New Laws for Veterans

Happy Independence Day!

That's right, I'm saying it early.  Today we're going to talk about some new laws that apply to Veterans so maybe you can pass on some knowledge when you see a Veteran this holiday weekend.

Please note that all of these bills have been signed into law by Governor Perry and all of these new laws will be effective on September 1, 2011.

Veteran Driver's License - HB 1514

Veteran's can have a designation ("VETERAN") included on their driver's license.  Why would we want it?  Who knows, but maybe it will get us out of a speeding ticket?

A Veteran means a person that has served in one of the five branches of service, (if you're lost, the fifth is Coast Guard), or the Texas National Guard, and been honorably discharged.  All that is required is a request by the Veteran, and proof of service and honorable discharge.

Airborne Specialty License Plate - SB 0461

This one affects me directly, and I don't know if I like it, but the "Airborne Parachutist" license plate will now read "U.S. Paratrooper" instead.  However, it will still have the Army Airborne Wings.

If this is the first you're hearing about it, and are interested, there is no extra charge to get this license plate.

Bronze Star Specialty License Plate - HB 0559

The legislature has created new specialty license plates for recipients of the Bronze Star and Bronze Star with Valor.  It will have a picture of the medal emblem and a "V" for those with valor.

Funeral Service Disruption - HB 0718

This one isn't only for Veterans, but it sure seems to apply to Veterans more and more lately. (See Westboro Baptist Church)

A person commits an offense by picketing within 1,000 feet of a facility or cemetery being used for funeral service and within 3 hours before or 3 hours after the service.  This is a change in the law that previously provided a 1-hour buffer.

Mandatory Selective Service Registration - SB 0132

This change really applies to future Veterans, God help us if we have to turn to a draft again, but it makes Selective Service Registration mandatory, instead of optional, when getting a driver's license or ID card.

It appears that if you apply for an original, renewal, or duplicate driver's license or personal identification card, and you are between the age of 18 and 26, then your information will automatically be submitted to the U.S. Selective Service System for registration. 

Expect to see statutory notice language on your paperwork this Fall.

How to Thank a Veteran

By nature, we Veterans are modest and do not easily take praise or recognition.  This holiday, you will no doubt shake a Veteran's hand and tell him/her how proud you are, but be prepared for an embarrassed look in their eye and something about how they were just doing their duty.

We really do appreciate your praise, but we sometimes have a hard time showing our appreciation of your kind words.  A simple handshake, pat on the back, or "thank you," is enough to show your support, and turn our cheeks red.

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

Matthew Harris Law - Civil Litigation Division

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

Attorney@MatthewHarrisLaw.com 

(806) 702-4852

www.MatthewHarrisLaw.com

Civil Defense

When you hear "Civil Litigation," your first thoughts probably go to those flashy Personal Injury commercials featuring an aggressive attorney with an absurd nickname.  However, not all civil litigation involves a lawsuit against a large corporation. 

Sometimes, that civil litigation machine gets pointed at an individual like you; and sometimes, the best defense is just a good defense.  Today we're going to discuss your options in defending a civil case.

Pretrial Settlement

Fewer than 5% of lawsuits end in a trial.  Often, the attorneys for both sides are able to meet and discuss the demands of each side and negotiate a settlement that both sides can live with.  This most likely involves drafting a new agreement to bind each side to the terms of the settlement. 

If both sides aren't able to find a middle ground to agree upon, then they may pursue Alternative Dispute Resolution to avoid the costly expense of a trial.

Alternative Dispute Resolution

One of the tools in your Civil Defense Attorney's toolkit is ADR.  ADR provides structure to encourage both sides to settle the dispute without the need for a trial.

Mediation is a form of ADR and is basically a settlement negotiation where a third party, the Mediator, is present to encourage both sides to work towards a settlement goal.  However, the Mediator doesn't offer an opinion or make any binding decisions.

Arbitration is a form of ADR and operates like a mini-trial where a third party, the Arbitrator, hears the arguments from both sides and offers an opinion on the likely outcome.  Arbitration is often included in contract terms to avoid trials, but it can be either binding or nonbinding on the parties.

Criminal Trial v. Civil Trial

If the parties in a civil lawsuit aren't able to come to an agreement, then they may press forward with a trial on the merits of the case. 

Defending a civil lawsuit is much different than a criminal defense case because unlike the criminal case, there is no right to remain silent.  The 5th Amendment only provides protection from incrimination, and if you aren't being asked questions that will incriminate you, then the Judge may compel you to take the stand and answer questions.

Another large difference between civil defense and criminal defense is the burden of proof that the Plaintiff has to show to win their case.  In criminal defense, you are presumed innocent and the jury has to find you guilty "beyond a reasonable doubt."  In most civil defense cases, the jury just has to find that you committed the act "by a preponderance of the evidence," which is just 51% sure that you did it.

