but did provide for all acts
of the Territorial Legislative Council consistent with the constitution to continue in full force and
effect.315 The 1843 personal property exemptions and 1845 homestead exemption thus continued
as laws of the new state.
In 1861, Florida adopted a constitution which promulgated the Ordinance of Secession and
incorporated the structure and text of the Constitution of 1838, amended to reflect Florida’s
participation in the Confederacy.316 With the end of the Civil War and the military occupation of
the state, the Ordinance of Secession was repealed and the Constitution of 1865 was proposed to
acknowledge the emancipation of those formerly held in slavery.317 Neither of these versions of
the Florida Constitution provided for protection of debtors’ property and exemptions from levy
remained a matter of statute.
3.1.6 The 1862 Homestead Act
The 1862 Homestead Act was passed by Congress on May 20, 1862. While not necessarily
based on the Texas settlement donation law discussed in Chapter Two, the federal act included
several similar requirements for donations of public lands to settlers. The claimant was required
to be the head of a family or at least twenty-one years of age, a U.S. citizen, and confirm on oath
having never taken up arms against the United States. Beginning on January 1, 1863, claimants
could settle on up to 160 acres of vacant public land upon filing the claim and confirming their
qualifications with the district land office. The settler had to reside on or cultivate the property
for five years before being able to apply for a final patent on the land; the application was
required to be complete no later than two years after the expiration of the mandatory occupancy
period. The 1862 Homestead Act also recognized the right of the widow or heirs of a deceased
settler to complete the settler’s claim and obtain a patent.318
of the Legislative Council of the Territory of Florida, Twenty-Third Session, 23 (March 11, 1845), at
http://books.google.com/books?id=ZbMwAQAAMAAJ&q=VIII#v=snippet&q=VIII&f=false (accessed 9/3/2012).
See Chapter 2, note 70.
313
Ch. 48, “An Act for the admission of the States of Iowa and Florida into the Union,” 5 Stat. 742 (March 3, 1845).
314
At http://www.law.fsu.edu/crc/conhist/1838con.html (accessed 9/3/2012).
315
Art. XVII, §1, Fla. Const. (1838).
316
Ordinance of Secession, Fla. Const. (1861).
317
Art. XVI, §1, Fla. Const. (1865). Tebeau and Marina, 225-227.
318
12 Stat. 392-393.
75
As to protecting the assets and interests of settlers as debtors, the most interesting aspect of
the 1862 Homestead Act was a provision apparently developed from the Armed Occupation Act
but more comprehensive in its sweep. Section 4 of the 1862 Act expressly prohibited the land
from being taken to satisfy any debt arising prior to the issuing of the patent:
That no lands acquired under the provisions of this act shall in any event become liable to the
satisfaction of any debt or debts contracted prior to the issuing of the patent therefor.319
Just as the doctrine asserted for a time in Mexico, Congress sought to ensure the public lands
would be used to meet the intended public purpose of expansion and development.
The Civil War delayed applying the 1862 Homestead Act in the southern states. Once
hostilities ceased, Congress in 1866 extended the Act to control the disposition of federal public
lands in five states, including Florida, with certain amended terms. For two years after the
passage of the “Southern Homestead Act” settlers could only qualify for a reduced claim of
eighty acres; the fees for completing their claims were reduced accordingly. Congress expressly
forbade any discrimination based on race, and until January 1, 1867, all claimants were required
to affirm on oath they had not taken up arms against the Union.320
3.2 Origin of the Florida Constitutional Property Exemptions: The 1868 Constitution
Florida’s present constitutional protection from execution for homesteads and certain
personal property originated in the 1868 Constitution, adopted during Reconstruction. For the
first time the organic law of the state protected from forced sale a homestead of up to 160 acres
outside of a municipality or one-half an acre within an incorporated municipality, together with
personal property worth up to an aggregate of one thousand dollars.321 The head of a family
could exempt from execution additional personal property up to an aggregate one thousand
dollars but only for debts incurred prior to May 10, 1865.322 All settlers under the federal 1862
Homestead Act were now protected both by section 4 of the Act and the limited homestead and
personal property exemptions provided by Florida law.
3.2.1 The Constitutional Convention of 1868
Florida was one of the former Confederate states for which the U.S. Congress withdrew
recognition of state governments in 1867 and created military occupation districts, placing
319
§4, 12 Stat. 393.
Ch. 127, “An Act for the Disposal of the Public Lands for Homestead Actual Settlement in the States of
Alabama, Mississippi, Louisiana, Arkansas, and Florida” (June 21, 1866).
321
Art. IX, §1, Fla. Const. (1868).
322
Art. IX, §2, Fla. Const. (1868).
320
76
Florida in the Third Military District.323 As with these other states, Florida was required to form
a state government acceptable to the Congress.324 During November 14, 15, and 16, 1867, votes
were cast for delegates to a state constitutional convention, which opened on January 20,
1868.325
The convention was notably fractious, with conservative delegates contending for control
against Radical Republican elements.326 Beginning with the twelfth day of the Convention,
February 4, 1868, through February 17, 1868, the Journal of the Convention shows a period
where no quorum was present (February 4 – 8) or, if present, the Convention only met that day to
open and adjourn.327 This was due to the famous flight to Monticello, Florida, by the delegates
opposed to the Radicals. They subsequently and surreptitiously returned at night to occupy the
meeting hall, roust two more delegates from bed to form a quorum, and seize control of the
convention.328 These conservatives were responsible for the final draft of the new constitution.329
The official Journal of the Constitutional Convention provides little detail about the
derivation of the amounts and location of protected real property and the protected value of
personal property. These exemptions were included in the article entitled “Homestead,”
introduced on the twenty-sixth day of the convention by the Committee on Homestead. 330 The
journal entry for the next day shows the article was taken up, the procedural rules of the
323
14 Stat. 428.
Tebeau and Marina, 230-231; Jerrell H. Shofner, “The Constitution of 1868,” The Florida Historical Quarterly
41, No. 4 (April 1963), 356-374, 356.
325
Tebeau and Marina, 232.
326
Shofner, 360-363. The Constitutional Convention of 1868 has been described as a struggle of factional power
politics between non-Floridian “carpetbaggers” and moderate elements of the Republican Party, each seeking the
support, and votes, of recently emancipated African-Americans. See, John Wallace, Carpet-Bag Rule in Florida
(Jacksonville, FL, 1888), a facsimile of the 1888 edition with an introduction and notes by Allan Nevins
(Gainesville, University of Florida Press, 1964). Carpet-Bag Rule does not describe the adoption of the homestead
and exemption provision, nor how the convention determined the values applicable to personal property, but the
political context of the convention at a time of Southern economic distress supports the use of these exemptions by
the Republican Party to garner favor with Florida voters. Whether Wallace was the actual author or whether the
book was written to serve interests opposing the Republican Party at the time of publication remains unclear, and the
book is not treated as a completely accurate history of the period. James C. Clark, “John Wallace and the Writing of
Reconstruction History,” The Florida Historical Quarterly 67, No. 4 (April 1989), 409-427.
327
Journal of the Proceedings of the Constitutional Convention of the State of Florida, Begun and Held at the
Capitol, at Tallahassee, on Monday, January 20 th, 1868 (Printed in Tallahassee by E.M. Cheney, 1868), 30-33, at
http://books.google.com/books?id=QRktAQAAMAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v
=onepage&q&f=false (accessed 9/3/2012).
328
Shofner, 363-366.
329
Shofner, 366. Shofner contends the final document was not based on a form or template imposed by the federal
government or other source external to Florida but represents a “home-grown” solution actually developed with
influence from former supporters of the Confederacy such as former federal judge McQueen McIntosh.
330
Journal of the Proceedings (1868), 90-91.
324
77
convention waived, and the article was adopted after the requisite second and third readings.331
No comment, debate, opposition, or even vote tally is recorded. The new Article provided:
A homestead to the extent of one hundred and sixty acres of land, or the half of one acre
within the limits of any incorporated city or town, owned by the head of a family residing in
this State, together with one thousand dollars worth of personal property, and the
improvements on the real estate, shall be exempted from forced sale under any process of
law, and the real estate shall not be alienable without the joint consent of husband and wife,
when that relation exists. But no property shall be exempt from sale for taxes, or for the
payment of obligations constructed for the purchase of said premises, or for the erection of
improvements thereon, or for house, field, or other labor performed on the same. The
exemption herein provided for in a city or town shall not extend to more improvements or
buildings than the residence and business house of the owner.332
The property exemption article in the 1868 Florida Constitution differed significantly from
its Texas counterpart. Both states limited the homestead and personal property exemptions to a
family or the head of a family. Florida protected less total rural land (160 acres versus 200 in
Texas), and possibly less urban property with the restriction to no more than a half-acre, but
those protections were based solely on the extent of the property; the Texas constitutional
limitation on value to $2,000 meant debtors whose urban property was more valuable would
keep a homestead of smaller physical size while a Floridian would retain the entire tract (up to
the half-acre limit) no matter how great the value. From the outset Florida recognized three
principle types of debt which could result in an enforceable lien against the homestead: taxes,
liability for the purchase or improvement of the real property, or debts for labor done on the land;
Texas would not modify its blanket prohibition on any debt encumbering the homestead until
ratification of the 1869 Texas Constitution. Florida also incorporated a provision preventing sale
or other transfer of the homestead by one spouse without the joinder of the other. Finally, Florida
protected a fixed total value of personal property; Texas only authorized the legislature to protect
such property by law.
The wording of Article IX in the 1868 Constitution may indicate a greater influence from the
1866 Texas Constitution than other states.333 Florida followed a pattern similar to that in Texas
331
Id, 102.
Art. IX, Fla. Const. (1868).
333
One early authority, Justice James D. Westcott, Jr., in 1870 stated that substantial parts of the 1868 Constitution
were derived from the Nevada Constitution adopted in 1864. In the Matter of the Executive Communication of the
2d Day of June, A.D. 1870, Relating to County Officers, Their Compensation, &C., 13 Fla. 687, 695, 1870 WL 1892
(1870). The 1864 Nevada Constitution authorized the adoption of laws exempting certain property from levy and
execution but incorporated no mandatory protections. Art. I, §14, Nevada Const. (1864).
332
78
by distinguishing between the rural homestead, of sizeable acreage, and the urban homestead, of
necessary smaller extent but likely greater value. In both state constitutions the protections of
homestead and personal property were limited to the head of a family or to the family in general.
Both states prevented one spouse from disposing of the homestead without the other’s consent.
Justice Westcott’s observation notwithstanding, the property exemptions in Article IX of the
1868 Florida Constitution had more in common with the Constitution of Texas, not Nevada.
The origins of the homestead article are not expressly stated but the acceptance of the
concept transcended the contemporary political spectrum. Daniel Richards, a delegate to the
convention and its first president until his ouster and disqualification,334 was one of the Radical
Republicans.335 In a letter of February 11, 1868, describing the Radical’s competing version of
the proposed constitution,336 he noted with approval its inclusion of a homestead law.337 After the
contentious maneuvers of February 4 through 17, 1868, the committees of the convention were
reorganized and included a Committee on Homestead.338 The committee was composed of four
delegates identified with more conservative political elements in the state. 339 Thus, regardless of
their opposing views on key issues such as voting rights for African-Americans, both the
Radicals and the conservative elements concurred on the concept of including protection for
debtors’ homesteads and property in the constitution. By 1868, protecting assets of distressed
debtors through homestead and personal property exemptions was accepted in Florida.
3.2.2 Implication of the New Exemptions: Inventory of Dr. F.A. Byrd
An 1871 inventory of the taxable property owned by Dr. F.A. Byrd of Leon County, Florida,
showed seventy-six acres of (apparently) residential real property, a separate parcel worth four
hundred dollars, and personal property worth a total of $2,219.00.340 While these records do not
Richard L. Hume, “Membership of the Florida Constitutional Convention of 1868: A Case Study of Republican
Factionalism in the Reconstruction South,” The Florida Historical Quarterly 51, No. 1 (July 1972), 1-21, 7.
335
Tebeau and Marina, at 231 -233.
336
After seizing control of the Convention and deposing Richards as both President and a delegate, the
Conservatives adopted the document which became the 1868 Constitution. On February 17, 1868, both versions
were presented to Gen. George Gordon Meade, commander of the Third Military District, who selected the version
which became the 1868 Constitution ostensibly because it was signed by a majority of the Convention delegates.
Shofner, 366.
337
George C. Osborne, “Letters of a Carpetbagger in Florida, 1866-1869,” The Florida Historical Quarterly 36, No.
3 (January 1958), 239-285, 268.
338
Journal of 1868, 91-92.
339
These were William K. Cessna, Clairborne R. Mobley, S. J. Pearce, and Roland T. Rombauer; Journal of 1868,
91. Professor Hume identifies Mobley and Pearce as having lived in the South prior to 1860, while Cessna and
Rombauer entered the region after that year, but found all displayed a conservative voting pattern. Hume, 3, 19-21.
340
F.A. Byrd Inventory of Taxable Property (handwritten manuscript), 1871, Folder 2, Dr. F.A. Byrd Papers 1819 –
334
79
disclose any bankruptcy filing by Dr. Byrd or any other legal action against him, the property
exemptions article of the 1868 Constitution would have protected his entire ownership in the
seventy-six acre parcel on which he apparently resided. The additional exemption for personal
property would only have protected one thousand dollars of his other assets, leaving
approximately twelve hundred dollars from which his creditors could have been paid part of their
claims. (See Table 2 below).
3.2.3 Statutes and Court Decisions Under the 1868 Constitution
Following the adoption of the new Constitution, in 1869 Florida enacted new statutes
refining the procedures for securing the constitutional property exemptions. These included the
manner and method for property owners to declare what property comprised their homestead, a
procedure allowing creditors to have the property surveyed to ensure compliance with the
constitutional requirements, protection of a homestead structure placed on land leased from
another, and a debtor’s right to select which articles would be included in an inventory of
protected personal property.341 Later enactments clarified the jurisdiction of the circuit courts to
determine issues pertaining to homesteads and exemptions (and to fashion appropriate
remedies),342 the exemption of a portion of a debtor’s wages from garnishment,343 and protection
of the beneficiary of a life insurance policy.344 In modified form these statutes continue in effect
to the present day.
Legal decisions enunciated the policies underlying the constitutional protections. The
primary purpose for the homestead and property exemptions was to protect the families of
Florida debtors by providing basic resources for their support. As one opinion found: “the
enjoyment of a homestead consists in the use and occupation of it with his family.” 345 Applying
the constitutional exemption for personal property, Chief Justice Edwin M. Randall wrote:
“(e)xemption laws are to be liberally construed in favor of their beneficent purposes.” 346 In 1874
the Florida Supreme Court ruled a debtor was not entitled to apply the more liberal homestead
1892, 01/MSS 0-42, Special Collections, Strozier Library, Florida State University, Tallahassee, Florida.
341
Now codified as §222.01– 222.05, §222.07, Fla. Stat. (2012). See historical note at the end of each statute at
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=02000299/0222/0222ContentsIndex.html&StatuteYear=2012&Title=-%3E2012-%3EChapter%20222 (accessed
9/5/2012).
342
Now codified as §222.08 – 222.10, §222.12, Fla. Stat. (2012). See historical note at the end of each statute.
343
Now codified as §222.061, Fla. Stat. (2012). See historical note at the end of statute.
344
Now codified as §222.013, Fla. Stat. (2012). See historical note at the end of statute.
345
Baker v. State, 17 Fla. 406, 409 (1879).
346
Carter’s Administrators v. Carter, et al., 20 Fla. 562 (1885).
80
exemptions provided in the 1868 Constitution to a judgment obtained before the adoption of the
Constitution.347 Applying such a change in law retrospectively would deprive the creditor of the
legal rights previously obtained under the contract, violating the prohibition in the U.S.
Constitution against the states adopting laws impairing the rights of contract.348
In several rulings the Florida Supreme Court stressed adherence to the express language in
the Constitution, ruling the land actually owned and resided upon constituted the debtor’s
homestead; discontinuous parcels, even if used for the family farm, were not included in the
exempt property.349 Applying this principle led the Court to disapprove the reasoning in an
earlier federal bankruptcy case; a tacit assertion of the state’s primacy in the interpretation of its
own Constitution. In a bankruptcy decision reported in 1875, the debtor claimed a Florida
homestead in a single piece of land of some forty acres outside of a municipality, including his
residence and a saw mill operated as a commercial enterprise. The federal court, applying Florida
law, found homestead protected the residence and also the saw mill because that was the means
by which the debtor provided for the family. However, the federal judge concluded homestead
did not protect the balance of the single piece of property, although well within the one hundred
sixty acre limit, because the remaining land was not used for the residence or the essential
enterprise of the saw mill.350 In a later case, the Florida Supreme Court ruled the plain text of the
Constitution protected all land up to the stated maximum which included the debtor’s residence
and disapproved the federal decision, applying a usage “test” to limit the homestead exemption,
as an impermissible judicial addition to the language of the 1868 Constitution.351
3.3 The 1885 Constitution: Textual Continuity
3.3.1 The Public Policy Debate in the Convention of 1885
Dissatisfaction with the 1868 Constitution led to the proposal of a new Constitution by the
convention called in 1885.352 The 1885 Constitution, ratified by the voters in 1886, revised and
347
Alexander v. Kilpatrick, 14 Fla. 450 (1874).
Alexander, supra at 460-461.
349
Baker v. State, supra; Solary v. Hewlett, 18 Fla. 756 (1882); Oliver v. Snowden, 18 Fla. 823 (1882); Drucker v.
Rosenstein, 19 Fla. 191, 195 (1882); McDougall v. Meginnis, 21 Fla. 362, 369 (1885).
350
Seymour D. Thompson (ed.), “Greeley, Assignee of Joseph W. Scott v. Scott,” Central Law Journal 2, No. 2 (St.
Louis, 1875), 361 – 362, at
http://books.google.com/books?id=OmwtAAAAIAAJ&printsec=titlepage&source=gbs_v2_summary_r&cad=0#v=
onepage&q&f=false (accessed 9/3/2012).
351
McDougall, supra at 21 Fla. 372.
352
Journal of the Proceedings of the Constitutional Convention of the State of Florida, 9 (1885). at
http://books.google.com/books?id=6XIFAAAAQAAJ&pg=PA199&dq=constitution+homestead+Florida&lr=#v=on
348
81
retained the basic exemptions for homestead and unspecified personal property with an aggregate
value of $1,000.353 Where the Journal of the 1868 Convention reports little discussion about the
policy of protecting debtors’ assets from creditors or the amounts of such protections, the 1885
Convention was a decidedly different affair. The 1885 Convention centered on reducing the
power of state government by restructuring the executive branch, expanding local government
through greater home rule, and improving public education,354 but the sections in the
Constitution concerning homestead and personal property exemptions were modified and
retained with the 1868 amounts only after vigorous debate.
The convention began on June 9, 1885.355 After initial organization, the delegates authorized
seventeen standing committees, including the Committee on Homesteads and Exemptions and
Property of Married Women.356 A total of eight resolutions, three ordinances, and one article
concerning homestead, exemptions, and the property rights of married women were proposed by
different delegates and referred to this Standing Committee.357 On June 26, 1885, the Chair of
the Standing Committee reported to the Convention the draft of the proposed provision on
Homestead Exemptions, numbered Article VI, incorporating elements from the various
resolutions, ordinances, and the article proposed by the convention.358 The next day Article VI
was read for the first time.359
Occupied with extensive debate on other articles, the convention did not return to Article VI
until Tuesday, June 30, 1885. During this day’s debate thirty different substitutions and
amendments were offered to the exemption Article. Ten separate proposals would have limited
the homestead exemption to a maximum value for the real property and improvements;
suggested maximum values ranged from $1,000 to $5,000. Some proposals would have reduced
the total acreage of land protected as rural homestead to forty or eighty acres; most retained the
one-half acre allowed for an urban homestead but one suggested a reduction to one-quarter acre.
epage&q=constitution%20homestead%20Florida&f=false (accessed 9/3/2012). See also, “Florida’s Constitution:
The Proposed New Instrument Approved as an Improvement,” New York Times (August 18, 1885), from
Jacksonville Times-Union (August 7, 1885).
353
Art. X, §1, Fla. Const. (1885).
354
Edward C. Williamson, “The Constitutional Convention of 1885,” The Florida Historical Quarterly 41, No. 2
(October 1962), 116-126.
355
Williamson, 120.
356
Journal of 1885, 30-31, 45.
357
Journal of 1885, 60-80.
358
Journal of 1885, 143-144.
359
Journal of 1885, 159.
82
Several suggestions also addressed the use of property protected as homestead, all concurring the
debtor should reside on the land but some preferring to limit further the use of rural homestead to
agricultural purposes and excluding any urban homestead where the debtor also conducted
business. Five countervailing proposals, including one by the Committee Chair, argued to retain
the amounts of land as provided in the 1868 Constitution: one hundred sixty acres for rural
homesteads and one-half acre for urban homesteads.360
The delegates also debated resolutions to revise the existing personal property exemption of
$1,000. Two separate amendments proposed doing away with separate exemptions for land and
personal property, limiting debtors to a maximum value for all property; one suggested a
maximum of $1,500, the other $4,000.361 Seven other amendments offered to reduce the
maximum value allowed for personal property either to $500 or $700.362 One proposal would
permit a debtor to waive all homestead protection except as to wearing apparel, kitchen and
household articles with a maximum value of $400. The convention deferred further consideration
