Holiday Road Trip Prep

You’re Ready, but Are You Prepared?

The bags are packed and the car is loaded, but are you prepared for the legal trouble that is waiting for you down the road?

Below we’ll discuss how to respond to police questioning during a traffic stop, what to do if you are in a traffic accident, and how to protect yourself from angry drivers and domestic violence.

As millions more people are expected to travel this holiday season, you need to be prepared to assertively protect your, and your family’s, legal interests while far from home.

Police Questioning During a Traffic Stop

If you are pulled over, common courtesy and a smile will carry you a long way.  However, you need to remember that the officer isn’t there to help you protect your constitutional rights.

You MUST provide identification, proof of insurance, and registration, but when the officer asks you how fast you were going, where you’re coming from, etc., he is purely trying to find some probable cause to search your vehicle and those are questions you shouldn’t answer. 

If he asks to search your vehicle, it’s because he doesn’t have a reason and wants to go fishing.  After license, insurance, registration, you should assert this phrase, “I do not answer questions without my attorney present, and I do not consent to any searches.”

For more info on this topic, see: Right to Remain Silent?

Traffic Accidents While Travelling

Traffic accidents are scary, but even scarier when you’re far from home.  AFTER attending to injuries and/or calling 911, immediately take pictures of the property damage if it is safe to do so.  Write down the names/addresses of witnesses or other parties.  Write down your version of events immediately while fresh in your memory.

If you speak to the other driver, do NOT try to take the blame for the accident, offer to pay for their medical bills simply because you feel bad for being involved.  These actions can only hurt you because you don’t know the whole story and may not actually be at fault.

For more info on this topic, see: Where to Sue After a Wreck?

Angry Drivers and Domestic Violence

Whether you are accosted by an aggressive driver on the road, or a family member at your destination, your response should be the same; call the police.  I know this seems to go against my advice above, but police are there to keep the peace and keep you safe.

If someone intentionally or knowingly: threatens you with imminent bodily injury, or causes offensive or provocative contact, then that person has likely committed an assault.  The worst thing you can do is respond in kind with your own assault because the last one in is always a rotten egg.  If the assault is such that you must defend yourself, then just use enough force to repel the attack, and then call the police.

For more info on this topic, see: Can I Carry a Handgun?

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law, PLLC  - Criminal Defense & Civil Litigation Divisions

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com 

Adjusting Child-Support

Nothing Stays the Same

Whether you are paying or receiving child-support, surely you don’t expect the amount will stay the same indefinitely.

Since you know that child-support is based on a percentage of income, it stands to reason that income/support can fluctuate with the economy, promotions, demotions, etc.

When the income level varies, then so too can child-support.

How is Child Support Calculated?

This is an often confusing topic that I am frequently asked.  Most often, support is calculated at 20% of the non-custodial parent’s income after taxes. (2 kids=25%, 3 kids-30%, etc.)  This isn’t the complete law, but just a basic rule of thumb.

This amount is different if you have children with more than 1 person and the percentage can be varied by the Judge, but the amount must be in the best interest of the child.

When Can Child-Support be Modified?

To keep child-support obligations current, Texas law allows either party to request a modification after 3 years if the support amount would change by 20% or $100.  The law also allows a modification if the circumstances of the child, or a person affected by the order, have materially and substantially changed.

It is easy to figure out if the support amount has changed (well, as easy as math), but the “material and substantial change” is a little more difficult to explain in detail today, so that is something I’ll leave you to discuss with your attorney. 

What About a Less-Paying Job?

Due to the economy that we’re in right now, many parents have been laid off and had to take lesser paying jobs.  If the support would change +/- the above amounts, then it can be modified and the parent isn’t stuck at their highest wages forever.

However, since some parents are less than honorable, Courts take a very close look when a parent has suddenly started making less money and asks to pay less child support.  The issue to beware of is when that parent intentionally becomes underemployed to earn less money in an attempt to reduce their child support.

If the Court finds that the parent is intentionally underemployed, then the Court may assess a child-support amount in accordance with their earning potential.

Conclusion

If there has been a material and substantial change of circumstance, or you have had a change of income, you can petition the Court to Modify the Parent-Child Relationship and the Court will issue an Order that reflects the correct child-support that you should pay. 

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law, PLLC  - Family Law Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com 

Your Court Appearance

Normal to be Nervous

It is a day that you have been nervous about since you first got notice in the mail.  You have a Court Date.

Even if you are looking forward to this date so you can have a final resolution of this matter, it is normal to be apprehensive because of the inherent uncertainty that you are facing.

Let’s discuss how you can set yourself up for success.

Dress for Success

Your appearance in Court can have a big impact on how you appear to the Court.  The courtroom is a somber place and you should dress in a manner that shows respect for the Court and the process of justice. 

