Summer time is fun time by the pool time (or the lake, or the ocean). However, a refresher about recognizing the signs of water distress and drowning is in order; especially since children are at the high end of the spectrum on risk of injury/death due to drowning. The signs of water distress and drowning are rarely what we see in media (frantic splashing, cry for help, etc.). Our lungs and upper respiratory organs are made to breathe; making speech is secondary. If you can’t breathe you can’t speak. In plain English, that means that when a person in distress on/in the water it is not likely that they’ll be able to call for help. Generally what is likely to occur is that they will breathe (inhale/exhale) as quickly as possible before their mouth/nose are underwater-there’s rarely time for a call for help. Moreover, a person or child in distress and at risk of drowning will be acting instinctively-meaning they’ll be in survival mode trying to stay afloat any way they can. It is unlikely that they may be able to make a frantic wave for help when they are in this state. A person or child can get in distress (and even drown) in minutes, even seconds. In these situations, being observant is critical, as
is knowing what to look for; keep lifesaving equipment close by, take a refresher course on CPR (including child and infant requirements) and be prepared.
In an effort to “protect family” and “reduce divorce,” the Texas Legislature is considering a bill to revise the Texas Family Code to end the “no-fault” divorce. While divorce does take a strain on spouses and their children, the American legal majority (in other words, most of the 50 United States) moved some 30 or more years ago, away from the requirement that one spouse had to prove to the other spouse, was guilty of some abuse, adultery, or some other fault (financial irresponsibility or otherwise), leading to the end of the marriage. If we allow our Legislators (and the bill’s sponsor Matt Krause) to revert the Family Code to the “at fault” requirement, we run the very great risk that Texans right to live free and independent lives that they choose, and as they see fit, will be stymied. We do not elect the Legislature to be our parents, but rather to pass responsible and fiscally conservative budgets. We should be cautious about a bill that could return Texas litigants to the contention and agressive divorce proceedings (where private investigators were used to prove up the bad acts of the other party in these cases).
Thanks to all the soldiers and sailors that made the ultimate sacrifice for our freedom.
Very proud of my colleague, Deborah Riherd’s brilliant trial work, in which her timely objection in the case First Bank v. Richard Brumitt, regarding whether extrinsic evidence could be considered to show a third party as a contract beneficiary was the basis for the Texas Supreme Court’s opinion that the claimant, when looking solely at the contract terms, was not an express intended beneficiary of the agreement. The Supreme Court has handed down many opinions on agreements over the last several terms, all of which adhere to the stare decisis doctrine that in Texas, a “deal is a deal.” In other words you cannot look beyond the express terms of the deal, nor is it proper to consider extrinsic evidence of intent of the deal to “add or alter terms.” Well done Ms. Riherd.
The Antikythera mechanism, an ancient greek analog computer, made between 87 BC and 200 BC, was discovered under water in a shipwreck of the coast of the Greek island Antikythera. The mechanism is a fascinating triumph of machinery, a complex clockwork-like device that was used to predict astronomical positions, etc. Sadly the technology was lost at some point in ancient times, and nothing like it appeared in Europe or the Mediterranean until the beginning of the age of the Renaissance. It truly is a fascinating piece of history and was likely the dawn of mechanically assisted celestial navigation for the seagoing nation of Hellas (or ancient Greece).
Below is a picture of the device. Thanks Google and Wikipedia for their contribution.
Perhaps the kindest client review and endorsement we have ever received. It is our privilege to serve our clients, and especially Ms. Fleming, who served our country with fierce determination and loyalty for so many years.
I am humbled, honored, and privileged to have been informed that I have again been nominated by my colleagues as a super lawyer in the state of Texas. I will continue to try to earn that respect from them and cannot articulate how appreciative I am of their goodwill, as many of them are former opposing counsel/worthy adversaries and I am lucky to count them as friends.
The Family Code provides for general jurisdiction over a suit affecting the parent child relationship when the parties and children meet the residency requirements set forth in the family code. But what happens when they don’t? Fortunately, the Code sets forth an “emergency” or “default” jurisdiction provision, where, if there is not another court with continuing jurisdiction, a Texas court may exercise jurisdiction under the Code.
Texas courts, however, do not often exercise this power, and the party seeking a Texas court’s jurisdiction over a matter must establish that: i) no other court has continuing exclusive jurisdiction over the children subject to the case; ii) that there is a substantial connection with the Texas forum where the case has been brought. The moving party must show more than physical presence, it must also put forth evidence of relationships, family support, networks, class mates, etc. A party seeking a Texas court to assume jurisdiction over a SAPCR should gather all available supporting documentary evidence as well as supporting testimony (in the form of affidavits) before filing suit, in order to be prepared for the potential jurisdictional challenge. Texas courts have broad sweeping jurisdiction over family matters, however, jurisdictional challenges can be raised at any time and if jurisdiction is not proper, the remedy is to dismiss the case. If you have a tough jurisdictional challenge in your SAPCR/Family law case, be prepared to meet the substantial burden showing a connection to Texas, before suit is filed.
Our friend and neighbor Dana K. Cullins Macalik
Our founding fathers specifically set forth that the press in this country would enjoy certain freedoms, this was in direct response to silencing of the press by the crown and its agents in the colonies. A free and independent press has been (for centuries). called ‘the fourth estate’-meaning that it is essentially the fourth branch of government and is expected to report on the checks and balances being exercised by the other three branches of government. The Executive Branch has made a statement that the world wide global press has/have not chased/publicized stories regarding radical Islamic terrorism. It seems difficult to believe the news organizations, who sole business is to sell advertisement/report stories that will sell advertising would somehow ignore a story on such a volatile topic that would undoubtedly result in mass rating impact/advertising/viewer or consumer reach. We have more choices in media now than perhaps ever in our country’s history, including any flavor and brand of media, right/left/alternative. It seems unlikely that these organizations would miss an opportunity to report news and sell advertisement. An independent press is one of the keys to our freedom, here’s to the Fourth Estate and liberty.
The Executive branch (EB) will reportedly begin working to dismantle the financial regulations enacted in response to the 2008 economic crisis (Dodd-Frank), and is predicted “not to have an immediate effect” on financial sector monitoring/enforcement. These laws were passed to prevent another (global) financial meltdown.
These rules, which the EB claims are a burden to the financial sector and (unbelievably) consumers will be scrutinized and very likely “relaxed” if not simply un-enforced. It is difficult to see how these rules could be a burden on “the consumers” since they were enacted to prevent the widespread fraud engaged during the “packaging” of hi-risk mortgage investment products, which we taxpayers all paid and are paying for dearly.
It is also reported that the fiduciary rule imposed on retirement advisers (making them act in their clients’ best interests), will be delayed or relaxed as well. In other words, the fiduciary rule, which is never been enacted much less really enforced, is likely to be illuminated allowing investment firm’s to put their own profits ahead of their clients. How either of these efforts of deregulation protects fiscal responsibility much less consumers on ‘main street’ remains to be seen.
Just read an Feel Good News article from Victoria, Texas; Christian and Jewish neighbors rallied around their Muslim counterparts after a fire destroyed a local Mosque. Friends and neighbors donated money, necessities, and space to conduct worship services. Good to know that this is still the friendly State.
This is a nation founded by refugees and foreigners-fleeing serfdom (slavery) and religious persecution in Europe. Turning on the ‘no vacancy’ sign doesn’t seem to live up to the rhetoric of the revolution or the principles set forth by the founding fathers.
Like many thousands of Americans, I am very concerned about the possible return of the big business model “for-profit university system.” These For-Profit universities (FPUs) aggressively recruited poorer students, helped these students get guaranteed student loans from the federal government, and then gave them worthless degrees and little/no help in securing jobs with their new degrees. No consequences on the FPUs as the taxpayer would pay off the loans if the students couldn’t. Previously these schools came under heavier regulation and placed job placement burdens on the schools in order for them to continue getting loans. A good number of the FPUs went under.
Now, it looks that the FPUs appear to have an insider (Liberty University’s president, Jerry Falwell Jr.) head a White House task force on higher education, assigned to focus on “overregulation,” among other things. If the goal of the Administration is fiscal responsibility, paring back regulation in diploma mills that generate worthless degrees and defaulted loans for all citizens to pay for seems like a step in the wrong direction.
The Emoluments clause (emoluments means compensation for labor) prevents office holders of the Federal government from accepting benefits or gifts from foreign states. The clause last reared its head when President Obama was awarded the Nobel Prize, and now has popped up again in light of President-Elect Trump’s business ties. It has been reported that Mr. Trump’s business dealings are intertwined with foreign corporations and thus, foreign governments. Interestingly, the clause has never really been tested through our legal process and there are few opinions on the scope of the clause. The President-Elect may simply avoid the trappings of the clause by divesting himself of the assets that he owns an interest in that could entangle him in a situation where there is an appearance of favoritism towards one of his businesses. Alternatively, assuming he cannot or does not, there will likely be strict scrutiny by Congress, and the businesses that may not be treated as favorably (among others) to ensure that the President-Elect’s businesses receive only fair market transactions and not gifts/or favorable treatment.
It has been reported that Wells Fargo’s legal costs could balloon into the billions over the lawsuits and investigations regarding the fake account scandals that rocked the investment world in the last few months. According to the Bank’s recent SEC filing, the litigation costs (losses and costs) could total $1.7 Billion dollars. The Bank’s forecast is in Note 11: Legal Actions of the report (link below).
The Bank is reportedly being investigated by the S.E.C. and Justice Department. The Bank’s scandal started after the company acknowledged that its retail bankers opened millions of fraudulent accounts without customer authorization after facing internal pressure to meet aggressive sales targets.
Classified website hosting page Backpage CEO was arrested for sex related crimes in Houston. It has also been reported that the company headquarters in Dallas was raided. The investigation, which started in California, claims that Backpage records show that close to 99% of its revenue comes from adult services pages, i.e., sex traffic. It has also been reported that the Backpage sex services included trafficking minors.
Friends, Texas is open for business, but not this kind of business.
I just want to say thank you to the volunteer election staff and volunteer election judges that are working today to ensure the election process works. I saw no signs and go no sense of anything rigged in favor of one candidate over another. There was a political candidate standing the required and respectable distance from the polling station answering questions.
The right to vote is coveted around the world, get out there and use it!
As a father of 4 children, two of whom are WOMEN, I feel compelled to speak up for the weak excuse of “locker room talk” that is being passed around to salve the inflammatory statements made by the GOP front runner in this year’s election. The bottom line is that those comments, if they were directed at or to YOUR WIFE (or daughter), are intolerable and infuriating; they are, and should be no less less tolerable because they were directed to another man’s wife (or daughter). We live in a society that aspires to create and maintain equality; we have through those aspirations created a culture where those comments are unacceptable. Article One of the Texas Constitution states:
EQUALITY UNDER THE LAW. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative. Tex. Const. Art. 1; Sec. 3a.
A a man may not force (or brag about forcing) his sexual will on a woman, simply because he is in a position of authority/ power. As retired Judge PK Rider once said, the statements, and the excuses given to justify those statements “are what you get on your boots when you walk out in the pasture.” For this nation to extend tolerance toward that attitude, or give those statements any justification, is nonsensical. Article One of our state’s constitution further holds that: “[e]very person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege.” Tex. Const. Art. 1; Sec. 8. Again, we have created (or aspired to create) a society where we have an almost boundless right to free speech, but that right is limited by the consequences of those words wrongly spoken.
Wells Fargo was sued in Federal court in Minnesota over the fake accounts scandal on behalf of employees who may risk a devaluation of their retirement benefits, which are tied to the stock price of the Bank. The Bank’s shares have been reported to have fallen about 12% since the scandal broke in September (2016). The Bank had no comment about the lawsuit, although there have been thousands of firings over the fake accounts and this seems to be the beginning of the tide.
It is comforting to know that the United States’ banking and finance regulations which were “tightened up” after the passing of Sarbanes-Oxley (2002) and again after the subprime mortgage crisis (2007-09), were loose enough to permit this kind of corporate fraud. Suddenly hiding money in your mattress or in a pickle jar in the back yard is looking pretty good.
Yahoo mail may have built, implemented, and used software to filter ALL of its users incoming emails at the direction of U.S. Intelligence agencies. While the story is breaking news, and all the details are not known, reports indicate that Yahoo mail, in compliance with U.S. Government directives, scanned millions of accounts.
There will be undoubtedly a “hue and cry” for support in the name of “national security,” at what point do we continue to suspend our civil rights and liberty for this pretext of “national security.” Perhaps our elected officials ought to focus a little less on the former Secretary of State’s email woes (and stop wasting time and taxpayer resources on that issue), and investigate and explain to all of their constituents why all of our communications are being monitored. A comedian once said: “sometimes its profiling, and sometimes its damn fine police work,” should that, however, apply to throwing the dragnet on all incoming mail? We are only three years removed from the infamous Snowden leaks (e.g., https://www.theguardian.com/world/interactive/2013/nov/01/prism-slides-nsa-document, which set out concrete evidence of Governmental agency surveillance on millions of citizens in operation-PRISM, as well as other programs http://www.computerworld.com/article/2473078/security0/155290-The-10-biggest-Snowden-leaks.html#slide3). Should this scoop prove true, it may well further erode confidence in the current “illusion of privacy” that we share with our internet mail and any other computer service provider.
As you may be aware, one of the largest banks in North America, and one of the most trusted banks (post mortgage crisis), Wells Fargo, was recently fined by regulators for unethical actions related to the bank’s “marketing tactics.” The bank was caught opening millions of fake bank and credit card accounts for customers over the past five years. These “phantom” accounts were a way for the bank to earn extra fees from customers, as well as artificially inflating its sales figures. A class action was filed in Utah, and comes on the heels of an almost $200 million dollar fine in California, and the firing of over 5,000 employees in regard to the scandal. Moreover, it has been reported that the U.S. Dept. of Justice has issued or will issue (grand jury) subpoenas to the bank. These developments beg the question, how did this happen (again)?
The SEC act of 1929 was designed to prevent all kinds of banking/financial transaction wrongdoing. The Sarbanes Oxley legislation was passed in the early 2000s response to, and to stop, more creative fraud tactics used by unscrupulous businesses (e.g., Enron). Even more “tough” legislation was passed after the housing/mortgage crisis. Perhaps we have enough laws, and while I am sure there will be at least passing rhetoric in support of, or at most, a push in state and federal government to pass NEW laws that will “get tough on banking crime,” the better way to spend our limited tax resources is on enforcement of the laws we have already paid our legislators to pass and our executive branch to enforce.
Earlier this summer the Supreme Court of Texas issued the opinion Ochsner v. Ochsner, which could impact how our family law courts (and appellate courts) have previously interpreted child support statutes and Texas law. While the case is extremely fact specific (and may be limited in its future application because of those facts), the bottom line is that non-custodial parent (father) paid about $78,000.00 in support for his child (well over the court ordered and statutory mandate) sometimes directly through the Tex. A.G. office, and sometimes as a direct payment.
Custodial parent (mother) brought an enforcement action, and after years of legal fighting, the Supreme Court found essentially that the “taint fair” rule applied, and held that the trial courts CAN consider the “aggregate amount of the child-support obligation that remains unmet,” and may consider payments made by the obligor “in a manner not specified in the order.” Ochsner v. Ochsner, No. 14-0638, 59 Tex. Sup. Ct. J. 1359, 2016 Tex. LEXIS 569, at *1 (June 24, 2016). Probably of most significance, is that the Obligor (NCP father) paid well over and above the amount that would have been owed, had he just complied with the child support order. The NCP in this case did the right thing, and that was finally acknowledged by the highest court in Texas; hopefully this victory is more than phyrric to the Obligor (with two trials, two trips to the intermediate court of appeals, and one trip to the Tex. Supreme Court, the costs certainly must be heavy).
