*1 quаli- signed by qualified at least of least vot- two-thirds the at two-thirds determination, making fied In ers. voters. only
we consider the evidence and inferenc- City of Seven Points also asserted a tending support to find- es the court’s point insufficiency of in the factual error ing disregard and all evidence to the con- however, appeals; court the court Alviar, trary. v. Garza upon appeals point its sustained the based If there is evidence of erroneous conclusion that the citizens probative value to the trial court’s present discharge to their burden to failed finding petition signed by thе was at may- evidence that demonstrated that the voters, qualified least two-thirds of the we grant petition the or’s refusal and suffi- legally must find the evidence is arbitrary and unreason- election was Estate, King’s cient. re Since that the were able. we hold citizens (1951).3 664-65, 244 S.W.2d 661-62 required prove mayor’s re- petition grant fusal to their and order the trial, conflicting At the court heard unreasonable, arbitrary election was and quali testimony concerning the number of ap- we to the remand cause city fied voters of Seven Points. peals in- for reconsideration of the factual Several witnesses fоr the citizens testified sufficiency point error. qualified the number of voters was herein, explained the reasons we re- For Anderson, between 240 and 260. Mr. M.D. verse remand cause and to the Jr., city a former councilman and a resident appeals. city since cam actively has paigned for a option local election and for city
several council elections. Mr. gone during
Anderson has door-to-door every
these elections and has looked at
piece city. He testified qualified total number voters petition
when the was submitted mayor was between 240 and 260. Vir Ms. CAULLEY, Petitioner, Robert A. ginia Springer has been a resident city upon compari since 1973. Based CAULLEY, Respondent. registration son of lists votеr from former municipal regis elections and current voter No. C-9274. precincts
tration information certain Supreme Court Texas. city, in the she testified that the num total qualified ber of city voters be 1991. March petition tween 247 and 250. The submitted Rehearing April Overruled 1991. mayor signatures contained persоns. However, mayor’s report petition concluded that contained signatures qualified
valid of 176 voters and concluded that
petition signatures of contained the valid qualified voters. Under these facts circumstances, hold that there signed
some petition evidence that the Legal insufficiency challenges may only prоve a vital more than scintil- fact is no a mere (1) la, conclusively com- sustained the record discloses established evidence fact, (2) plete Calvert, of a absence evidence vital opposite of fact. See “No the vital barred court is rules law or of evidence Evidence" Points Evidence" Error, “Insufficient giving weight evidence offered 38 TEX.L.REV. fact, (3) prove a vital the evidence offered *2 peti- Kaye, League City, C.
Kenneth tioner. Garza, Oualline,
Bill De La David M. Houston, respondent.
OPINION MAUZY, Justice. Caulley and Ruth were divorced
Robert
Ruth filed suit in
Ohio
County seeking
an
Harris
to enforce
Ohio
Robert to
judgment
divorce
ordered
money
pay
alimony. She
a
obtained
$34,625 against
Robert from
judgment
County.
Harris
District Court of
269th
10, 1987,
County
September
Harris
On
a
of execution on
District Clerk issued writ
forwarded the writ
Robert
County, where
Sheriff of Houston
returned
The writ was
property.
owned
exemp-
homestead
“Nulla Bona” because a
County
in the Houston
tion was
file
Applica-
filed
Ruth then
an
Clerk’s office.
269th Dis-
Order
tion for Turnover
disрuted the homestead
trict Court. She
order the
exemption and
the court to
asked
of execution
clerk to reissue a writ
district
each
order that
property,
on the
and to
over
paychecks be turned
against him
was satis-
until her
2, 1988,
February
the trial court
fied. On
again
the district clerk to issue
оrdered
County
upon the Houston
writ of execution
appointed
also
trial court
to turn over
and ordered Robert
receiver
wages to
monthly
his
net
$2700
$2500
money
satisfy in order to
receiver
against him.
appealed
appeals
reasoned
contended
appeals
desig-
tеstimony
homestead
at trial
revealed
Robert and
nation is determined
“spent
nights
claimant’s
Christine
at least
60%
of mind. He also contended
turn-
year”
County
at their Harris
home.
(Tex.Civ.Prac.
statute
over
& Rem.Code
Additionally,
at 150.
31.002) is unconstitutional under Art.
desig
held that
tried to
*3
(prohibition against
garnish-
County property
nate the Houston
ment)
judgment
order
used to
a
debt-
sought
homestead
after Ruth
to en
wages
or to turn over his
to a creditor.
judgment against
property.
that
force
appeals rejected
The court of
ar-
Robert’s
Thus,
appeals correctly
Id.
the court of
guments
judgment
and affirmed the
supported
held that some evidence
the trial
trial court.
affirm
I. Homestead
part
on their
to make this their homestead
occupying piece
prop
While
a
One month after
the September,
homestead,
erty
person
Ruth,
cannot estab
divorce from
Robert married
right
place by
in
lish a homestead
in another
marriage,
Christine
Texas. Before the
“attempting to
Christine had an urban
live there
the future”.
home in Harris
County
Woeltz,
upon
Tex.
which she had
a O’Brien
established
S.W.
