1 A wave runner, generically kn own as a jet ski, is a small

motorized vehicle designed to transport one or two persons over the

water. Revised November 9, 1998

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 97-50995

___________________________

IN THE MATTER OF DAVID H. CROCKETT AND LELA A. CROCKETT,

Debtors,

DAVID H. CROCKETT AND LELA A. CROCKETT,

Plaintiffs-Appellants,

VERSUS

JOHN PATRICK LOWE,

Trustee-Appellee.

___________________________________________________

Appeal from the United States District Court

for the Western District of Texas

___________________________________________________ November 3, 1998

Before REAVLEY, DAVIS, and DUHÉ, Circuit Judges.

DAVIS, Circuit Judge:

In this appeal, we are asked to determine whether a wave

runner 1 qualifies as exempt p ersonal property in a bankruptcy

proceeding under the “athletic and sporting equipment” exemption

found in T EX

. P ROP

. C ODE A NN

. § 42.002(a)(8). We conclude that the

appellants’ wave runner is not exempt as a thletic or sporting2

equipment and therefore affirm the judgment of the district court.

I.

In January of 1997, Appellants David H. Crockett and Lela A.

Crockett (“the Crocketts”) filed a voluntary petition for

bankruptcy under Chapter 7 of Title 11 of the United States Code.

In their Schedule C, the Crocketts claimed a wave runner and its

trailer as exempt “athletic and sporting equipment” under T EX

. P ROP

.

C ODE A NN

. § 42.002(a)(8). Appellants argue that this exemption

should be interpreted broadly, based on the plain meaning of the

statute, to include their wave runner. The trustee argues that the

Texas legislature did not intend the exemption to include boats

such as the appellants’ wave runner. Both the bankruptcy court and

the district court agreed with the trustee and held that the wave

runner was not exempt because the equipment sought to be exempted

was limited to “small items for individual use.” This appeal

followed.

II.

We revie w de novo the district court’s legal determination

that a wave runner is not exempt property under T EX

. P ROP

. C ODE A NN

.

§ 42.002(a)(8). S ee Border v. McDaniel

, 70 F.3d 841, 842 (5th

Cir.1995).

The debtors claimed personal proper ty exemptions using the

Texas exemption scheme under T EX

. P ROP

. C ODE A NN

. § 42.002. This is

permitted in the Bankruptcy C ode under 11 U.S.C.A. § 522(b).

Appellants argue that a wave runner is clearly “sporting equipment”

under the Texas statute. Appellants also contend that nothing in3

the statute limits the size, weight or category (i.e., land use

versus water use) of property deemed “athletic and sporting

equipment.” Appellants point to the dictionary meaning of

equipment as “implements used in an operation or activity” and

“all the things used in a given work or useful in effecting a given

end.” W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY (1981). Appellants also

rely on the liberal construction Texas courts give exemptions. S ee

In re Swift

, 129 F.2d 792, 801 (5th Cir.1997); In re Baldowski

,

191 B.R. 102, 105 (Bankr. N.D. Tex. 1996) (“Tracing the evolution

of the Texas exemption statute, it is clear that the Legislature

continually expanded the statutes to cover more property.”).

III.

The reported bankruptcy court dec isions are in general

agreement that boats and watercraft are not exempt as “athletic and

sporting equipment” under T EX

. P ROP

. C ODE A NN

. § 42.002(a)(8) or its

predecessor statute § 42.002(3)(E),which also required the item to

be reasonably necessary in order to be exem pt. These cases have

given different reasons for this conclusion. In the present case,

for example, the bankruptcy court concluded that “athletic and

sporting equipment” should be limited to small items for individual

use. The district court agreed with the bankruptcy court’s

conclusion. Other bankruptcy courts have reached the same result

for this a nd other reasons. S ee In re Gibson

, 69 B.R. 534, 535

(Bankr.N.D. Tex. 1987) (denying a claim of exemption of a 1968

Rivers boat under under § 42.002(3)(E)of the Texas Property Code,2 Because the statute has been amended to delete the

“reasonably necessary” requirement, these cases are not

particularly helpful.

4 holding that athletic and sporting equipment should be limited to

small items for individual use); I n re Griffin

, 139 B.R. 415, 417

(Bankr.W.D. Tex. 1992) (denying the exemption of a Hobie sailboat

because it was not a small item for individual use); In re Payton

,

73 B .R. 31 (Bankr. W.D. Tex.1987) (stating in dicta that a boat

would not qualify as “sporting goods”); In re Cypert , 68 B.R. 449

(Bankr.N.D. Tex. 1987) (denying t he exemption of a Glass Par

fishing boat because the debtors would not be able to show that the

boat was “reasonably necessary”). In addition, a Texas appellate

court case held that a boat was not reasonably necessary for the

debtor under § 42.002(3)(E). H ickey v. Couchman

, 797 S.W.2d 103

(Tex.App. Corpus Cristi 1990, writ denied). 2

IV.

We find the most persuasive argument in support of the

conclusion reached by the bankruptcy court and the district court

is one that is based on a textual analysis of the Texas statute.

T EX

. P R OP

. C ODE A NN .§ 42.002(a)(1-12) provides a comprehensive

list of the personal property that may be claimed exempt. A

comparison of the language in subsections (4) and (8) of this

section gives us insight into the Tex as legislature’s intent

regarding boats as exempt property.

Section 42.002(a)(4) exempts “tools, equipment

, books, and

apparatus, including boats and motor vehicles used in a trade or5

profession."(emphasis added). On the other hand, Section

4 2.002(a)(8), the subsection relevant to today's case, exempts

“athletic or sporting equipment

, including bicycles .” (emphasis

added).

The textual structure of Sections 42.002(a)(4) and

42.002(a)(8) is quite similar in that both use the word “equipment”

and both contain a modifying clause designed to include items that

might otherwise be omitted from the e x emption. Section

42.002(a)(4)’s modifying clause includes “boats and motor

vehicles,” whereas Section 42.002(a)(8)’s modifying clause includes

only “bicycles.” The absence of the phrase “boats and motor

vehicles” fro m Section 42.002(a)(8) is conspicuous. The Texas

l egislature was obviously aware of the potential ambiguit ies

surroun ding the word “equipment” with regard to boats and motor

vehicles. It then acted to include those items as “equipment”

where it felt such inclusion was appropriate. The fact that

Section 42.002(a)(8) does not include boats and motor vehicles as

examples of “equipment” leads us to conclude that the Texas

legislature made a conscious choice to omit such items from

subsection (a)(8)'s athletic and sporting equipment exemption.

Because the Texas legislature chose to structure § 42.002 in this

manner, we agree with the bankruptcy court and the district court

that the debtors’ wave runner is not exempt property.

For the reasons set out above, the judgment of the district

court is AFFIRMED.