The APD crime lab was shuttered this summer, and recently updated that the closure may go on for the remainder of the year, as it responds to questioned techniques, and an update in DNA technology, which throws doubt on a number of convictions. The closure was spurred by the FBI’s corrections and updates to allele frequency data; these data corrections directly change the probability of inclusion and probability of exclusion regarding these tests. It has been reported that APD will re-evaulate 24,000 or so cases. The crime lab is already reported to have a massive backlog, which would likely increase with this extended closure. DNA evidence is extremely weighty, and can deadlock a jury on a result, and free the wrongly convicted (e.g., Mr. Michael Morton). I am glad to see that the Government in Travis County is progressive enough to self police their crime lab, and avoid the backlash that comes when sloppy law enforcement techniques are exposed.
If anyone needs a reminder, the Houston Crime lab scandal: (2014) http://www.houstonchronicle.com/news/houston-texas/houston/article/Scores-of-cases-affected-after-HPD-Crime-Lab-5562835.php
After watching the documentary, Making a Murderer, I am not surprised that the conviction of the then (teenager) Brendan Dassey was overturned. The Federal Magistrate judge, issuing a 91 page opinion, which goes through the entire spectrum of facts about the tragic death of Ms. Halbach (the vicitim), and those that lead to the shaky confession and even shakier defense work by Dassey’s first attorney, concludes that Dassey’s confession was not voluntary under the Constitution. The Court’s analysis and application of the law to the confession, and the actions of law enforcement in getting that confession, are detailed starting on page 74 of the opinion. The Court explains that the continued “promises” by the interrogators, as well as the refusal to accept Dassey’s story, unless it conformed to “what they [the interrogators] already knew,” as well as Dassey’s own deficits, overcame his free will and rendered the confession involuntary.
The opinion is here: https://www.documentcloud.org/documents/3011723-Dassey-Decision.html
Brief recap: 50th anniversary of the “Tower Shooting” at the University of Texas Austin, coincides with the “campus concealed carry” law, now reported as the nation’s first mass shooting. Having lived in Austin as a youngster, I grew up in an age where the Tower incident was discussed, if not frequently, certainly memorably (as it just happened a few years prior). As you are no doubt aware, a lone gunman, also a former service member, climbed the tower at UT, and fired off round after round until the Tex. Dept. of Public Safety Officers put a stop to his rampage. Those Officers were heroes, as the shooter was “loaded for bear” having many different firearms to conduct his plan (handguns, shotguns, rifles, etc.). It made an indelible memory on my young mind about weapons and safety. I hope that the campus carry has the safety effect that legislators clearly intended. I am likewise hopeful that the public universities in our fair state will take whatever precautions they think are needed to protect our citizens and children, who are working and attending school.
We need healing, peace, and love, in our community.
And not the gritty, violent, sci-fi thriller from our youth (or even the remake from a few years ago). The Dallas Police force, faced with a dangerous situation in a standoff with a gunman who opened fire on (and killed) many police officers in a Black Lives Matter protest, used a robot to deliver a bomb to kill the shooter. The tactic worked, and allowed the officers to neutralize the threat of further police injury/death, by remote control. It is believed, and being reported, that this was the first use by law enforcement of this technology. The machine, originally designed to assist in bomb squad response and for efforts in deactivating bombs, was used in this situation, offensively, to deliver a pound of C4 explosive. We can expect to see a rise in the creative use and application of this and other robot technology in a variety of ways in the coming months and years, not only in the United States, but also globally.
In Memory of James J. Savage, May 24, 1963 – July 6, 2016:
James Savage, a native Houstonian, and long-time resident of both Houston and Morgan City, Louisiana, passed away on July 6, 2016 at the age of 53 surrounded by family. In his younger years, Jim was an avid hunter and cowboy/rancher. Always on the go, Jimmy was very athletic: football in high school, water skiing in the bayou, and any new activity that he could find. Jim, like his parents, was a sharpshooter and avid outdoorsman. Jim was an accomplished marksman, having accomplished skills in hitting a variety of game and other targets in a number of challenging hunts, not only on the move, but also from traditional standing, hide, and prone positions. While attending Texas A&M University, he was injured in 1982, but retained his interest in guns and sharp things.
Jim was an inspiration to all who knew him. Undaunted by becoming a quadriplegic, he went on to complete his studies at the University of Houston, earning a BBA in Finance. He rose to the challenge of completing a Masters in Business Administration and a Doctor of Jurisprudence, also from the University Houston. He reached out to other handicapped people, helping them whenever he could. He greatly enjoyed his college years and gained many treasured friends from around the world. Jim’s basic Spanish became fluent during that time and he loved to practice with his friends from Spain, Argentina, Bolivia, Mexico and other Latin countries. Often, the discussions encompassed wine, food or soccer competitions. His recipe for paella won accolades in a local contest.
An intrepid traveler, Jim made trips to many countries, including Yugoslavia, Spain, England, France, Argentina, Mexico and China. He enjoyed the people, the culture and the history of the places he visited. He made good memories and good friends on his travels; they became his extended family. His spirit and humor were infectious: the phrase “a stranger is just a friend you haven’t met yet” fit Jim perfectly.
Jim served as an attorney in the Harris County District Attorney’s office for 17 years, rising to become the Director of Legal Counsel for the Harris County Sheriff’s office. He was honored to work with the Sheriffs, Constables and his colleagues on a daily basis. He was interested in varied aspects of the law and quick to help friends, acquaintances, and in particular, interns. Jim was a mentor, friend, and leader to many young clerks and interns, helping and inspiring them to meet and overcome any challenge.
Jim is survived by his mother, Carrie Bludworth Savage, and his siblings, Susan Thompson and her husband James of Houston, Nancy Thompson of Boise, Idaho, Elaine Savage of Houston, Jenny Savage of Houston, Pauline Robertson of Baton Rouge, and Cheryl Robertson of Baton Rouge. He is also survived by nieces and nephews: Lauren Miller and husband Jason, Parker Thompson, Lily Thompson, H. Platt Thompson III, and Kimberly Hillyer. Jim was preceded in death by his father William F. Savage, brother William Savage II, and nephew John Hillyer II.
A gathering to honor Jim will be held Wednesday, July 13, 2016 at 3:00 PM at Geo. S. Lewis and Sons Funeral Home at 1010 Bering Drive, Houston, Texas 77057. The visitation will begin at 3:00 PM. After the services, you are invited to stay to share memories of Jim and celebrate his life.
Donations may be made to the James J. Savage Spinal Cord Injury Recovery Foundation, 5667 Willers Way Ct., Houston, TX 77056.
We love you brother, we will miss you. I will miss you and will always be thankful for your friendship. Godspeed.
Our thoughts and prayers go out to the fallen, especially the Dallas Law Enforcement officers who were attacked at a protest last night. The protest was (reported to have been originally organized peacefully) in response to police shootings of African American citizens in other cities (also very tragic).
IN CONGRESS, July 4, 1776.
The unanimous Declaration of the thirteen united States of America
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
Formerly, South Texas College of Law, recently changed its name to Houston College of Law, to more closely tie it to the city and area where it has operated continuously since 1923. Houston College of Law is one of the oldest and most distinguished law schools in the Country. Since law schools were not necessarily required until the American Bar Association began pushing for them in the 1890s (after it was formed) and early 1900s, Houston College of Law enjoys the distinction of being the 1st law school in the city of Houston, Texas. The University of Houston Law Center was not organized until 1947.
The Houston College of Law has changed its name because, “as Houston’s oldest law school,”…it needed to “bring increased awareness to the law school’s distinctive location in downtown Houston and better represent the law school’s diversity…global impact…regional and national profile.” As a practicing attorney that lives and works outside of Houston, the first and second questions I am always asked about my legal education are: 1) where did I attend law school?; (my reply: South Texas College of Law) and; 2) where is that located?; (my reply: Houston, Texas).
For those that practice in this fair state, “South Texas” is generally associated with the Western Federal District of Texas, and geographically, the areas west and southwest of Corpus Christi, east and south of Del Rio, south of San Antonio, the lower Rio Grande valley, down to Boca Chica, Texas, where the Rio Grande meets the Gulf of Mexico. South Texas (the region), is positively associated with heavy agricultural production as well as transportation commerce, as well as frequently associated with very heavy violence and illegal drug/human traffic. As divisive as the name change may be to some, I see and understand the need for such a decisive and bold move by the administration.
The school’s post said it best, and for brevity, I am adding that to this blog:
“Houston College of Law’s reputation is distinct and stands alone. It is a private, independent law school, and it is the largest, oldest, and only law school in downtown Houston, where it was established in 1923.
Houston College of Law is one of only three national law schools consistently ranked in the top 10 for trial advocacy by US News & World Report. The law school has won 122 national advocacy championships. No other law school in the United States has won half as many. In fact, the University of Houston Law Center’s website reports they have earned only 16.
Houston College of Law has won the American Bar Association (ABA) National Appellate Advocacy Competition 15 times, more than any other law school in the country.
Houston College of Law has won five first-place Best Brief awards in the American Society of Legal Writers’ Scribes competition—the most prestigious legal writing competition in the country. No other law school has claimed this honor more than once.
Houston College of Law offers its students 16 subject matter clinics from which to choose, including a Veterans Law Clinic, a Patent and Trademark Clinic certified by the U.S. Patent and Trademark Office, and a Low Income Taxpayer Clinic, all of which are unique to Houston College of Law.
Most recently, National Jurist magazine recognized Houston College of Law as a “Best Value” and “Most Diverse” law school.
Administrators, students, and alumni of Houston College of Law are proud of the school’s hard-earned legacy, and do not want to be confused or associated with any other law school.”
The U.S. Supreme Court unsurprisingly struck down Texas’ restrictive abortion legislation, which forced over half of the State’s clinics to close. The law required a number of restrictive conditions for the medical providers that operated them, none of which ultimately could be established to protect the health of women.http://www.supremecourt.gov/opinions/15pdf/15-274_p8k0.pdf
As the stewards of our State’s tax dollars and resources, we should demand and expect better out of our elected officials. This law was overly restrictive, and would not ever pass constitutional muster, and our elected officials knew it, yet passed it anyway knowing the fight that it would bring. This was a shameful wasting of taxpayer dollars. Perhaps we should have mandatory reading of the Parable of Talents (See Matthew; Luke) for our elected officials before they launch into other frivolous endeavors with our State’s precious resources? Think about many FM roads, library books, parks, school improvements, etc., that could have been paid for with these tax dollars instead of another BIG WIN for the pro-choice camp.
The U.S. Supreme Court has drafted a proposed amendment to the search and seizure rule, authorizing courts to green light extra-territorial searches of computer devices. Before, these broad search and seizure rules limited a Federal court to its own jurisdiction (in other words, a Texas federal judge would presumably not have authority to green light a search of computers that were located in Oklahoma). What the proposed change means is that a federal judge would now have the right to let law enforcement search computers wherever they may be located. For example, if a computer were in Oklahoma, or anywhere else, under the new rule, the federal judge would have authority to let law enforcement conduct a search remotely across territories. The proposed rule change (to Federal Rule of Criminal Procedure 41) would undoubtedly help law enforcement investigate computer driven crimes and thefts. The down side to the rule, is of course the ever expanding power of government, and the danger of abuse (not unlike what has been exposed in the not to distant past–most egregious was the revelation of the multi-national espionage agreements between the USA, its law enforcement agencies, and other nations).
I am again flattered and humbled to have been nominated by my peers as a Super Lawyer, THANK YOU.
A semi-submersible vessel was reported captured last week, which was shipping just under 13,000 lbs. of cocaine. Congratulations and accolades to the United States Coast Guard, and the law enforcement community for detecting and intercepting the “narco-sub.” The more obvious danger, however, is how glaringly porous our border is to narco (and other) traffic. Border state residents (like Texans) have been complaining about border security for decades, and the only consistent change seems to be that the border becomes more hostile every year. I wonder what the famous author Jules Verne would think about his vision of submarine travel being used in such a way.
The Government is seeking to unlock the phone of the deceased terrorist Farook, one of the California killers that commited mass murder last year before being killed in a police shoot out. The Government’s request is to pierce the password security on the county issued iPhone (Farook was reportedly a county employee) and access about 40 days of information that was not backed up to Apple’s iCloud. The Government contends that there may be sensitive evidence of other crimes or leads to other terror agents/groups that remain on the iPhone. Apple has reported it already turned over the data to the Government that Farook kept in its cloud based backup, however Farook stopped backing up to the cloud about 40 days before the murders. The government seeks information that remains on the phone to continue its investigation. Apple has reportedly refused, thus far, to turn over the information stored on the phone apparently because the request would destabilize all of Apple’s security systems (and not be a limited/isolated search in this one case). The fourth amendment’s fundamental right of a citizen to be secure in their papers and things is front and center in this fight for justice versus privacy.
While I appreciate the sensitive nature of this predicament (balancing the right to privacy vs. public safety against mass terror groups) the precedent could jeopardize security of the millions of legitimate smart phone users around the world. If Apple were to create a program (or an app) to circumvent its security software how long would it be before those with less than honest intentions copy or create such a program or app? And how long would it be before the data of millions of business owners would be breached? Simply thinking of the sheer amount of industrial (or other) espionage that this program/app could put at risk weighs against the creation of it, especially in light of the not to distant discovery of the Government’s mass espionage campaign against the American people (see the ongoing Edward Snowden scandal).
The United States Supreme Court lost one of its most polarizing and prominent members-Justice Scalia. His presence and rhetoric will be missed (by some, and some more than others) and will likely further divide the Senators who have already worked diligently to delay our current President’s appointments to other vacancies on the Federal bench. He will be missed most by not only his family and loved ones but also by his close colleagues on the Supreme Court. His opinions (and dissents) will be noticeably absent in the months to come, while the Court finishes this current term. His long service to our way of life and the Rule of Law is deeply appreciated (although, not all of us always agreed with his points of view). In Texas, he will likely be most remembered for strong 2nd Amendment support exemplified in the case D.C. vs. Heller succinctly stating that “the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”
It’s not a Netflix “infotainment” conspiracy, the Actual Innocence movement, which has been underway in the American justice system since at least Gideon v. Wainright, at the national level (the case acknowledging a defendant’s right to a lawyer), and certainly since the early 1980s in Texas (e.g., Texas v. Adams) has freed the wrongly accused across the nation. Last year it was reported that almost 150 people were cleared for crimes they did not commit, and that this is the highest amount ever reported. It has also been reported that almost 140 people were cleared in 2014. Many who are released from prison have served long sentences, have been on death row, and are fundamentally crippled by the “system.” The exonerated, victims of the justice system, are awarded (at least in Texas, as well as many other states) large amounts of money to compensate them for the time spent behind bars–and because the State convicted them, the State pays them. In other words, TAXPAYERS pay for the State’s mistakes. These wrongful convictions are based on false confessions, violations of constitutional rights, and questionable law enforcement tactics. The Honorable Alex Kozinski, of the 9th Cir. Court of Appeals, wrote an extremely detailed examination of the issues facing the modern criminal justice system in the United States; this should be a must read no matter where you stand on the issue of Actual Innocence.
Gov. Greg Abbot and Democrat Rep. Henry Cuellar have reportedly written a joint letter to DHS chief J. Johnson objecting to the Department’s slashing of about 50% of aerial surveillance along the Texas border. The Texas border certainly has not gotten any safer or more secure in the last few years, and it has been reported that there are continuing surges along the Texas border of migrants fleeing Central America and Cuba. Just last year, over 10,000 children entered the U.S. through the Rio Grande Valley. The state officials have reportedly urged DHS to beef up resources, not diminish them. Less DHS surveillance will undoubtedly create more opportunity for human trafficking, drug smuggling, and illegal immigration.