943, 945,
exemption.
homestead
marriage,
rehearing,
After the
modified
couple
(1900);
made this home their residence.
ple’s County Harris residence as an urban expressly prohibited by case is the 1989 homestead. rights Once homestead are Amendment the turnover statute. In property, pre shown to exist in they are following was section added to continue, anyone asserting sumed to Tex.Civ.Prac. & Rem.Code 31.002: proving abandonment has the burden of it (f) may or A not enter enforce an competent evidence. Sullivan v. Bar nett, requires under this section 471 S.W.2d 39 The trial of, proceeds or the dis- Findings court entered of Fact Conclu of, property exempt bursement under sions of Law in it which found that 42.0021, statute, including any Section County urban home Harris was Property homestead of Robert and Code. This subsection does not Christine. Rob appeal apply sup- ert contended on of a child that there was no enforcement port obligation finding by past evidence trial or a added). support, (emphasis court. due child original speсifical- opinion, held that the intended to our new checks, ly exempt paychecks, retirement must turn court’s order retirement accounts and other wages individual to a over his receiver violated property exempted such under bank- 31.002(f) of Civil Practice ruptcy Though the code.1 аmendment was Code, prohibits the Remedies turn- which 15, 1989, not until it is retro- effective June proceeds under over of Therefore, the active in its effect.2 added page majori- See 797-98. statute. though section controls the district even ty necessary of the Court did find it entered its court’s before argumеnt that the trial address Robert’s date. The trial court ordered that effective directing court’s order to turn over turn his to a re- Robert must over paychecks our con- his future violates days ceiver on the first and fifteenth prohibition stitution’s until is satisfied. each month wages. 31.002(f) We hold that order violates § *4 I hold the trial court’s order would of the Texas Civil Practice and Remedies XVI, Article 28 of the Texas violates § prohibiting the of By Code. turnover the provides: This section Constitution. exempt of under proceeds statute, prohibits necessarily this section wages personal for No current service proceeds of of current the turnover the subject garnishment, be to ex- shall ever 42.002(8) (listing wages. Tex.Prop.Code § cept for the enforcement of court-or- wages personal prop- as of the current one support payments.1 dered child attachment, erty execu- items & Ann. Tex.Civ.Prac. Rem.Code See also tion, creditors). by We there- and seizure (current wages personal for ser- 63.004 § fore the of the court of reverse subject garnishment). to vices are appeals affirming the trial court’s wages to requiring Robert to turn over his meaning “gar- the term To discern the of сourt-appointed receiver. constitution, as in the this nishment” used “history must of Court examine sum, we affirm the grew ... the evils time out of which it appeals regarding home- court of good to designation, judg- intended to be remedied and the be stead reverse affirming Indep. ment accomplished_” Edgewoоd court of requiring 391, trial court’s order turn Kirby, 394 Dist. v. 777 S.W.2d School wages court-appointed receiv- Newman, over his to a (Tex.1989) Markowsky v. (citing er. 808, (1940)). 440, 813 136 S.W.2d
The included constitutional framers garnishment exemption a reaction to as REHEARING OPINION ON great remedies dur- expansion of creditor’s MAUZY, Justice, concurring. part the ninеteenth centu- ing early Braden, ry. 2 The Constitution G. majority’s I with the decision to concur and Com- Texas: An Annotated State Caulley’s Motion for Rehear- overrule (1977). At time 759 parative Analysis ing, separately I but write because Convention, garnish- of the Constitutional Caulley’s Court’s failure to address judicial mechаnism ment was the challenge to constitutional a creditor could effec- available which statute, Ann. Tex.Civ.Prac. & Rem.Code cash, wages from paychecks or tively seize 31.002. § Judiciary, Originally, “No current 1. read: On The Bill 1. House Committee 1029, subject wages personal ever be Leg., services shall Anаlysis, 71st R.S. for Tex.H.B. However, legisla- garnishment". exception section to add the amended the ture any judg- applies 2. “This Act to the collection 1, Tex.H.R.J. Res. in 1983. See ment, for child regardless whether the Leg., 6693. This before, on, Tex.Gen.Laws 1983 68th date or after the effective rendered R.S., 1015, approved by voters of Tex- 1989, Leg., ch. amendment Acts 71st of this Act.” 8, 2, November Tex.Gen.Laws 4112. 1989
