St. Mary's Law Journal


For more than 155 years Texans have adamantly supported the principle that the fundamental need for shelter justifies strict constitutional protection of homes from creditors in all but a few situations. This Article discusses where homestead protection came from and why it should not be lightly discarded. The Texas Constitution contains many rights and liberties for the protection and benefit of the state’s citizens. Unique among these treasured liberties is the protection of a person’s homestead from forced sale or foreclosure by creditors. A group of bankers and other financiers—for whom a homestead is nothing more than collateral and a potential source of profit—have been attacking the cherished home equity protection for several years. Not surprisingly, bankers from outside the state—with little regard for the unique history, traditions, and values of Texas and its citizens—lead this group. The homestead debate does not merely involve whether Texans should be allowed to obtain certain types of home equity loans; rather, it centers around protection of families from homelessness during hard times or personal hardships. Unless Texans continue to fight to preserve homestead liberty, it will become a land of homeless, rootless people—refugees in their own land. In every session of the state legislature since the author took seat in the Texas Senate in 1957, some attempt has been made to repeal the constitutional homestead liberty. The legislature rejected those attempts every time and, in fact, strengthened the homestead provision in a 1973 constitutional amendment. Today, once again, usurious hands are knocking on doors, anxious to take homes. The Texas Constitution has stood firmly in their path for 150 years. It may sometimes be inconvenient to be real estate rich yet cash poor, but it would be far worse to be overly indebted and homeless.


St. Mary's University School of Law