The U.S. Supreme Court had previously ruled juvenile offenders sentenced to life without the possibility of parole was cruel and unusual punishment. The Court voted in the last two weeks that the same rule applied retroactively to cases like Montgomery v. Louisiana, where a 17 year old boy was sentenced to life without parole (admittedly, for a terrible crime), thus allowing such offenders a chance at a review for parole eligibility. The offender in that case Mr. Montgomery, has spent 46 years in prison for crime he committed at age 17. The Supreme Court has, in recent years, turned away from the harsh punishment of child offenders, e.g., in 2005 the Court abolished the death penalty for juvenile murderers, and again in 2010 ruling that life terms for juvenile offenders, except for those convicted of murder, were cruel and unusual punishment. This rule of law is now applied retroactively and will allow some offenders, who committed their crimes while still children, a chance at liberty.
In the recent case Key v. Richards, –S.W.3d–, 2016 Tex. App. Lexis 283 (Tex. App. -Austin 2016), the appeals court acknowledged that our state law broadly insulates LLC members from liability for the LLC’s obligations but that the law did not abrogate “longstanding common law recognizing that corporate agents are liable for their own tortious conduct and may even be liable for an entity’s liabilities based on the equitable principles of veil piercing.” The court was weighing whether two individual member/managers could be liable under Tex. Bus. Orgs. Code sec’n. 101.114 as well as common law theories of veil piercing. The court concluded, following longstanding precedent, that statutory law and common law did not protect an individual member/manager from their tortious fraudulent transfer under the circumstances in this case. This comports with the general rule that abuse of the corporate form (using it for improper purpose) will expose a member/manager/shareholder to personal liability (e.g, Tyco, Enron, and to a lesser degree, Stanford, Madoff ,etc.).
Key v. Richards, No. 03-14-00116-CV, 2016 Tex. App. LEXIS 283, at *8 n.4 (App.—Austin 2016)
Newman, a former portfolio manager at Diamondback Capital Management, and Chiasson, co-founder of Level Global Investors, were part of a group calling themselves “Fight Club” (after the popular book/film by the same name written by Chuck Palahniuk). The members of “Fight Club” allegedly shared information, eventually leading to a double conviction based on leaks reported to have started with or at Dell and Nvidia. These tips eventually reached “Fight Club” and were allegedly used to profit the Defendants’ portfolios.
The appeals court, overturning the convictions, stated prosecutors needed to, but did not, show that the person disclosing the information received a clear benefit, and the benefit had to be more than nurturing a friendship. The appeals court also said the person being prosecuted had to know about the benefit.
The U.S. Supreme Court has defined insider trading to encompass only situations where a person violates a fiduciary duty to shareholders; i.e., an employee personally benefits (financially or otherwise) from a disclosure of information not readily available to the public. The New York Attorney General’s office, which had spearheaded the campaign to “clean up Wall Street” has racked up nearly 100 insider trading convictions, and has more under indictment, based on these now shaky theories of prosecution.
The Supreme Court has rejected the appeal by the U.S. Attorney’s Office of appellate court’s decision tossing both Mr. Newman’s and Mr. Chiasson’s convictions. In plain English, the U.S. Supreme Court is signaling (without speaking), that the 2nd Circuit Court of Appeals “got it right.”
I am humbled and flattered once again by my colleagues that nominated me for inclusion in the 2015 list of Superlawyers. THANK YOU.
Spammer bot filled out the following on our firm website:
“Please, I would need your skilled legal counsel to help me handle a full spectrum of purchase and sale agreements transaction, a complete package from contract preparation through closing.If this is not your legal field a referral would be fine.”
email purported to be from: firstname.lastname@example.org
We’ve received a number of these, & reported some to the appropriate authorities. Keep your guard up friends.
see also: http://antifraudintl.org/threads/massimo-marchetti.99730/
http://www.newyorklegalethics.com/contact/ ( what’s laughable about this is that the spammer contacted the New York legal ethics online magazine with this blast email, or at least that’s what it appears to have done).– The spambot knows no bounds!
You put on your suit, dust off your brief case and handy Texas Rule book, but decide to make a “murder for hire” solicitation call on the way into the office. Those are the (slightly embellished) allegations an Austin area attorney (licensed since 1981) is now facing. While the case turns on the information provided by (an ever-trustworthy) heroin addict (as reported in media sources), law enforcement had the requisite information and probable cause to arrest the attorney and charge him with solicitation of capital murder. Practice takeaway tip of the week, find a better outlet for stress.
We send our thoughts and prayers with all those touched by the tragedy of the attacks on the United States of America fourteen years ago on 9/11/01. Thanks also go out to the thousands of police officers, firefighters, and military service men and women fighting to protect us from future attacks.
Two brothers from North Carolina were freed from over three decades of wrongful incarceration this last year, after being charged with and convicted of killing a young child. The brothers were also awarded a substantial payout this month, which will be put into trust, to provide for their future support. New DNA evidence pointed to another killer in regards to the 1983 murder. One of the brothers, Mr. McCollum was the State’s longest serving death row inmate. His half brother Mr. Brown, was sentenced to life in prison. Both men were teens when they were questioned and coerced into giving confessions. DNA at the scene on cigarette butts and other evidence did not match the brothers genetic profile. We pray for all the victims of this miscarriage of justice including and especially the family of the child who was murdered.
The Grand Jury investigating Mr. Ken Paxton, current Attorney General of Texas, is expected to (and is reported to) have indicted the Texas “top cop” for several felonies related to an alleged investment scheme (i.e., a securities violation). The allegations stem from referral fees paid to Paxton (without full disclosure), for funneling clients to a McKinney based company. The corporation has been involved in shareholder lawsuits and its own investigations with State and Federal securities enforcement agencies. Mr. Paxton will be permitted (and will likely continue) to serve as the State’s top law enforcement official, despite the indictment. The case will be presided over by a Tarrant County Judge and has been assigned a special prosecutor.
“The Supreme Court has roundly rejected prior restraint”–a pop culture quote from John Goodman’s character in “The Big Lebowski” about exercising his 1st Amendment Right to Free Speech in a “family restaurant,” which has become immortalized in at least one Texas Supreme Court opinion about the exercise of free speech rights. Kinney v. Barnes, 443 S.W.3d 87. Texas courts have not hesitated to overturn or modify injunctions that violate the First Amendment or Article I, Section 8 of the Texas Constitution. Our U.S. Supreme Court has held the right to free speech is so important, that it has issued warnings that litigants should not seek nor be given temporary restraining orders enjoining speech on an ex parte basis (in other words, where only 1 side is present). Carroll, 393 U.S. 175, 180. Prior restraint of speech is ONLY permitted “when essential to the avoidance of an impending danger,” and only when it is the least restrictive means of preventing that harm. Kinney, at 95. In other words, yelling “fire” in a crowded theater, may be a situation where a prior restraint on free speech is upheld. However, the Texas Supreme Court, interpreting the Constitution, ruled that it while “liberty of speech” must be preserved,” the law holds “all persons accountable…for the misuse of that liberty.” The Texas Supreme Court further ruled that any abuse of the right to free speech MAY NOT be remedied “by denial of the right to speak, but only by appropriate penalties for what is wrongfully spoken.” Bottom line, you can (within reason) say “whatever” you want, provided it does not create a risk of danger, but you better be prepared for the consequences those “fighting words.”
Our Texas State Bar’s vigilance over Prosecutorial Misconduct continues, last week the bar’s Commission for Lawyer Discipline filed a petition against Fort Bend County District Attorney Mr. John Healey & his chief narcotics prosecutor, Mr. Mark Hanna, relating to a 2006 drug case against Mr. Jacob Estrada. The Bar’s petition states that the Prosecutors delayed in notifying the Defendant, Mr. Estrada, that the DPS agent who tested the drugs in his case was fired in 2012 for fabricating evidence in other cases. The Bar complaint also alleges that the Prosecutors failed to inform Mr. Estrada that the evidence in his case was destroyed, meaning no retest of the questionable evidence was possible or could occur. Once on notice of the issues with the DPS lab and the DPS agent’s results, other State Prosecutor’s offices took quick action to notify the potential defendants. The complaint alleges that the delay by the Prosecutors, to wait to notify Mr. Estrada until 2013, was essentially unreasonably lengthy (especially in light of county prosecutors in Galveston and and Harris county moving quickly to notify the possibly falsely accused in 2012). Estrada remained in custody until 2014.
In the last few weeks, the State Bar of Texas found that Charles Sebesta, one time elected as Burleson County district attorney, committed misconduct when he prosecuted one Mr. A. Graves in 1994 for a family’s murder. Mr. Graves was freed in 2010 after serving 18 years in prison, 16 on death row. Mr. Graves filed the bar complaint to correct the criminal justice system. On his own website, Mr. Sebasta tells his side of the story.
Apparently, during a private trial (permitted in State Bar Disciplinary proceedings) Mr. Sebasta’s side of the story was heard, but was not enough to overcome the allegations of misconduct for withholding and lying about evidence showing Graves’ innocence. Mr. Graves’ co-defendant, Robert Carter, executed in 2000, admitted he was the lone killer. The evidence indicates that Mr. Carter initially implicated Graves, but later testified to the grand jury that Graves was not involved, but Mr. Sebasta did not correct that testimony when Mr. Graves was on trial for capital murder.
Mr. Sebasta also made a statement during trial that chilled the testimony of an alibi witness, Yolanda Mathis, Mr. Graves’ then girlfriend. Mr. Sebasta apparently stated that Ms. Mathis was a suspect in the same murders (she was not), and after his declaration, she refused to testify (presumably, out of fear of prosecution).
The Bar’s disciplinary panel found that Mr. Sebasta “had no evidence or information tending to show Yolanda Mathis was suspect or had any involvement in the murders.” Despite the sweeping changes put in place under the Morton Act, (named for Mr. Michael Morton, who was cleared of his wife’s murder by DNA evidence and released after serving 25 years in prison), the suppression of evidence in past cases and ongoing cases will continue to be revealed. The former D.A. and State Judge in the Morton case was also disbarred (and served a VERY short stint in jail-not 25 years in prison, like Mr. Morton, but jail). This was a horrific crime. However, Prosecutors who are withholding/have withheld favorable information to secure convictions should be on notice that State Bar of Texas is policing these matters.
Yesterday marked the 800th anniversary of the Magna Carta, which was born out of a dark time in England’s early days, and is the point at which the rule of law began to take shape in what would later, eventually become part of the common law (which carried over to our shores later during colonial times). The charter initially only applied to royals that were disgruntled with the rule of a monarch, but later, became part of the statutory law of England. The laws of Magna Carta were initially designed to limit the unchecked power of the monarchs of England to tax and pass unjust laws against their Royal subjects (remember, medieval Europeans were mostly serfs-essentially slaves, with no rights, compared to their overlords, the royals). Eventually the “great charter” or “contract” became part of the influence of the colonies, and contributed to the idea that the scope of the powers of Government and the Rule of Law be memorialized in an agreement, the Constitution of the United States of America. We are fortunate that this important concept and the document that captured it, became an integral part of our culture and had a profound influence on the (ongoing) re-kindling of liberty in our nation.
We are getting to the time of year where prom is coming up, college acceptance letters are showing up in mailboxes, and the excitement of high school graduation is growing.
The last thing you want to think about is sending your kid off to college or what goes with that! However, one thing that will slip the minds of many parents is how your car insurance may change when your child is no longer living at your house.
Why is this important? Because you want to make sure that your car and your child are covered in the event of any type of accident. College is expensive enough – no need to add an uncovered accident to the mix!
What do you need to know?
1. If your child’s primary residence will remain at your house, then they may still be able to be covered by your policy.
2. If your child is going out of state, then we suggest that you visit with an agent because states vary on when a student can be covered on a parent’s policy.
3. Is your child going to be driving while at school? Or, will the car be parked the majority of the time? This can change your coverage so let your agent know so you have the correct coverage.
4. Also, the type of car your child drives, prior violations, and her grades all can impact her insurance rates. It is a good idea to let your children know this so they can – hopefully – make good choices!
Making sure that your child and vehicle are properly insured as they begin their college adventure is important because you want to make sure that in the event there is an accident – you need it to be covered!
If you are involved in a lawsuit, the chances are good that the Court will require you to attend mediation. What is mediation? Do you have to go? And what should you expect?
Mediation is an opportunity to see if you can reach an agreement with the other party. You can mediate all sorts of cases – business disputes, personal injury, divorces, child support, and employment cases.
When you mediate a case, a mediator is selected to run the mediation process. Oftentimes, the mediator is an attorney and will have experience in the area that you are dealing with. For example, if you are mediating a divorce case, then you may want to choose a mediator who knows about family law. This way you can discuss your case with the mediator and get their experience and opinions as well.
Mediation can last all day or may just be a couple of hours. Before you go to mediation, make sure that you ask your lawyer how long your mediation session is expected to last. Also, make sure that you know where to go because it is oftentimes not in your lawyer’s office.
Here are some tips and thoughts on what to expect during mediation:
1. At the start of mediation, you and your attorney will meet with the other party and their attorney. The mediator will introduce himself and explain the process to everyone. At that point, each side will give their version of the facts and disputes. Oftentimes, the attorney for the parties will do this.
2. After opening session, you and your attorney will be sent to one room and the other party to another room. The mediator will go between the rooms discussing the good and bad of your case and seeing if an agreement can be reached. This can be a long process. The mediator may be gone for a while, but be patient.
3. Be willing to hear the good and the bad about your case. Neither side has a perfect case. Each side has a weakness. Be ready to hear it and think about it.
4. Dress professionally. You want to make a good impression. This may be the first time that you are meeting a representative from the other side and how you look may factor into their evaluation of the case.
5. Ask questions if you do not understand. This is your case. Ask your lawyer if you want to know more or don’t understand what is happening. Ask the mediator if you have questions. This is your case and you need to be engaged.
Mediation is not a binding process; however, it is a good chance to learn about the other’s side’s perspective and see if you can settle your case, which may be in the best interest for you and your family.
We have many years of experience with mediating a wide variety of cases and are happy to visit with you about mediation and answer your questions.
Germany is beginning the trial of the “Accountant of Auschwitz.” The “Accountant,” Mr. Oskar Groening, now 93 years old, is accused of accessory to murder (of millions) as part of his duties in working at the notorious death camp Auschwitz as a member of the SS from 1942-1944. Mr. Groening apparently made a lengthy statement to the Court trying his case, acknowledging his “moral” culpability. Apparently, German government officials are investigating and will likely prosecute 10 or more Nazi war crime/death camp guard cases, under a new legal theory charging suspects participating in such war crimes under an accessory to murder/conspiracy to murder offense. We hope that the trial, and conclusion of this case (and these other war crimes cases) bring peace and closure to the survivors, families, and victims of these atrocities. Interestingly, the successful prosecution of this case could lead to prosecutions of other similar behavior by other groups (i.e., groups promoting genocide, or ethnic cleansing, violence based on religious differences, radical religious beliefs, etc.).
The U.S. Government struck a plea deal with former San Antonio State District Court Judge Angus Kelly McGinty, charged in federal court in New Mexico with corruption charges & wire fraud.
Mr. McGinty resigned from the bench last Feburary (2014) as a result of the bribery investigation. While other judges being investigated for a multitude of lascivious crimes stayed on the bench through any disgrace (example: former Dallas County district court judges in the past 24 months), McGinty’s efforts to preserve the integrity of the judiciary are appreciated by this firm.