until the following day.363
On July 1, 1885, delegate Edwin M. Randall from Duval County, lately resigned as Chief
Justice of the Florida Supreme Court,364 proposed the Convention expedite the analysis and
discussion of the homestead and exemption article by separately voting on a series of eight
questions and referring the results to the Standing Committee as the sense of the convention.
The Standing Committee would then incorporate these results into Article VI and report back to
the Convention. This procedure was approved unanimously.365 Justice Randall then propounded
the following questions:
1. Shall there be an exemption from forced sale for debts, of real property? Of personal
property?
2. Shall there be a limitation as to extent or quantity? Shall there be a limitation as to value?
3. Shall the value relate to value of land? Or to improvements? Or to both? What value?
4. What shall be the value of personal property exempted?
5. What shall be the limitation as to value and quantity of land? In a town or city? Outside
of town or city?
360
Journal of 1885, 193-201.
Journal of 1885, 194-195.
362
Journal of 1885, 194-201.
363
Journal of 1885, 202.
364
Williamson, 120. Randall resigned from the Court on January 7, 1885. Mary Agnes Thursby, revised by Jo
Dowling & Office of Public Information, “Succession of Justices of Supreme Court of Florida” (2009), at
http://www.floridasupremecourt.org/pub_info/documents/appointed.pdf (accessed 9/3/2012).
365
Journal of 1885, 211.
361
83
6. Shall the exemption be in favor of the head of a family? Or in favor or any unmarried
male or female?
7. Shall the exempted homestead be subject to sale by owner and wife? Or to lien by their
mortgage?
8. Shall any general judgment or money decree be a lien on the homestead, so that at the
alienation by the owner, or at his death, or the death of his wife and children, the property
may be liable to be sold for debts?366
The Convention affirmed there should be exemptions both for real and personal property.
Before proceeding with the remaining questions the delegates adjourned for the day. This began
a twenty-six day process of debate and revision for the exemption article.
On July 2, 1885, the convention only took up part of Justice Randall’s question two, as to
whether the homestead property should be subject to a value limitation, and rejected that concept
by a vote of sixty to thirty-five.367 Delegate A.E. Maxwell from Escambia County then proposed
a complete substitute which substantially rewrote Article VI as proposed by the Standing
Committee, limiting the homestead to a value of $5,000 except for up to forty acres of land in an
unincorporated area (used for agricultural or farming purposes) or the one-half acre within a
municipality if the only use of such property was residential. Rather than further debate on this
new proposal, the Convention held over consideration until after the Fourth of July holiday. 368
Article VI was taken up after 5:00 p.m. on July 7, 1885. On Justice Randall’s fourth question
the Convention agreed the personal property exemption should be limited in value and accepted
the motion of delegate Thomas E. Clark from Jackson County to set that limit again at $1,000.369
Justice Randall moved to limit the value of the improvements370 to the exempt homestead but
was defeated by a vote of sixty-four to thirty-two. The convention then debated Justice Randall’s
fifth question: whether the amount of land protected as homestead outside of the corporate limits
of a municipality should be less than one hundred sixty acres. Voting down motions to reduce
the amount of land to forty acres, then eighty acres, the Convention retained the amount of one
hundred sixty acres as provided in the 1868 Constitution. The delegates also rejected proposals
to decrease the size of the allowed homestead within a municipality to one-quarter acre or to
366
Journal of 1885, 211.
Journal of 1885, 225.
368
Journal of 1885, 231.
369
Journal of 1885, 254.
370
“Improvements” to real property are additions or structures which enhance the use and value of the land, such as
a house, garage, outbuildings, fencing, etc. Ballentine’s Law Dictionary, 3d ed., at http://www.lexisnexis.com
(accessed June 25, 2011).
367
84
increase the amount of such land to one acre, retaining the existing amount of one-half acre.371
The Convention addressed Justice Randall’s sixth question and determined the homestead
exemption should inure to the benefit of a head of a family. 372 On the seventh question the
Convention agreed a married couple could mortgage and sell the homestead.373 Resuming debate
on July 8, 1885, the Convention addressed Justice Randall’s last question and rejected allowing
any judgment lien to attach to exempt homestead. Article VI was then referred back to the
Standing Committee for revision with the sense of the Convention.374 The Standing Committee
wasted no time and reported back on July 10, 1885, with a revised Article VI now comprised of
five sections. The revised Article was incorporated into the Journal375 and had its first reading on
July 13, 1885.376
Busy with other issues, the delegates did not return to the issue of homestead and exemptions
until July 24, 1885. On second reading the delegates passed without amendment section one,
providing for an exempt homestead not limited in value and not exceeding one hundred sixty
acres outside a municipal corporation or one-half acre within a municipality; section two,
allowing an exemption in personal property with a maximum aggregate value of $1,000; and
section three, preserving the exemptions previously applied to personal property under the 1868
Constitution. Section four, allowing owners of homestead (joined with their spouses, if any) to
mortgage or transfer the property, was passed after being amended to permit an owner without
children to dispose of the homestead by will. The delegates then accepted a new section
preventing the reduction of an existing homestead if the area subsequently was incorporated into
a municipality. A further amendment was added as section six, creating a right for the property
owner to recover homestead which was subject to forced sale (such as the foreclosure of a
mortgage) for up to two years after the sale. Section seven, authorizing the legislature to adopt
laws necessary to enforce the Article, was also approved.377
On July 27, 1885, the Convention took up the article on Homesteads and Exemptions for the
third and final time. A motion was made to strike the section creating a right to redeem a
homestead previously sold at forced sale, and the Convention voted sixty-nine to twenty-five to
371
Journal of 1885, 255.
Journal of 1885, 256.
373
Journal of 1885, 256.
374
Journal of 1885, 262.
375
Journal of 1885, 290-291.
376
Journal of 1885, 308.
377
Journal of 1885, 443-445.
372
85
delete this section. The delegates then adopted the entire revised Article VI for inclusion in the
new constitution, sixty-eight to twenty-four.378 The provision became Article X in the new
Florida Constitution, which was ratified by the voters in November, 1886.
3.3.2 Development of the Law: Decisions, Statutes, and Amendments, 1886 - 1965
Article X of the 1885 Constitution served as Florida’s organic law on homestead and
exemptions until the ratification of a new constitution in 1968. Judicial interpretations of Article
X generally followed the doctrines developed under the 1868 Constitution. Once again, the
Supreme Court found the purpose of the revised homestead exemption was to benefit debtors and
their families by protecting the family home from forced sale. 379 Incorporating prior decisions
under the 1868 Constitution, the Court ruled the exemption required the debtor occupy the
property as the family residence; property not connected to the land comprising the homestead
could not be included in the protection.380 The exemptions were to be liberally construed to
achieve their purpose, but not to the point of fraud.381
As the state economy grew in the twentieth century, the legislature kept pace with new
statutes protecting debtors’ interests in more sophisticated assets. The emergence of workers’
compensation benefits resulted in the adoption of a statute protecting a debtor’s interest in such
payments.382 The developing complexity in life insurance policies led to the adoption of a
statutory exemption for policy cash surrender values in 1925. 383 In 1941 the legislature adopted
laws protecting disability income payments384 and creating a procedure for people to prove their
domicile in Florida (thus being able to take advantage of the property exemptions.)385
Article X of the 1885 Constitution itself was amended during this period without affecting
the amount of land or value of personal property subject to exemption. One proposed amendment
would have specified the availability of the homestead exemption to certain heirs of the property
owner but was rejected by the voters.386 In the election of November 6, 1934, Article X, Section
7 was amended to provide an exemption from property taxes for the first $5,000 in value of a
378
Journal of 1885, 477-478.
Brandeis v. Perry, 18 So. 717, 39 Fla. 172, 176 (1897).
380
Brandeis, supra, at 39 Fla. 175; Milton v. Milton, 58 So. 718, 63 Fla. 533, 535 (1912).
381
Milton, supra, at 63 Fla. 536.
382
Now codified at §222.15 & 222.16, Fla. Stat. (2011). See historical note at the end of each statute.
383
Now codified at §222.14, Fla. Stat. (2011). See historical note at the end of statute.
384
Now codified at §222.18, Fla. Stat. (2011). See historical note at the end of statute.
385
Now codified at §222.17, Fla. Stat. (2011). See historical note at the end of statute.
386
1891 JR 2 (Article X, Section 2), defeated on October 14, 1892, at
http://www.law.fsu.edu/crc/conhist/1892amen.html (accessed 9/5/2012).
379
86
homestead.387 Section 7 was again amended in the election of November 8, 1938, as the voters
approved a liberalization of the homestead exemption to more broadly define a debtor’s legal
right to occupy the land and claim it as homestead, including property which was the debtor’s
permanent residence but was legally owned by a dependent of the debtor.388 This section was
amended yet a third time in the election of November 3, 1964, to revise the tax-exempt structure
for the initial value of the homestead but applicable only to taxes for school purposes in Sarasota
County.389
3.4 The Modern Era
The election of November 3, 1964, was also notable for the addition of Section 4 to Article
XVII of the 1885 Constitution, authorizing the legislature by joint resolution to propose revisions
to any article or to the entire constitution for consideration by the voters.390 In the following
session the legislature enacted Senate Bill 977, creating a study commission to consider and
recommend revisions to the Constitution by the start of the 1967 regular session.391
The change to the procedure for amending the constitution resulted from an earlier failed
attempt to revise and modernize the 1885 Constitution. Seventeen amendments were proposed in
1957, representing significant revisions, including changes to the article on homesteads and
exemptions, only to be removed from the ballot by the Florida Supreme Court.392 This 1957
proposal would have restructured the exemptions article without altering the area of land or value
of personal property exempted.
3.4.1 The 1968 Constitution
Throughout 1966 the study commission conducted hearings and debated extensive revisions
to the 1885 Constitution, but unlike the 1885 Convention the study commission spent only
387
1933 HJR 20 (Article X, Section 7). The proposed amendment was the subject of prior legal challenges but the
Supreme Court ruled it would remain on the ballot. Gray v. Moss, 156 So. 262, 115 Fla. 701 (1934); Gray v.
Winthrop, 156 So. 270, 115 Fla. 721 (1934). Proposed amendment at
http://www.law.fsu.edu/crc/conhist/contents.html (accessed 9/5/2012).
388
1937 SJR 21 (Article X, Section 7), at http://www.law.fsu.edu/crc/conhist/1938amen.html (accessed 9/4/2012).
389
1963 HJR 1030 (Article X, Section 7), at http://www.law.fsu.edu/crc/conhist/1964amen.html (accessed
9/4/2012). This peculiar provision made the first $2,000 of value taxable only for school purposes and then
exempted the next $5,000 in value only from school taxes.
390
1963 HJR 368 (Article XVII, Section 4), at http://www.law.fsu.edu/crc/conhist/1964amen.html (accessed
9/4/2012).
391
Ch. 65-561, Laws of Florida.
392
1957 CS/HJR 16-X, at http://www.law.fsu.edu/crc/conhist/1958amen.html (accessed 9/4/2012). Prior to the
election of November 5, 1958, the Florida Supreme Court struck 14 of the proposed amendments from the ballot,
including CS/HJR 16-X. Rivera-Cruz v. Gray, 104 So. 2d 501 (Fla. 1958).
87
limited time discussing the provision on property exemptions.393 One commissioner pointed out
the purpose of homestead was to preserve the family dwelling for the wife and children while the
father still lived.394 There was no discernible debate on the value for exempt personal property.
As part of the review process, the Institute of Governmental Research at Florida State
University was asked to study areas for potential change. Presented as a series of questions, the
report touched on two issues pertaining to the existing exemptions of homestead from certain
amounts of ad valorem taxation and from forced levy. The researchers questioned whether the
constitution should continue to exempt quantitative factors, such as specific amounts of real
property or specific values of personal property, from a court-controlled process for resolving
debts.395 These concepts were not incorporated into proposed language for the new constitution.
A comprehensive revision of the constitution was proposed by the legislature and ratified by
the voters on November 5, 1968.396 The final text of the homestead and exemption provision was
restructured and renumbered as Section 4 of revised Article X. The revised provision in the 1968
Constitution retained the same amounts of land for the homestead exemption and the $1,000
aggregate exemption for a debtor’s personal property.397
3.4.2 Proposed Amendments After 1968
The constitutional provision for exemptions was thrice amended after ratification of the 1968
Constitution, none of which altered the amount of land or value of property exempted. A 1972
393
Debate of the Florida Constitution Revision Commission (edited transcript, 1966), Vol. 68, 136 [Located at the
Florida Legislative Library, The Capitol, Tallahassee, FL: State Library of FL, 3 1246 00377749 9.]
394
Debate of the Florida Constitution Revision Commission, Vol. 68, 162-165.
395
David F. Dickson, James B. Craig, Jr., Albert L. Sturm, Issues for State Constitutional Revision Florida
Constitution of 1885, 21 (Institute of Governmental Research, Florida State University, 1966).
396
1968 HJR 1-2X (Constitutional Revision), at http://www.law.fsu.edu/crc/conhist/1968amen-nov.html (accessed
9/4/2012).
397
Section 4. Homestead; exemptions.—
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be
a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase,
improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the
following property owned by the head of a family:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and
improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in
a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the
exemption shall be limited to the residence of the owner or his family;
(2) personal property to the value of one thousand dollars.
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child. The owner of
homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if
married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is
incompetent, the method of alienation or encumbrance shall be as provided by law.
Art. X, §4, Fla. Const. (1968), at http://www.law.fsu.edu/crc/conhist/1968amen-nov.html (accessed 9/4/2012).
88
addition enabled a married owner of the homestead to leave the property to the spouse if there
were no minor children.398 A 1984 amendment removed the limitation of allowing the
constitutional exemptions only to the head of a family by changing “head of a family” to “natural
person.”399 The most recent revision in 1998 made the language gender neutral by changing “his
family” to “the owner’s family” in Article X, §4(a)(1).400
The 1968 Constitution provided several methods for amending the document including the
required periodic convening of a constitutional revision commission. The first such commission
was required to be established ten years after the adoption of the constitution and then every
subsequent twenty years.401 An amendment ratified in 1988 added the Taxation and Budget
Reform Commission;402 originally required to meet in 1990 and then every ten years, the
meeting of the tax reform commission was later revised to 2007 and then every twenty years.403
The 1977 Constitutional Revision Commission proposed limiting the exempt homestead to
one hundred sixty acres contiguous to the owner’s residence if used for agricultural purposes,
otherwise no more than an acre with the residence, and increasing the personal property
exemption to $3,000.404 This was rejected by the voters on November 7, 1978.
The 1997 Revision Commission received a number of proposals from the public to revise the
exemption language, including retaining the present language which did not limit the value of the
homestead, revising the language to both limit the value of the homestead property and reduce
the size of the homestead that could be protected in bankruptcy proceedings, or eliminating
certain liens allowed against the homestead.405 Delegate proposals included language clarifying
that the homestead exemption did not protect land acquired or improvements made with
proceeds from criminal activity,406 language limiting the value of a protected homestead, and
398
1972 HJR 4324, Laws of Florida 1972, vol. 1, 1685-1686.
1983 HJR 40, at http://www.law.fsu.edu/crc/conhist/1984amen.html (accessed 9/4/2012). “Natural person” is
used to indicate an actual human being, as the legal definition of “person” also would include entities such as
corporations. The Florida Constitution section on basic rights refers to “natural persons.” Art. I, §2, Fla. Const. See
also §1.02(3), Fla. Stat. (2011), which provides the broad definition of “person.”
400
“Miscellaneous Matters & Technical Revisions” proposed by the 1997 Constitutional Revision Commission, at
http://www.law.fsu.edu/crc/conhist/1998amen.html (accessed 9/4/2012).
401
Art. XI, §2, Fla. Const.
402
1988 HJR 1616, at http://www.law.fsu.edu/crc/conhist/1988amen.html (accessed 9/4/2012).
403
Art. XI, §6, Fla. Const.
404
Revision No. 1 by the Constitution Revision Commission, at http://www.law.fsu.edu/crc/conhist/1978amen.html
(accessed 9/4/2012).
405
Journal of the Constitution Revision Commission 1997-1998, 55 (September 25, 1997), at
http://www.law.fsu.edu/crc/journal/index.html (accessed 9/4/2012).
406
Proposal 23 by Delegate Rundle, Journal of the Constitution Revision Commission 1997-1998, 59 (October 20,
399
89
terms authorizing the legislature to change the amount of the debtor’s equity which could be
protected by homestead.407 But as noted previously, the only amendment to the homestead and
exemption language proposed by the 1997 Commission was a technical language change having
nothing to do with the amount or value of protected property. Neither of the Taxation and Budget
Reform Commissions of 1990408 nor of 2007409 proposed amendments to the exemption
language in Article X, Section 4.
3.4.3 Post-1968 Judicial Interpretations and Statutory Developments
After 1968 the Florida courts continued their traditional adherence to the express text of the
constitutional exemptions. The courts interpreted Article X, §4, as intended to protect families
even when the exemption was challenged by creditors alleging claims based on fraud or other
sympathetic factors.410 One commentator summarized the two longstanding goals served by this
interpretive approach: “First, homestead protection promotes the stability and welfare of the state
and relieves it from the burden of supporting destitute families. Second, homestead exemption
protects the homeowner and family from creditors’ demands and financial misfortune.”411
Statutory development after 1968 saw the introduction of additional exemptions by the
legislature. With the passage of the new federal Bankruptcy Code412 in 1978, the legislature
reauthorized the ability of Florida residents to use exemptions under the 1968 Constitution and
state statutes when filing bankruptcy rather than the less generous provisions of bankruptcy
law.413 Exemptions were added to protect pension and retirement funds,414 prepaid tuition and
1997), at http://www.law.fsu.edu/crc/journal/index.htm (accessed 9/4/2012).
407
Proposal 70 by Delegate Mills, Journal of the Constitution Revision Commission 1997-1998, 93 (November 12,
1997), at http://www.law.fsu.edu/crc/journal/index.html (accessed 9/4/2012). “Equity” is the difference between the
actual value of the property and the aggregate amount of all debts secured by the property. Ballentine’s Law
Dictionary, 3d ed., online at http://www.lexisnexis.com (last accessed June 25, 2011).
408
Revisions No. 1 – 4 by the Taxation and Budget Reform Commission, at
http://www.law.fsu.edu/crc/conhist/1992amen.html (accessed 9/4/2012).
409
“2007-2008 TBRC Final Report;” http://www.law.fsu.edu/library/databases/ftbrc/reports08.html (accessed
9/4/2012).
410
Havoco of America v. Hill, 790 So. 2d 1018 (Fla. 2001); Davis v. Davis, 864 So. 2d 458 (Fla. 1st DCA 2003).
411
Harry M. Hipler, “Florida’s Homestead Realty: Is it Exempt from Imposition of an Equitable Lien for
Nonpayment of Alimony and Child Support?” The Florida Bar Journal 82, No. 7 (July-August 2008), 34.
412
11 U.S.C. §101, et seq.
413
Ch. 79-363, §1, Laws of Florida, now codified as §222.20, Fla. Stat. (2011). The later enactment of §222.201,
Fla. Stat., enabled Florida debtors to use a federal exemption to protect the right to receive certain benefit payments,
such as social security, veteran’s, disability, public assistance, alimony and child support, or investment payments
necessary for the debtor’s support. See 11 U.S.C. §522(d)(10).
414
Ch. 87-375, §1, Laws of Florida, subsequently amended and now codified as §222.21, Fla. Stat. (2011).
90
medical savings accounts,415 a debtor’s interest in a motor vehicle up to a value of $1,000,416 and
health aids.417
These statutory changes provided greater protection for specific assets but their language was
not linked expressly to the constitutional protection for personal property. With the consideration
of homestead and exemption language by the various commissions since 1965 being
significantly less vigorous than the debate within the 1885 Convention, coupled with the
emphasis on developing exemptions by statute (which are always subject to amendment by the
legislature), the precise amount stated in the Constitution appeared to recede in importance to the
state’s policymakers. Given this decline in emphasis, one modern treatise stated little more than
the plain text of the exemption provision, saving interpretation and theory for other areas
apparently more subject to dispute.418
3.4.4 The Impact of the 2005 Amendments to the Bankruptcy Code
The importance of the constitutional personal property exemption, and the total amount of
property it protected, re-emerged after 2005 due to statutory changes by the U.S. Congress and
the Florida Legislature. In 2005 Congress extensively amended the exemption sections of the
Bankruptcy Code; for the first time, the Code imposed a value limit on the homestead protections
regardless of prior existing state law.419 Due to this change Florida residents no longer had the
benefit of the full homestead exemption existing at the time the debt was incurred; in bankruptcy
proceedings, homesteads now are subject both to the traditional limit on the amount of protected
land and to a potential value limitation unknown under the Florida Constitution.
Shortly after these revisions to the Bankruptcy Code, in 2007 Florida expanded the statutory
allowances by allowing an exemption of an additional $4,000 in personal property if the debtor
neither claims nor benefits from the constitutional homestead exemption.420 Originating as
Senate Bill 2118, this change was made in the context of revising the process for state court
insolvency proceedings.421 The staff analyses for both the Senate bill and a similar bill in the
415
Ch. 88-313, §2, Laws of Florida, subsequently amended and now codified as §222.22, Fla. Stat. (2011).
Ch. 93-256, §3, Laws of Florida, now codified as §222.25(1), Fla. Stat. (2011). This amount is in addition to the
$1,000 protection in the Constitution and applies to the debtor’s equity above any liens on the vehicle.
417
Ch. 2001-129, §1, Laws of Florida, now codified as §222.25(2), Fla. Stat. (2011).
418
Talbot D. D’Alemberte, The Florida State Constitution: A Reference Guide, 138 (Westport, CT: Greenwood
Press 1991).
419