Settlement v. Trial

Your civil defense attorney will make recommendations of which course of action is best for you, but that decision will ultimately fall upon you.  

Settlement has its benefits because it is likely less than you would pay if you lose the trial; but the downside is that you're definitely paying something.  

Trial has its benefits because if you win, you're off the hook; but the downside is that if you lose, you may end up paying more than the settlement offer AND the other side's attorney's fees.

Discuss your options with your civil defense attorney and at least be prepared to consider the settlement options.

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

Matthew Harris Law - Civil Litigation Division

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

Attorney@MatthewHarrisLaw.com 

(806) 702-4852

www.MatthewHarrisLaw.com

New Texas Boating Laws

To properly kick off Summer 2011, I know many of you will do it by taking to the lake.  Before you hit the water, you should know that your Texas Legislature has recently (as in, over the past couple of weeks) passed new laws specifically for boaters. 

Castle Boat

As we discussed in our last blog, carrying a handgun in your motor vehicle isn't illegal if you meet the simple requirements.  If you're lost, then it's because you didn't read last week, so go do that now.

When you return, you'll be happy to know that HB 0025, which allows the same handgun carrying requirements to "watercraft,"  has been signed into law, but you'll be disappointed that it doesn't go into effect until September 1, 2011.

Wearable Life Preserver

HB 0308 has been signed into law and is effective immediately.  It requires your motorboat to carry at least one "wearable personal flotation device" per person.

Fishing License Exemption

HB 0550 has been signed into law and is effective immediately.  It provides an exemption for the necessity of a fishing license for a resident whose birthdate is before January 31, 1931.

Jet-Skiing 13 year-olds

HB 1395 has been signed into law and is effective immediately.  It reduces the minimum age for operating a "personal watercraft," from 16 years old to 13 years old.

Previously, even persons 16 years of age had to have completed a boating safety course, but it appears that the new law has removed that provision for 13 year-olds.  It also provides guidelines for the operation of a personal watercraft for persons under the age of 13.

Boating in Circles

HB 0596 has been signed into law and is effective immediately.  The old law prohibited boating in a circular course around fishermen or swimmers.  

The new law adds a prohibition on operating a personal watercraft, in addition to boats, in that circular course.  It also adds a prohibition on the circular course around "waterskiing or a similar activity." 

However, it does carve out an exception for making a circle to retrieve a downed or fallen water-skier, or person engaged in similar activity.

Safety

This is far from an exhaustive list on the new boating laws, and there  are others that directly address safety and even one regarding boating accidents.  Stay safe out there on the water and as always, use a little common sense.  

If you have more questions about new legislation or you've been cited for a boating offense, please call your attorney because no website or blog, even this one, is a replacement for individual legal counseling.

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

Matthew Harris Law - Criminal Law Division

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

Attorney@MatthewHarrisLaw.com

(806) 702-4852 

www.MatthewHarrisLaw.com

Can I Carry a Handgun?

No Permit? No Problem!

Most people think that unless you have a Concealed Handgun Permit, you're not allowed to carry a concealed handgun.  That assumption is incorrect. 

Some people think that you must be traveling between counties to carry a concealed handgun without a permit.  That assumption is incorrect as well.

Below, we'll discuss the Texas Law as it applies to both situations.

Old Law

The old law in Texas, and the one that I still hear referred to at least a couple of times a month, required you to be "traveling" to carry a handgun in your vehicle without a permit, but it didn't exactly define "traveling" and led to much confusion.

The current law is much more lenient to you as the gun owner.

Who Can't Carry a Handgun?

Let me be clear, if you are prohibited by law from carrying a firearm, you may not carry a handgun.  If you're a member of a criminal street gang as defined by Texas Penal Code 71.01, you may not carry a handgun.  If you are engaged in criminal activity (other than Class C Misdemeanor traffic offense) you may not carry a handgun.

When Can You Carry a Handgun?

If you are on your own property, you can carry your handgun.  If you are directly en route between your property and your motor vehicle, you can carry your handgun.  If you are in your motor vehicle, you can carry your handgun; even while driving.  However, your handgun must NOT be in "plain view."

New Law Coming Soon?

A possible addition to this law is currently before Governor Perry, but has not been signed as of the date of this publication.  House Bill Number 25 (HB0025) would amend the law to include and treat watercraft like motor vehicles regarding the possession of a handgun.  I will update when more information becomes available.

Where Can You Carry a Handgun?

Well, I'd tell you that it's easier to tell you where you can't carry a handgun, but there are a great number of places that you can't carry a handgun such as airports, schools, polling places, liqour stores, and many many more.  The list is quite extensive and far too complicated to try to explain in this blog.  I invite you to read the list for yourself; Texas Penal Code § 46.03

Should You Carry a Handgun?