McGinty apparently sought and took bribes from a local attorney (not named here) for favorable treatment and rulings related to that attorney’s criminal clients. That attorney has also apparently accepted a guilty plea deal; both men await sentencing and likely discipline from the State Bar.
Before former Gov. Perry’s indictment, most Texans had never heard of the Texas Public Integrity Unit. Now, multiple lawmakers (during this legislative session) are proposing reforms about this state’s (almost non-existent) investigation and prosecution force tasked with the policing of public officials. In other words, there are few law enforcement agencies (read–NONE) watching the public servants who are elected or employed to protect us, the PIU is about it in Texas-at this time, it is run by the Travis County District Attorney’s Office (located at the State’s headquarters and presumably away from local flavor).
Both our State House and Senate have proposed bills, which take the PIU away from the Travis County D.A.’s Office, which has statewide venue to prosecute offenses involving certain crimes. The proposed changes from the House bill include the designation of the Tex. Dept. Public Safety’s Texas Rangers to investigate public officials. The proposed changes from the Senate bill place the PIU in the Attorney General’s Office although the Texas Rangers are tasked with some investigations.
Apparently, under the House bill, the Rangers would have authority to refer or not, a case for criminal prosecution to the prosecutor of the county (“in which venue [would be] proper”). Basically, both versions of the bill send cases back to the defendant’s hometown prosecutor’s office. The bills differ again on the procedure following the recusal of the elected prosecutor: under the House bill, the 9 judges of the State’s Administrative Judicial Regions would vote to appoint a new prosecutor from a different county; under the Senate bill, a presiding judge (in the Defendant’s home county) would appoint a replacement prosecutor.
There is more political wrangling to come on the reformation of the PIU, the biggest of course being funding. Both bills could likely become stale or forgotten in this Legislative session (as do so many others).
How do you modify a support order (that is final) when mother and father now live in different states? This is a brief, non-comprehensive discussion about how these scenarios can play out in real life.
There are a number of scenarios where a family may need to seek a modification of a support order after a final ruling from a court of competent jurisdiction -these fall under the Uniform Interstate Family Support Act, which is part of Texas (and most states) law. This law controls support cases where there is an interstate element.
If the custodial parent and (most importantly) a child reside in Texas, then a Texas court would have exclusive jurisdiction to modify a support order. If the child resides outside of Texas with the custodial parent, a Texas court (even if it issued the original support order) would not have jurisdiction unless the parties consented to Texas (and then, one of the parents would have to live in Texas).
Under the Act, if the custodial parent seeks to modify support, they would generally have to bring their modification in the state where the non-custodial parent lives; if the non-custodial parent seeks the modification, they would have to file in the state where the custodial parent lives (with the child). The Act has several other procedural requirements and quirks, which are too long to delve into in this short article. If you, or a family member is faced with a multi-state modification issue, proceed carefully; please call Ashmore & Ashmore for a private conference about your case.
Last summer, the Houston Chronicle broke the news of the filing of a complaint against former Navarro County prosecutor John Jackson relating to the trial/conviction/execution of Cameron Todd Willingham. Mr. Willingham’s case gained notoriety from the outset as he was charged/ultimately convicted for the murder of his children (by burning them alive around the holidays). Mr. Willingham always maintained his innocence, but was convicted in part, on his reputation as a troublemaker in the community, shaky scientific evidence, and the testimony of a “jailhouse snitch.” The case has again come to light due to his family’s ethics complaint against the Prosecutor that tried Mr. Williams, which has turned into a formal State Bar complaint, alleging Mr. Jackson wrongfully concealed the scope of the deal for leniency given to the “snitch.”
The Government’s case against Mr. Willingham was largely based on the testimony of the snitch–Mr. Webb, who stated Willingham confessed to the murders. The State Bar complaint has alleged that Mr. Jackson withheld evidence that was discoverable, frankly -the extent of the agreement for leniency on Mr. Webb’s aggravated robbery charge, which was reduced in exchange for his cooperation against Willingham. Mr. Webb has since recanted his testimony, claiming he was coerced into cooperating (or face a lengthy prison sentence).
Mr. Jackson-the lead Prosecutor in Willingham’s case, is alleged to have covered up the full scope of the agreement he made with the “snitch.” Jackson agreed to reduce Mr. Webb’s charges in a serious robbery case if he would testify against Willingham. The Government’s case against Mr. Willingham was bolstered by Webb’s statement that Willingham confessed. The Government’s case was also based on forensic evidence of arson, which has since been largely (if not entirely) discredited.
Mr. Willingham’s case remains in the public eye because of a previously undisclosed letter that Webb wrote from prison in 1996. In that letter, Mr. Webb urged lead Prosecutor Mr. Jackson to live up to his earlier promise to downgrade his conviction. Mr. Webb’s letter also reportedly threatened to make a public complaint.
Mr. Jackson, in response to that letter, allegedly wasted no time to get a court order that altered Mr. Webb’s robbery conviction, thus making him eligible for immediate release on parole. When Webb was rejected for early release, Mr. Jackson is alleged to have assisted with his transfer to a local county jail. Webb also claims that there were financial benefits conferred on him in prison in exchange for his testimony. These previously undisclosed (and possibly intentionally withheld) facts cast doubt on the fairness of Mr. Willingham’s long fight for his life (which he lost, he was executed for the murders in 2004).
An SR 22 is a certificate of financial responsibility, a guarantee of insurance that you need to request from an insurance company if you commit a number of serious driving offenses, including but not limited to violating the drink/driving laws. Basically the SR 22 insurance document shows that you have complied with Texas’ minimum financial responsibility law, and is different from the standard proof of insurance.
SR 22 certificates are often confused with (and mis-named SR 22 Insurance). You will need SR 22 certificates of insurance if you are involved in a serious (or sometimes not so serious) offenses and driving offenses (violation of the drunk driving laws; driving without insurance; being convicted of misdemeanor possession of marijuana; involved in a serious car wreck; driving with suspended/invalid/revoked license; excessive amount of driving violations, etc.). Because these insurance certificates are linked to serious driving offenses, you should expect higher (and possibly cost-prohibitive) premiums. You will need an SR 22 in almost all applications to get an occupational driver’s license or license reinstatement after a charge for a serious motor vehicle violation.
Apparently, this coming December, at a restaurant near you, (chain) restaurateurs will be required to comply with the F.D.A’s new calorie labeling regulations. In other words, it will be required that a restaurant provide specific nutritional information upon customer request. Also, it seems these new rules will target ALL chain type food vending, yes even the lowly hospital or interstate highway rest-stop “food” vending machines (if what they contain can be identified as food, although, undoubtedly at one time, the meals within were probably made of some food like products).
Congress passed this law in 2010 (as part of, you guessed it, the Affordable Care Act); again, this law mostly will impact chain restaurants (and will preempt any existing state laws already affecting restaurant chains with 20 or more locations), smaller chains (those with 5 to 19 locations) can continue following any applicable state law (if any) or they can voluntarily comply with the new federal law (but are not required to do so YET). This law is not yet applicable to stand alone restaurants, but voluntary compliance now is probably smart thinking, as customers are coming to expect such disclosures.
Bottom line, large chain restaurants will have to give some basic calorie disclosures, but on request, will be required to provide specific information to customers regarding: total fat, total calories, total calories from fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber protein, and sugars. Eventually, these rules will affect food vendors who own or operate 20 or less restaurants, including food vending machines (sometime in December of 2016).
Read the regulations here (cut and paste into a browser):
Have you ever wondered what “back child support” really is? Just how far back do courts go to calculate money that could be owed to a child and/or parent? What if you didn’t even know that you had a child? Will you still have to pay child support?
Back child support is different than a child support arrearage. A child support arrearage is money that a parent was already ordered by the court to pay, but has not. Back child support refers to money that is owed to a child or a parent, but the court has not ordered you to pay it yet.
Where do we typically see back child support come up? In divorce cases with minor children. One parent could eventually be ordered to pay child support from the date that they separated from their spouse, but it could take several weeks before the court orders payment. That period from the date of separation to the time of the court’s order would be the back child support period.
Another example of back child support would be if the parents of the child were not married at the time of the child’s birth. The back child support could start from the time of the child’s birth. The father may also have to pay for the mother’s medical expenses for the birth of the child that were not covered by insurance.
The question we are often asked is how far back will the court go to calculate child support. State courts typically limit the amount of retroactive child support to an amount that does not exceed four years of support.
What if you didn’t even know that the child existed? Will you have to pay back child support? Yes, you still may need to pay back child support, but you may also have defenses to the amount owed. The court will consider the following: (1) what sort of resources does the father have, (2) did the mother try and tell the father about this pregnancy and/or child and, if so, the actions that she took, (3) did the father know, or should have known, of this child, (4) what would a back child support obligation do to the father’s current family in terms of hardship, and (5) did the father make any payments or help pay for the needs of the family. These are all things that the court will take into consideration before a decision is made.
Here are some final tips and thoughts about back child support:
You may be given a credit for any money paid to the mother before the court orders child support. So, if you have given the mother money, keep the documents to show what you had paid.
How do the courts calculate back child support? It is based upon what you were making when the child was born. If you were making minimum wage when the child was born and now you are earning more, the amount that will be taking into consideration is the minimum wage amount.
Is retroactive child support automatically given to the mother or child? No. The custodial parent of the child has to ask the Court for it. The Texas Attorney General’s office can also request it.
If you are faced with this situation, please call us for a consultation to discuss your options.
What happens to your children if you and your spouse die?
Who will take care of them?
What if you have not had an opportunity to do your will? Who gets your children?
Do you want a judge, who does not know you, to decide who will care for your kids if the unthinkable happens to you and your spouse? Most parents do not want that to happen.
A will can allow you, the parent, to make very important decisions like designating a guardian for your minor children or other dependent family members, so you can stop worrying about what will happen. Setting out your directives in a will is one way that you can take care of your kids when you can’t be there to take care of them.
Should a child be orphaned and there is not a will to set forth who will care for your child, the court may likely take the following actions:
If a child is orphaned and no guardians have been named, the court will appoint a guardian based on the following guidelines:
1. The court will start by looking at the grandparents. If the child has more then one living grandparent, then it will come down to who is the best to care for this child and what is in the best interest of this child? What if both grandparents want this child? Then there could be a costly legal battle before the court makes the decision and this leaves the child is limbo as it is being worked out.
2. What if the grandparents cannot care for the child or are deceased? Then the court will look to the nearest living relative. What does that mean? They will look to aunts, uncles, or cousins. What if there are two aunts that both want the child? Again, it could lead to a long and lengthy court battle before the court decides on what is best for the child. Your child is left in limbo waiting for a decision from the court.
3. A situation that we do not see often, is what happens if a child has no relatives or none of them are capable of caring for the child? The then court will appoint a person who is qualified and able to care for the child.
Why is a will so important when it comes to your children?
• You take good care of your kids and you love them. If you and your spouse die, then you want this decision made so your child is not left waiting for a legal battle to end. This is another way to care for your kids and your loved ones.
• Maybe you do not want certain relatives to care for your children. They may end up as the guardians if this decision is not made in a will. Make your wishes known for your children.
• Maybe you want a close family friend to be the guardian of your children? If that is not in a will, then that friend may not even be on the court’s list of someone to care for your child. The courts will look to family members first. A will allows your family to know your wishes for your children.
You love your children and you know what is best for them. By having a will, you are making sure that your wishes are known should you not be there to take care of them.
If you need a will, or maybe to update your will, please call us to schedule a free consultation: 972.325.5938.
By Jennifer Ashmore
This week, the U.S. Supreme Court overturned the conviction of a Florida fisherman, where US Attorneys attempted to stretch Section 1519 of the Sarbanes-Oxley act, to be a catch all spoliation offense applicable to any crime, not just financial crimes, which the Sarbanes-Oxley act was expressly drafted to protect against. The dissent, which surprisingly included Justice Scalia (initially reported to be opposed to the prosecution stating “what mad prosecutor would bring such a charge”–– [paraphrasing]), “cutely” sites to Dr. Seuss as some sort rationale to apply this financial crimes law to fishing regulations. Fortunately, The plurality opinion carried the day.
The Court’s opinion noted that all parties acknowledged & AGREED that Sarbanes-Oxley “was prompted by the exposure of Enron’s massive accounting fraud and revelations that the company’s outside auditor, Arthur Andersen LLP, had systematically destroyed potentially incriminating documents.” Section 1519 was written specifically to cure the “conspicuous omission” from the prior law which did not create potential personal criminal liability to the person or entity who actually shredded documents or other records of a financial crime. The government’s argument was that section 1519 was not limited to corporate fraud and financial crimes.
Mr. Yates was indicted thirty-two 32 months after a search at sea by the “fish cops” (Florida Game Enforcement Officers), who found Yates had three undersized fish (the 3 offending fish measured less than 20 inches but greater than 18 inches) on his commercial fishing vessel during an inspection. During that 32 month period between the search & the indictment, the fishing regulation setting the minimum length for Gulf red grouper had been lowered from 20 inches to 18 inches.
Yates returned to port, and had in the interim tossed the undersized fish at sea. As aforementioned, the Government waited 2 and 1/2 years between the inspection and seeking charges; Yates was charged, tried, and at the close of trial moved for judgment of acquittal on the 1519 charge. Yates argued that the Gov’t. could have charged him with tampering or instruction or any number of other offenses but that the Sarbanes-Oxley act was limited to the destruction of tangible objects like computer drives, logbooks and things of that nature related to a financial crime. The trial court, expressing misgivings about the breadth of the Government’s interpretation of 1519, nevertheless followed controlling appeals court precedent and sentenced Yates. The 11th circuit court of appeals affirmed the conviction, and the Supreme Court reversed. The spirit of the Court’s ruling is summarized after a lengthy analysis of both arguments and the body of work that formulated section 1519, stating that –“[i]n law, as in life,” the same words in a different context often carry different meanings (e.g., in the film “Donnie Brasco” where the hero is defining the many ways “forget about it” can be applied in conversations among “wise guys”). In conclusion, the Court resisted reading 1519 to be a “coverall spoliation of evidence statute” as promoted by the U.S. Attorney’s office.
If a criminal defense attorney offer to witness anything in exchange for testimony he or she would be charged with any number of felonies (for tampering, or obstruction of justice, etc.). The Government, however, often offers “deals” to suspects that are not a prime target of an investigation, so that those suspects “cooperate,” in exchange for leniency at some time in the future. Representations are often made, by the Government, and the suspect that they (the suspects a/k/a snitches) are not receiving any benefits from their cooperation.
In a recent case Baca v. Adams, the 9th Circuit Court of Appeals dealt with a scenario where this kind of back door deal was discovered by the Defendant, Mr. Baca. In a nutshell, the facts are as follows: a suspect, Melendez, was prosecuted and sentenced, and became a “snitch.” The Government used Melendez’s testimony to convict Mr. Baca in a separate trial.
During Baca’s trial, an Assistant Prosecutor (Spira) bolstered Melendez’s testimony, offering statements claiming essentially that Melendez did not get any special considerations for testifying against Baca. The Defendant’s attorneys learned of this, and filed additional proceedings. The California Court of Appeals found that assistant district attorney Spira (and basically Melendez) misled the courts under oath. Apparently, the California Attorney General also lost a hard fight to protect its prosecutors from the transcript taken when these matters came to light during the further proceedings. The 9th Circuit Court of Appeals eventually got a hold of this matter, and scathingly questioned the State’s attorney, and also strongly suggested investigations/prosecutions for the offending assistant district attorney regarding these concerning issues.