Public Law 109-8, §1501(a), codified at 11 U.S.C. §522(o), (p), (q).
420
Ch. 2007-185, § 1, Laws of Florida, now codified as §222.25(4), Fla. Stat. (2011).
421
As stated in their respective staff analyses, both SB 2118 and a companion bill in the Florida House, HB 1445,
were prompted by recommendations from the Business Law Section of The Florida Bar to revise portions of Chapter
416
91
Florida House of Representatives recognized the additional exemption would benefit only
debtors without a protected homestead while relegating those benefiting from the homestead
exemption to the constitutional amount of $1,000.422
Although the context of the final bill did not expressly reference the recent changes to the
Bankruptcy Code, the new statute had a direct and immediate impact on the protections available
to debtors in Florida bankruptcy proceedings. Florida bankruptcy courts, confronted with a
number of cases in which Florida homeowners asserted the new statutory exemption because
they had no equity to protect in their homes, were divided on how to interpret the law. The
Florida Supreme Court resolved this controversy by ruling a Florida debtor in bankruptcy may
assert the additional property protections in the new statute only if the debtor forgoes the
constitutional homestead exemption in the bankruptcy case and the existence of the homestead
protection423 does not otherwise hinder the trustee’s administration of the estate.424
Whether the Florida Legislature intended the additional statutory personal property
exemption to act as a counterweight to the changes in the Bankruptcy Code is not clear. The
effect is to acknowledge the potential loss to debtors by the federal restriction on the value of a
homestead and the erosion in value of the constitutional personal property exemption; no longer
may Florida debtors find complete repose in the rising value of their homesteads. As one court
727, Florida Statutes, Assignments for the Benefit of Creditors. See note 126, below. An “assignment” under this
chapter is an alternative to federal bankruptcy proceedings but with the similar purpose to liquidate the debtor’s
assets and liabilities in an orderly manner and pay the creditors.
422
Staff Analysis of CS/SB 2118 (2007 Regular Session) for the Senate Judiciary Committee, 3 (April 19, 2007),
and Staff Analysis of HB 1445 (2007 Regular Session) for the House Committed on Constitution and Civil Law, 2
(March 19, 2007), unpublished reports at
http://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=36070 (accessed 9/5/2012). The staff
analysis for the Senate Judiciary Committee noted the Legislative Office of Economic and Demographic Research
calculated that $1,000 in 1868 was worth approximately $15,000 in 2007. Staff Analysis of CS/SB 2118, p. 3, n. 2.
A word of caution when reviewing staff analyses prepared for the Florida Legislature: unlike the U.S. Congress,
Florida legislative committees do not vote to adopt any analysis as a committee report and only vote on whether to
approve a particular bill for further consideration by the legislative body. A staff analysis therefore only represents
the observations of staff and cannot be relied upon as any statement of intent by any elected member of either
Chamber.
423
For example, if a married couple owns a Florida homestead and only one files bankruptcy, the other spouse is
entitled to the full homestead protection even if the bankrupt spouse does not claim the exemption, thus preventing
the bankruptcy trustee from administering the property as an asset of the bankruptcy estate.
424
Osborne v. Dumoulin, 55 So. 3d 577, 590 (Fla. 2011). The case arose before the federal courts, which denied the
bankruptcy trustee’s opposition to the debtor’s use of the statutory exemption by not asserting her homestead
exemption. On appeal, the federal Eleventh Circuit Court of Appeals requested the Florida Supreme Court to
interpret the statute as there was no controlling state decision. The opinion of the Florida Supreme Court provides an
excellent overview of the various bankruptcy cases and analysis of the constitutional exemption. Relying upon this
analysis, the federal court subsequently affirmed the decisions of the lower courts. Osborne v. Dumoulin (In re
Dumoulin), 2011 U.S. App. LEXIS 9702 (11 th Cir. May 10, 2011).
92
observed: “(t)he purpose of these extra exemptions is to give a person who lacks a homestead a
minimal amount of property from which to restart their lives.”425
3.5 Change in Property Values Over Time Shows Dependence on Real Property Values
Florida considered and adopted the 1885 Constitution to correct actual or perceived problems
with the 1868 document. As noted, part of the debate considered proposals to reduce the size of
exempt homesteads or the total value of the personal property exemption.426 This may have
acknowledged a decline in value of goods since the exemption amounts were set in 1868 (see
Table 1, below). The 1885 Constitution retained the protections for homestead and personal
property exemptions in a modified form but the amount of land comprising an exempt homestead
remained the same, as did the exemption for personal property with an aggregate value of
$1,000.427 Florida entered the twentieth century with constitutional exemptions for homestead
and personal property first fixed in 1868. Subsequent revisions of the Constitution would
entertain proposed changes to the exemptions but none reached the same level of debate as in the
1885 Convention.
Bearing in mind Mark Twain’s adjuration,428 Tables 1 and 2 illustrate the relative change in
value of $1,000 from 1868 to 2011. Table 1 generally extrapolates the value of $1,000 in 1868,
when the homestead and personal property exemptions were first included in the Florida
Constitution, to 1885, 1968, and 2011. As can be seen in each table, there was a slight increase in
relative buying power from 1868 to 1885; the “basket of goods and services” costing $1,000 in
1868 actually cost less in 1885. This decline was temporary; values then increased steadily
across the calculation period.429
425
In re Rogers, 396 B.R. 100, 102 (M.D. Fla. 2008.
Journal of 1885, 193 – 199.
427
Art. X, §1, Fla. Const. (1885).
428
“There are three kinds of lies: lies, damned lies, and statistics.” Twain, Mark, Autobiography of Mark Twain
[1917], arranged, edited, with introduction and notes by Charles Neider [1959], reprinted in paperback by
HarperCollins (NY 2000). Page references are to the 2000 reprint. Twain attributed this remark to the British
statesman, Benjamin Disraeli.
429
The values shown are a direct calculation using a single general methodology. Some results, such as the values
for specific real property, may not accurately reflect real life economic experience for a particular asset, but do
demonstrate the basic point that asset values in Florida increased steadily throughout the twentieth century, diluting
the value of the personal property exemption while enhancing the value of the protection for homestead property.
426
93
Table 1: Relative Value of $1,000 Since 1868
Calculation Methodology: Consumer Price Index430
Base Amount: $1,000
(Beginning Year)
1868
1885
1968
Value as of
1868
$1,000.00
-----
Value as of
1885
$ 676.00
$1,000.00
---
Value as of
1968
$2,530.00
$3,730.00
$1,000.00
Value as of
2011
$ 14,800.00
$ 22,500.00
$ 5,150.00
Table 2 displays the inventory of taxable property belonging to Dr. F.A. Byrd in 1871, and
extrapolates those values to 1885 and 1968, the years relevant to the adoption of each subsequent
State Constitution, and then to 2011.
Table 2: Dr. F.A. Byrd Taxable Property - 1871
Calculation Methodology: Consumer Price Index431
Item
76 Acres & Improvements
in Eastern Leon County,
Florida
Tract of land, unspecified
dimensions, no timber
2 Horses
12 Head of Cattle
Household Furniture
Notes & Other Evidence of
Debt Owing to Owner
1 Gold Watch
Practicing
Physician/Druggist Stock
in Trade
17 Head of Hogs
Total (excluding 76 acres)
Value in
1871
Value in
1885
Value in
1968
Value in
2011
$1,140.00
$897.00
$3,350.00
$21,700.00
$400.00
$300.00
$60.00
$200.00
$315.00
$236.00
$47.20
$157.00
$1,180.00
$882.00
$176.00
$588.00
$7,600.00
$5,700.00
$1,140.00
$3,800.00
$1,000.00
$125.00
$787.00
$98.40
$2,940.00
$367.00
$19,000.00
$2,370.00
$1,200.00
$34.00
$3,319.00
$945.00
$26.80
$2,612.40
$3,530.00
$99.90
$9,762.90
$22,800.00
$646.00
$63,056.00
Samuel H. Williamson, “Seven Ways to Compute the Relative Value of a U.S. Dollar Amount, 1774 to Present”
(2012), at http://www.measuringworth.com/uscompare/ (accessed 9/4/2012). The CPI calculation methodology is
explained at the same location.
431
Id.
430
94
Each table shows relative values steadily increasing over the next century, eroding the buying
power of the $1,000 personal property exemption in the Florida Constitution. In short, after 1885
the amount of personal property a debtor could exempt under the constitutional provision
declined precipitously.
The expansion of specified personal property exemptions by statute while limiting the
constitutional protection for personal property to a total value of $1,000 since 1868 shows the
presumption of Florida public policy after 1885 allowing impecunious debtors to rely on
increasing real property values to protect the financial interests of their families. As shown in
Tables 1 and 2, the relative buying power of $1,000 in 1868 actually increased marginally by
1885 (less money was required to purchase the same amount of goods ) but steadily decreased
throughout the twentieth century. By 2011, far more was required to purchase the same amount
of goods as in 1868. In contrast, with the available unlimited protection of a homestead’s value,
debtors retained all increases in value of the property aside from mortgages or other liens
permitted by the Constitution.
3.6 Chapter Summation
Since 1885, Florida relied on increasing real property values to provide debtors with assets
sufficient to support themselves after completion of creditor’s collection or of bankruptcy
proceedings. This policy evolved throughout the twentieth century, best shown by the retention
of $1,000 as the maximum amount of the debtor’s personal property exemption through 144
years and the adoption of two new constitutions. The Florida courts hewed repeatedly to the
express terms of the text and the public policy intended to protect families and the liberty
interests of debtors.432
Florida’s approach to property exemptions was similar to that adopted in Texas after 1845 to
the extent of placing the basic protections in the text of the state’s constitution to shield them
from being readily amended as a result of political changes in the legislature. Both states
augmented the basic protections in their respective constitutions with statutes detailing protected
personal property. Their policies diverged after 1995 as Texas incorporated into its constitution
highly detailed provisions for additional types of liens and mortgages on the homestead. Florida
retained more flexible language in its organic law, responding to changing economic
circumstances by revising the exemption statutes.
432
Havoco, supra.
95
The unchanged text of the $1,000 personal property exemption stated in the Florida
Constitution from 1868 to the present demonstrates change in economic and public policy over
that time. If adjusted for inflation, the protections first adopted in 1868 would exempt the value
of almost all basic items in today’s average household (with the exception of some electronic
luxuries), as well as the separate homestead exemption for real property, leaving few assets
remaining for recovery of unpaid debts by creditors in the event of financial downturn. The
unwritten change in Florida policy shows a continuing preference to make available more
readily-saleable articles for use in debt resolution while protecting the single largest purchase of
most families: the family home. Florida thus relied on increasing real property values to provide
assets sufficient for debtors to continue supporting themselves.
96
CHAPTER FOUR
ALASKA: ACCESSION TO EXEMPTION
The history of homestead and personal property exemptions in Alaska, like the development
of the State itself, parallels yet counterpoints the respective experiences of Texas and Florida.
Like Texas, the national authority recognized the need to encourage emigration to its sparselyinhabited northern territory, choosing a method of granting land to settlers and protecting those
grants from pre-existing creditors during the early settlement period. Unlike Texas, Alaska only
gained statehood through a ninety-two year process of gradually-increasing local political
control. Diametrically opposed to Florida not only physically but also in legal and political
principle, Alaska found its governmental history emphasized economic and resource
development, treating the protection of individual liberty more as a legislative than a
constitutional function. Consequently, the protection of debtors’ assets in Alaska reflects a basic
policy to protect people from complete destitution only through statute and not to limit the
government’s flexibility in this area by placing these protections in the state constitution.
In applying its homestead and personal property exemption laws, Alaska follows public
policy principles similar to those exercised in most states, including Texas and Florida.433
Exemption laws are “liberally construed” in order to provide the broadest protection available to
the debtor,434 and property that is not exempt is available to be sold and the proceeds distributed
towards the claims of the judgment creditor.435 The purpose of an exemption, such as that
protecting the family home, is to prevent the debtor and debtor’s family from being made so
impecunious that they become public dependents.436 Despite its application of current principles,
Alaska began its tenure under federal authority without laws for, or a tradition of, protecting a
debtor’s basic assets.
433
Gutterman v. The First National Bank of Anchorage, 597 P.2d 969, 971 (AK 1979).
Ilardi v. Parker, 914 P. 2d 888, 890 (AK 1996).
435
“A debtor's property which is not exempted from execution in satisfaction of debt by applicable state or federal
laws is subject to the rights of creditors.” Gutterman, supra at 970.
436
The purpose of homestead is to ensure debtor has a place to reside and does not require public assistance. In re
Shell, 295 B.R. 129 (Bankr. D. Alaska 2003). In Shell, the bankruptcy debtor was permitted to exempt as homestead
a six-unit apartment building that the debtor owned and resided in one unit.
434
97
4.1 1867 – 1884: Accession And Early Federal Control
The roots of Alaska’s contemporary protections for a debtor’s property are intertwined with
the extension of federal jurisdiction to the region. In the forty-five years between acquiring
Alaska from Russia to organizing it as an official territory, the U.S. governed the area in what is
best characterized as an “incremental manner.” Until 1884, limited authority was exercised in
turn by the federal customs service, the U.S. Army, and the U.S. Navy.
At the beginning of the nineteenth century Russia occupied the northwestern area of the
North American Continent. Uncertainty about the extent of those possessions in light of
increasing exploration and activity in the region both by the United States and Great Britain led
the Imperial Government to initiate negotiations with both nations. President James Monroe took
the opportunity of his 1823 annual report to Congress to describe these discussions while
articulating the policy that would be known as the “Monroe Doctrine.”437 Russia and Great
Britain concluded a convention in February 1825, establishing the demarcation between their
respective North American possessions.438
By the treaty ratified and proclaimed on June 20, 1867, the United States acquired “all the
territory and dominion now possessed by his said Majesty439 on the continent of America and in
adjacent islands….”440 This included all Russian-occupied territory west of the established
boundary with the possessions of Great Britain, described the western extent of the Aleutian
Islands and the demarcation between the ceded area and Russian eastern possessions, and
extended into the Arctic Ocean.441
President Monroe announced the initiation of these discussions by Russia with the United States “to arrange by
amicable negotiation the respective rights and interests of the two nations on the northwest coast of this continent.”
Regarding further European attempts to expand colonization in the Western Hemisphere, the President stated: “In
the discussions to which this interest has given rise and in the arrangements by which they may terminate the
occasion has been judged proper for asserting, as a principle in which the rights and interests of the United States are
involved, that the American continents, by the free and independent condition which they have assumed and
maintain, are henceforth not to be considered as subjects for future colonization by any European powers. . . .”
Message of President James Monroe at the commencement of the first session of the 18th Congress (The Monroe
Doctrine), 12/02/1823; Presidential Messages of the 18th Congress, ca. 12/02/1823-ca. 03/03/1825; Record Group
46; Records of the United States Senate, 1789-1990; National Archives.), at http://www.ourdocuments.gov.
Transcription of document at http://www.ourdocuments.gov/doc.php?doc=23&page=transcript (accessed
9/12/2012).
438
“Treaty With Russia (1867),” Art. I, in Charles W. Eliot (ed.), American Historical Documents (P.F. Collier &
Son, NY 1910, reprinted by P.F. Collier & Son Corp. 1938), 433.
439
The Tsar of Russia.
440
Eliot, 432.
441
Eliot, 433.
437
98
Existing private ownership of property was not disturbed by the treaty. Included in the
transfer was the Russian government’s interest in all property other than private individual
property or churches built on land previously ceded by the government to the Orthodox
Church.442 Russians living in the territory could retain their citizenship by returning to Russia
within three years, otherwise they were entitled to all rights of a U.S. citizen, including “the free
enjoyment of their liberty, property, and religion.”443
Federal control over the ceded area was limited initially. The Customs Act of 1868 created
the District of Alaska and extended U.S. customs laws to make a single collections district for
the purpose of customs, commerce, and navigation.444 Section 4 of the act authorized the
President to “restrict and regulate or to prohibit the importation and use of … distilled spirits into
and within the said territory.” Attempts to limit the traffic in liquor met with limited success but
purportedly led to the production of rum (or some semblance thereof) by some native Alaskans.
The appointed Governor of Alaska, in his annual report of 1898, recorded one such account:
A tribe on Admiralty Island, known as the “Hoochinoos,” used to smuggle (locally made
liquor) to the soldiers at Sitka, and the compound which they sold became known as
“hoochinoo” and “hooch.”445
The U.S. Army stationed troops at Sitka and their commander functioned as the primary
federal authority in the area, but these were withdrawn in 1875.446 After the residents of Sitka
appealed to British officials for protection from presumed native attack, in response to which a
British warship was dispatched to provide protection to the community, the U.S. Navy stationed
a vessel in the vicinity.447 This remained the primary federal presence in the region until 1884.
“Treaty with Russia (1867),” Art. II, in Eliot, 434.
“Treaty with Russia (1867),” Art. III, in Eliot, 434.
444
15 Stat. 240 (July 27, 1868). Section 2 of the act officially named the region the District of Alaska
445
“Report of the Governor of Alaska” (October 1, 1898), in “Annual Report of the Department of the Interior,” Part
3, p. 181-182 (1898), at
http://books.google.com/books?id=zcGU4kouuu8C&dq=Alaska%20organic%20law%201884%20oregon&pg=PA2
00#v=onepage&q=Alaska%20organic%20law%201884%20oregon&f=false (accessed 4/4/12). Whether factual or
apocryphal, the account provides a momentary etymological diversion in an otherwise typical government report of
the late nineteenth century.
446
Testimony of James Wickersham, 62nd Congress, First Session, House of Representatives, Committee on the
Territories, Bills, Reports, and Hearings, Vol. 1, 477-479 (May 17, 1911), at
http://books.google.com/books?id=Ff4_AAAAYAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v
=onepage&q&f=false (accessed 9/13/2012).
447
Opening remarks of Ernest Gruening, Governor of the Territory of Alaska, at the Alaskan Science Conference of
the National Research Council, Nov. 9-11, 1950. National Research Council, National Academy of Sciences,
“Bulletin of the National Research Council,” No. 122, 4 (April 1951), at
http://books.google.com/books?id=yiUrAAAAYAAJ&lpg=PA4&dq=Alaska%20organic%20law%201884%20oreg
442
443
99
4.2 1884 – 1912: Territorial Organization and Adoption of Exemptions
4.2.1 The First Organic Act
In 1884, Congress enacted broader civil authority for the District of Alaska (not yet officially
organized as a federal “territory”) by passing the “First Organic Act.” 448 The Act designated all
of Alaska as a federal judicial district, provided a temporary seat of government at the town of
Sitka, and designated a governor as the primary executive officer for the area; Congress retained
all legislative power. Provision also was made for a district judge, clerk of court, district
attorney, and marshal. The judicial power of the new court was exercised by the federal district
judge at Sitka and four additional presidential appointees, or “commissioners,” who were to
reside at specific locations in the district. Section 8 of the act created a formal land district and
land office, primarily to supervise mining claims and rights under the application of federal law
to the district. Through the same section Congress applied in the district all federal laws
pertaining to mining claims and permitted those who previously located mines or mineral claims
under U.S. law to perfect their claims under the mining laws. However, Congress chose a
conservative approach to managing the public lands and expressly declined to extend the general
federal land laws, including the existing Homestead Act, to Alaska.
The First Organic Act applied then-existing Oregon state law into the newly-organized
federal judicial district. Rather than enact a comprehensive civil code or set of statutes specially
created for Alaska, Congress turned to a familiar practice of incorporating by reference a specific
body of law and applying it to the district.449 Section 7 of the act incorporated and applied the
on&pg=PA4#v=onepage&q=Alaska%20organic%20law%201884%20oregon&f=false (accessed 3/31/2012).
448
“An act providing for a civil government for Alaska,” 23 Stat. 24 (May 17, 1884) (“District Organic Act. An
“organic law” is a constitution or other foundational instrument that establishes the basis and framework of civil
government. “Whether the statute or the rule violates the organic provisions separating the powers of government
into departments should be determined by reference to the Constitution of the state.” State v. Atlantic Coast Line R.
Co., 56 Fla. 617, 630, 47 So. 969, 974 (1908).
449
Throughout the westward expansion of the United States, Congress tended to apply to a newly-organized
territory the laws extant in a state or existing territory in geographical proximity to the new territory. For example, in
the 1836 act organizing the Territory of Wisconsin Congress applied the existing laws of the Territory of Michigan;
the 1838 organization of the Iowa Territory applied the existing laws of Wisconsin Territory; and the 1849
organization of Minnesota Territory applied the existing laws of the State of Wisconsin. In contrast, Oregon
Territory was organized in 1848 with “all rights as accorded under the Northwest Ordinance of 1787 and the
existing laws then in force under the authority of the provisional government of Oregon.” The organization of
Washington Territory in 1853 applied the existing laws of Oregon Territory. See, generally, Benjamin Perley Poore,
The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States (Gov’t
Printing Office, Washington, D.C., 1877), at
http://books.google.com/books?id=LdcfAQAAMAAJ&pg=PR7&lpg=PR7&dq=louisiana+territorial+acts&source=
bl&ots=id90Qwubvl&sig=iRNbA1TJGqUYYlMc3EYAcfmDIIU&hl=en&ei=3seiTuiWEZK3tgeu84SmBQ&sa=X
&oi=book_result&ct=result&resnum=7&ved=0CEsQ6AEwBg#v=onepage&q=louisiana%20territorial%20acts&f=f
100
general laws of Oregon to the District of Alaska, including civil and criminal matters. 450 Certain
appellate authority for some criminal matters was placed in the federal Circuit Court in Oregon.
Included through this incorporation by reference were the Oregon laws exempting certain
personal property from levy and execution. By statute, debtors were entitled to protect the
following from seizure and sale by their creditors: 451