799 Toben, sequestering Using might involuntary See Toben & income a debtor. presented by generations. future be Non-Ex- to Reach the Turnover Relief garnishment—can only 195, they term 200- Paycheck, Baylor 40 L.Rev. empt chose— be construed mean there shall no Brady, 21 Tex. (citing Price v. 202 sequestering involuntary of income other (1857)). Despite fact, constitu- 614 support.3 See, e.g., City than for child sought wages protect framers tional Nelius, 567, 693 Houston v. S.W.2d 569 through language adopted the broad in Ar- 1985, (Tex.App. writ [14th Dist.] XVI, the 1983 Except ticle 28.2 —Houston dism’d) (treating withholding wages as wagеs to allow amendment prohibited Article 28 even support, the collection of child this con- withholding technically though was not protection has re- stitutional garnishment). exemption’s goal undisturbed in our constitu- mained protect proceeds the debtor’s use of tion. Doug paycheck. Sеe Sloan v. recognized This Court has times lass, (Tex.App. 713 S.W.2d 440 — Fort change, and circumstances terms art and n.r.e.); Worth writ ref’d J.M. Rad willing change must be with them. law McKean, Co. v. 41 Grocery S.W.2d ford Indemnity Corp. In Associated Oil Well 639, (Tex.Civ.App. Worth — Fort (Tex.Civ. Co., Drilling writ); Co., no v. Indian Bell Live-Stock 1953), App. affirmed, 153 — Dallas (1954) (expressly ap S.W.2d (f), оn which Subsection we based our proving language *5 case, holding in this was added to 31.002 § appeals), stated: in 1989. The new section was intended law, law, statutory even our is a [0]ur checks, clarify paychecks, retirement living thing capable adjustment within accounts, retirement individual and other limits to varying cеrtain meet circum- exempt type such are im- stances. Our law is not forever and in turnover order issued the trial court mutably syntax fixed like the rules of page this case. See 798. This statute rec- the ancient dead Greek Latin and lan- ognizes framers used “current” guages. example An we mean is what in sense it is the usual used in business exemption statute, 3832, our subd. Art. contexts, i.e., to refer obligation to an 10, 1870, passed V.A.C.S. When in enforceable, employer presently is “carriage” statute named a subject and that would otherwise be language The statutory has garnishment. Keliher, Somers v. 115 Cf. unchanged day. remainеd to this Cer- (1874) 165, (holding Mass. future 167 earn- tainly in legislature 1870 the not have did accrued, ings, earnings yet not cannot be in automobiles mind it used the assigned). “carriage.” had no word Yet our courts A order directed at difficulty holding word “car- ultimately prove also would unen- riage” must interpreted to include Rights the Texas Bill of forceable because automobiles, (citation omitted). enforcing prohibits the court from requiring paychecks by imprisonment Orders turnover of turnover order for debt. exactly garnish- I, the same effect have Article 18 Texas Constitution provides: person impris- The framers of had shall ever be ment. the constitution “No way predicting guise prohibition ap- This no under what oned for debt.” has rejected dollar-figure wages above a certain 2. Earlier versions of this section were made rejected. by the See Id. at 557. Committee on General Provisions. amount was Journal Constitutional Cоnvention of City provision Begun no for State Texas and held at the 3. There was September 1983 amendment to at 120 535. The Texas until the Article Austin 1875 Constitution, citizens, give regardless chose to all 28 of the Texas which the framers right exception approved by earning capacity, support wealth оr child Texas their legislative history against garnishment. 1 for protection earlier ver- voters. See n. An limiting protection citizens who amendment. sion peared every version of our constitution. Buller, 806 S.W.2d
See
Bank v.
Beaumont
LIFE INSURANCE
SOUTHLAND
3, 1991)
COMPANY,
Petitioner,
2 (April
(Mauzy,
n.
J.,
history
(outlining the
dissenting)
drafting
involved in
debates
the framers
SMALL,
ESTATE OF Martha
еt
against
provisions
im
these constitutional
al., Respondents.
debt);
Davis,
prisonment for
Raborn v.
No. D-0569.
(Feb. 21,1990),
Tex.Sup.Ct.J.
with
drawn,
(Tex.1990)(Mauzy,
der Article 18 of the Constitu
tion). recognized excep-
This Court has some imprisonment prohibition
tions to Davis, parte Ex
debt. See (child 395-96 debt); State, not Dixon v. (1847) (imprisonment for debt does cases). case, apply to criminal In this
however, enforcement of the turnover or- imprisonment contempt
der would
clearly violate the constitution because the
underlying debt that Robert owes Ruth debtor-creditor re-
arises a traditional
lationship. sum, trial court’s order threatened *6 transgres- with two constitutional wages, current
sions: 28; section
violation article debt, in
imprisonment for violation arti- I, legislature’s
cle enact- 31.002(f) does
ment of section remove those case; it not dimin-
threats but does provi- vitality
ish the of those constitutional which, days earliest
sions
state, have from sim- shielded individuals
ilar the law. abuses of