This means no: basketball jerseys, shorts, flip-flops, baseball caps, or low-cut shirts.  You aren't expected to wear a suit or a dress, but wearing slacks with a shirt & tie, or a nice blouse, shows the Court and/or jury the proper respect and that you take this seriously.

Your Convincing Testimony

Your testimony must be convincing or else it may be seen as untruthful and cast you in a negative light.  Although you may fancy yourself a convincing person, you may not be prepared to bear your soul on the witness stand.

Confident people are convincing.  Think about what you are going to say and then say it with confidence.  Clear speakers are convincing.  Speak loudly and clearly so that everyone can hear you, however, speak slow enough so the court reporter can keep up while typing.

Pay Attention to Your Attorney

Hand-in-hand with your convincing testimony, be certain that you are answering the question that your attorney has asked, and not what you think they attorney is trying to get you to say.  It is up to your attorney to ask the right questions.

When testifying, your attorney will attempt to shield you from inappropriate questions asked by your opponent.  If you notice your attorney stand, or say "objection" then the best thing you can do is just stop talking.

The attorneys and Judge must confer to determine how to proceed, and if you answer the question over objection then you'll negate the protection your attorney asking for.

Breathe

This seems overly simple, but you need to remember to do it often, especially if you are testifying.  Imagine that your breath is the space between paragraphs, and reading stories with paragraphs are much easier to understand than full pages of text.

Also, taking a deep breath from time to time will help to calm you down and make you appear more confident.  Being calm is important because worrying doesn’t win trials.

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law, PLLC  - Civil Litigation Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com 

Minor Traffic Offense Arrests

Arrested for THAT?!

As you are driving to/from work today, you’ll probably do something that could land you in jail.  I’m not implying that you’ll knock over a bank; just that you drive poorly.

By driving poorly, I mean that you’ll probably commit some benign traffic offense.  Unfortunately, you can be arrested for violating even the benign traffic laws in Texas.

Violating Traffic Laws

Let me first clarify what these “traffic laws” are.  We’re not talking about Driving While Intoxicated or other serious crimes

that happen to involve a motor vehicle, but just those simple rules that you learned to pass your driver’s test and then tried your best to forget about.

We’re talking about REALLY minor traffic offenses like: improper lane change, parking your vehicle on the wrong side of the road, or even failure to wear a seatbelt.  Even though these are  normally fine-only offenses (no jail time), an officer can arrest you for committing these crimes in his presence.  However, there are a couple of exceptions.

The Two Exceptions

There are two circumstances where an officer cannot arrest you if you provide a written promise to appear.  You know this “promise to appear” as “signing the ticket.”

You’ll be happy to know that one of those offenses you can not be arrested for is speeding.  It’s a huge sigh of relief to you and your lead foot, I know.  The other offense that you cannot be arrested for is violation of the open-container law.  That is, if you sign the ticket.

Why Arrest For Traffic Offenses?

This may surprise you, but officers will use minor traffic stops as a pretext until they find something really juicy.  Some of our state’s biggest drug busts happened that way.

If the officer simply writes you a ticket, he has to let you go.  Although, he may ask you for permission to search your car which I HOPE you do not agree to.  But if the officer arrests you first, he can search your car incidental to that arrest.  Starting to get the picture?

What Should I Do If This Happens To Me?

If this happens to you, there isn’t much you can do.  All I can recommend is that you remember that you have rights that are there for your protection; mainly your right to remain silent and your right to an attorney.

Above all though, my best advice is that you not violate those traffic laws because they are there for your safety and mine.  I mean, seriously, wear your seatbelt kids.

See: Texas Trans. Code § 543.004

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law, PLLC  - Criminal Defense Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com 

The Honorable "Rusty" Ladd

Loss of Justice

With the tragic and untimely passing of my dear friend and mentor, the Honorable Larry “Rusty” Ladd,  my first emotion is an overwhelming sense of loss.

Not just the loss of someone that I admired and revered, but the loss to our justice system and the loss to everyone that would have heard his passionate message of freedom.

His Love of Freedom

Rusty’s love of freedom wasn’t just confined to his role on the Bench; he also loved the freedom he felt on his motorcycle.

Those that know Rusty know that this isn't his first motorcycle wreck.  Some years ago, he was driving through an intersection here in Lubbock and again, someone pulled out in front of him.  After this wreck, his wife Irene said, "no more motorcycles."  Actually, in his version, those were her first words on his hospital bed and he didn't blame her one bit.

Some years later, he started getting the motorcycle bug again, but he didn't dare tell Irene.  One day he and Irene were sitting at a red light and beside them a biker pulls up on an old Harley.