Cut and paste the following link into your browser to hear the oral argument, minute 15:50 is where it gets interesting. This is but one example, and a rare one, where the Government’s attorneys are caught in a bad act (although any retribution is, as of yet, doubtful, Baca was released and without opposition from the State-draw your own inferences as to why). I am grateful to the panel of Circuit Court Judges who stood with the Constitution, and with our Citizens, and against the miscarriage of Justice by Government lawyers.
Last summer, the Texas Supreme Court limited (eliminated) common law shareholder oppression claims that had developed over many years. The result of this left minority business owners with really only one remedy, which is applicable only the worst of situations: when there is sufficient evidence of corporate fraud/wasting of the corporate assets, the minority shareholder can ask for a receiver to be appointed. This article touches briefly on what a receiver’s duties and obligations are, and how this mechanism works in real-time
What is a receiver? A receiver is an agent for, and appointed by, the Court. The receiver is independent of the disputing parties, and acts for/reports to the Court, identifying, seizing (if needed), & holding assets in custodia legis (the Court’s constructive custody); this is similar to a bankruptcy estate. The receiver holds these assets (and runs the company) to preserve the status quo, and sometimes to sell company assets to maximize benefit to the estate, depending on the type of receivership and the specifics of the appointing order. The receiver is a neutral, although is generally nominated by one of the parties, and approved by the Court; the receiver has fiduciary duties to all parties with an interest in the property or the proceeds from the sale of the property in the receivership estate. A receiver can bring a suit, hire counsel to prosecute that suit, and be sued without the appointing Court’s permission.
Make no mistake, receiverships can be (and ARE) expensive; they sometimes are extremely effective, especially in partnership (or family law) disputes, when a real property is in danger of foreclosure, or when a lender has concerns about its collateral and refuses to continue financing unless the debtors are (i.e., the company shareholders), or in family law cases, the controlling spouse is removed from control of certain collateral/property. The Court’s creation of a receivership can be a catalyst for settlement but be sure to carefully craft the appointing order to address as large a scope of possible issues that will come up during the receivership.
Receiverships can only be appointed only where authorized by a state law or under the Court’s equity powers. One party must file a complaint invoking the state law or rule of equity supporting the need for appointment of a receiver, and must be supported with (admissible) evidence to support the request. The moving party should also nominate (and bring to court the nominees) for receiver, and the motions should also address the amount of the receiver’s bond.
Any income or other earnings of the property must first be used to satisfy any costs of the court, including the receiver and its professional’s fees. TEX. CIV. PRAC. & REM. CODE § 64.051–receiverpays their fees first.
Receiver’s professional payments for fees/expenses are “left to the sound discretion of the trial court.” A receiver’s compensation is determined by the value of services rendered: including factors such as 1) nature, extent and value of the estate, 2) complexity and difficulty of the work, 3) time spent, 4) knowledge, experience and skill of the receiver, 5) diligence and thoroughness displayed, and 6) the results accomplished.
A receiver will generally seek authority in the receivership order to pay its fees and the fees of its professionals on some other regular basis (usually monthly). Prior to a final accounting and discharge, receiver is only entitled to a partial distribution of its fees, as incentive to encourage the receiver’s diligent prosecution and winding up of the receivership’s affairs. See Bergeron v. Sessions, 561 S.W.2d 551 (Tex. Civ. App. Dallas 1977); Roberts v. Howe, 125 S.W.2d 617 (Tex. Civ. App. Dallas 1939). Bottom line, the receiver’s fees and expenses are “administrative” and are paid from cash flow; however, when cash flow will not cover it, the Court may determine who will pay the receiver (usually the moving party but the receiver fees/expenses can also be split between the parties).
Finally: who/how to nominate a receiver.
The choice of a receiver is important, if the reason for the receiver is to manage a distressed property or a business in jeopardy, choose a receiver who has experience in the particular business or in dealing with the type of asset to be administered. If the receiver is being appointed to determine the location of company assets, to collect a judgment, or to prevent fraud, often an attorney is appointed. The bottom line is a receiver is an expensive management option but can be done to rehabilitate a business, or to attempt to maximize shareholder investment during a liquidation. A party considering a receiver should carefully screen candidates for appropriate and even more importantly EFFECTIVE experience serving in such roles in the past. The parties (or lenders) get no benefit from having a receiver appointed that does little more than assist the company “circle the drain.”
If you have been hurt in a car accident, or maybe on-the-job, the insurance company for the other driver or your employer may want to take a recorded statement.
This is usually a phone call where someone working for the company or insurance company will call you and ask you a lot of questions about yourself, the accident or incident, and your injuries. The telephone call is recorded and it is usually referred to as a recorded statement.
It may not seem like a big deal, but it can certainly change the course of your case should you not be able to resolve your case and you end up filing a lawsuit.
A recorded statement sets the foundation for your version of this accident, whether you have injuries or problems from before the accident that may impact the value of your case, and what injuries you have now because of this accident.
A recorded statement can be a game changer and we recommend that you consult with an attorney before giving such a statement.
Here are five tips to think about before you give a statement:
1. Be clear in how the accident or incident occurred. Do not feel rushed and make sure that you are telling your story.
2. Be honest. About everything. If you hurt your back before this accident, you need to tell them that if asked.
3. Be prepared. They will want to know, among other things, your contact information, where you work, telephone numbers, the date and time of the accident, witnesses, your driver’s license number, and the name of your doctor. Be prepared to answer these questions.
4. Do not feel pressured to give a statement. You are not required to give an insurance company a statement.
5. Do not answer questions that you do not understand. If the person’s question doesn’t make sense or she uses a word that you do not know the meaning of – do not guess or assume you know what she is asking. Ask for clarification.
If you have been hurt on-the-job, in an accident, or even at home – we are here to help you. Call us for a free consultation to discuss your case and your options. 972.325.5938.
By: Jennifer Ashmore
In case you have not heard, Texas is “open for business” and that means that if you signed a contract, or any written agreement, you are bound to it, period. Texas has a very developed and sophisticated body of contract case law, which arose out of various litigation between business partners, both individuals and corporations. The Supreme Court of Texas’ recent “observation” that “it is not the courts’ role to protect parties from their own agreements” merely reflects Texas’ long standing policy of upholding contracts. El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 810–11 (Tex. 2012).
In Nat’l. Prop. Holdings, L.P., et al. v. Westergren, —S.W.3d–, 2015 Tex. Lexis 1, Case No. 13-0801 (Tex. 2015–Jan. 9, 2015), our state Supreme Court, looking to U.S. Supreme Court authority (dating back to 1875), which holds that you cannot escape your contract duties by merely stating you did not read the contract before signing it. In this business dispute, the case turned on whether a fraudulent inducement, related to a release, which was signed and notarized (but apparently not read, by the signing party Westergren) could overturn that party’s contract duties under the release.
The bottom line is: Texas law will generally not protect a party to a contract who failed to READ a contract, regardless of the statements/assurances made to induce that party to sign the contract. The failure to exercise “reasonable diligence” and ordinary care to protect your own interests, cannot be excused by “mere confidence” in the other party’s “honesty and integrity.” Here, the signing party, Westergren, was provided a contract, which used alternating normal font, bold fonts, and all caps fonts, as is common, which set out the express terms of the release of claims; those kinds of warnings and waivers cannot be undone by reliance on statements made to induce a party into signing such an agreement. In the future, this case may be limited to facts involving sophisticated business owners engaging in “arm’s length” transactions, it is a signal from our state’s highest court that parties to contracts need to read and understand, before they sign, and that signing a contract is (and remains) binding.
As I reflect on the many privileges bestowed on me in this profession, one of the greatest, and the bedrock of my career, were my judicial clerkships. I had the privilege to serve as a clerk under the Honorable Elizabeth Ray, in the Harris County Civil District Courts, and later, as a clerk to the Honorable Barbara Hervey, on the Texas Court of Criminal Appeals.
Both experiences were unique, and both had different challenges. Primarily, the biggest benefit of any clerkship is learning to hone research and writing skills. A judicial clerk serves as the Judge’s “right hand” in finding answers to complex questions. In particular, a clerkship will allow an attorney to sharpen critical thinking skills related to identifying the legal issue (or issues) posed, creatively finding solutions to those issues, and framing those solutions in reasonable and supportable propositions. In addition, a clerk’s writings are prepared for narrow audience, the Judge (and on an appellate court, perhaps the panel of judges), which can be an invaluable skill for practitioners–in other words, you learn to write for the Court. My gratitude to Judge Elizabeth Ray (formerly, the 165th Civ. Dist. Court, Harris County) and the Honorable Barbara Hervey, of the Texas Court of Criminal Appeals for the opportunity and experiences gained during my judicial clerkships, which cannot be expressed in words. There are, of course, many other benefits, both professional and personal, that are too lengthy to be recounted here. I encourage any young attorney to strive for one of these positions.
By: KC Ashmore
Have you been hurt in an accident? Or, maybe at work? I have over ten years of experience in defending numerous companies against people that have been hurt. Now, I am taking that experience and knowledge and helping people recover when they have been hurt.
Remember – time is of the essence. The evidence that may be very helpful down the road can disappear quickly if you wait too long to take action. For example, rain or bad weather can erase the physical evidence of an accident scene. People that will be great witnesses for your case may move or leave their job and the contact information that you have for them may not be any good. Or, things can get lost – pictures, incident reports, or surveillance tapes. Therefore, it is a good idea to start securing the information that you need early on to increase your chances that it is still there when you need it.
In the conclusion of this two-part blog, consider this second set of factors as you move forward in your decision to visit with an attorney about a potential personal injury claim.
Does the other party’s insurance company want your recorded statement? Before you give your statement, you may want to consult with your own attorney. A recorded statement can set the stage for your case – good or bad – so you want to be prepared for their questions.
Mind your manners. I know that can be hard when you are hurt, scared or nervous. However, when you are polite and kind to the other person involved in this accident and the investigating law enforcement – that will buy you a lot down the road. Even in a civil case – the police officer’s dash cam video or a surveillance tape may be seen by the attorneys, Judge or jury. Do you want to be the one acting foolishly and out of control? No. So to the extent that you can stay calm and professional – do it.
Read before you sign. Think before you sign. If you fall at a store or are hurt at a restaurant, do not feel pressured to sign their incident report. Do not sign something that you are not comfortable with. Read what you are signing. If you do not understand it, then you need to ask questions. If the store employees will not put down the information that you think is significant, then may be you should ask for a copy of the report and you will take it with you. If you do sign something, get a copy of it.
Honesty is the best policy. Remember that. If you have a bad back, hurt your knee before, or are undergoing treatment for a prior problem – don’t lie about it to the insurance company, your doctor, or your attorney. Be honest. Be upfront. You will be in a world of hurt if the other side has caught you in a lie.
Go with your gut. If you decide to consult with an attorney about your accident, make sure you and your attorney work well together. Do they answer your questions? Do they give you the information that you need? Do they explain the process to you so you know how long things take and when you can expect a response? These are important things and a good working relationship with your attorney is important.
If you have been hurt in an accident and would like to discuss your case, please contact Jennifer Ashmore for a private and free consultation at 972-325-5938.
Have you been hurt in an accident? Or, maybe at work? I have over ten years of experience in defending numerous companies against people that have been hurt. Now, I am taking that experience and knowledge and helping people recover when they have been hurt.
Remember – time is of the essence. The evidence that may be very helpful down the road can disappear quickly if you wait too long to take action. For example, rain or bad weather can erase the physical evidence of an accident scene. People that will be great witnesses for your case may move or leave their job and the contact information that you have for them may not be any good. Or, things can get lost – pictures, incident reports, or surveillance tapes. Therefore, it is a good idea to start securing the information that you need early on to increase your chances that it is still there when you need it.
In this two-part blog, I will discuss the first five things that you need to know and consider as you move forward in a personal injury claim.
1. Did you take pictures of where you fell at the store? Did you take pictures of the accident scene, the people, and the cars? A picture is worth a thousand words so make sure you take pictures of the accident scene. And now, since we all have phones with cameras, this is easier to do. Keep in mind that any pictures that you take will be produced to the other side should the case go into litigation. So be mindful of that, but take pictures of the scene if it is warranted?
2. Did you get the name of all of the witnesses? Did you get their phone numbers? Email address? Maybe ask them if they have a business card? You may be surprised how many witnesses could really help your case, but if you don’t have their information — your lawyer won’t have it either.
3. Do you need to see a doctor? Do you need to buy medical supplies at the store? Keep track of which doctors you see because of your accident and keep track of everything that you have to buy because of this accident. You will need all of this information at a later date because it is all part of your damages. For example, did you buy pain reliever, an ace bandage, and bandages at a pharmacy after you fell? If so, keep the receipt because it will help show your damages.
4. Back to pictures. Do you have bruising? Cuts? Swelling? Take pictures of your injuries and consider taking additional pictures as you heal. If you have scars because of your accident – take pictures of those as well. Oftentimes by the time you reach settlement talks or the case is in litigation these injuries have healed and it is hard for the other side to understand what you have been through.
5. Want to shout to the whole world (via your Facebook page) about this accident? I would hold off on that. What you put out on social media will come back and haunt you. I have seen it done numerous times and you don’t want to you thought was a harmless comment or picture on your Twitter page to come back and destroy your case.
If you have been hurt in an accident and would like to discuss your case, please give me a call for your free consultation – 972-325-5938
By: Jennifer R. Ashmore
-a quote paraphrasing the wisdom of M. Gandhi.
A true, simple, and often used expression. On this National holiday, we give thanks for the tireless efforts of the many leaders of our nation (and world) to “live up to the rhetoric of the [American] Revolution”-and to aspire to create a society, for the first time in human existence, where all men and women are equals.
Every weekend, there are high profile arrests, where suspects unravel their own case by giving law enforcement the best evidence against them: their own words, statements, and admissions. Sometimes these suspects lash out at law enforcement, which can negatively alter their case even more. There are numerous cases involving media celebrities and even, occasionally, area government employees, where they undermine their defenses (and in some cases, their careers) by failing to invoke their right to remain silent.
If you are stopped by law enforcement officers, especially if you are driving a motor vehicle and have had recently consumed any alcohol or other substance-you need to decide whether you should: 1) not answer questions, or make any other statements and; 2) ask for your attorney. The U.S. Supreme Court recently eroded a suspect’s rights to remain silent (see Salinas v. Texas where the U.S. Supreme Court held that defendant’s refusal to answer questions was insufficient to invoke the “right to remain silent”); if you are suspected of a crime, and you want to invoke your right to remain silent and request to confer with an attorney, you must affirmatively make those wishes known to law enforcement.
In plain English, you must say that you want to speak to your lawyer and you don’t want to answer any more questions.
Most people do not make important decisions without consulting with some expert in that field, before making that decision. By example, meeting with a realtor and a banker before buying a house, with a preacher or spiritual advisor before getting married; consulting with a doctor before any serious medical procedure (absent an emergency condition).
Use the same cautious approach before giving law enforcement evidence in their criminal investigation against YOU-consult with an attorney before making any statements.
As the year comes to a close, many of us will reflect on this past year, and make resolutions regarding our plans for next year. We would like to thank our many friends, clients, and colleagues for their blessings, prayers, and support over the past year, and for the continued opportunity to serve our citizens and our communities. On reflection, we believe Mr. Clemens’ wit best satirizes the New Year holiday, and we leave you with his wisdom and humor:
“New Year’s is a harmless annual institution, of no particular use to anybody save as a scapegoat for promiscuous drunks, and friendly calls and humbug resolutions.”-Mark Twain
Colorado’s neighbors (Oklahoma & Nebraska) filed a challenge to its marijuana laws in the Supreme Court, alleging that the state is disregarding “federal law” (regarding marijuana), and that the U.S. Government should intervene. This legal action should not come as a surprise, as there has been heated opposition to Colorado’s legalization law since before it was ratified by Colorado’s citizens. The chief complaint of Colorado’s neighbors is that the legalized marijuana violates the supremacy clause of the United States constitution, and harms them because the increase in marijuana (from Colorado) being brought into border communities, and burdens the neighboring states to lock up “offenders” shipping marijuana produced in Colorado.