Books, pictures, and musical instruments with an aggregate value of $75.

Necessary wearing apparel for a debtor with an aggregate maximum value of $100. If the
debtor was a “householder,”452 this provision allowed each family member of the debtor
alse (accessed 4/5/2012).
One likely explanation for this practice is found in the Alaska District Organic Act of 1884, s. 7, where certain
appeals from criminal proceedings in the Alaska District were to be referred to the federal circuit court in Oregon;
applying the same laws in Alaska which would be available and familiar within the District of Oregon would
facilitate this review process.
450
Alaska was not the last application of Oregon law to a U.S. territory. In 2011, the U.S. District Court for the U.S.
Virgin Islands found persuasive an Oregon case decision on a statute identical to that in the law for the Virgin
Islands, in part based on the historical derivation of the earliest code for the islands:
The Court finds these Oregon cases persuasive authority that section 534 authorizes deficiency judgments
calculated as the difference between the sale price and the debt judgment. The statute at issue, 28 V.I.C. § 534,
was enacted as part of the "1921 Codes." See Mun. Code of St. Croix, tit. III, ch. 41, § 4 (1921), 28 V.I.C. §534,
(microformed on Codes, Ordinances. Laws, and Resolutions of the Virgin Islands: 1917-1954, call no. LL-0301
(Library of Congress)). "The 1921 Codes were 'developed by two young lawyers, Leslie Curry and Denzil Noll,
both of whom had come to the U.S. Virgin Islands from the Territory of Alaska soon after 1917. Taking as their
lodestar the Alaska Code which, in turn, was derived from the Oregon Code, these two young lawyers compiled
two separate codes-one for each municipality.'" Bermudez v. V.I. Tel. Corp., No. SX-10-CV-298, 2011 V.I.
LEXIS 6, at *26, [WL], at *6 (V.I. Super. Ct. 2011) (citing John D. Merwin, The U.S. Virgin Islands Come of
Age: A Saga of Progress in the Law, 47 A.B.A. J. 778, 779 (1961) (emphasis added)). The Supreme Court of
Oregon's interpretation of a statute identical to section 534 is thus highly persuasive. See Berkeley v. W. Indies
Enters., Inc., 480 F.2d 1088, 1092, 10 V.I. 619 (3d Cir. 1973) ("[T]he language of a Virgin Islands statute
which has been taken from the statutes of another jurisdiction is to be construed to mean what the highest court
of the jurisdiction from which it was taken had, prior to its enactment in the Virgin Islands, construed it to
mean."); James v. Henry, 157 F. Supp. 226, 227, 3 V.I. 273 (D.V.I. 1957) (noting that the Virgin Islands
"borrowed" laws from Alaska, which in turn "borrowed" them from Oregon and therefore applying Oregon case
law in construing Virgin Islands statute of limitations); Chase Manhattan Bank v. Robert-Surzano, 51 V.I. 1024,
1042 (D.V.I. App. Div. 2009) (noting that "Oregon's foreclosure process is akin to the procedure in the Virgin
Islands" and relying on Oregon case law in construing 5 V.I.C. §§ 492 and 500).
Soley v. Warlick, 2011 U.S. Dist. LEXIS 92583, n. 4 (D. V.I. 2011).
451
The Code of Civil Procedure and Other General Statutes of Oregon, §279, 69 (State Publication, 1863) [herein
“Oregon Statutes 1862”], at
http://books.google.com/books?id=uc5NAQAAIAAJ&printsec=frontcover&dq=Oregon+statutes+and+code+1862&
hl=en&sa=X&ei=Nvt6T4H1BpSItwefqK2sCA&ved=0CEgQ6AEwAg#v=onepage&q=exempt&f=false (accessed
9/13/2012); J.H. Jellett, Pacific Coast Collection Laws, 197 (San Francisco, 1880), at
http://books.google.com/books?id=imksAAAAIAAJ&printsec=frontcover&dq=Pacific+Coast+Collection+Laws&s
ource=bl&ots=IlHHXZgaNi&sig=DMRheLaGlEK_cIi9tcnbc4gnbfc&hl=en&sa=X&ei=9CxSUIbmOYOg9QSN8IC
YBg&ved=0CDYQ6AEwAA#v=onepage&q&f=false (accessed 9/13/2012).
452
The accepted meaning of the term apparently was to be the head of a family. William Lair Hill (ed.), The Codes
and General Laws of Oregon, Second Edition, Vol. 1, §282, 353-354, note (San Francisco, CA, 1892), at
http://books.google.com/books?id=65o4AAAAIAAJ&pg=PR4-IA1&lpg=PR4IA1&dq=The+Codes+and+General+Laws+of+Oregon,+Second+Edition,&source=bl&ots=c4cFGdyb3K&sig=DC_
101
separately to exempt wearing apparel to maximum value of $50.453