According to Rusty, the biker looked like he was on his way out of town with a bedroll strapped to the back.  Rusty looked out on this biker, with what must've been a longing stare like a caged bird next to a window, because Irene put her hand on his and said, "It's time."

She knew how much Rusty loved to ride and she knew how much he loved that freedom.  She told Rusty that he could get another motorcycle, as soon as the kids were graduated and off to college.

Mourn but Honor

I can’t help but mourn the loss of a personal hero, but I have to remind myself that he’s in a better place now.  If he saw me carrying on the way I have these past few days, I know he’d just probably look at me over his glasses with his sharp gaze and wry smile and tell me that there are better things I could do with my time such as feeding the homeless.

He’d probably tell me to have a steak for him at Cagle’s, and ask me to remember the things he taught me about people and about how we should never lose sight of them in our application of the law.

So even though all I want to do is mourn his passing, I’ll do my best to honor his memory by applying his message as I progress in my career.  Although it is of little consolation, I do take some solace in the fact that he died doing something that he loved; we should all be so lucky.

Rest in Peace my friend, and I’ll see you at the next docket call.

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law, PLLC

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com

Your Risky Space Travel

The Final Frontier

Since you were a kid and watched Star Wars and/or Star Trek, you’ve always dreamed of going into space one day.  However, you never really had the motivation to become an astronaut.

With Space Tourism looming on the horizon, the Legislators in Texas have recently made our state attractive to those businesses by limiting liability for space flight activities.

This means a greater chance of space travel from Texas.

What Are Space Flight Activities?

According to the text of the new law, Space Flight Activities encompass pretty much anything you can imagine NASA doing; such as preparing for launch, flight, or reentry; the conduct of launch; conduct between launch and reentry; reentry and descent; landing; and postlanding recovery operations.

However, the law doesn’t just limit the liability of space flight activities conducted by NASA, but to any “Space Flight Entity” that is conducting space flight activities.

What is a Space Flight Entity?

A Space Flight Entity means a person who has obtained the appropriate FAA license or other authorization, and also includes a manufacturer or supplier of components used in space flight activities and employees, stockholders, members, managers, or partners of such entities.

How Much Liability is Limited?

The space flight entity is not liable to any person for a space flight participant injury or damages arising out of the space flight participant injury if that participant has signed the new statutory agreement and warning statement.  Texas CPRC § 100A.003

However, this new law does not limit the liability for an injury that is proximately caused by the space flight entity’s gross negligence evidencing willful or wanton disregard for the safety of the space flight participant or for an injury that is intentionally caused by the entity.

What Does This All Mean to Me?

Here’s the simple breakdown, companies are going to follow the path of cheapest revenue.  One factor that makes business expensive is potential lawsuits.  This law prevents huge lawsuits against space tourism companies unless there is willful or wanton gross negligence or unless they intentionally cause an injury.

Since space tourism companies have less worry about these lawsuits in Texas, we may see more of them here.  Although, since you’ll have limited recourse if something goes wrong, I suggest you ensure your life insurance policy is in order, and your Estate Plan is complete.

Source: HB 115 (to become Texas CPRC § 100A)

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law, PLLC  - Civil Litigation Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com 

Every Trucker's Nightmare

Scared of the Mailman

You’re a Peterbilt driving, air-horn honking, Convoy listening Truck Driver.  You worry about the clearance of that bridge ahead, but you don’t need to spend your hours on the road worrying about whether you’ll get that dreaded letter.

DPS sends CDL Suspension Notices by mail and they are every trucker’s nightmare because losing your license means losing your job.  Losing your job means losing your way of life.

What to Do With the Letter?

When DPS sends their Notice of Intent to Suspend your CDL, that is their notification to you that unless you take some action, then they are going to suspend your license.  It is very important for you to take that action because then you at least have a chance to be heard.

To be heard, the very first thing you want to do is request a hearing.  This hearing may take place before an Administrative Law Judge, or it could be transferred to one of your local Justices of the Peace.  Requesting this hearing isn’t the surefire way to save your license, but that will at least give you a fighting chance if the DPS has made a mistake.

Your attorney can go over your case with you and determine whether there is a factual, or procedural basis to contest the proposed suspension of your license.

How to Prevent Getting a Letter

The Texas Transportation Code provides a laundry list of violations for which your license could be suspended, but the most confusing is the provision that allows suspension for “two serious traffic violations...within a three-year period.”

These “serious traffic violations” amount to traffic tickets that you only worried about the price of the fine; such as following too closely, improper lane change, reckless driving, speeding.  Since you probably got these tickets out-of-state, you didn’t think much of them and just sent in the fine.

The problem with sending in the fine is that it amounts to a Plea of Guilty and is a conviction on your record.  When you receive such a ticket, you should consult with your attorney to see if there is any way to resolve that ticket without it resulting in that conviction so it doesn’t stick to your record.