For a full reading of the complaint filed see: http://www.ok.gov/oag/documents/NE%20%20OK%20v%20%20CO%20-%20Original%20Action.pdf
Colorado has taken the position that it will defend its voters choices, and that this challenge by Oklahoma/Nebraska lacks merit. Some commentators have argued that should Colorado’s marijuana laws be struck down, we risk turning marijuana commerce back over to cartels, gangsters, and their street dealers/enforcers.
The jury has given the Defendant, former Justice of the Peace and formerly licensed attorney, Eric Williams, the death sentence for his role in the murder of Mrs. McLelland the wife of the (then) District Attorney Mr. McLelland. The McLellands were murdered in their homes on Easter weekend, and Mr. Hasse was killed two months prior just outside the Kaufman courthouse.
It has been a somber, and eye-opening week in Rockwall, Texas. Our thoughts and prayers go out to all the victims in the tragic murders of the Kaufman County D.A., his wife (Mr. and Mrs. McLelland), and his assistant, Mr. Mark Hasse.
No one wants to think about her death – it is not a pleasant thought. However, not having a will – especially if you have children or dependents – can leave your loved ones in a tough spot after you die. Or, maybe you have done your will and tucked it away in a safe spot. However, has your life changed where your will may not be current anymore? Have you divorced your spouse? Have you had a baby and included that baby in your will? Do you have a guardian for your kids?
The worst thing that could happen is a situation where the heirs all show up to the Courthouse to litigate, each with their own lawyers, to stake their claim on the remains of an estate.
Here are some thoughts and tips to consider as you think about whether you should have a will and whether you should update that will?
I have nothing – why do I need a will?
Even though you may not have a lot or have a lot of assets – you may want to control who gets what and how much they get. You may have certain items that you want to go to a friend or loved one that is not an heir to your estate.
Remember – your heirs will be your spouse, children, and parents. Therefore, if you want something to go to someone else – it is best to have a will.
Texas does have probate laws so that if someone dies without a will, then their property will go to theirs heirs (i.e. family). However, there are certain laws that you may not want. For example, you may own a home in your own name. It could be a home that you bought before you got married and you never sold it. You are married and you have one adult child with your spouse. When you pass, that house does not automatically belong to your spouse. He may be only able to keep it until he dies. If those are not your wishes, then a will becomes a valuable tool.
Wills help prevent disputes.
Wills help limit the fighting amount your loved ones. Wills allows the parents or grandparents to leave certain items to each of their children or grandchildren. Oftentimes, dividing this up for everyone saves a lot of heartache and stress for your loved ones.
Also, discussing these wishes and your plans before your death may be a good idea because it allows everyone to know the plan so that there are no surprises.
Is my will still good?
From a legal standpoint – your will is still good even if you did it 20 years ago. However, it may not be good from a practical point of view.
Is the guardian that you appointed to care for your kids 10 years ago still the person that you want today? Did you bequeath a gift to a family member and they have passed away? Is there property listed in your will that you no longer own?
You may want to update your will – especially to make sure that everything is in place for your children. However, your will should not be too specific as to bequests of property or gifts so that the will can stay current for as long as possible
4. What does my lawyer need to know for my will?
When you meet with your lawyer, they will want to know how much your estate is worth and what is in your estate. He or she will also want to know who you want to bequeath items to. You don’t have to prove what is in your estate – you just need to be able to tell your lawyer.
Planning for our death is never pleasant; however, by doing this you are giving yourself and your loved ones peace of mind.
Additionally, one must consider very carefully the impact and effect of the lawsuit on your business operations. The former employee’s supervisors, managers, and co-workers (and former co-workers) may all be witnesses (subject to subpoena and thus absent from working). Moreover, the corporate representative of the company will not only be a witness, but also a true target of discovery. Also of some substantial consideration, is the interruption of normal business operations by preparing for testimony (of the corporate representative and other key employees) in preparation for discovery depositions, and of course, attending lengthy hearings, etc.
As the Supreme Court of the United States has noted, truth is sought through the “crucible of cross examination.” There is little that can prepare a witness for a blistering cross-examination administered by a seasoned attorney. There is also a risk of exposing more information (and other issues) that would remain undisturbed by deciding not to enforce the non-compete (matters of possible discrimination, harassment, other bad acts, etc.).
Finally, there are considerations relevant to the relationship between your company and the competitor, where your former employee now works: e.g., have you hired your competitor’s former employees, were they subject to confidentiality/non-compete agreements, will the threat of litigation disrupt business relationships? The issues addressed in this article cannot address all the matters that may come up in a non-compete enforceability/enforcement decision, but should assist any party addressing the basic or core factors that should be carefully considered before the decision to file suit is made.
Is the former employee valuable (to the new employer)?
Another factor that a party must ask itself, in the scenario of a former employee going to work for a competitor, is whether that former employee’s new job duties will intersect with the kind of duties as the job that employee had at your company. If the job duties are similar or even identical, there is a strong possibility (and even likelihood) that the former employee will have the opportunity to use your company’s confidential information in performing his duties for your competitor. Another factor to be considered is whether the former employee is considered valuable to your competitor, i.e., if the former employee is a “key man,” that could give some insight to how the competitor will react to a suit to enforce the non-compete. If the competitor is litigation averse, they may be willing to seek a resolution or simply not defend the employee in a suit; alternatively, that competitor could “dig in” and force your company to an immediate decision on whether to bring a suit to enforce.
Impact of non-enforcement:
Some overriding factors, especially employee morale and gossip, may ultimately create internal pressure on an employer to bringing an enforcement action. Employees often become friends, and stay in touch well after they depart. Current employees will also notice when their employers do not seek to enforce non-competes against former employees who leave to start their own competitive business or work for a competitor. Failing to enforce a non-compete provision may trigger other employees to gossip about your company’s unwillingness to enforce the non-competes, and may also incite further competition from these employees. Deciding against an enforcement suit against one former employee, can also undermine future actions to enforce (because there will be at least some argument, that the employer waived the right to enforce previously). The decision against seeking an enforcement action, however, should not be made solely to deal with internal pressure brought by employee gossip, because and unsuccessful enforcement suit could be even more detrimental to the company and the gossip/morale of the employees. Again, being sure that the information sought to be protected can be articulated and framed out as legitimately “confidential” or a “trade secret” should be the overriding factor in bringing an enforcement action.
The right to enforce a non-compete is a hot button topic in Texas these days, many employers ranging from shoe stores, athletic material manufactures, and even realtors are writing non-compete provisions into their employment agreements. Because of Texas’ open-for-business laws, employers may believe that they are universally enforceable. Having litigated both sides of these disputes, I have found that the biggest hurdle remains for every party seeking to enforce a non-compete, an that is whether the non-compete clauses are truly enforceable (as most, if not all, are based on some allegation of “trade secret” or sharing of “confidential information” by employer with employee). Of secondary but almost equal importance, a party must decide whether it is worth seeking enforcement of a non-compete provision, in other words, do the costs exceed the expected benefits. Generally these situations arise when an employee leaves to work for a competitor, or starts directly competing with its former employer. Included here in this article, is a non-exhaustive list of factors a company should consider before seeking enforcement of any non-competition clause.
What are you trying to protect, is it really proprietary or even remotely confidential? A covenant not to compete (or any other restrictive covenant) is designed to protect a legitimate business interest, like proprietary/confidential information (e.g., some famous brand name recipes: fast food’s famous 11 Herbs and Spices, the formula for any number of popular cola brands, etc.). The most common scenario, and the one with the greatest chance of enforcement, involves preventing the disclosure of truly confidential or proprietary information.
Before seeking enforcement, a true analysis of the importance of the information your company is concerned about needs to be determined. While Texas case law suggests “anything” that gives a company a competitive advantage can be a trade secret, that language must be read in context, with the entirety of Texas law on what is and what is not a protectable trade secret or confidential information. By example, if a company is seeking to enforce a trade secret on a customer list, against a sales person who left the company, must determine whether they can establish (in a court of law-that it is more probable than not, or in criminal court, beyond a reasonable doubt) whether the list is truly confidential. If the employee was servicing the same customers before ever becoming your employee or signing the non-compete, or the list pertains to a discrete market/customer base that every business in that field sells to, and those customers are openly known to every sales person in that field, that customer list may not be “confidential” or “proprietary” (and thus, the enforceability of the non-compete may be in doubt).
Having a proprietary piece of information or business advantage is often enough to arguably be a trade secret, but a party should follow Mr. Davy Crockett’s old adage before engaging in often expensive and possibly unsure litigation: “be sure you’re right, then go ahead.”
Texas Rule of Civil Procedure 193.3(d) or the “snap back” rule, allows parties to demand the return of privileged material that is inadvertently produced. The Rule operates by allowing the producing party 10 days (or shorter if ordered per the court), after the discovery of the inadvertent production, to: 1) amend the discovery response, 2) identify the inadvertently produced material, and 3) state the privilege asserted (that supports the claw back of the privileged documents). What is key about this rule is that it protects the producing party because they have to comply with the rule within 10 days of the DISCOVERY of the inadvertent production (so not the date the discovery was produced, but rather, the date the party discovered the error). Tex. R. Civ. P. 193, & see Cmt. 4; see also, In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434 (Tex. 2007).
In Christus Spohn Hosp. Klebeg, our Supreme Court denied a mandamus based on the snap-back provision, because the party asserting the privilege had inadvertently produced a sensitive document to an expert witness, and that party was going to have the expert to whom the privileged material was disclosed testify, in spite of the disclosure of privileged information. In other words, the policies behind Rule 192 in light of the continued reliance on the expert designation, prevailed over the snap back protection of Rule 193.3(d). The Court, however, indicated that had the expert been withdrawn, the request to assert the privilege and snap back rule would have been upheld. See In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434 (Tex. 2007). While parties should continue to craft careful protective orders for sensitive data in their cases, the snap back rule allows parties a safety net should a privileged document slip through. The party seeking to snap-back a document, however, should ensure that it has carefully complied with each requirement to give itself the best chance to be entitled to relief under the rule.
A court in Virginia recently ruled that a a suspect could be compelled to produce to law enforcement his/her fingerprint sample (to unlock a phone) because the constitution’s broad but limited protections allowed law enforcement to compel production of a fingerprint (similar to providing a photo image of yourself, a DNA sample, or handwriting sample, something the law permits). The court cautioned that if law enforcement was trying to compel a phone or computer password, however, that request may infringe on a suspect’s 5th Amendment right against self-incrimination.
This ruling involved a case where a smartphone was locked with a “biometric” fingerprint, which the Court could compel a suspect to produce to unlock the phone. Law enforcement requested the Court’s permission to unlock the phone to search for evidence of the crime. Because a citizen has little or no protection in his/her fingerprints, DNA, etc., and because producing a fingerprint does not require a statement from the suspect, a biometric lock on a phone or computer may not provide any protection from a search by law enforcement. Conversely, the old fashioned personal identification number (PIN) lock could provide greater protection from searches. The Virginia court’s ruling will be likely challenged in the future, and other courts around the country will undoubtedly reach differing results.
The Bard’s “St. Crispin’s Day speech” from Henry V is the most rousing and appropriate thanks that captures the sacrifices made by our service-members. Thank you vets, for everything you gave and continue to give.
Westmoreland: O that we now had here
But one ten thousand of those men in England
That do no work to-day!
THE KING: What’s he that wishes so?
My cousin, Westmoreland? No, my fair cousin;
If we are mark’d to die, we are [enough]
To do our country loss; and if to live,
The fewer men, the greater share of honour.
God’s will! I pray thee, wish not one man more.
By Jove, I am not covetous for gold,
Nor care I who doth feed upon my cost;
It yearns me not if men my garments wear;
Such outward things dwell not in my desires.
But if it be a sin to covet honour,
I am the most offending soul alive.
No, faith, my coz, wish not a man from England.
God’s peace! I would not lose so great an honour
As one man more methinks would share from me
For the best hope I have. O, do not wish one more!
Rather proclaim it, Westmoreland, through my host,
That he which hath no stomach to this fight,
Let him depart; his passport shall be made,
And crowns for convoy put into his purse;
We would not die in that man’s company
That fears his fellowship to die with us.
This day is call’d the feast of Crispian.
He that outlives this day, and comes safe home,
Will stand a tip-toe when this day is nam’d,
And rouse him at the name of Crispian.
He that shall live this day, and see old age,
Will yearly on the vigil feast his neighbours,
And say “To-morrow is Saint Crispian.”
Then will he strip his sleeve and show his scars,
And say “These wounds I had on Crispian’s day.”
Old men forget; yet all shall be forgot,
But he’ll remember, with advantages,
What feats he did that day.
Then shall our names,
Familiar in his mouth as household words-
Harry the King, Bedford and Exeter, Warwick and Talbot,
Salisbury and Gloucester,
Be in their flowing cups freshly rememb’red.
This story shall the good man teach his son;
And Crispin Crispian shall ne’er go by,
From this day to the ending of the world,
But we in it shall be remembered-
We few, we happy few, we band of brothers;
For he to-day that sheds his blood with me
Shall be my brother; be he ne’er so vile,
This day shall gentle his condition;
And gentlemen in England now-a-bed
Shall think themselves accurs’d they were not here,
And hold their manhoods cheap whiles any speaks
That fought with us upon Saint Crispin’s day.
Texas (like most states) classifies drugs like marijuana, heroin, and cocaine as controlled dangerous substances, CS (or CDS), but also the compounds used to manufacture them. The illegal possession of controlled substances for personal consumption has one set of (fairly draconian) punishments, making or selling these illegal substances carries generally stiffer, completely separate punishments.
Also, Texas’s marijuana possession and sale laws are a different matter entirely (and not included in this discussion). Texas divides controlled substances into 6 “penalty groups” (4 main groups and 2 sub-groups). The groups are sorted by the potential dangerousness of the drugs, from the drugs with the highest probability of abuse/addiction, and no recognized medical value to the lower end of abuse/addition (and increasing potential medical use). Basically, groups 1-A, 2, 2-A, 3, and 4 decrease in dangerousness and probability of abuse, and generally, increase in recognized medical uses.
Texas’ Health and Safety Code provisions list the 6 categories of dangerous controlled substances (or drugs). Group 2-A encompasses marijuana and its derivatives. Texas law basically makes it a crime to possess ANY controlled substance without a valid medical prescription. Penalties vary according to the facts of each alleged offense, e.g., the type and amount of controlled substance involved in the violation, whether it was being made or sold, whether minors or children were present, etc.
Penalty group 1 punishments vary according to the amount possessed. See Tex. Health & Safety Code Ann. § 481.115:
• State Jail Felony: less than (<) 1 gram (less than 1/3 of an oz.)—a fine of up to $10,000, at least 180 days in jail (and up to two years in prison), or both;
• 3rd Degree Felony: 1 gram or more, but less than 4 grams—a fine of up to $10,000, 2 to 10 years in prison, or both;
• 2nd Degree Felony: 4 grams (about 1 ½ oz.) or more, but less than 200 grams—a fine of up to $10,000, at least 2 and up to 20 years in prison, or both;
• 1st Degree Felony: 200 grams (just under ½ a pound) or more, but less than 400 grams—a fine of up to $100,000, at least 5 (and up to 99) years in prison, or both;
• 400 grams or more (just under a pound)—a fine of up to $100,000, at least 10 and up to 99 years in prison, or both.