Tools, implements, apparatus, team of animals, vehicle, harness, or library – when
necessary for the trade, profession, or occupation of the debtor – to a maximum value of
$400. The law also exempted the value of food sufficient to support the team, if any, for
sixty days. The statute defined “team” as not more than one yoke of oxen or a pair of
horses or mules.

If the debtor was a “householder,” the law exempted the following property owned and in
actual use: ten sheep with one year’s fleece, or the yarn or cloth manufactured therefrom;
two cows; five swine; household goods, furniture, and utensils, all to an aggregate value
of $300. Once again, the law exempted food sufficient to support such animals for three
months but additionally exempted provisions actually intended for family use and
necessary for the support of the householder and family for six months.

The seat or pew occupied by the householder, or family, in a place of public worship.

All property of the state or any county, city, town, village, or other such public or
municipal corporation.

The statute expressly excluded from its exemptions any property subject to execution on
a debt for its own purchase price. In other words, if the debtor still owed money for the
purchase of the item, whoever was entitled to collect payment for the purchase was
allowed to seize and sell that article in payment of the debt.

A separate exemption protected the earnings of a judgment debtor accrued within the
thirty days immediately prior to entry of the judgment, provided the earnings were
necessary to support the debtor’s family.454
Incorporating matters into law merely by reference to their identification, whether another
law or a recipe for Pennsylvania Dutch shoo-fly pie,455 creates at least two uncertainties, both of
which impacted debtor relief in Alaska under the First Organic Law. The first issue, particularly
uocFkGIflQa5vtss9_rtkFzc&hl=en&sa=X&ei=2y1SULW_JYv68QSz9YHoDw&ved=0CC8Q6AEwAA#v=onepage
&q=The%20Codes%20and%20General%20Laws%20of%20Oregon%2C%20Second%20Edition%2C&f=false
(accessed 9/13/2012).
453
In relative purchasing power, that would be equivalent to $1,180.00 today. From online calculator provided in
Samuel H. Williamson, "Seven Ways to Compute the Relative Value of a U.S. Dollar Amount, 1774 to present,"
MeasuringWorth, April 2012, at www.measuringworth.com/uscompare/ (accessed 5/23/2012).
454
Oregon Statutes 1862, §310, p. 81.
455
This example is no mere flight of fancy. I have my family’s excellent recipe for this delicacy handed down from
my great-grandmother.
102
in a statute incorporating a law of economic relief, is the longstanding constitutional prohibition
against states adopting laws impairing the obligation of contracts.456 This means a new law could
not alter the rights of parties under their existing contracts, including the rights and remedies of a
creditor to collect if the debtor failed to pay under a present contract. The second problem is the
effect of future amendments or alterations to the matter previously incorporated by reference in a
statute; if the incorporating law did not include future amendments to the thing incorporated, the
people affected by the receiving law would not reasonably expect to be bound by the future
actions of another jurisdiction. Unless the law expressly states otherwise (within the bounds of
the federal and state constitutions), the general legal rules are that material incorporated into a
law will affect only future rights of parties (prospective effect of incorporated material) and the
incorporated law will be that existing on the exact date of incorporation because the legislature
did not choose to incorporate future amendments.457 As the language incorporating Oregon law
did not apply expressly to prior contracts, it only affected contracts (and resulting legal actions)
entered after the date of its adoption. Since the First Organic Law went into effect on May 17,
1884, and did not incorporate future amendments to the incorporated Oregon laws, only those
Oregon laws in effect on the date of passage were controlling in Alaska. Whether incorporating
law or recipes, the better practice is to write out the full text to be included in the law so that the
adopting legislature can readily change these provisions in the future.
Because Oregon in 1884458 did not protect residential homesteads from levy and
execution,459 emigrants to Alaska continued to lack any such protection for their own homes, if
456
Art. I, §10, cl. 1, U.S. Const.
An example of the latter issue occurred in Florida condominium law after 1973. In Florida, as in most
jurisdictions, the laws extant at the time a contract is executed are interpreted as forming part of the contract. The
original Condominium Act, Ch. 711, Florida Statutes, thus automatically became part of the official documents
creating a number of condominiums in the state. However, because the documents did not also incorporate future
amendments to the Condominium Act, when the law was changed a few years later by the repeal of Chapter 711 and
enactment of the wholly-new Chapter 718, Florida Statutes, these condominiums continued to be controlled only by
the former Act. As an attorney with the former Department of Business Regulation from 1986-1992, I had to retain
an old copy of Chapter 711 for periodic reference in condominium enforcement matters.
458
The First Organic Act incorporated only the laws of Oregon existing as of May 17, 1884, and not any future
amendments. Frank Olds Loveland, A Treatise on the Law and Proceedings in Bankruptcy (Cincinnati, 1899), 352,
n.6.
459
Oregon adopted a homestead exemption by statute in 1893 that applied only to debts incurred prospectively.
Walker v. Harold, 44 Ore. 205, 214, 74 P. 705, 708 (1903); Charles B. Bellinger & William W. Cotton, The Codes
and Statutes of Oregon, Vol. I, 175 (San Francisco, 1902), Title II, Chapter 2, §§221-224, Laws of Oregon, at
http://books.google.com/books?id=gZw4AAAAIAAJ&pg=PA175&dq=Oregon+homestead+exempt+1893&hl=en&
ei=EXubTpzSCcW3twfJztTCBw&sa=X&oi=book_result&ct=result&resnum=2&ved=0CEEQ6AEwAQ#v=onepag
e&q&f=false (accessed 4/4/2012).
457
103
they acquired title to real property at all. The incorporation of Oregon law provided general laws
for conveying title to real estate between private parties but did not control the transfer of land
held by the federal government to individuals. The First Organic Act created a federal land office
but no one was entitled to acquire title through the settlement donation or pre-emption processes
available in other western states.
4.2.2 Expansion of the Federal Homestead Laws to Alaska
As federal governance increased in Alaska so too did awareness of the region’s economic
resources. Within two years of adopting the First Organic Act, a bill was filed in the House of
Representatives to extend the provisions of the Homestead Act to part of Alaska in order to
encourage migration needed to support economic development.460 The congressional report
accompanying the bill summarized the findings of the House Committee on the Territories about
Alaska’s resources:
…Alaska possesses very rich … deposits of gold, silver, iron, and other valuable
minerals, a large quantity of timber, and an enormous supply of food-fishes. … The
climate along the coast and in Southeastern Alaska is mild and healthful.461
As there was no official survey or exploration of the Alaskan interior by the federal government
at this time, the committee’s findings apparently were anecdotal. Finding no need to expand the
civil government established by the First Organic Act, the committee nevertheless recommended
extending the Homestead Act to an undefined portion of Alaska to be determined by Secretary of
the Interior, as approved by the President. The primary reason was pragmatic: emigration to
Alaska would be discouraged if settlers could not acquire title to a home they built or land they
improved over time. While the committee speculated that opening the partially-settled areas of
the region would greatly increase the volume of emigration, settlement, and land purchases, a
second, even more pragmatic intent was stated: further settlement presumably would spur
exploration of the interior without much further government expense.
The bill did not pass, and Congress continued to wrestle not only with the desirability of
extending the Homestead Act to Alaska but also with the form of government best suited to the
district. An 1888 report by the House Committee on the Territories462 advocated for the formal
“Homestead Laws in Alaska,” H.R. 49-9861 (1st Sess. 1886).
“Homestead Laws in Alaska,” H.R. Report 49-3232 (1st Sess. 1886). The final sentence of the report may have
been rhetorically-hopeful if not entirely factual.
462
“Organization of the Territory of Alaska,” H.R. Report 50-1318 (1st Sess. 1888).
460
461
104
organization of Alaska as a federal territory for three reasons. First, the 1867 Treaty provided
that those choosing to remain in Alaska should receive
“…all the rights, advantages, and immunities of citizens of the United States, and shall be
maintained and protected in the free enjoyment of their liberty, property, and religion.”
Unfortunately, from 1867 to 1884 Alaska was without any form of civil government and thus the
residents choosing to remain had no means to secure and enforce their rights as citizens, in
apparent contradiction to the provisions of the Treaty. Passed in part to alleviate this condition,
the First Organic Act had proven cumbersome in execution, leading to the second reason for a
territorial organization: the need for a system of laws fitting physical, political, and economic
conditions in Alaska rather than the markedly different concerns of a state with established
communities. The committee noted the First Organic Act created powers, such as the Governor’s
authority to compel service in the militia when necessary, and duties, such as the requirement for
the clerk of the district court to record deeds and other instruments of transactions in real estate,
without additional, necessary legislation providing the means by which these powers and duties
would be implemented. Finally, the committee once again reflected on Alaska’s wealth of
natural resources and the need for laws sufficient to encourage the investment and development
needed for economic growth.
Extending the Homestead Act to Alaska was raised again in 1890. This time, the House
Committee on the Public Lands considered Senate bill 1859, providing for the acquisition of land
for town sites and commercial purposes in the district. In its report,463 the committee concluded
the Senate bill would assist desired economic development but was deficient in not providing for
settlers to acquire agricultural and residential property. The committee advocated not only
extending the right to acquire property through settlement pre-emption and donation but also
creating a full system of laws, including a form of local representation, by organizing Alaska
formally as a full territory in the federal system. As with prior congressional studies, this report
dwelt at length on the apparent mineral resources of the region and particularly noted the mining
and recovery of gold both in the region around Juneau and the valley of the Yukon River.464
Gold, while chemically not very reactive, was the strong catalyst for legislation by Congress
that furthered development of economic infrastructure and extended the Homestead Act to
“Acquisition of land for town sites and other purposes in Alaska,” S.R. Report 51-2450 (1st Sess. 1890).
The provisions discussed in the report were passed and became law on March 3, 1891. Ch. 561, §§11-15, “An act
to repeal timber-culture laws, and for other purposes” 26 Stat. 1095, 1099-1101.
463
464
105
Alaska. By 1898, the influx of gold prospectors and miners to the Klondike region caused
Congress to address the need for transportation in Alaska by providing for the development of
railroads as well as extending the homesteading laws to the region. 465 The House originally
proposed a homestead allotment of 160 acres while the Senate version of the bill reduced the size
of a parcel to 40 acres; the bill passed by Congress on March 14, 1898, compromised at 80
acres.466 Part of the continuing extension of federal law and judicial authority into Alaska, this
legislation responded to the increasing exploitation of fishery resources and mining for precious
metals and copper in widely separated areas of Alaska’s interior by improving incentives for
workers to settle permanently in the region. Developing public policy in Congress resulted not
only in encouraging settlement by extension of the Homestead Act but also creative approaches
to expanding the impact of the federal court system.467
For the first time, Congress protected some residential real property from creditor’s claims.
The protection was limited to property conveyed and patented under the Homestead Act,468
which shielded the land from execution only as to debts incurred prior to the issuing of the
patent.469 The courts, notably those in Oregon, consistently applied the scope of this statutory
exemption.470
The exemption precluding levy for prior debts attached to the property as of the date the
patent for the homestead was actually issued by the government, as stated in statute, rather than
“Homesteads, etc., in Alaska,” H.R. Report 55-137 (2d Sess. 1898).
30 Stat. 409 (May 14, 1898); “Homesteads in Alaska,” H.R. Report 57-778 (1st Sess. 1902).
467
Michael Swaiger, “Salmon, Sage-Brush, and Safaris: Alaska’s Territorial Judicial System and the Adventures of
the Floating Court, 1901-1915,” Vol. 26, No. 1, Alaska Law Review (2009), 97-133.
468
Ch. 75, §4, 1862 Homestead Act, 12 Stat. 393, (May 20, 1862):
Sec. 4. And be it further enacted, That no lands acquired under the provisions of this act shall in any event
become liable to the satisfaction of any debt or debts contracted prior to the issuing of the patent therefor.
One court observed Congress’ purpose in adopting §4 as part of the Homestead Act was: “In pursuance of this
power, and with a view to encourage the settlement of the public domain, congress has invited heads of families to
settle upon small parcels thereof, and make for themselves homes, with the assurance that in no event shall the land
become liable to the satisfaction of any debt contracted prior to the issuing of the patent, although in the mean time
the settler may become the owner of the equitable title.” Wallowa National Bank v. Riley, 29 Ore. 289, 292, 45 P.
766, 767 (1896). This statutory prohibition against creditors levying against homesteaded property for debts incurred
by the owner prior to the homestead patent being issued continued while the statute was in force. Mealey v. Martin,
468 P.2d 965 (Alaska 1970). See, 43 U.S.C. §175.
469
“In Larsen v. The O. R. & N. Co., decided at the present term, it was held, in effect, that a settlement made by a
homestead claimant upon the public lands of the United States and compliance with act of congress on the subject,
segregated the same from the public lands and cut off intervening claims, and such is the ruling of the land
department of the United States.” Faull v. Cooke, 19 Ore. 455, 463, 26 P. 662, 663 (1890).
470
1862 Homestead Act, §4; Faull v. Cooke, at 19 Ore. 466, 26 P. 664: “In such case the homestead is exempt from
liability for debts contracted prior to the issuing of the patent. Clark v. Bayley, 5 Ore. 343.”
465
466
106
on the date the homesteader completed all requirements for the patent.471 As with rural
homesteads in Texas and all homesteads in Florida, there was no limitation on the value of the
property protected. While the land comprising the claim subject to federal patent could not be
levied upon to satisfy prior debts, growing crops, which could be severed from the land, were
subject to levy. Crops, when harvested, were legally considered personal property, not part of the
land; for this reason a farmer could borrow money using a future crop, not the land, as collateral,
risking only the produce of one year and not the source of one’s livelihood. Thus, the Homestead
Act protected the land, not its products.472 This type of federal statutory provision, exempting
lands from liability for debts incurred prior to the issuance of the patent, was repeated in other
federal acts adopted to encourage development of western lands during the nineteenth century,
such as the “Act to encourage the growth of timber on the western prairies.”473
In an early and interesting application of 1898 Bankruptcy Act to Oregon’s statutory
exemption for residential homesteads, a state court found the federal Bankruptcy Court had
jurisdiction to determine the applicability of the state statute to the debtor’s property. If the state
homestead exemption applied, the property was set aside as exempt from administration in the
bankruptcy estate and court’s jurisdiction over it was at an end.474
Soon after its passage the efficacy of the 1898 law extending the Homestead Act to Alaska
was questioned. The annual report of 1898 by the Governor for Alaska observed that extending
the federal settlement donation laws to Alaska, while seeming to provide greater incentive for
471
Wallowa National Bank v. Riley, 29 Ore. 289, 293, 45 P. 766, 768 (1896).
In re Daubner, 96 F. 805 (D. Ore. 1899), at
http://books.google.com/books?id=2R04AAAAIAAJ&dq=Oregon%20homestead%201893&pg=PA805#v=onepage
&q&f=false (accessed 3/25/2012). The debtor filed under the then-new Bankruptcy Act of 1898 and claimed
protection under the Oregon homestead exemption from debts incurred after the date of that 1893 act. Because two
notes were executed prior to the state enactment of homestead exemption, the debtor argued these remaining debts
could not be charged against the property because the patent for the land was issued after the dates the debts were
incurred. Comparing and interpreting the texts of both the Homestead and Bankruptcy Acts, the district judge found
that the terms of the Bankruptcy Act specifically acknowledged the exempt status of certain property and therefore
the debtor’s homestead was exempt from administration by the trustee. The crops growing on the land, however,
enjoyed no such protection and could be sold for the benefit of creditors in the bankruptcy case.
473
Ch. 55, 18 Stat. 21(1874). In resolving a dispute over title to lands acquired for purpose of introducing timber
growing, the Supreme Court of Oregon, interpreting an amended version of the timber-growing act, ruled: “The act
of congress under which it was acquired provides as follows: ‘Sec. 4. That no land acquired under the provisions of
this act shall, in any event, become liable to the satisfaction of any debt or debts contracted prior to the issuing of the
final certificate therefor": 20 Stat. 114. This is a valid provision, and a condition annexed to the grant which
congress was authorized to make, and absolutely prohibits the seizure and sale of the land, against the will of the
owner, for the satisfaction of a debt contracted by the donee prior to the issuing of the final certificate…” Adams v.
Church, 42 Ore. 270, 272, 70 P. 1037 (1902).
474
Groves v. Osburn, 46 Ore. 173, 175, 79 P. 500, 501 (1905).
472
107
settlement and development, were difficult to implement and prevented people of limited means
from obtaining a claim because the region lacked reliable land surveys and no system to perform
accurate surveys had been provided.475 Incorporating details of the Governor’s reports, the U.S.
Secretary of the Interior in 1899 noted the lack of surveys and that individuals still could not
obtain clear title to the property they occupied.476
4.2.3 1900: The Alaska Homestead Exemption
Following a revision and adoption of a comprehensive criminal code for Alaska in 1899, in
1900 Congress extensively reorganized and restated the civil code applicable to the district and
created a more comprehensive civil government.477 One reason for the improvement was the
increasing need to strengthen the regulation of economic activity and protection of rights due to
the expansion of the gold mining industry.478 For the first time a general exemption to levy for
residential homesteads was made available to Alaska residents.479
The act exempted from judicial sale to satisfy any debt, other than a mortgage on the
property, the “homestead” of a family or the proceeds from the sale of such property.
“Homestead” in this context was a statutory designation for the family home to be protected
from creditors. Interestingly, the section expressly required the property to “be the actual abode
of and owned by” the family or some family members.480 The exempt property was limited to a
maximum value, $2,500, and to one of two maximum extents depending on the location of the
“Report of the Governor of Alaska” (October 1, 1898), supra 199-200.
Annual Reports of the Department of the Interior for the Fiscal Year Ended June 30, 1899, LXXI-LXXIV
(Washington, D.C. 1899), at
http://books.google.com/books?id=J_vwAAAAMAAJ&pg=PR9&dq=Annual+report+of+the+Secretary+of+the+Int
erior+1899&hl=en&sa=X&ei=REh8T_XwF9CUtwfU6sH0DA&ved=0CGoQ6AEwCQ#v=onepage&q=Alaska&f=f
alse (accessed 4/4/12).
477
Ch. 786 “An Act Making further provision for a civil government for Alaska, and for other purposes,” 31 Stat.
321, (June 6, 1900). One of the most popular compilations of these laws was privately prepared by Thomas Carter
and known as the “Carter Code.” Thomas Henry Carter, The Laws of Alaska: Embracing the Penal code, the Code
of Criminal Procedure, the Political Code, the Code of Civil procedure, and the Civil Code (Chicago, Ill., 1900); at
http://books.google.com/books?id=aCNEAAAAYAAJ&dq=Alaska%20civil%20code%201900&pg=PR8#v=onepa
ge&q&f=false (accessed 2/5/2012). The “Carter Code” was not an official government publication but an individual
compilation that was regularly referenced in Alaska. Taken as similar authority was the compilation authorized by
Congress entitled “Compilation of Acts of Congress and treaties relating to Alaska from Mar. 30, 1867, to Mar. 3,
1905,” prepared by the Bureau of Insular Affairs in the War Department under the direction of Paul Charlton, law
officer; this version of the laws was known as the “Charlton Code.” Monthly Catalogue, United States Public
Documents, 540 (April 1913), at
http://books.google.com/books?id=1s4fqNKZyg0C&dq=Charlton%20code&pg=PA540#v=onepage&q=Charlton%
20code&f=false (accessed 3/25/2012).
478
Swaiger, 104.
479
Ch. 786, 31 Stat. 375, §272 (June 6, 1900).
480
Oregon defined homestead as “‘the home place,’ or ‘the house and adjoining grounds where the head of the
family dwells.’” Mansfield v. Hill, 56 Ore. 400, 41, 108 P. 1007, 1008 (1910).
475
476
108
property. Outside of a town or city “laid off into blocks or lots” the exempt homestead could
equal 160 acres. If within such a town or city, the maximum extent was one-fourth of an acre.481
The same statutory section also provided the process to assert the claim of exemption and a
valuation procedure to determine whether the value of the claimed property exceeded the
exemption amount. There was no public filing requirement; the debtor or a specified
representative claimed the exemption by informing the official attempting to levy an execution
against the property and providing a legal description to the claimed property. The officer would
inform the judgment creditor of the claim and make an initial determination whether the property
likely exceeded the exemption amounts. If so, the U.S. Marshal could be requested to appoint
three disinterested people to value the property and sell all in excess of the allowed value or area.
The exemption also applied after the death of the owner as to any debts that could not be
enforced against the homestead during the owner’s life.
Unlike the structure used in the First Organic Act of 1884, the new homestead exemption
provision did not merely incorporate the law existing in Oregon but expressly stated the terms of
the exemption and its implementation. From the wording and structure of the new exemption
adopted for Alaska, Congress apparently was influenced by the existing Oregon homestead
statute.482 For example, the Oregon exemption adopted in 1893 reads:
The homestead of any family shall be exempt from judicial sale for the satisfaction of any
liability hereafter contracted, or for the satisfaction of any judgment hereafter obtained on
such debt. Such homestead must be the actual abode of, and owned by, such family, or
some member thereof.483
Except for an addition in the 1900 federal act extending the protection to the proceeds from the
sale of a homestead, the above text is virtually identical to the first two sentences of the 1893
Oregon exemption:
The homestead of any family, or the proceeds thereof, shall be exempt from judicial sale
for the satisfaction of any liability hereafter contracted or for the satisfaction of any
judgment hereafter obtained on such debt. Such homestead must be the actual abode of
and owned by such family or some members thereof.484
481
Ch. 786, 31 Stat. 375, §272 (June 6, 1900).
Title II, Chapter 2, §§221-224, Laws of Oregon (1893).
483
Title II, Chapter 2, §221, Laws of Oregon (1893).
484
Ch. 786, 31 Stat. 375, §272 (June 6, 1900).
482
109
Both laws used closely similar text to exclude mortgages on the homestead from the exemption
and to extend the protection to homesteads after death of the owner:
Oregon Law (1893)
This act shall not apply to decrees for the foreclosure of any mortgage properly executed; but
if the owners of such homestead be married, then it shall be executed by husband and wife.485
The homestead aforesaid shall be exempt from sale on any judicial process after the death of
the person entitled thereto for the collection of any debts for which the same could not have
been sold during his lifetime, but such homestead shall descend as if death did not exist.486
Alaska Civil Code of 1900
… This Act shall not apply to decrees for the foreclosure of any mortgage properly executed;
but if the owners of such homestead be married, then it shall be executed by husband and
wife. …
… The homestead aforesaid shall be exempt from sale or any legal process after the death of
the person entitled thereto for the collection of any debts for which the same could not have
been sold during his lifetime.487
The act also restructured the personal property exemptions imported into the district through
the First Organic Act by including the wage and property exemptions in one section, changing
certain definitions and applicable time periods, and increasing certain amounts.

The term “householder” from the Oregon statute was removed. In parts of the section the
term was replaced by the phrase “head of household.”

The time period for which wages would be exempt was increased from thirty to sixty
days prior to levy.

The “necessary wearing apparel” exemption was modified to remove the value limitation
and to allow the exemption for the debtor and the debtor’s family members. Watches or
jewelry with a value exceeding $100 were excluded from exemption under this clause.

The exemption for tools, implements, team, etc., was revised to increase the maximum
exempt value to $500 and to provide for a six-month supply of food to support the team.
The definition of “team” was expanded to include two reindeer or six dogs.

The exemption for other livestock and household items was modified to exempt food
sufficient to support the exempt livestock for six months.
485
Title II, Chapter 2, §223, Laws of Oregon (1893).
Title II, Chapter 2, §226, Laws of Oregon (1893).
487
Ch. 786, 31 Stat. 375, §272 (June 6, 1900).
486
110

The exemption for local public property was simplified to all property of any public or
municipal corporation.

