FAMILY CODE
CHAPTER 5. HOMESTEAD RIGHTS
SUBCHAPTER A. SALE OF HOMESTEAD; GENERAL RULE
§ 5.001. SALE, CONVEYANCE, OR ENCUMBRANCE OF
HOMESTEAD. Whether the homestead is the separate property of
either spouse or community property, neither spouse may sell,
convey, or encumber the homestead without the joinder of the other
spouse except as provided in this chapter or by other rules of law.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 5.002. SALE OF SEPARATE HOMESTEAD AFTER SPOUSE
JUDICIALLY DECLARED INCAPACITATED. If the homestead is the
separate property of a spouse and the other spouse has been
judicially declared incapacitated by a court exercising original
jurisdiction over guardianship and other matters under Chapter
XIII, Texas Probate Code, the owner may sell, convey, or encumber
the homestead without the joinder of the other spouse.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Amended by Acts 2001, 77th Leg., ch. 217, § 25, eff. Sept. 1,
2001.
§ 5.003. SALE OF COMMUNITY HOMESTEAD AFTER SPOUSE
JUDICIALLY DECLARED INCAPACITATED. If the homestead is the
community property of the spouses and one spouse has been
judicially declared incapacitated by a court exercising original
jurisdiction over guardianship and other matters under Chapter
XIII, Texas Probate Code, the competent spouse may sell, convey, or
encumber the homestead without the joinder of the other spouse.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Renumbered from V.T.C.A., Family Code § 5.107 and amended by
Acts 2001, 77th Leg., ch. 217, § 29, eff. Sept. 1, 2001.
SUBCHAPTER B. SALE OF HOMESTEAD UNDER UNUSUAL CIRCUMSTANCES
§ 5.101. SALE OF SEPARATE HOMESTEAD UNDER UNUSUAL
CIRCUMSTANCES. If the homestead is the separate property of a
spouse, that spouse may file a sworn petition that gives a
description of the property, states the facts that make it
desirable for the spouse to sell, convey, or encumber the homestead
without the joinder of the other spouse, and alleges that the other
spouse:
(1) has disappeared and that the location of the
spouse remains unknown to the petitioning spouse;
(2) has permanently abandoned the homestead and the
petitioning spouse;
(3) has permanently abandoned the homestead and the
spouses are permanently separated; or
(4) has been reported by an executive department of
the United States to be a prisoner of war or missing on public
service of the United States.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Amended by Acts 2001, 77th Leg., ch. 217, § 26, eff. Sept. 1,
2001.
§ 5.102. SALE OF COMMUNITY HOMESTEAD UNDER UNUSUAL
CIRCUMSTANCES. If the homestead is the community property of the
spouses, one spouse may file a sworn petition that gives a
description of the property, states the facts that make it
desirable for the petitioning spouse to sell, convey, or encumber
the homestead without the joinder of the other spouse, and alleges
that the other spouse:
(1) has disappeared and that the location of the
spouse remains unknown to the petitioning spouse;
(2) has permanently abandoned the homestead and the
petitioning spouse;
(3) has permanently abandoned the homestead and the
spouses are permanently separated; or
(4) has been reported by an executive department of
the United States to be a prisoner of war or missing on public
service of the United States.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Amended by Acts 2001, 77th Leg., ch. 217, § 27, eff. Sept. 1,
2001.
§ 5.103. TIME FOR FILING PETITION. The petitioning
spouse may file the petition in a court of the county in which any
portion of the property is located not earlier than the 60th day
after the date of the occurrence of an event described by Sections
5.101(1)-(3) and 5.102(1)-(3) or not less than six months after the
date the other spouse has been reported to be a prisoner of war or
missing on public service.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Amended by Acts 2001, 77th Leg., ch. 217, § 28, eff. Sept. 1,
2001.
§ 5.104. APPOINTMENT OF ATTORNEY. (a) Except as
provided by Subsection (b), the court may appoint an attorney in a
suit filed under this subchapter for the respondent.
(b) The court shall appoint an attorney in a suit filed
under this subchapter for a respondent reported to be a prisoner of
war or missing on public service.
(c) The court shall allow a reasonable fee for the appointed
attorney's services as a part of the costs of the suit.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 5.105. CITATION; NOTICE OF HEARING. Citation and
notice of hearing for a suit filed as provided by this subchapter
shall be issued and served in the manner provided in Subchapter D,
Chapter 3.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 5.106. COURT ORDER. (a) After notice and hearing,
the court shall render an order the court deems just and equitable
with respect to the sale, conveyance, or encumbrance of a separate
property homestead.
(b) After hearing the evidence, the court, on terms the
court deems just and equitable, shall render an order describing or
defining the community property at issue that will be subject to the
management, control, and disposition of each spouse during
marriage.
(c) The court may:
(1) impose any conditions and restrictions the court
deems necessary to protect the rights of the respondent;
(2) require a bond conditioned on the faithful
administration of the property; and
(3) require payment to the registry of the court of all
or a portion of the proceeds of the sale of the property to be
disbursed in accordance with the court's further directions.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
§ 5.108. REMEDIES AND POWERS CUMULATIVE. The remedies
and the powers of a spouse provided by this subchapter are
cumulative of the other rights, powers, and remedies afforded the
spouses by law.
Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