Penalty group 1-A includes only LSD, and the punishment range varies according to the number of “hits” (doses or units) possessed by a suspect. See Tex. Health & Safety Code Ann. § 481.1151:
• Fewer than 20 hits— fine of up to $10,000, at least 180 days in jail (and up to 2 years in prison), or both;
• 20 or more units, but fewer than 80 units—a fine of up to $10,000, 2 and up to 10 years in prison, or both;
• 80 or more units, but fewer than 4,000 units—a fine of up to $10,000, 5 to 20 years in prison, or both;
• 4,000 or more units—a fine of up to $250,000, at least 15 (and up to 99) years in prison, or both.
Penalty group 2 punishments likewise vary according to the amount a suspect has in his/her possession. See Tex. Health & Safety Code Ann. § 481.116:
• Less than 1 gram—a fine of up to $10,000, at least 180 days in jail and up to 2 years in prison, or both;
• 1 gram or more, but less than 4 grams—a fine of up to $10,000, at least 2 and up to 10 years in prison, or both;
• 4 grams or more, but less than 400 grams—a fine of up to $10,000, at least 2 to 20 years in prison, or both;
• 400 grams or more—a fine of up to $50,000, at least five (and up to 99) years in prison, or both.
Penalty group 2/2-A punishments vary according to the amount made or sold. See Tex. Health & Safety Code Ann. § 481.113.
• Less than 1 gram— a fine of up to $10,000, at least 180 days in jail and up to 2 years in prison, or both;
• 1 gram or more, but less than 4 grams— a fine of up to $10,000, at least 2 to 20 years in prison, or both;
• 4 grams or more, but less than 400 grams— a fine of up to $10,000, 5 to 99 years in prison, or both;
• 400 grams or more—a fine of up to $100,000, at least 10 to 99 years in prison, or both.
Penalty group 3 punishments also range according to the amount a suspect is caught with. See Tex. Health & Safety Code Ann. § 481.117:
• Less than 28 grams— a fine of up to $4,000, up to 1 year in jail, or both;
• 28 grams or more, but less than 200 grams— a fine of up to $10,000, 2 to 10 years in prison, or both;
• 200 grams or more, but less than 400 grams— a fine of up to $10,000, 2 to 20 years in prison, or both;
• 400 grams or more—a fine of up to $50,000, at least 5 (and up to 99) years in prison, or both.
Penalties for group 4 controlled substances, as with prior groups, range depending on the amount a suspect has when apprehended by law enforcement. See Tex. Health & Safety Code Ann. § 481.118:
• Less than 28 grams— a fine of up to $2,000, up to 180 days in jail or both;
• 28 grams or more, but less than 200 grams— a fine of up to $10,000, 2 to 10 years in prison, or both;
• 200 grams or more, but less than 400 grams— a fine of up to $10,000, 2 to 20 years in prison, or both;
• 400 grams or more—a fine of up to $50,000, at least 5 (and up to 99) years in prison, or both.
Penalty groups for type 3 or 4, range, like all other punishment ranges, according to the amount made or sold. Tex. Health & Safety Code Ann. § 481.114:
• Less than 28 grams— a fine of up to $10,000, at least 180 days in jail and up to 2 years in prison, or both;
• 28 grams or more, but less than 200 grams— a fine of up to $10,000, at least 2 to 20 years in prison, or both;
• 200 grams or more, but less than 400 grams— a fine of up to $10,000, at least 5 & up to 99 years in prison, or both;
• 400 grams or more—a fine of up to $100,000, 10 to 99 years in prison, or both
Drug offenses in the presence of a minor, even harsher penalties:
If a minor (someone younger than 18) was present on the premises where and at the time the offense of making or selling a controlled dangerous substance was committed, a suspect will (not surprisingly) face increased penalties. See Tex. Health & Safety Code Ann. § 481.1122:
• Less than one gram—a fine of up to $10,000, at least two (and up to ten) years in prison, or both.
• One gram or more, but less than 200 grams— a fine of up to $10,000, at least five (and up to 99) years in prison, or both.
• 200 grams or more, but less than 400 grams —a fine of up to $150,000, at least 15 (and up to 99) years in prison, or both
• 400 grams or more—a fine of up to $300,000, at least 20 (and up to 99) years in prison, or both
It is illegal to possess or transport anhydrous ammonia in any container not designed/ manufactured to hold or transport this product; additionally, it is illegal to tamper with equipment made to hold or transport anhydrous ammonia. Penalties include a fine of up to $10,000, at least 2 to 10 years in prison, or both. Best to leave this product for the farmers, the Government has no sense of humor with the abuse of this potentially dangerous material.
Controlled substance possession, manufacture, or sale charges, as described above, may carry very hard punishment ranges, and convictions can incur large fines and long jail terms. If you or a loved one is facing a charge for these offenses, confer with defense counsel to review your case, explain your alternatives, and prepare you for trial/advise you of the possible consequences so you can make an informed decision.
Dallas Police recently announced that the department recently received Federal and State money to be used towards DNA testing for approximately 4,100 rape cases collected from 1996 and 2011. The Department indicated that it would submit up to 300 kits for testing each month. Because rape test kits cost between $500.00 and $1,000.00 to be tested, this money allotted towards testing will help the police department offset these costs and hopefully find more matches of serial offenders, or possibly other information related to the individual cases. These types of programs have had success in other large metropolitan areas, bringing abusers to justice.
This is not an exhaustive discussion of assault offenses, which vary in degree and have special definitions with regard to such offenses against law enforcement officers, or when weapons are involved (aggravating factors, i.e., brandishing firearms, etc.). Generally, assault is any unwanted or offensive physical contact resulting in injury or the threat of unwanted or offensive physical injury. There are basically 3 ways a person can commit an assault, they are: i) intentionally, knowingly, or recklessly causing bodily injury to another, ii) intentionally or knowingly threatening another person with imminent bodily injury, or iii) intentionally or knowingly causing physical contact with another when the suspect knows/should reasonably believe that the victim will regard the contact as offensive or provocative.
The Government may be able meet its burden to prove assault even if the contact was unintentional, because the law provides that the defendant can commit an assault by reckless acts, which caused (or threatened) bodily injury to the victim. Reckless behavior may include conduct in the heat of an argument, or conduct under the influence of drugs/alcohol, resulting in physical harm to the victim or the threat of physical harm to the victim. In plain English, a suspect does not have to “mean to” or even actually touch the victim to complete the offense of assault; merely threatening such contact can result in an assault offense.
Assault offenses against family members may also result in an affirmative finding of family violence; such findings can be drastic. Family violence under our state law is defined by the Family code, and is: “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.” See generally, Tex. Fam. Code § 71.004. In most criminal cases involving an assault against a family member, the affirmative finding will be used to enhance the potential punishment, especially for multiple or repeated offenses.
Additionally, there are many other consequences of an affirmative finding of family violence, such as: i) a defendant will be ineligible to be named as a managing conservator in a divorce/SAPCR (suit affecting parent child relationship) proceeding; ii) a defendant will be ineligible to adopt a child under Texas law; iii) a defendant cannot keep firearms or ammunition (no CHL, no hunting license, no Federal right to keep/bear arms or transport arms/munitions); iv) if a defendant has an affirmative finding in his/her history, and is later charged with another assault against a family member or someone that the suspect is dating, that offense will be enhanced to a felony.
Assault offenses are serious, have serious consequences, and need to be treated seriously; if you or a loved one has been charged with an assault offense, contact the Law Office of KC Ashmore for a private consultation.
Dallas police officers, starting next January, may no longer dedicate thousands of man hours and city/county/state resources to the arrest and detention of offenders in possession of the “gateway” drug, marijuana. The Legislature, recognizing that the state, city, and county governments had to invest the same amount of time on small MJ drug possession charges, as they basically did on dealer level busts, permitted in 2007, the state’s political subdivisions to implement a cite and release program for Class B Misdemeanor MJ possession (among other) offenses. In other words, if a suspect was pulled over, and the officer found less than a certain amount of MJ, a “personal consumption” amount, that suspect was eligible to be issued a citation only, allowing the individual counties/cities to elect whether to continue to arrest/jail these suspects (thus conserving strained state resources). Although many (if not most) counties and cities did not implement these changes, and suspects in many counties still literally “get the book thrown at them” through the continuation of the tough stance on MJ possession. Dallas Police/law enforcement, however, starting next January, may lessen their stance/time commitment to these misdemeanor offenses.
Recently, the U.S. 2nd Circuit Appeals Court, in the criminal case styled U.S. v. Zhyltsou, –F.3d–, No. 13-803 (Oct. 3, 2014), the appeals court reversed the conviction of the Defendant ruling that the trial court should not have permitted the introduction of un-authenticated social media page, which was represented to be the Zhyltsou’s profile page from the “Russian equivalent of Facebook.” The court noted that not only was the production of the information late (in violation of Rule 16 of the Federal Rules regarding discovery) but also ruled that the Government failed to authenticate the material properly per Federal Rule of Evidence 901. Zhyltsou was charged with single count of the unlawful transfer of a false identification document, a violation of 18 U.S.C. § 1028(a)(2) and (b)(1)(A)(ii). He was convicted and sentenced to essentially time served and one year of supervised release, and then appealed. After a lengthy discussion, in which the Cir. Court reversed the conviction, it reiterated the burdens for authenticating documents, especially in this situation where the document was pulled off the internet the day of trial by the Government and relied on heavily in argument (over Defendant’s objection) to secure a conviction. The Cir. Court’s opinion also gives an enlightening discussion of the burden for the admission of evidence under Rule of Evidence 901, and of course, the error that can occur when a piece of evidence is improperly admitted into a case.
Refusal to perform, repudiation of a contract: Repudiation is an affirmative defense that can be raised by one party as a defense to an allegation of breach brought by the party prosecuting that claim. In plain English, repudiation is an excuse to performance, based on the premise that the other party refused to perform, and therefore the party against whom the breach is alleged, may also refuse to perform. The defense of repudiation must be supported by a showing that one party to a contract indicated (unconditionally), through words or actions, that it will refuse to perform its contract duties or obligations;
Changing the payment terms: The affirmative defense of accord and satisfaction is based on the express or implied agreement, usually memorialized by a cashed check with conspicuous words (IN FULL SATISFACTION/PAYMENT IN FULL) showing that they agreed to satisfy a contract duty with a lesser payment. This is usually used to satisfy and extinguish potential disputes with a reduced payment: e.g., contractor is owed one last payment on construction installments, instead of walking the property and preparing a “gig list” the parties agree to a mutual release in exchange for a reduced payment;
Waiving the right to enforce: Waiver is the intentional release of a known right, by actions that are inconsistent with the enforcement or assertion of the right. This is an equitable defense, which can be express (i.e., written) or be similar to the defense of Laches, where a party knows of another party’s alleged breach, and through acts (or failing to act), waives the right to enforce the rights. By example: i) expressly waiving the right to sue for injury for working as a volunteer on a charity’s premises; ii) not enforcing a property right for an extended period of time, which would then undermine any claim of enforcement due to inaction (“12th man” dispute between the Seattle Seahawks and Texas Aggies);
Mutual or unilateral mistake: The equitable defense of mistake is applied in situations where the parties were mistaken about the terms of a contract, and it would be otherwise unfair, or result in some injustice, to enforce the contract as written. This defense essentially results in a rescission of the contract, and is difficult to prove absent evidence that both parties had a misunderstanding about the contract terms at issue;
Performance is not possible or impractical due to changes in circumstances: This affirmative defense has to do with the change of circumstances, beyond any one party’s control, which render the performance of the contract unreasonable and impractical. The affirmative defense of impracticability (also impossibility), is most often applied in commercial contexts, by example: if the goods bought under a contract were stored prior to transport in a warehouse, and that warehouse was destroyed in a heavy storm, or fire, the contract parties could be excused from performing by the impracticability or impossibility of performance;
Express or implied approval of a breach can prevent relief/undermine your claim: The defense of ratification can prevent/undermine a breach of contract claim because it is essentially a defense that sounds in equity, and prevents a party from recovering because their own action (in approving or tolerating a breach);
Replacing the old agreement with a new one: Novation, while not an easy affirmative defense, entitles to party asserting it to abrogate the rights and duties under the former agreement with evidence that the parties entered into a new enforceable agreement;
Waiting too long: Generally, a claim for breach of contract has a four year statute of limitations; meaning if you wait too long your claim is stale, and you cannot bring suit. Laches is an equitable bar to brining a claim, which can prevent a party from bringing a claim due to delay;
This is not an exhaustive list of the contract defenses and issues that can confront a party seeking to enforce a contract right. For more information, and to discuss your case, contact the Law Office of KC Ashmore about your case.
Contracts are formal written (and sometimes may be verbal) agreements, with mutual obligations on both sides, that are intended to be enforceable by law. Often, there are misunderstandings over the course of an agreement, leading to disputes, these are referred to as “breaches” of the agreement.
What is breach?: Generally, it is a party’s failure to meet a contract condition, which causes the other party increased expense (called-money damages, or just “damages”). Damages are how you measure the alleged harm from the breach;
What is a material breach?: A material breach is one that undermines the legitimate ends of the business agreement. By example, if a builder enters an agreement with a shipping company to deliver construction materials on a certain date, and that shipper fails to get them there on time, preventing the builder from completing work on his time table, that could be a material breach;
Fraudulent information convinced a party to enter into contract: If one party makes a misrepresentation of material fact, for example, the financial health of a company, and the other party enters into that contract based on misrepresentation, that contract can be set aside based on fraud. The misrepresentation has to be material (i.e., important) to the transaction, such that it would have altered the duped party’s perception on significant issue/issues on key components of the agreement. By example, if the financial health of the company was altered to give the appearance of prosperity and growth, that would be material (or important) to many contract agreements, e.g., securing a loan for that business, selling that business, convincing investors to buy stock in that business, etc.;
Contracts must usually be in writing: Most contracts of any significance (over $1,000.00, contracts to buy real property, or contracts that will take more than 1 year to perform, real estate leases longer than 1 year) must be written and signed by the parties, if they are not, they may not be enforceable. It is a good idea to get it in writing, otherwise, your only recourse is to seek a fair and reasonable remedy from a court (called an equitable remedy-e.g., the other party would be unjustly enriched if the terms agreed to, albeit informally, were not enforced by a court);
Contract terms must be definite: Contracts have to show that the parties had a “meeting of the minds,” in other words, that both sides understood what their duties were, and what their obligations were. Contracts that do not clearly set out the obligations of the parties may not be enforceable, because a party would not be able to enforce an understanding that was not set out in a provision in the written contract, or worse, that was set out vaguely;
What is a “Condition Precedent”: A condition precedent is an event that must occur for before one party’s obligations may be triggered. The simplest example of this is the duty to pay before the other party has a duty to perform. In other words, you’re not entitled to see the afternoon movie, until you have purchased the ticket for the matinee. Generally the “failure of a condition precedent” is an affirmative defense, claimed by the party accused of breach, stating the event triggering their duty to perform did not occur (e.g., the party was not paid as agreed per the contract).
Following Ritchie, (where our Supreme Court held there is no common law cause of action for shareholder oppression in closely-held corporations and that the statute referring to “oppressive” conduct by those in control of a corporation authorizes only a “rehabilitative receivership,” which is a harsh [if not the harshest] remedy, reserved for instances of fraud or mismanagement which endangers the company), the Supreme Court affirmed the absence of common law shareholder oppression rights in two other cases.