The exclusion from the exemption afforded to judgments and levies for debts incurred to
purchase an otherwise-exempt item was revised to include the proceeds from selling such
an item.488
The homestead exemption created in 1900 was applicable to any qualifying residential
property in Alaska and was not dependent on whether the land was obtained under the separate
Homestead Act. This resulted in an interesting dichotomy: claimants under the Homestead Act
were only entitled to obtain 80 acres from the government but could protect up to 160 acres
under the separate homestead exemption created by the 1900 law. A settler could receive the
benefits of each separate exemption but only on a portion of the property.489
4.2.4 Expansion of Settlement Donation Grants in Alaska
Congress remained engaged on the subjects of Alaskan economic development and
settlement after passing the 1900 Act. By this time the legislators realized the error of a number
of presumptions: Alaska was not barren waste but a region endowed with natural and mineral
resources; while there was significant movement of people from the contiguous states and
territories to Alaska, many came not as permanent settlers but in pursuit of gold or copper in the
major mining areas; the climate made much more difficult the entry and improvement of
property necessary under the law to obtain a settlement donation patent. A later bill introduced in
the House proposed to increase the size of Alaskan settlement donation grants to 160 acres, due
to the climate and the need for sufficient land for support in that environment.490 This
recommendation was renewed in 1902, only this time the Senate countered by proposing to
increase the grant to 320 acres,491 as ultimately provided in the law that passed.492
4.2.5 Territorial Organization: The Second Organic Act
In 1912, the passage of the “Second Organic Act” formally organized the Territory of
Alaska.493 The act extended the U.S. Constitution and laws to the Territory of Alaska, placed the
Territorial capital at Juneau, and organized the Territorial Legislature. The powers of the
488
Ch. 786, §273, 31 Stat. 375-376 (June 6, 1900).
See discussion in In re Daubner, supra.
490
“Homesteads in Alaska,” H.R. Report 56-569 (1st Sess. 1900).
491
“Extending Homestead Laws to the District of Alaska, Etc.,” H.R. Report 57-2755 (2d Sess. 1903), as referred to
the Senate Committee on Public Lands.
492
Ch. 1002, 32 Stat. 1028 (March 3, 1902); “Homestead claims in Alaska,” S. Report 60-1029 (2d Sess. 1909).
493
Ch. 387, 37 Stat. 512 (August 24, 1912).
489
111
legislature were limited; all legislation was submitted to the President, who was responsible for
transmitting these acts to Congress for final review. Still, after forty-five years Alaskans finally
had a greater stake in their government. The Second Organic Act did not alter the extension of
the Homestead Act to Alaska or the homestead and personal property exemptions provided by
the 1900 reform of the civil code.
4.3 The Territorial Period: 1912 – 1959
By the time the Territory of Alaska was organized formally in 1912, the basic templates for
its laws protecting homestead and basic personal property were in place. These were provided by
statute and subject to the final control of Congress. Similar to the laws in Texas and Florida, the
types of property and amounts protected would change little over the next forty-seven years. In
Alaska this reflected the priority given to economic development and progress toward statehood.
4.3.1 Changes to the Settlement Donation Laws Affecting Alaska
The U.S. Department of the Interior, General Land Office, continued to control the entry,
processing of applications, and grants of patent for settlement donations in Alaska, but there was
occasional overlap with the authority of Department of Agriculture, Forestry Service, on some
uses and sale of settlement claims.494 Despite the previous efforts of Congress to extend and
modify the Homestead Act for the conditions in Alaska, filing a notice for a settlement donation
claim remained an involved, lengthy process, even if there was no dispute to the claim or
patent.495
By 1916, Congress discerned the statutory requirement of clearing and settling a claim of 320
acres within the time required under the Homestead Act was sufficiently difficult to warrant
another change applicable in Alaska. James Wickersham, previously one of the district judges
added in 1900 and now serving as the Alaska Territorial representative in Congress, filed H.R.
228, proposing two changes to settlement donation grants in Alaska. First, the total size of an
allowed claim would be reduced to 160 acres. Second, to encourage migration to the Territory
the bill would permit any U.S. citizen (or one who expressly committed to become a naturalized
citizen) to claim an additional grant of one-quarter of a legal section496 even if the claimant
previously received a federal homestead patent in any federal jurisdiction.497
Franklin K. Lane, Secretary of the Interior, “Freeing Alaska From Red-Tape,” The North American Review 201,
No. 715 (June, 1915), 841-852, at 843, 845. See, http://www.jstor.org/stable/25108479 (accessed 8/17/2011).
495
Lane, at 844 – 846.
496
“Amended Homestead Laws in Alaska,” H.R. Report 64-287 (1st Sess. 1916). Under the township and range
494
112
Congress subsequently amended the Homestead Act, as applicable to claims in Alaska,
easing stringent requirements for buffer spaces between claims and waterfronts. Prior
amendments limited the extent of claims along navigable waters and mandated minimum space
between settlement donation claims with such waterfronts.498 Under the 1920 revision, the
Secretary of the Interior was authorized to waive the limitation on the length of waterfront in an
applicant’s claim.499
4.3.2 Changes in Property Exemption Laws
The structure of exemption laws for Alaska, including the property and values protected, was
established in 1900 and remained generally unchanged throughout the organized territorial
period. In 1919 the exemption statute was amended to allow a debtor to file an affidavit and
exempt the first $100 of income for personal services/wages earned within the thirty days prior
to levy or execution of judgment on the debtor’s assets, when necessary to support the debtor’s
family.500 This wage exemption was increased to $150 in 1949.501 In 1953 the exemption was
increased again to $200 but this time the legislature included language restricting the debtor to
receiving and retaining no more than the exempt amount every thirty days. 502 The homestead
exemption was changed in 1957, shortly before statehood. The maximum value of property the
exemption protected was increased to $8,000 but the allowed extent of the protected property
remained the same: 160 acres outside of a town or city, one quarter of an acre within a
municipality. The statute retained a valuation process to determine if claimed homestead
exemptions exceeded the allowed values. Once again, the debtor was required to declare and
describe the property claimed as protected homestead at time of levy. 503 Insofar as affording
property exemptions to debtors, during the territorial period the concept established in Alaskan
law was to increase the maximum values but not expand exemptions to additional property.
method of land description, a section is one square mile and contains 640 acres. A quarter section is thus 160 acres.
497
Ch. 228, 39 Stat. 352 (July 18, 1916).
498
30 Stat. 409 (May 14, 1898) limited each claim fronting a navigable body of water to no more than 80 rods and
required a space of at least 80 rods between such claims. (1 rod = 16.5 ft = 5.0292 m; see
http://www.onlineconversion.com/article_US_units.htm). This requirement was revised by 32 Stat. 1028 (March 3,
1903), to limit frontage to 160 rods following the shoreline of the navigable water, retaining the requirement of an
80 rod space between claims.
499
Ch. 265, 41 Stat. 1059 (June 5, 1920); “Amendment to homestead laws as extended to Alaska,” H.R. Report 66868 (2d Sess. 1920).
500
1919 Session Laws of Alaska Territorial Legislature, Ch. 8, amending §1105(1), Chapter 31, Code of Civil
Procedure, Compiled Laws of Alaska.
501
1949 Laws of Alaska, Ch. 45, amending §55-9-78, ACLA (1949).
502
1953 Laws of Alaska, Ch. 74, amending §55-9-78, ACLA (1949).
503
1957 Laws of Alaska, Ch. 61, amending §55-9-79, ACLA (1949).
113
4.3.3 Constitution and Statehood
On March 30, 1916, James Wickersham introduced into Congress a bill for Alaskan
statehood that did not receive a committee hearing.504 Support for statehood grew for the next
thirty years. In 1949 the Territorial Legislature created the Alaska Statehood Committee,505 but
not until 1955 was legislation passed calling a convention to draft a proposed state
constitution.506
Prior to the 1955 session of the Territorial Legislature, then-Representative Thomas B.
Stewart507 participated in consulting with constitutional experts, such as the Public
Administration Service in Chicago,508 and contributors to other recent state constitutional
conventions as well as obtaining relevant materials. The goal of this research was to develop the
best structure and terms for the proposed state constitution as well as ensure an orderly
convention providing the best representation for the people of the Territory. 509 The convention
met in November 1955, producing a constitution that was approved by a more than two-to-one
margin of the voters on April 21, 1956.510 Alaska was admitted to the Union as the forty-ninth
state on January 3, 1959.511
Although the Alaska Constitution was characterized as an excellent and modern document,512
no provision is made for exempting homesteads or personal property from the reach of creditors.
The new state continued to implement such protections solely through statute.513
504
Claus M. Naske, 49 at Last: The Fight for Alaska Statehood, 50 (Epicenter Press, Kenmore, WA, 2009).
1949 Alaska Session Laws, Ch. 108; Thomas B. Stewart, “Recollections on the Writing of the Alaska State
Constitution” (1972), at http://www.indiana.edu/~workshop/colloquia/materials/papers/stewart_paper.pdf (accessed
9/14/2012).
506
Naske, 220.
507
Judge Stewart (d. 2008) was a former member of the Territorial House of Representatives, Secretary of the
Alaska Constitutional Convention in 1955, a state senator, and a Superior Court Judge.
508
Public Administration Service, Constitutional studies prepared on behalf of the Alaska Statehood Committee for
the Alaska Constitutional Convention convened November 8, 1955 (1955).
509
Stewart, 6.
510
John S. Hellenthal, “Alaska’s Heralded Constitution: The Forty-Ninth State Sets An Example,” American Bar
Association Journal (1958), reprinted at http://www.alaska.edu/creatingalaska/statehood-files/49th-state-setsexample/ (accessed 9/14/2012).
511
Public Law 85-508, 72 Stat. 339, was signed by President Eisenhower on July 7, 1958 and Alaska was admitted
on January 3, 1959.
512
Hellenthal, passim.
513
Alaska is not alone in limiting debtor exemptions to statutory provisions. Twenty-seven other states provide
debtor exemptions only by statute, if at all: Arizona, Connecticut, Delaware, Hawai’i, Idaho, Illinois, Indiana, Iowa,
Kentucky, Maine, Maryland, Massachusetts, Mississippi, Nebraska, Nevada, New Hampshire, New Jersey, New
Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Vermont, Virginia.
505
114
4.4 Alaska Property Exemptions: 1959 – Present
From statehood to the present, Alaska expanded and increased both the homestead and
personal property exemptions only in statute, never elevating these protections into the state
constitution. The exemption laws were first changed to increase the wage exemption for the head
of a family to $350; a separate provision was added limiting the wage exemption to only $200
for single person.514 1962 saw the enactment of entirely new exemption laws.
4.4.1 Property Exemptions: 1962 - 1982
As part of the 1962 complete revision of the Code of Civil Procedure,515 the Alaska
Legislature revised and re-codified the exemptions both for personal and homestead property.
The statutes expressly provided a comprehensive statement of all real and personal property that
was subject to execution.516 Procedurally, to assert an exemption the debtor or debtor’s
representative still declared exemptions in personal property or a homestead at the time of
attempted levy against the property, or after a levy but before sale as soon as debtor became
aware of the levy. The specific exemptions for personal property remained reminiscent of the
exemptions first incorporated from Oregon law in 1884: 517
(1) Wage exemption: $350 for head of household, $200 for single person, for 30 day period
immediately preceding levy.
(2) Books, pictures, musical instruments of debtor up to total value of $300.
(3) Clothing necessary for debtor & family. Watches & jewelry up to total value of $200.
(4) Tools, implements, apparatus, motor vehicles, books, office furniture, business files,
animals, laboratory, and any other article necessary for trade, occupation, or profession,
to a maximum value of $1,800. This included sufficient food to support the exempt
animals for six months.
(5) Property of debtor actually used or kept for use by family: animals, household goods,
furniture, and utensils to a maximum value of $1,200. This exemption also included food
to support the animals and provisions to support the family, both for six months.
(6) All property of a public or municipal corporation.
(7) As with all prior versions of the statute, the exemptions did not apply to judgments and
514
1961 Laws of Alaska, Ch. 87, amending §55-9-78, first paragraph, ACLA (1949).
1962 Laws of Alaska, Ch. 101, adopting the Code of Civil Procedure.
516
1962 Laws of Alaska, Ch. 101, §15.07.
517
1962 Laws of Alaska, Ch. 101, §15.08.
515
115
executions brought to recover the price of the object levied upon.
The homestead exemption was little changed from the prior statute. The homestead was still
required to be the actual abode of and owned by the family or some family member of the
debtor. The maximum value of the exemption remained as $8,000, applicable to a maximum of
160 acres outside a town or city but only to a quarter of an acre within a municipality. 518 The
exemption excluded judgments and levies resulting from the foreclosure of a mortgage on the
property. The statute provided a revised process to determine whether the value of the claimed
property exceeded the allowed amount of the exemption and, if so, established the method of
sale and dividing the proceeds of the property. Once again, the homestead remained exempt after
the death of person entitled to claim the exemption.519
Incremental changes were made to the exemption statutes over the next twenty years. The
wage exemption was modified in 1969 to ensure the debtor received the applicable statutory
amount during each month the levy was in effect: $350 for the head of a household and $200 for
an individual.520 The aggregate maximum value of the exemption for tools, implements,
apparatus, motor vehicles, books, office furniture, business files, animals, laboratory, and any
other article necessary for trade, occupation, or profession was increased to $2,500 in 1971. 521 In
1972 two changes were made to the homestead exemption. The maximum value of the exempt
homestead was increased to $12,000. Additionally, a new subsection was added to allow the
same homestead exemption for a mobile home, trailer, or similar dwelling if used by a family as
their actual abode, but the exempt value for such homestead property was limited to $8,000. 522 A
significant revision was made to the income exemption in 1974 by restricting a levy to no more
than 25% of the debtor’s weekly disposable income, or $114, whichever was less. Orders of
support, orders of a bankruptcy court, and levies for state or federal taxes were not subject to this
Some courts in Alaska have used the “character,” or actual use, of the land to determine the extent of the
homestead exemption. Regardless of location, if the use of the land is urban in nature, the court would apply the
exemption for “town” land (no more than a quarter acre could be exempt). If the use of the land was rural in nature,
the court would apply the “rural” exemption (maximum size up to 160 acres) even if the land was presently located
within a municipal boundary. Dalton v. Interior Credit Bureau, Inc., 615 P. 2d 631, 633 (Alaska 1980).
519
1962 Laws of Alaska, Ch. 101, §15.09.
520
1969 Laws of Alaska, Ch. 96, amending §09.35.080(1), Alaska Statutes.
521
1971 Laws of Alaska, Ch. 24, amending §09.35.080(4), Alaska Statutes.
522
1972 Laws of Alaska, Ch. 129, amending §09.35.090, Alaska Statutes.
518
116
limitation.523 In 1976 the maximum exempt value of a homestead was increased to $19,000 for a
fixed house, $12,000 for a mobile home.524
4.4.2 The 1982 Exemption Revisions
Since 1898 federal bankruptcy law had provided a permanent national standard for orderly
reorganization or liquidation of a debtor’s financial affairs, but by the early 1970s Congress
heeded increasing calls for a revised, modernized bankruptcy code.525 The Bankruptcy Act of
1898 relied upon the disparate state laws exempting a debtor’s property from seizure by creditors
to determine what property was subject to administration in a bankruptcy proceeding. 526 For
example, when Alaska increased the value of the allowed homestead exemption to $12,000 in
1972, Florida continued to define its homestead exemption by the area of land allowed to the
debtor regardless of value. Part of the reform discussion was the type and extent of property
debtors would be able to protect, or “exempt,” from inclusion in the bankruptcy estate, including
whether property held by a married couple as tenancy by the entireties 527 should continue to be
protected from the creditors of one spouse, as is the practice in certain jurisdictions such as
Alaska528 and Florida.529 With promulgation of a “Uniform Exemptions Act” in 1976, the
National Conference of Commissioners on Uniform State Laws530 entered this discussion,
proposing a structure for debtor’s exemptions that states could adopt and coordinate with the
523
1974 Laws of Alaska, Ch. 45, creating §09.35.080(b), Alaska Statutes.
1976 Laws of Alaska, Ch. 231, amending §09.35.090, Alaska Statutes.
525
Congress is granted the authority to “establish … uniform Laws on the subject of Bankruptcies throughout the
United States.” Art. I, §8, cl. 4, U.S. Const.
526
Chapter III, §6, Bankruptcy Act of 1898.
527
“Tenants by the entireties” is a unique form of ownership that may be created only when a couple acquires
property during the time they are legally married. Both legally and historically, “TxE” (in the obtuse jargon of the
legal cognoscenti) is created only if the property is acquired when 6 facts, or “unities,” exist simultaneously: “Six
unities must exist simultaneously for property to be owned as tenants by the entireties in Florida: (1) unity of
possession (joint ownership and control); (2) unity of interest (the interests must be identical); (3) unity of title (the
interest must have originated in the same instrument); (4) unity of time (the interests must have commenced
simultaneously); (5) survivorship; and (6) unity of marriage (the parties must be married at the time the property
became titled in their joint names). Beal Bank, 780 So.2d at 52. “Should one of these unities never have existed or
be destroyed, there is no entireties estate.” Karen S. Jennemann, U.S. Bankruptcy Judge, “Memorandum Opinion
Overruling Trustee’s Objection to Debtor’s Exemptions,” n. 9, In re Freeman, Case No. 6:07-bk-05516-KSJ, at
http://pacer.flmb.uscourts.gov/pdf-new/40177968.pdf (accessed 5/28/2012).
528
Alaska still recognizes tenancy by the entireties. §34.15.140, Alaska statutes.
529
§689.11, Fla. Stat. (2012).
530
The National Conference of Commissioners on Uniform State Laws is a nationwide organization composed of
members commissioned from each state to consider and propose model uniform legislation for the several states to
consider and adopt, sometimes with modifications to reflect local legal doctrine. For example, the National
Conference prepared the “Uniform Electronic Transactions Act” that later was adopted in Florida as well as a
number of other states. §668.50, Fla. Stat. (2012).
524
117
standardized exemptions proposed for the revised bankruptcy laws.531 The Uniform Act
proposed a diminution of the efficacy of tenancy by the entireties by allowing the creditors of
one spouse to levy on that spouse’s interest in the jointly-held property while preserving the
other spouse’s interest.532
The Bankruptcy Code was adopted in 1978 to replace the prior Bankruptcy Act. Unlike its
predecessor, the Code provided standardized exemptions describing the type and extent of
property debtors could protect from administration by the Bankruptcy Court, patterned in part on
the Uniform Exemptions Act.533 States had the option to “opt out” and, with certain exceptions,
limit debtors filing bankruptcy in a federal district within the territory of the state to the property
exemptions provided by state law.534 The Code continued to allow exemption of property held as
tenants by the entirety from an individual’s bankruptcy estate.535
The Alaska Code Revision Commission536 subsequently recommended revisions to the
exemption statutes because the members concluded the existing Alaska exemptions were out of
date and should be revised to meet the modern needs of both debtors and creditors:
The commission has determined that the exemption laws of the state are out of date and do
not provide adequate protection for property in possession of an individual which is
necessary to provide the basic necessities of life for the individual and his family…
The Alaska Code Revision Commission has attempted to present suggested legislation which
balances the often-competing interests of both debtors and creditors. Creditors need simple
and inexpensive procedures for collecting unsecured debts while debtors must have
protection for their property so that they are not deprived of property which supplies the
basic necessities of life or be required to seek public assistance benefits.537
The recommendations of the Code Revision Commission led to the enactment of major
statutory revisions in 1982, implementing the current numbering structure for the exemption
531
Model Exemptions Act, Uniform Law Commission website at
http://uniformlaws.org/Act.aspx?title=Model%20Exemptions%20Act (accessed 5/27/2012). As noted in this
document, the name was changed from “Uniform” to “Model” Act after the 1976 promulgation. For continuity
herein the reference used is “Uniform Exemptions Act.”
532
Uniform Exemptions Act, supra, §18.
533
11 U.S.C. §522(d) and notes on legislative history. Thomson Reuters/West, Bankruptcy Code, Rules, and Official
Forms 2008-2009, 272 (2008).
534
11 U.S.C. §522(b).
535
Currently in 11 U.S.C. §522(b)(3).
536
A statutory commission authorized by §24.20.075, Alaska Statutes, repealed in 1995 by §33, h.23 SLA 1995.
537
Memorandum of John W. Abbott, Chair of the Alaska Code Revision Commission in 1981, as quoted by the
court in In re Henrickson. “Memorandum Regarding Objections to Debtor’s Claim of Exempt Property,” Case no.
A03-00955-DMD, U.S. Bankruptcy Court for the District of Alaska, 8 Alaska Bankruptcy Reports 325, 327
(MacDonald, J. March 5, 2007), at http://www.akb.uscourts.gov/opinions/8abr/8abr325.htm (accessed 5/27/2012).
118
statutes as well as substantially revising the actual exemptions.538 In creating Chapter 38 in Title
9: Alaska Exemptions Act, the legislature stated its intent to modernize the process for executing
on judgments while adequately protecting a debtor’s property and income necessary to support
both the debtor and his or her family. A key consideration was to prevent the debtor or the
debtor’s family from becoming dependent on public assistance.539
Under the 1982 revisions to the homestead exemption,540 an individual was entitled to a
homestead exemption for property located in Alaska, used as the principal residence of claimant
or claimant’s dependents, up to a maximum value of $27,000. If the property was owned by a
husband and wife as tenants by the entireties,541 or by two or more people other than as husband
and wife (tenants in common), each owner was entitled to claim an exemption for their interest
in the homestead but the aggregate value of all homestead interests in the property could not
exceed $27,000; multiple owners shared pro rata in the total allowed exemption amount. This
appears to be a compromise between retaining the traditional forms of property ownership and
policy proposals to limit the effect of tenancy by the entireties ownership on property exempted
from the reach of creditors and bankruptcy administration. Reflecting in part the influence of the
Uniform Exemptions Act, this provision expressly protects the interest of one joint owner in the
property if a creditor is able to levy against the interest of another joint owner.
The statute also was revised to allow real property otherwise claimed as exempt to be sold to
satisfy a judgment, subject to the debtor’s right to repurchase the property by paying either the
difference between the highest bid and the amount exempt or the amount of the creditor’s claim;
the time allowed for such repurchase (sometimes called right of redemption) was sixty days after
the sale. If the sale was confirmed and the property not repurchased, the Clerk of the Court was
required first to pay the debtor the full amount of the exemption. The statute expressly provided
that the Clerk’s deed after an execution sale was sufficient to convey full title to the buyer.
538
The comprehensive revision of the Alaska exemptions statutes was patterned on the Uniform Exemptions Act.
Anderson v. Anderson, 736 P.2d 320, 323 (AK 1987); Ilardi supra at 891, n. 5. As of 2012, Alaska is only state to
enact a form of this model act.
539
1982 Laws of Alaska, Ch. 62, §1.
540
§09.38.010, Alaska Statutes.
541
Under Alaskan law, a judgment creditor of one spouse who fails to attempt to execute on the home held in
tenancy by the entireties before debtor dies cannot seek to levy after that death, as the debtor’s interest in the
property was extinguished by death and the property became solely owned by the surviving spouse by operation of
law. Smith v. Kofsad, 206 P.3d 441, 445 (AK 2009).
119
Personal property exemptions were expanded significantly and restructured. Unlike the prior
law, the new act created a category of personal property an individual debtor could fully exempt
regardless of value. Some of these were property interests that would be of little interest or utility
to others, such as a burial plot for an individual or family, and consequently there was the
potential for incurring greater costs levying upon or administering such property than the value
that reasonably could be recovered for the creditor(s).542 Other fully-exempt personal assets
represented different entitlements to government payments; placing these beyond the reach of
creditors was consistent both with the stated public policy of the new act, to protect the debtor’s
interests in property necessary to provide for his or her needs, as well as the principle extending
back into the days of the federal Homestead Act: if the public granted a debtor a particular
property (or income) interest based on the debtor’s personal qualifications or status, the
government had a compelling interest to ensure public assets were distributed to those qualified
for them, not third party creditors.543
Other exemptions of personal property, many continued from the former statutes, remained
subject to value limitations.544 The statute was streamlined by creating specific maximum values
for groupings of exemptions, allowing debtors more flexibility in choosing the type and values of
their exempt property.545 The updated statute recognized the increased use of various forms of
insurance and annuities for family financial planning, expressly providing an exemption for all
unmatured life insurance and annuity policies owned by the debtor.546 If the total dividend and
loan value of a policy exceeded $5,000, a creditor could obtain a court order compelling payment
of all such amounts exceeding the first $5,000 in value. Providing for a limited form of levy in
certain insurance policy values balanced the increased role of insurance in the long-term
protection of a family’s financial interests with the economic interests of the creditors. Following
the legislative intent as influenced by the modernization of the Bankruptcy Code and bankruptcy
asset exemptions, this provision for life insurance policies protected individual debtors (and their
families) while not unduly restraining the sources of recovery for creditors.
542
§09.38.015(a), Alaska Statutes.
These diverse types of property included government awards to victims of violent crimes, benefits payable as a
“longevity bonus” under Alaska statute, state liquor licenses, and public disability or retirement benefits.
§09.38.015, Alaska Statutes.
544
§09.38.020, Alaska Statutes.
545
The separate small exemptions for items such as books, pictures and musical instruments, wearing apparel, and
household goods were consolidated under one maximum value of $1, 500.
546
§09.38.025, Alaska Statutes.
543
120
The 1982 revision did follow the example of Alaskan legislation from the preceding twenty
years and again updated the exemption for wages and earnings. Not only was the amount of the
exemption for weekly earnings increased to $175, the exemption also was expanded to include
other liquid assets such as deposits, securities, notes, drafts, accrued vacation pay, refunds,
prepayments, receivables (but these were available only if the debtor had no regular periodic
earnings).547 This change followed the pattern of the 1982 revision to “modernize” Alaskan
exemptions by taking into account the increased sophistication of personal income as opposed to
the emphasis on agricultural employment or wage earners in earlier statutes.
Specific statutes now provided a process to have a regular amount withheld from the debtor’s
wages and paid over by the employer,548 a method for debtors to connect, or “trace,” proceeds to
the sale or loss of the homestead or article protected by the exemption,549 and limited the
enforcement of certain liens.550 Claims for child support, wages (up to one month) unpaid to an
employee of the debtor, or for state or local taxes were enforceable by judicial levy against any
exempt property. An item of exempt property (but only that item) was subject to levy to enforce
claims for its purchase, repair, improvement,551 or special assessment for public work benefiting
the property.552 The exemption statutes benefited only Alaska residents; nonresidents were
entitled to the exemptions provided under the law of their home jurisdictions.553
The 1982 Act added an innovative feature affecting the various exemption sections:
provision for adjustment of the fixed dollar amounts applicable to a number of exemptions.
Value changes would be based on changes in consumer price index (CPI) calculated for the
Anchorage Metro Area by the Bureau of Labor Statistics, U.S. Department of Labor, using the
index for January, 1982 as the base index for all calculations. Changes to the values of affected
547
§09.38.030, Alaska Statutes.
§09.38.035, Alaska Statutes: Continuing Lien on Wages.
549
§09.38.060, Alaska Statutes: Tracing Exempt Property.
550
§09.38.070, Alaska Statutes: Limitation on Enforcement of Certain Security Interests in Exempt Goods.
551
Munn v. Thornton, 956 P. 2d 1213 (AK 1998). A contractor entered into an oral contract to build a house for the
homeowners, who later refused to pay the outstanding balance for work performed. After ruling in favor of the
plaintiff, the court found he had a paramount lien upon the homestead property. As a provider of "labor or materials
furnished to make, repair, improve, preserve, store, or transport the property," as provided in the statute, the
contractor was allowed to enforce a lien against property falling under the homestead exemption.
552
§09.38.065, Alaska Statutes: Claims Enforceable Against Exempt Property.
553
§09.38.120, Alaska Statutes: Protection of Property of Residents and Nonresidents.
548
121
exemptions would be made on July 1 of each even-numbered year but only if the change in the
CPI was 10% or more between the index for the previous December and the base index.554
Consistent with the changes in the 1978 Bankruptcy Code for exempting certain property
from bankruptcy administration, a separate statute limited the state law exemptions available to
debtors in local bankruptcies. These included the homestead, some of the personal property
exempted without value limits (such as a burial plot or a statutory governmental payment to a
crime victim), all personal property exempted by statute but within value limitations, annuities
and unmatured life insurance policies, and the wage exemptions.555 Unlike states such as Florida,
which exercised its authority allowed under the Bankruptcy Code and enacted an “opt-out”
statute prohibiting state residents from using the federal property exemptions in their individual
bankruptcy cases,556 the Alaska statutes have been interpreted as allowing residents to choose
either the federal or these limited state exemptions to determine what type of property will be
subject to bankruptcy administration, whichever is more advantageous in a given case. 557 This
flexibility represents a compromise between limiting the impact on commercial creditors of
property exemptions by imposing maximum value limits and permitting debtors to retain assets
sufficient for their support.
4.4.3 Exemptions to the Present Day
After the extensive statutory revisions of 1982, some exemption laws underwent limited
expansion while other laws created specific new exceptions. A number of exemptions limited by
dollar amounts had their values increased, and additional technical changes were made.
The 1988 amendments primarily adjusted the base value of several exemptions to their
present amounts. The total value of the homestead exemption was increased to $54,000.558 The
value limits for certain exempt personal property items were increased, as follows:

Increased total value limitation on items such as household goods, books, and musical
instruments, to an aggregate of $3,000.559
554
§09.38.115: Adjustment of Dollar Amounts.
§09.38.055, Alaska Statutes, entitled “Bankruptcy Proceedings.”
556
§222.20, Fla. Stat. (2011).
557
In re Tinkess, Case No. K08-00153-DMD, Donald MacDonald, IV, U.S. Bankruptcy Judge, “Memorandum on
Alaska National Insurance Company’s Objection to Claim of Exemptions [Re: PFDS],” 9 Alaska Bankruptcy
Reports 33, 46 (September 26, 2008), at http://www.akb.uscourts.gov/opinions/9abr/9abr33.htm (accessed
5/27/2012).
558
Amendment to AS 09.38.010(a), in Chapter 135, s. 1, Laws of Alaska (1988).
559
Amendment to AS 09.38.020(a), in Chapter 135, s. 4, Laws of Alaska (1988).
555
122

The value limit on exempt jewelry was increased to $1,000.560

The value limit for exemption on implements, professional books, tools of the trade, etc.,
was increased to $2,800.561

The value limit for exempt pets was increased to $1,000.562

The value limit for an exempt vehicle was increased to $3,000, provided the value of the
vehicle does not exceed $20,000.563

The value limit for exempt annuities and unmatured life insurance policies was increased
to $10,000.564

The value for exempt wages was increased to $350/week.565

The value for exempt cash, or liquid assets for a debtor who does not receive wages, was
increased to $1,400.566