Ultimately, the short answer to prevent getting the letter is to avoid getting any traffic citations, and if you do get traffic citations, fight them individually because fighting them at your suspension hearing might be too late.

Tex. Trans. Code—§ 522.003, 522.081

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law, PLLC  - Civil Litigation Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com 

How to Punish Your Ex

Child Support & Custody

When you and your Ex had a child together, you two became stuck together for the rest of your lives whether you like it or not.

Since you two are no longer a couple, it can be difficult to get them  to play by the rules when it comes to paying child support, being civil, or even letting you exercise your visitation according to the Court’s Order.

However, I sincerely hope that you don’t use this information to punish your Ex, but use it to help your Ex understand the consequences for keeping you from exercising your rights.

Your Legal Rights

Whether you and your Ex are bound by a Divorce Decree, or if you weren’t married and sought an Order to set out the visitation and child support amounts, your rights are the same under each.  You have a right to rely on that Judge’s Order.

When the Judge entered the Decree/Order, he made sure not to leave any ambiguities regarding your visitation and child support.  The child support amounts are described down to the penny and days due and the visitation down to the hour of the day for transfers.  For the record, the Judge doesn’t like when someone disregards their orders.

When your Ex doesn’t stick to their terms, you don’t have to take it; you can take action.

Your Plan of Action

Like I said above, I hope that you will use this information to show your Ex the consequences of their actions so they will hopefully change their ways, but you and I both know that your Ex doesn’t respond to logic.  Your plan of action should include a Motion for Enforcement.

Under the Texas Family Code, the Court can enforce a final order for child support and/or visitation by contempt.  Each occasion where your Ex failed to comply with the Court’s order is punishable by Contempt of Court.

What is Contempt of Court?

You see it on TV all the time, but when the Court finds someone in contempt, the Judge is basically saying that the person failed to obey a Court Order.  This is why you usually hear the Judge give a warning first on your standard overly dramatized TV show.

The punishment for contempt is fairly harsh though.  Contempt is punishable by up to 6 months in jail and a $500 fine.  Don’t forget that each violation is it’s own contempt.

How to Protect Your Enforcement

Every single one of my Family Law clients hear a similar pitch: I strongly recommend keeping a very detailed log of you and your Ex’s interactions regarding child support and custody.  Memories fade over time and you may find yourself in the above situation and desperately needing to remember what day your Ex disobeyed a Court’s Order.

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law, PLLC  - Family Law Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com 

Hardship Driver's License

Driving You Crazy

Well your kid has finally done it.  They’ve convinced you that they need a driver’s license before they turn 16.  I remember getting a hardship license when I was 15 because of my job’s hours.

However, before you start shopping for a safety-focused car for your child, let’s discuss the requirements and the new law.

Who Qualifies for Hardship License?

The Department of Public Safety (aka DMV) may issue a license to a person if failing to issue one “will result in an unusual economic hardship for the family of the applicant, the license is necessary because of the illness of a member of the applicant’s family, or the license is necessary because the applicant is enrolled in a vocational education program and requires a driver’s license to participate.”

Recent Change in Law

In addition to qualifying for a Hardship License, the child must meet some requirements.  They must pass a “driver’s training course,” be a certain age, and pass the licensing test.  Here’s the tricky part; as of September 1, 2011, the law has changed 2 of these. 

Driver’s Ed—The applicant, your child, isn’t eligible to take the driver’s training course until they are 15 (was 14), and this course now must be approved by the Texas Education Agency and conducted by a licensed driver’s education school.  No more home-taught driver’s ed?

Certain Age—To apply for the license, the applicant must now be at least 15 years and 180 days.  For those of you doing math at home, yes that is 6 months. (15 1/2 years old)

Exceptions and Possible Loophole

The law states that “if the department determines that an applicant must assist in the responsibilities imposed by a family illness, disability, death-related emergency, or economic emergency, then they may issue a temporary license to an applicant who has satisfied” the driver’s education requirement.

In my interpretation, it looks like someone can get a Hardship License earlier than age 15 1/2, but would be limited to the earliest they can complete driver’s ed after turning 15.

New Law, New Penalty

One big change to the Hardship License law is the penalty if the hardship license holder receives a Moving Violation. (i.e., speeding, running stop sign, failure to signal turn)

The previous law gave the department the option of suspending a Hardship License if the licensee is convicted of a moving violation.  Under the new law, the department shall (must) suspend the license for that moving violation conviction.

Oh, and just in case you are wondering, paying the ticket fine is a plea of guilty and is a “conviction” for that violation.

--Authored by Matthew L. Harris, Esq.,

Matthew Harris Law, PLLC  - Family Law Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com