ARGO involved a dispute between 2 shareholders, one owning 53% of the stock, and the other, owning 47%. For more than two and ½ decades the parties were the only directors, and the business prospered; the shareholder split began in 2004, over the non-payment of dividends, and reduced participation by the minority shareholder in company operations. ARGO Data Resources, Inc. v. Shagrithaya, 380 S.W.3d 249 (Tex. App.—Dallas 2012, pet. denied). The majority owner reduced the minority shareholder’s salary (significantly) and (later) offered to buy back the minority owner’s shares at fair market value; the minority owner refused the offer, demanding a higher buyout or a very large dividend. In 2007 the minority owner sued, alleging shareholder oppression and other claims, in the interim, the company’s board grew to three individuals, and issued a $25 million dividend. A jury found for and awarded the minority shareholder $85 million and most other relief sought; the majority shareholder subsequently appealed. The intermediate appeals court reversed and rendered a take nothing judgment, based on evidentiary issues, and our state Supreme Court denied further review (apparently after briefing was requested/submitted).
In CPS v. Hughes, involving a dispute between two shareholders, Hughes, an employee of CPS, owned and controlled by Joubran. In the early 1990s Hughes bought a minority interest in the company (10%); Joubran retained 90% controlling interest, and both parties signed a Buy-Sell Agreement allowing Joubran/CPS to buy back the minority shares if Hughes was terminated. Cardiac Perfusion Services v. Hughes Tex. Supreme Court, No. 13-0014 (June 27, 2014) per curiam, reversing 380 S.W.3d 198 (Tex. App.—Dallas 2012). The buy-back agreement also provided for a valuation of the shares, stating that they would be sold back to the company at book value of the shares at the prior year end. Hughes was eventually fired (by Joubran), and CPS/Joubran sued to enforce the Buy-Sell; Hughes countered, alleging shareholder oppression. The jury found for Hughes, and the trial court ordered Joubran/CPS to buy the shares back at the un-discounted fair value as found by the jury (or $300,000.00). Joubran/CPS appealed, lost, and appealed again to the Texas Supreme Court, which reversed (largely) the relief granted to Hughes in the trial court. The Supreme Court remanded the case back to the trial court for further proceedings, allowing Hughes to seek relief on other possible claims (and of course, breathing life back into CPS/Joubran’s claims for attorney fees to enforce the Buy-Sell) based on the fact that the precedent that Hughes relied on in prosecuting his claim, was overruled (See Ritchie).
These rulings significantly alter the status of minority shareholder claims in Texas. It is probably a safe bet that the next legislative session will see some attempts to codify in state law some form of the previously recognized “common law shareholder oppression” rights. Bottom line, no matter which party your client is (majority or minority shareholder) the lesson to be taken from these rulings is: Texas is open for business.
Our state Supreme Court, in the recent case Ritchie v. Rupe, refused to recognize a separate common-law cause of action for “shareholder oppression,” which had been previously acknowledged by Texas courts of appeals (and other courts across the nation). While the court recognized that there is a risk of harm when a party owning controlling shares could abuse their power the court ruled statutory, contractual, and common-law protections already in existence were adequate to protect a minority shareholder. The court also ruled that the oppression tests: i) “reasonable expectations” and; ii) “fair dealing,” were too vague, unpredictable, and created “bad jurisprudence.”
Lawyers representing minority interests are now challenged to structure equitable agreements that give their clients, the minority shareholders, the rights that were abrogated by Ritchie. Essentially, Ritchie left only the harshest remedy in place, Receivership, which can only be used when there are situations of fraud and inequitable conduct which is jeopardizing the business. A practical approach is to prepare (or amend) shareholder agreements that better protect the minority interest, e.g., requirement of supermajority vote for non-routine changes to the business operations, providing right of minority to reasonable inspection of financials, etc. Another practical consideration would be to include tiebreaker provisions, e.g., assign in the corporate articles, a tie breaking vote to a non-equity shareholder, or longtime employee, or a mandate that votes on critical/non-routine changes to business operations be referred to some other third party to break the impasse.
Other quandaries in BOR proceedings.
Petitioner’s no-notice allegations must be corroborated by outside evidence.
The Bill of Review Petitioner’s testimony alone and uncorroborated, is not enough to overcome the presumption of service in this “no-notice” bill of review. Caldwell v. Barnes, 154 S.W.3d 93, 96-98, n. 3 (Tex. 2004)(per curiam) (Caldwell II); Min v. Avila, 991 S.W.2d 495 (Tex. App.—Houston [1st Dist.] 1999, no pet.). In Caldwell II, the Court stated:
“At trial, the testimony of a bill of review plaintiff alone, without corroborating evidence, is insufficient to overcome the presumption that the plaintiff was served.”
Caldwell II, 154 S.W.3d at 96-98, n. 3 (Tex. 2004); Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994). Our courts have held that the “recitations in the return of service carry so much weight” that they cannot be rebutted by the uncorroborated denial of the bill of review petitioner. Id. While Caldwell II and Silver were appeals based on sufficiency of evidence challenges in no-notice bill of review cases, and they show that unsupported and uncorroborated testimony by the bill of review petitioner, or alternatively, the petitioner’s agent, my not be enough to overturn the presumption of service. Id.
Recitals of service of process contained in official mailings from the Court, act as prima facie evidence of service. Min v. Avila, 991 S.W.2d 495 (Tex. App.—Houston [1st Dist.] 1999, no pet.). A bill of review petitioner cannot prevail by denial of service alone; to defeat the presumption of service, the petitioner must “corroborate denial of service with evidence of supporting facts and circumstances.” Id.; Ward v. Nava, 488 S.W.2d 736, 738 (Tex.1972); Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 209 (Tex.1950) HCFCO, Inc. v. White, 750 S.W.2d 23, 24 (Tex.App.—Waco 1988, no writ); Martin v. Ventura, 493 S.W.2d 336, 338 (Tex.Civ.App.—Tyler 1973, no writ). In other words, your petitioner must put forth corroborating evidence regarding lack of notice, which derives from a source other than the party or party’s attorney, claiming lack of service. Id.; Ward, 488 S.W.2d at 738; Sanders, 227 S.W.2d at 209; HCFCO, 750 S.W.2d at 24; Cortimiglia v. Miller, 326 S.W.2d 278, 285 (Tex.Civ.App.—Houston [1st Dist.] 1959, no writ).
The real danger in a BOR petition, especially an official mistake case, is that the only material evidence offered by a Petitioner supporting the lack of notice may be the testimony of itself or its agents. Additionally, official mistake does not include the negligence of a party (or a party’s attorney), as it involves only duties imposed by law on a judicial official. Cannon v. ICO Tubulars, Inc., 905 S.W.2d 380, 384, n.1 (Tex. App.—Houston [1st Dist.] 1995, no writ); Transworld Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 408 (Tex. 1987); Hanks v. Rosser, 378 S.W.2d 31 (Tex. 1964); Mackay v. Charles Sexton Co., 469 S.W.2d 441, 445 (Tex. Civ. App.—Dallas 1971, no writ). In other words, if there is some allegation of negligence on the part of Petitioner’s attorney (in our example Lawyer B), that negligence, under the doctrines of agency will be imputed to the petitioner and will not support the petition. Id; Caldwell I, 975 S.W.2d at 537-38 (Tex. 1998); Wembley, 11 S.W.3d at 927 (Tex. 1999). Cannon, 905 S.W.2d 380, 387.
Additionally, some courts have ruled that an attorney’s failure to exercise due diligence in checking on the status of his case may cause a Bill of Review to fail. Melton v. Ryander, 727 S.W.2d 299, 302 (Tex.App.–Dallas 1987, writ ref’d n.r.e.); Conrad v. Orellana, 661 S.W.2d 309, 313 (Tex.App.–Corpus Christi 1983, no writ). The Conrad court, explaining this rule, reiterated that:
“[A]n attorney’s failure to make reasonable inquiries regarding his pending litigation is failure to exercise diligence, and without the showing of such diligence a bill of review will fail since the appellant will not be able to prove his non-negligence in allowing the judgment against him to be rendered and to become final.”
Conrad, 661 S.W.2d at 313; citing, Thomason v. Freberg, 588 S.W.2d 821 (Tex.Civ.App.—Corpus Christi 1979); Mackay v. Charles W. Sexton Company, 469 S.W.2d 441 (Tex.Civ.App.—Dallas 1971). In Conrad, the petitioner brought a BOR after a post-answer default judgment was entered (the petitioner/defendant did not appear at trial). Conrad, 661 S.W.2d at 313. In the appellate review of the BOR, the defaulted defendant claimed no-notice of the trial setting or judgment. Id. The Conrad court found that, independent of the issue of notice, the lack of diligence on the part of the Bill of Review petitioner, or his attorney, in checking on the status of the pending litigation, precluded the right to equitable relief by Bill of Review. Id. The Court noted:
“… since the [bill of review petitioner] or his attorney had failed to make any such inquiries or investigation during the above period of approximately three months, there was a failure to establish his non-negligence…”
Conrad, 661 S.W.2d at 313. While Conrad is (fortunately) not a binding Supreme Court precedent, it is a very worrisome opinion that any BOR petitioner may have to deal with, especially in a post-answer default (or even a DWOP) scenario. Confirming the status of pending cases on a quarterly basis should by most accounts be a safe practice, but again, the Conrad opinion holds that this can defeat the “unmixed with the petitioner’s own negligence” element of the BOR.
What can be gleaned from both the admonitions from Caldwell II/ Silver and Conrad/Melton is that the BOR petitioner should seek to augment its claim for relief with evidence beyond its stand-alone testimony, which corroborates the lack of notice, and that counsel is charged with a duty of diligence that can effect a petitioner’s right to relief . Caldwell II, 154 S.W.3d at 96-98, n. 3; Silver, 884 S.W.2d at 152; Melton, 727 S.W.2d 299; Conrad, 661 S.W.2d 309.
Opposing counsel has no duty to notify of a judgment.
Also, in Petro-Chemical, the defendant asserted its bill of review partly on the failure of the opposing counsel (arguably an officer of the court)88 to notify it of the entry of judgment, only to have the trial court conclude that the opposing counsel was under no duty to notify the bill of review plaintiff of the entry of judgment.89 The supreme court’s opinion, after noting the trial court’s ruling, failed to address whether any duty existed on the part of counsel to notify the opposing party of the entry of judgment.90 Presumably, this silence could mean that the court agreed with the trial court’s ruling. The bill of review plaintiff advanced similar arguments four years earlier in Hanks v. Rosser, but the supreme court declined to grant writ on that point of error.91
Trial procedure, a true mulligan.
The BOR is the closest thing in law to a “mulligan” because in large part, the Petitioner gets another bite at the apple. The Petition is a new lawsuit, and entitles the parties to conduct discovery, and prepare for a final hearing on the BOR elements and (hopefully) the trial on the merits. Baker v. Goldsmith, 582 S.W.2d 404, 408-09 (Tex. 1979). The Baker opinion is the keystone of the BOR procedure, and in that case, the Supreme Court stated that proof could be presented, “as in any other case, through discovery” requests. Id. There is only one final judgment entered in a BOR proceeding; meaning that the Petitioner has the right to try the entire case on the merits, and any findings, which the jury (or judge) may find in favor of one party/or the other, are merely conditioned on the answers to the BOR questions.
Regarding the issue of the Petitioner’s burden to present “prima facie proof of the meritorious defense/claim,” that is a matter of law issue for the court to decide, and as is indicated by the word “prima facie” in the element, is not a preponderance standard. Id. This determination can, and should be done pretrial, and is called a Baker hearing; if the Petitioner cannot meet this burden his case can be dismissed (and the previous judgment stands). Id. The opposing party can, and likely will, offer controverting evidence, especially if shows the claim is barred by law. Id. The purpose of the preliminary hearing is to show that there are sufficient grounds to go forward, and to guard against wasting judicial resources. Once the Petitioner has met the prima facie burden, the remaining elements are decided by a preponderance of the evidence. Id.
As with any case, the parties may agree or request through motion practice, that the Court to try some issues separately. Tex. R. Civ. P. 174; Warren v. Walter, 414 S.W.2d 423, 424 (Tex. 1967). After the pretrial hearing on the meritorious claim/defense, the case proceeds through discovery and a trial on the remaining BOR elements as well as the trial on the merits of the claims/defenses asserted as outlined in Baker. 582 S.W.2d 404. In the Conrad case, mentioned previously, the trial court conducted a trial on the remaining two BOR elements after the prima facie meritorious defense was established. Conrad v. Orellana, 661 S.W.2d 309, 311 (Tex.App.—Corpus Christi 1983, no writ). The parties may also agree to try all BOR elements to the court. See The Comm’n of Contracts of the Gen. Executive Comm. of the Petroleum Workers Union of the Republic of Mexico v. Arriba, Ltd., 882 S.W.2d 576, 580 (Tex. App.—Houston [1st Dist.] 1994, no writ).
In no-notice or official mistake cases, the procedure is different, for one thing, the Petitioner need not show the meritorious defense (thus there is no pretrial Baker hearing). Caldwell, 154 S.W.3d at 97-98. As the Supreme Court ruled in the seminal bill of review case, involving a DWOP, it is only after a party prevails on the merits of the bill of review, that the underlying lawsuit is revived:
“In sum, when a plaintiff seeks a bill of review based solely on a claim of non-service, the bill of review procedure outlined in Goldsmith must be slightly modified. See Id., at 408–09. When a plaintiff claims lack of service, the trial court should: (1) dispense with any pretrial inquiry into a meritorious defense, (2) hold a trial, at which the bill of review plaintiff assumes the burden of proving that the plaintiff was not served with process, thereby conclusively establishing a lack of fault or negligence in allowing a default judgment to be rendered, and (3) conditioned upon an affirmative finding that the plaintiff was not served, allow the parties to revert to their original status as plaintiff and defendant with the burden on the original plaintiff to prove his or her case. Caldwell v. Barnes, 154 S.W.3d 93, 97-8 (Tex. 2004). The Caldwell case illustrates that in these “no notice” bill of review cases, the petitioner, is entitled to proceed on the underlying dismissed lawsuit after a jury (or fact finder) returns a favorable finding for Plaintiff on the merits of the bill of review. Caldwell, 154 S.W.3d at 97-8 (Tex. 2004). This ruling is somewhat at odds with the holding in Baker, where the Supreme Court reiterated that there is only one final judgment entered in a BOR petition, because it indicates that in the no-notice default or DWOP scenario, the underlying case is not “reactivated” until after a successful trial on the BOR elements. Baker. 582 S.W.2d at 409.
If the BOR elements are tried with the judge as the fact finder, the parties are entitled to findings and conclusions as with any other case. Hagedorn, 226 S.W.2d at 997. If a Petitioner is unsuccessful on the BOR, and the Court enters a final judgment denying the petition, that is a final appealable order; alternatively, if a BOR is granted, that order is interlocutory and cannot be appealed until the final judgment on the merits of the underlying claims/defenses has been determined (on appeal, it will be reviewed under the abuse of discretion standard). Warren v. Walter, 414 S.W.2d 423 (Tex. 1967); Hartford Underwriters Ins. v. Mills, 110 S.W.3d 588, 591 (Tex. App.— Fort Worth 2003, no pet.); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Any questions of law decided by the trial court, like any other appeal, are reviewed under the de novo standard. Jones v. Texas Dept. of Protective and Regulatory Servs., 85 S.W.3d 483, 490 (Tex. App.—Austin 2002, pet. denied).
In conclusion, I would never wish any one of you to have to prosecute or defend a BOR case. These matters, however, do come up, and I hope that the information provided here provides you with some knowledge of what expectations you can have in representing a client in a BOR proceeding.