The allowance for a permitted increase to the wage exemption was increased to $550, and
that for liquid assets was increased to $2,200. The law retained the requirement for the
debtor to provide an affidavit attesting that the debtor’s earnings are the sole support of
the household.567
The 1988 Act also added a new provision exempting the debtor’s interest in a retirement
plan. As an additional exemption of personal property, the new provision exempted both the
debtor’s interest in a retirement plan and payments made under such plans. Contributions to a
retirement plan made by an individual within 120 days before that individual filed for bankruptcy
would not be exempt as such transfers normally are recoverable by a bankruptcy trustee. In
contrast, the statutory language appears to continue the exempt status for an employer’s
contributions made during such time, preventing deposits of funds benefiting employees from
being taken to satisfy claims of creditors of the business. The exemption does not prevent
payment of benefits from a retirement plan under a domestic relations order.568
560
Amendment to AS 09.38.020(b), in Chapter 135, s. 4, Laws of Alaska (1988).
Amendment to AS 09.38.020(c), in Chapter 135, s. 4, Laws of Alaska (1988).
562
Amendment to AS 09.38.020(d), in Chapter 135, s. 4, Laws of Alaska (1988).
563
Amendment to AS 09.38.020(e), in Chapter 135, s. 4, Laws of Alaska (1988).
564
Amendment to AS 09.38.025(a), in Chapter 135, s. 5, Laws of Alaska (1988).
565
Amendment to AS 09.38.030(a), in Chapter 135, s. 6, Laws of Alaska (1988).
566
Amendment to AS 09.38.030(b), in Chapter 135, s. 7, Laws of Alaska (1988).
567
Amendment to AS 09.38.050(b), in Chapter 135, s. 8, Laws of Alaska (1988).
568
§09.38.017, Alaska Statutes: Exemption of retirement plan interests and payments.
561
123
The current exemption statutes show additional changes. Individuals now are able to protect
up to $500,000 in accrued dividends and loan values in an unmatured life insurance contract.569
This increase from the original section protecting up to $5,000 in such values appears
attributable more to changes in public policy. The significant increase in protected value
acknowledges some consumer reliance on using forms of life insurance as a method not only to
protect the family from an untimely loss of income but also to accrue cash value as saving
toward retirement. The law also was changed to authorize the state to enforce a judgment based
on restitution to the victim of a crime or delinquent act by levying on the correctional facility
account of an incarcerated debtor; the statute also provides a priority of claims against such
accounts to include the prisoner’s child support obligations.570 This appears to make the
exemption laws more consistent with those statutory improvements recognizing the
consequences of crime on the victims and the generally increased emphasis nationwide on
compelling victim restitution. In keeping with these changes, creditors may even levy on certain
otherwise-exempt assets of the prisoner outside of the correctional facility to collect on courtordered restitution.571 This particular type of levy is limited by the debtor’s ability to exempt
certain specified property that does not exceed an aggregate value of $3,000.572
4.4.4 Residual Settlement Donation Law in Alaska
The Homestead Act was applicable in Alaska after statehood. Congress repealed the
Homestead Act in 1976 but extended its effect in Alaska to 1986.573 In 1983 Alaska adopted a
state settlement donation land act as part of administering public lands owned by the state.574
Still in force,575 the state settlement donation act primarily is administered by the Commissioner
of Natural Resources.576 The Commissioner designates and makes available for entry by
prospective claimants land throughout the state; the statute requires the land be properly
569
§09.38.025(a), Alaska Statutes (2011).
§09.38.030(f), Alaska Statutes (2011).
571
§09.38.030(g), Alaska Statutes (2011).
572
§09.38.065(a)(3), Alaska Statutes (2011).
573
“The Federal Land Policy and Management Act of 1976,” Public Law 94-579, Title VII, §702, at
http://www.blm.gov/flpma/FLPMA.pdf (accessed 4/5/2012).
574
Chapter 103, §9, Laws of Alaska (1983). The new act took effect on July 1, 1984.
575
Title 38, Chapter 9, Alaska Statutes (2011).
576
§38.09.900(2), Alaska Statutes (2011).
570
124
surveyed before being made available to the public.577 The Commissioner establishes and
maintains the claim entry procedure, including the necessary boundary monumentation, and
determines the shape and size of parcels available for entry.578 The holder of a state settlement
entry permit was restricted in transferring the permit, and its right of entry, to another. The
statute allowed a permit to be transferred only after death of applicant (by will or intestate
succession), by the applicant to the applicant’s spouse during marriage, by court order as part of
a divorce settlement,579 or to a member of the applicant’s immediate family or to grantee in the
event of an extreme emergency or illness which disables the applicant.580 Once the applicant
meets the statutory requirements, the Commissioner issues a state patent giving title to the land.
One of the conditions of the patent is that the land may not be conveyed for five years, except
under the same conditions as limit transfer of an entry permit.581 Technical amendments clarified
language in the statute in 1991.582
4.5 Chapter Summation
“Seward’s Folly.” The Call of the Wild and the AlCan Highway. Inuit, fisheries, and herds of
caribou on the tundra. The Alaska Pipeline and the Exxon Valdez. Whether factual, romantic, or
cause célèbre, many images are associated with Alaska. As with any commonly-held belief,
concluding that the federal government neglected the region until a few determined individuals
kick-started the drive for statehood has some support in the historical record but does not tell the
whole story.
The statute requires the Commissioner to utilized cadastral surveys. A cadastre (also spelled “cadaster”) is a
public record, survey, or map of the value, extent, and ownership of land as a basis of taxation.
http://www.thefreedictionary.com/Cadastral (accessed 12/27/2011).
578
§38.09.010, Alaska Statutes: Designation of Land for Homestead Entry. The statute sets a maximum size for an
agricultural claim at 160 acres and for non-agricultural use at 40 acres, giving the Commissioner discretion to
establish claims smaller than these maximums.
579
This appears to be a modern refinement reflecting changes in the laws of divorce, recognizing the interests of
both parties in rights to the property which would have vested to the benefit of the married couple upon completion
of the homesteading requirements. The original Homestead Act of 1862 (12 Statutes at Large 392) entitled anyone
who was the head of a family or at least 21 years of age to meet the requirements and receive a patent to public lands
they had successfully homesteaded, without regard to gender or marital status (including lawful divorce). The 1862
Act also provided that an individual’s established right to homesteaded property would pass to the widow or other
heirs, or if a widow was so entitled to the land but died before the patent was issued, to her heirs. Thus, the original
Homestead Act may have permitted a divorced woman to prove up a homestead claim but arguably prevented her
heirs from inheriting her homestead rights if she died before the patent was issued.
580
§38.09.020(c), Alaska Statutes (2011).
581
§38.09.050, Alaska Statutes: Issuance of Patent.
582
Chapter 35, Laws of Alaska (1991).
577
125
Within the first year after accession of Alaska from Russia, Congress moved to establish
what it considered to be necessary federal authority, first by extending federal customs and trade
laws and following with a military presence for the few settlements. These initial steps might
have been adequate if Congress also had taken steps to explore the entire Alaskan region and
survey the type and extent of natural resources, particularly mineral deposits. No such organized
government exploration was made. At best, this reflects the federal government’s preoccupation
with developing the western regions contiguous to the existing states, where the 1862 Homestead
Act already provided opportunity and incentive for settlers to relocate and settle existing public
lands. At worst, the lack of effort to develop comprehensive information about the northern
territory may have represented early indifference to the region and the American émigrés who,
though few at first, relocated to Alaska in increasing numbers.
Despite the long delay in providing a local territorial government, 583 Congress increasingly
turned its attention to Alaska, primarily noting the need for some organized local governance to
encourage and regulate the region’s growing economic and mining activities, if for no other
purpose than taxation. After the initial Customs Act of 1868, the First Organic Act of 1884 was
an initial step toward general government but Congress realized economic growth in the north
would lag until émigrés could obtain land on at least an equal footing as in other territories. The
increasing frequency of Congressional enactments for the economic development and
governance of Alaska, in 1891, 1898, 1900, and finally the Territorial Act of 1912 (the “Second
Organic Act”), demonstrates substantial, albeit not perfect, Congressional attention to Alaska.
One commentator, comparing the development of Alaska by the U.S. with that of Yukon
Territory by Canada, concluded the U.S. government structured territorial control to encourage
development of Alaskan economic potential. In contrast, the Canadian government’s
enforcement of central federal policies precluded local control because the Yukon was presumed
to be of little value, even after the Klondike gold strike.584
The extension of Oregon law in 1884 brought to Alaska its first laws providing limited
protection to a debtor’s property from levy and execution by a creditor. The extension of the
Homestead Act in 1898 brought the first protection of a debtor’s residence from creditors,
although only if the homestead was obtained through federal patent and then only as to debts
583
Florida, officially acquired in 1821, had an organized territorial government by 1822.
Ken Coates, “Controlling the Periphery: The Territorial Administration of the Yukon and Alaska, 1867-1959,”
The Pacific Northwest Quarterly 78, No. 4 (October 1987), 145-151.
584
126
incurred before the patent issued. The influence of the 1893 Oregon law protecting Oregon
homesteads from creditors, although never in force in Alaska, clearly influenced the drafting of
the homestead exemption included in the 1900 reorganization of the Alaska Civil Code.
Alaska’s exemption laws were developed and enacted during the period when Congress held
all power to legislate for the region. Even after 1912, the Territorial Legislature was required to
submit its enactments for consideration by Congress, which had final authority as to whether
what the legislature passed would become law for the Territory.
The exemption laws were not a priority consideration for fifty years as they were essentially
unchanged except for the occasional increase in allowed values for certain property or wages.
The thoroughly researched and considered Alaska Constitution did not include exemptions for
homestead or personal property, reflecting a choice to leave exemption laws in the hands of the
Alaska Legislature. Significant revisions were made in 1962 and 1982, with periodic updates to
the present day reflecting changes in public policy, such as expressly excluding claims for child
support or crime victim’s compensation from the protection afforded to otherwise exempt
property. The structure and specificity of the exemption laws, and the lack of a perceived need to
place protections for homestead and some other property in the Constitution and out of the hands
of the legislature, reflects Alaska’s history of receiving and administering these debtor’s
exemptions through legislative action.
127
CHAPTER FIVE
CONCLUSION
The articulation over time of homestead and personal property exemption principles within a
jurisdiction reveals not merely the expressed public policy designed to prevent a debtor’s utter
destitution but also, perhaps more importantly, how the decision makers viewed themselves,
their fellow citizens, and their expectations for the future. As voiced in the Texas constitutional
debates of 1845, placing the property exemptions within the Constitution and out of the
legislature’s reach emphasized their importance. Over time, Texans repeatedly acted to stem
encroachment of commerce against the family home by writing increasingly restrictive
conditions directly into the constitutional language. This emphasis on specificity carried over
into statutory development. What began in 1839 as a modest list of protected items finally
expanded to include precise numbers for each separately-enumerated type of livestock or fowl.
Given the extent of protected land, and the detailed statutory list of farming-related property, a
second conclusion comes into focus: the makers of public policy continued to emphasize the
agrarian life not only because it was still a significant factor in the State’s economy in 1935 but
because the people and their representatives perceived farmers and ranchers as more deserving of
protection. Even as the nation’s economy rapidly evolved, for Texans the change in exemptions
was reactive. An argument could be made that placing exemptions in the Constitution also
displays a certain pessimism about the future, presuming the legislators will act against the
desires of their constituents unless the power to do so was withheld.
At the opposite pole is Alaska. The larger history of Alaska shows a priority on developing
the land and the natural resources of this territory, matters continually on the mind of Congress
throughout the last quarter of the nineteenth century. Whether or not creditors pursued debtors to
the north, the focus was on development. In this context the federal settlement donation laws
with their limited protection for individual claims apparently were sufficient to meet the needs of
the settlers. Even after a form of actual homestead exemption was adopted by Congress, there
apparently was no consistent voice arguing against access to amend the exemptions either by the
territorial legislature or the Congress. When Alaskans had the opportunity to decide whether to
128
protect the core exemptions in their constitution or continue their expression by statue, they
chose the latter. They also chose to retain very specific personal property protections enumerated
in their statutes. These policy decisions, made in the context of enacted statutes providing
necessary protection while not being subject to actual continual change, exemplifies a population
less concerned with the risks of political machinations and viewing the statutory structure as
sufficiently protective to meet their interests in development and economic progress. A more
optimistic view of the future, but one still guarded because of the perceived need to carefully
specify separate items protected from creditors.
Florida followed a middle course, protecting the basic exemptions in the state constitution
and using statutory amendments to react to changes in the economy. The language chosen in
1868 was at once more flexible than that adopted in Texas and more restrictive than the statutes
enacted by Texas and later Alaska. Once the homestead exemption was adopted into the Florida
Constitution, specific parcels of land (up to 160 acres for a rural homestead, one-half acre for one
within a municipality) were protected no matter their value. Texas did not remove the value
limitation on urban homesteads until 1983; in Alaska, homesteads remain protected only up to a
specific value regardless of the dimensions. Simultaneously, the constitutional personal property
exemption was placed at a fixed amount; unlike Texas, the Florida Legislature was under no duty
to create any additional exemptions, whether for heads of families or anyone else. While the
legislature within a year passed statutes to implement the new homestead provision, Florida
never exempted personal property in specific “inventory” statutes as did Texas or Alaska.
As concluded in Chapter Three, the unchanged text of the $1,000 personal property
exemption included in the Florida Constitution from 1868 to the present demonstrates an
unwritten change in economic and public policy over that time. Florida preferred to make
personal property more available for use in debt resolution while protecting the family home. In
Florida, increasing real property values were seen as providing assets sufficient for debtors to
recover from financial distress.
The policy change in Florida balanced two competing interests. Maintaining an exemption
for homesteads without limiting value reflected one original purpose for these exemptions: to
protect the family. The change over time was an accommodation to lenders and other creditors.
Without the ability to recover and sell most articles of personal property, lenders may well have
been unwilling to extend credit in the amounts needed for modern commerce. This balancing of
129
interests demonstrates public policy in Florida evolved from the “risk reduction” concerns
prevalent during the nineteenth century to the facilitation of modern commerce by limiting the
readily-disposable personal property available to debtors.
The changes to the constitutional and statutory property exemptions in Texas demonstrated a
public policy originally intended to protect citizens of the Republic, and later of the State, from
perceived predations by creditors seeking to collect on debts originating outside the jurisdiction.
This gradually evolved first into a desire to protect wives and children from the financial
misfortunes of the father, by protecting the family home, and finally into a more paternalistic
policy of protecting citizens from their own financial choices. This latter step was exemplified by
placing in the constitution detailed requirements for consumer protection and disclosure when a
home equity loan was taken out with a mortgage against the homestead. While the Texas public
policy on homestead exemptions remained relatively consistent, requiring periodic updating of
the constitutional language, the slow pace of change for personal property exemptions in the
statutes shows less concern for protecting the moveable assets of a debtor. As with Florida, the
principal asset supporting a debtor’s recovery appears to be the homestead; unlike Florida, this
was more for the purpose of actual shelter and employment and less as an asset subject to
mortgage to raise cash to start over. This emphasis on using the actual retained assets for selfsupport, rather than the cash value that could be derived from a loan, is one possible explanation
for the detailed “inventory” type of statutes used in Texas to protect personal property.
As noted in Chapter Four, Alaska is not alone in limiting debtor exemptions to statutory
provisions. Twenty-seven other states only provide debtor exemptions by statute, if at all. Nine
states (California, Colorado, Minnesota, Montana, North Dakota, Utah, Washington, Wisconsin,
and Wyoming) merely include in their constitutions a requirement that the legislature must
provide such exemptions by law. Only twelve states (Alabama, Arkansas, Florida, Georgia,
Kansas, Louisiana, Michigan, North Carolina, Oklahoma, Tennessee, Texas, and West Virginia)
provide specific, limited exemptions for homestead real property and for personal property in
their constitutions.
Homestead and personal property exemptions are neither romantic nor glamorous; as
functional tools of public policy, the exemptions balance the interests of creditors in recovering
money justly due to them with society’s interest in preventing utterly destitute debtors from
becoming public wards. Chapter One noted the decline of academic consideration of the
130
homestead and personal property exemptions from the treatise writers of the nineteenth century
to the more general authors of the twentieth, and there is some good reason for this change. As
Seymour Thompson found, the principles arising from implementing the various homestead and
personal property exemptions of the states did not lend themselves readily to uniform general
statements because they were expressions of each state’s separate policy, reacting to the unique
circumstances in each jurisdiction. Contrary to the terse treatment of some authors, modern
homestead and exemption principles remain vital because they impact every residential lending
decision, affect the commercial laws, and have a practical effect on the financial planning and
decisions of most individuals.585
Arising from the frontier to impact not only the disposition of public lands for settlement but
the ownership of residential property and household assets, the homestead exemption and related
personal property exemptions remain vital factors for individual property owners in Texas,
Florida, and Alaska. At times, each state articulated public policy preferences by amending and
updating either the constitutional exemptions, as in Texas, or the additional protections placed in
statute, as in all three states studied. Florida, however, best exemplified the principle of changing
public policy over time, to favor reliance on real property values, through the unchanged text of
its Constitution.
585
Appendix B portrays the effect of the Florida constitutional exemptions drawn from factual interviews I
conducted as a practicing attorney.
131
APPENDIX A
GLOSSARY
Alienate. The legal transfer of title to property, whether land or personal property.
Equity. The difference between the market value of an asset and the amount of all outstanding
debts secured by a valid lien on the property.
Exemption to forced sale. The item specified cannot be seized against the will of the owner for
the purpose of being sold to pay outstanding debts of the owner. Often appears as separate
exemptions for homestead and personal property.
Execution. The use of legal means to collect and sell a debtor’s assets to pay a creditor’s
judgment.
Forced sale. A sale done under a court judgment or other legal process compelling the property
be taken from the debtor to be sold.
Garnishment. A process under which a court issues an order for a portion of a debtor’s wages
to be paid directly to the petitioning creditor.
Homestead. 1) The physical residence of an individual. 2) A specific legal exemption protecting
the debtor’s residential property from seizure by creditors. 3) A type of property acquisition
method named for a particular federal law providing public land to qualifying settlers without
purchase. In this thesis the term is used exclusively to mean the second definition unless
referring to the name of a specific law.
Judgment.
The final ruling of a court resolving a lawsuit. In the context of property
exemptions, this would be a ruling in favor of the creditor, awarding specific amounts of
damages, and ordering the issuing of legal orders, or process, to execute on the debtor’s assets.
Labor of land. Under Mexican law applicable in Texas, 177 acres.
League of land.
Under Mexican law applicable in Texas, a square league of land had
dimensions of 5,000 yards on each side, enclosing 4, 428 acres.
Lien (encumbrance). A legal interest in real or personal property, entitling a creditor the right
to recover the property in a legal action by “foreclosing” the rights of the debtor to the property.
Liens may be granted voluntarily by debtors in a contract or may be created by a judgment
against the debtor and in favor of a specific creditor.
132
Mortgage. A specific type of lien against real property granted voluntarily by the property
owner in a contract.
Mechanics’ Lien. Created by statute, this is a lien on an article of personal property asserted by
an artisan or skilled worker, such as a mechanic, for labor and materials expended to improve or
repair that item. In many jurisdictions, this is a “possessory” lien, effective only while the artisan
holds the article pending payment by the owner. Mechanic’s lien statutes usually provide a
method for the owner to recover the article by posting a bond for the amount charged plus
additional enforcement costs; the lien is then deemed to transfer to that bond.
Organic Law. A synonym for “constitution.” The primary or foundational law of a jurisdiction
establishing the branches of government, distributing the political power inherent in the people,
limiting the exercise and use of power by the branches of government, and including legal
principles deemed essential for the functioning of government or protection of private liberty by
the people adopting the document. “Whether the statute or the rule violates the organic
provisions separating the powers of government into departments should be determined by
reference to the Constitution of the state.” State v. Atlantic Coast Line R. Co., 56 Fla. 617, 630,
47 So. 969, 974 (1908). As described in Chapter Four, during the period of federal
administration Congress named the laws creating the foundation for basic government in Alaska
“Organic Acts.”
Personal property (also “personalty” or “chattel”). Any property other than land, such as
clothing, kitchen utensils, furniture, arms, or livestock. Ballentine’s Law Dictionary, 3d ed.,
online at http://www.lexisnexis.com (last accessed June 25, 2011).
Pre-emption Settlement. One’s right to “pre-empt” all others from claiming a parcel of land by
completing an initial government documentation procedure, i.e. filing a claim. Used both in land
purchase and settlement donation laws.
Real property (real estate). Land.
Settlement donation. As used throughout, “homestead and personal property exemption” or
“homestead exemption” refer to the doctrines created by constitution or statute that protect
specific property of debtors from being taken to satisfy the claims of creditors. “Homestead Act”
or “homesteading” refer to specific laws (generally federal) that authorized qualifying
individuals to claim and receive a “patent,” or ownership title, to a parcel of public land after
meeting certain requirements for occupancy and use for a set period of time.
133
APPENDIX B
MODERN CONSEQUENCES: A FABLE
“Will we lose our home?” We were discussing the initial intake form completed by all potential
clients of my firm when the couple586 across the conference table voiced the main question.
“Not as long as you keep up the payments. Even with the amount of equity in your home, the
Florida Constitution protects your homestead from any claim by your other creditors.” The
husband was recently laid off from his job and they could no longer pay all their bills on time.
Their other assets included an old car worth less than one thousand dollars (protected by statute),
the wife’s small retirement savings account at work (again, protected by statute), and clothes,
home furnishings, sports equipment, and books worth about nine hundred dollars. “The Florida
Constitution also lets you protect any other assets from creditors as long as the total value
doesn’t exceed a thousand dollars, so the clothes and other items in your house also should be
exempt from being sold in bankruptcy.” Then I saw it: “What about this item? This says you’re
listed on the title to your parents’ home but it’s ‘not yours.’” The husband confirmed my
suspicion: “The house is paid off; they added me to the title a couple of years ago to make sure it
went to us in case anything happened to them.” “What’s the house worth,” I asked. “About
sixty thousand now. I don’t have to list it because it’s not mine, if that helps.” There’s no good
way to deliver bad news. “Technically, you’re a one-third owner of the home and the law
requires you to list it. It’s not your homestead, so unless you file a Chapter 13 that allows you to
make payments to retain non-exempt assets, your interest in your parents’ home is subject to
bankruptcy administration; that means, it’s not exempt. A Chapter 7 trustee could sell it,
conceivably.” They couldn’t make the payments to protect the property and soon left, choosing
not to file bankruptcy because of the risk to his parents’ interests. Once again, I was left
wondering why the Florida Constitution was so protective of a debtor’s home but only exempted
the same value of personal items first established in 1868.
Why, indeed?
586
This scenario is pastiche of common elements I heard while advising potential bankruptcy debtors. This account
is fictional and no reference, express or implied, to any particular individual is made or intended.
134
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YHQCw&ved=0CDYQ6AEwAA#v=onepage&q=McKitrick%20public%20land%20system%20
texas&f=false (accessed 8/19/2012).
McKnight, Joseph W., “Protection of the Family Home from Seizure by Creditors: The Sources
and Evolution of a Legal Principle,” The Southwestern Historical Quarterly 86, No. 3 (January
1983), 369-399.
Morantz, Alison D., “There’s No Place Like Home: Homestead Exemption and Judicial
Constructions of Family in Nineteenth-Century America,” Law and History Review 24, No. 2,
(Summer 2006), 245-295.
Naske, Claus M., 49 at Last: The Fight for Alaska Statehood, 50 (Epicenter Press, Kenmore,
WA, 2009).
Note, “State Homestead Exemption Laws,” The Yale Law Journal 46, No. 6 (Spring 1937),
1023-1041.
Osborne, George C., “Letters of a Carpetbagger in Florida, 1866-1869,” The Florida Historical
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150
Poore, Benjamin Perley, The Federal and State Constitutions, Colonial Charters, and Other
Organic Laws of the United States (Gov’t Printing Office, Washington, D.C., 1877), at
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=3seiTuiWEZK3tgeu84SmBQ&sa=X&oi=book_result&ct=result&resnum=7&ved=0CEsQ6AE
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Sanborn, John Bell, “Some Political Aspects of Homestead Legislation,” The American
Historical Review 6, No. 1 (October 1900), 19-37.
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356-374 (April 1963).
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the Adventures of the Floating Court, 1901-1915,” Alaska Law Review 26, No. 1 (2009), 97-133.
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War (Athens: The University of Georgia Press, 2004).
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http://www.floridasupremecourt.org/pub_info/documents/appointed.pdf. (2009).
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States, (University of Missouri Press, 2008).
Gardner, James A., Interpreting State Constitutions (The University of Chicago Press, 2005).
Horowitz, Morton J., The Transformation of American Law, 1780 – 1860 (Cambridge, Mass;
Harvard University Press, 1977).
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Orthodoxy (New York; Oxford University Press, 1992).
Lutz, Donald S., The Origins of American Constitutionalism (Baton Rouge, LA: Louisiana State
University Press, 1988).
Moussalli, Stephanie D., “Florida's Frontier Constitution: The Statehood, Banking & Slavery
Controversies,” The Florida Historical Quarterly 74, No. 4 (Spring 1996), 423-439.
Thorpe, Francis Newton (compiler and ed.), The Federal and State Constitutions, Colonial
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Forming the United States of America (Washington, D.C., Government Printing Office, 1909).
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BIOGRAPHICAL SKETCH
ERIC H. MILLER, Esq.
EDUCATION
LEGAL
Juris Doctor, with Honors - Florida State University, 1984
GRADUATE
M.A. (History) - Florida State University, 2012
Primary Field of Study: Legal History and the Florida Constitution
UNDERGRADUATE
B.A. (English) - Florida State University, 1978
PRINCIPAL RESEARCH EMPHASIS
Primary area of research is the development and articulation of foundational principles in state
constitutions, particularly the Florida Constitution. The impact of such principles on the
evolution of state government public policy is demonstrated in some instances by amending the
existing legal text and in others by leaving the law unchanged. Future research considers the
historical implementation of balanced governmental power in American federalism.
PROFESSIONAL HISTORY
Florida House of Representatives Staff: December 2010 – 2012
As Committee Attorney for the House Rulemaking & Regulation Subcommittee, responsible for
interpreting and applying the principles of the Florida Administrative Procedure Act (“APA”)
pertaining to legislative oversight of executive branch rulemaking authority. Researched and
drafted proposed bills, subsequently enacted by the Legislature in the following areas:




Implementing a new requirement for legislative approval before agency rules with
significant economic impacts could go into effect.
Requiring examination of the economic impact of all existing administrative rules.
Repealing outdated administrative rules and establishing a statutory procedure to prevent
future accumulation of obsolete rules.
Restoring oversight by elected officials of administrative operation and rulemaking.
Essential duties included research into the historical basis and development of proposed
legislation and preparing detailed, annotated analyses for use by the Subcommittee in
considering pending bills. Developed and presented historical and operational background of the
APA to legislators and staff as part of internal training.
153
Florida Government Practice: April 1984 – February 1985, May 1986 – January 1992,
March 1998 – October 2000, February 2002 – December 2010

(May 2005 – December 2010) Department of Agriculture and Consumer Services:
Represented Department in all phases of administrative proceedings, civil litigation
before state and federal trial and appellate courts, and bankruptcy issues. Drafted,
reviewed, and revised legislation pertaining to consumer protection. Legal counsel for
Department hearing officer on routine administrative matters.

(Feb. 2002 – May 2005) Agency for Health Care Administration: Represented Agency in
federal, state, and administrative litigation and complex bankruptcy matters in multiple
jurisdictions.

(March 1998 – Oct. 2000) Dept. of Business & Professional Regulation: Chief Attorney
for Division of Pari-Mutuel Wagering; lead counsel for bankruptcy and civil enforcement
litigation for Department.

(May 1986-Jan. 1992) Dept. of Business Regulation: Represented Department in state,
federal, administrative, and bankruptcy proceedings pertaining to subdivided land sales,
condominiums, cooperatives, time shares, alcoholic beverage licensing and tobacco
taxation statutes. Lead attorney for the Department in the bankruptcy reorganization of
General Development Corporation (1990-1992).

(April 1984-Feb. 1985) The Florida Bar: Responsible for researching case issues
pertaining to lawyer regulation.
Private Practice: Feb. 1985 - May 1986, Jan. 1992 - March 1998, Oct, 2000 – Jan. 2002

Practiced bankruptcy, commercial litigation, real property, and business law in Daytona
Beach, Miami, and Tallahassee.
PROFESSIONAL MEMBERSHIPS AND HONORS
The Florida Bar (Admitted 1984)


Board Certified in State & Federal Government and Administrative Practice, 2008
AV Martindale-Hubbell Rating
U.S. District Court, Northern District of Florida
U.S. District Court, Middle District of Florida
U.S. District Court, Southern District of Florida
(Admitted 1991)
(Admitted 1985)
(Admitted 1991)
PUBLICATIONS
Eric H. Miller, "Florida's Constitutional Property Exemptions: Changed Intent in Unchanged
Text," publication pending in The Florida Historical Quarterly.
154
Eric H. Miller, “Once More Unto the Breach: The Legislature Turns Again to Improving
Regulatory Oversight,” The Florida Bar Administrative Law Section Newsletter 34, No. 1
(August 2012), 1, 8-12.
Eric H. Miller, “HB 7253 & HB 993: The Legislature’s Policy of Economic Review and the
2011 Amendments to the APA,” The Florida Bar Administrative Law Section Newsletter 32, No.
4 (June 2011), 1, 12-15.
Eric H. Miller, Review of The 57 Club: My Four Decades in Florida Politics, by Frederick B.
Karl. The Florida Historical Quarterly 89, No. 2 (Fall 2010), 270-272.
Miriam S. Wilkinson and Eric H. Miller, “Florida Game Promotions Statute: A Novel
Application of an Exception to Florida’s Prohibition on Gambling,” Gaming Law Review 11, No.
2 (Spring 2007), 98-102.
HONORS AND AWARDS
Davis Productivity Award – 2004
PRESENTATIONS
"Recent Amendments to the APA: Developments in Agency Rulemaking and Review;" Segment
of CLE Program: "New Directions for Energy, Telecommunications, and Administrative
Practice" presented by the Administrative Law Section on December 9, 2011.
“Understanding Rulemaking Authority In Bill Drafting: Can It Be This Simple?” Joint
preparation and presentation with Donald J. Rubottom to staff of the Florida House of
Representatives, September 7 & 14, 2011.
“Legislative Rule Ratification;” Joint preparation and presentation by staff of the House
Rulemaking & Regulation Subcommittee to representatives of agencies and DOAH on February
18, 2011.
“Overview of the Administrative Procedures Act;” Presentation to the House Rulemaking &
Regulation Subcommittee on January 12, 2011. Link to video:
http://www.myfloridahouse.gov/Sections/Committees/committeesdetail.aspx?SessionId=66&Co
mmitteeId=2618, beginning at 14:20.
“Florida’s Constitutional Personal Property Exemption: Changed Intent of Unchanged Text;”
Paper presented at the annual meeting of the Florida Historical Society, May 28, 2010.
“Dark Side of the Moon: An Overview of Bankruptcy Issues Affecting Florida Agencies,”
Presented at The Pat Dore Administrative Law Conference - Oct. 19, 2006.
PERSONAL
Married, Four Adult Children
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