tag:blogger.com,1999:blog-29130423.post3042691627288489894..comments2024-01-12T14:29:55.552-06:00Comments on A Texas Bankruptcy Lawyer's Blog: Texas Judges Explore State Law on Liens and Homestead ExemptionsSteve Satherhttp://www.blogger.com/profile/03568954281320035875noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-29130423.post-70944987375012333662015-09-09T22:30:53.178-05:002015-09-09T22:30:53.178-05:00I always enjoy reading the work of my former colle...I always enjoy reading the work of my former colleagues on the bench, and the judicial lien avoidance decision was an interesting read indeed. While I agree with the ruling, however, I'm uncomfortable with the approach taken, for a couple of reasons. First, to get to the interpretation of a state statute by suggesting that the Bankruptcy Code dictates a particular application suggests that state laws must always be read congruently with federal law. But that's not the case. Only when the federal law preempts must state law yield -- and there is no preemption discussion here. Second, although I am a huge fan of attending to all the rules of statutory construction, and not just plain meaning, I do adhere to the basic notion that there must be a reason for looking beyond the language of the statute beyond simply being uncomfortable with its import. Finally, I would submit there is actually a straightforward problem with the state statute -- it may be seen as a taking in violation of the Fifth Amendment. The S.Ct. upheld such a taking in holding that section 522(f) of the Code was constitutional, though it rejected an ex ante application of that statute on due process grounds. But it could only uphold it because of the federal power to make laws respecting bankruptcy -- a power that state legislatures do not have. Thus, I would submit that the Texas Legislature could not eliminate otherwise valid liens to effectuate a federal purpose without in the process violating the Fifth Amendment rights of the lienholder. <br /><br />This is when I really miss writing opinions! :)Leif Clarknoreply@blogger.com