In Re Wilkinson

402 B.R. 756 (2009)

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Nature of the Case

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Facts

P filed amended schedules in which they claimed state law exemptions in the following items: MP .45 rifle, .380 pistol, two .22 caliber pistols, .30-.30 rifle, and a .45 caliber pistol (collectively, the 'Firearms') under Texas Property Code §§ 42.001(a), 42.002(a)(8) (sporting goods and equipment). 17 antique handguns and 1 dummy gun (the 'Collection') under Texas Property Code §§ 42.001(a), 42.002(a)(1) (home furnishings, including heirlooms). The trustee filed an objection pursuant to Texas Property Code § 42.002(7), 'the Debtors must select only two firearms eligible for exemption. The remaining four (4) firearms identified under the Firearms category and the eighteen (18) firearms identified as the Collection, must be turned over to the Trustee.' P then amended Schedule C so that they now claim as exempt the following firearms: a Sharps cavalry carbine circa 1863, pursuant to Texas Property Code §§ 42.001(a), 42.002(a)(1) and (7); a Sharps new model rifle, .52 caliber C. 1860, pursuant to Texas Property Code §§ 42.001(a), 42.002(a)(1), (7); . a Spencer repeating rifle, .52 caliber C. 1860, pursuant to Texas Property Code §§ 42.001(a), 42.002(a)(1); an English Blunderbuss saddle gun, silver, c. 1845, pursuant to Texas Property Code §§ 42.001(a), 42.002(a)(1); . a Burnside cavalry carbine, c. 1863, pursuant to Texas Property Code §§ 42.001(a), 42.002(a)(1); an English blunderbuss, flintlock, with bayonet, pursuant to Texas Property Code §§ 42.001(a), 42.002(a)(1); and an English blunderbuss, flintlock, c. 1750, pursuant to Texas Property Code §§ 42.001(a), 42.002(a)(1). The trustee objected and maintains that firearms are firearms, and cannot be claimed under another category, such as 'home furnishings' as the debtors attempt to do in their amended Schedule C. P assert that those Guns that are not replicas and saw action in wars that took place prior to 1898 and are each 'affixed to a wooden plaque bearing a brass plate which describes the weapon… [and] adorn the walls of the Debtors' rural home…' P argues that because of their age they are no longer considered firearms under the Texas Property Code. P relies by analogy on § 46.01 of the Texas Penal Code, which criminalizes possession of a firearm by certain persons (felons). The statute excludes from its definition of 'firearm' any gun that is '(A) an antique or curio firearm manufactured before 1899; or (B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.' By analogy, P argues that, if the guns in question would not be treated as firearms for purposes of the Texas Penal Code, they should not be treated as firearms for purposes of the Texas Property Code's exemption statute either.