This is a judgment call by you and no one can make this decision for you or tell you whether it is a good idea.  Just because you have the right to do something, doesn't mean that you should do something, (see Westboro Baptist "Church").

My opinions on this matter aren't binding on any Judge and the law may change, as it often does, rendering this opinion incorrect.  If you have any questions about the law, there is no replacement for individual legal counseling provided by your attorney because an internet article cannot apply your specific facts.  Consult with your attorney if you have any questions.

Source - Texas Penal Code § 46.02

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

Matthew Harris Law - Criminal Law Division

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

Attorney@MatthewHarrisLaw.com

(806) 318-8482 

www.MatthewHarrisLaw.com

You're a Fairy Godparent?

The Fairy Godparents

In the best bedtime stories, the children in distress are saved by their Fairy Godmother, but few people realize that Fairy Godparents still exist today.

When I say they exist, I mean that they don't exist.  But what I really mean is that most people who consider themselves to be "godparents" aren't really godparents under the eyes of the law; therefore, they might as well be fictional.

What is a Godparent?

As the name implies, a godparent has traditionally been a person designated to ensure a child's religious upbringing.  Today, the godparent role isn't restricted to religious upbringing, but the godparent is referred to as the person trusted to care for the child should he/she become orphaned. 

What most people actually mean when discussing godparents is a legal guardian.  For today's discussion, we're going to focus on a godparent protecting and caring for the orphaned child as a legal guardian.

Appointing Godparents

Upon the arrival of a bundle of joy, after picking out a name, one of the first conversations between the new parents involves picking out godparents to take care of the new arrival, "in case something happens."  Sometimes they even go as far as telling the desired godparent of their new role.

In the event that "something happens," how much legal weight do you think a Court gives to the godparents simply telling the judge that the child's parents announced the godparents' new role at a barbecue several years ago?

Preserving the Choice of Godparents

You already know the best way to preserve your desires; put it in writing.  If you are contemplating writing a Will, then  it is common to include a provision appointing the godparents as legal guardians upon your demise if your spouse does not outlive you.

If you do not have a Will, you're not prevented from naming a godparent as your child's legal guardian.  You can appoint your choice of godparent as your child's legal guardian in a separate document.  We're not talking about ending your parental rights or anything because this document wouldn't take effect unless you and your spouse passed away.

Take Action Now

As a parent, I know that the most important responsibility is to protect your child.  If you haven't taken steps to preserve your choice for godparent/legal guardian, then the Court will make that decision for you after you're gone.

Don't wait to take the necessary steps to protect your children because you may not have another chance.  If you need help with the legal formalities of drafting the document of your decision, then contact your attorney.

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

Matthew Harris Law - Estate Management & Family Law Divisions

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

Attorney@MatthewHarrisLaw.com

(806) 702-4852 

www.MatthewHarrisLaw.com

Collecting Business Debts

Bad Business

You have a dispute with someone as a result of a business transaction that went sour.  After attempting to settle it peacefully, you finally broke down and filed a lawsuit.  Because you were in the right, the Court ruled in your favor and awarded you a judgment.  However, your opponent refuses to send you a single dime, now what?

With a judgment in hand, you've got a few options.  You can seek an Abstract of Judgment, a Writ of Execution, or a Writ of Garnishment; but this is by far an all inclusive list of options.

Obstacles

One of the major obstacles facing you as you attempt to collect your judgment stems from who you are attempting to collect from.  If you are attempting to collect from an individual person, you will face many hurdles, because there are many exemptions under the law that protects their property from collection.  However, since we are discussing collections from businesses, you'll be glad to hear that there are very few exemptions from collection.

Abstract of Judgment

This is usually the first method used in collecting a judgment.  An Abstract of Judgment creates a lien on your opponent's non-exempt real property.  The Abstract of Judgment should be filed with the County Clerk in every county where they own real property to give you a greater chance of success in recovery.

Writ of Execution

In my own personal view, this is one of the most embarrassing methods of recovery for a judgment debtor.  A Writ of Execution allows the Sheriff to go to their business with trucks and start collecting non-exempt property.  The Sheriff then sells the property at auction and turn the proceeds over to you to satisfy the judgment.

Obviously there is much more to it than this, but you get the general idea of how it works.

Writ of Garnishment

This method is usually saved for last because it is fairly harsh and is expensive to pursue compared to the other methods.  Also, the Writ of Garnishment is only available if, "within the plaintiff's knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the debt."

The Writ of Garnishment allows you to collect your opponent's property that is held by a third-party, such as money held in a bank account, safe deposit box, etc.  If you have to resort to this method, you'll essentially have to file another suit because it will be assigned a new cause number and pay a new filing fee.

Preferred Method

Unfortunately, there is no silver bullet in this area of law and I can't tell you the best method to use.  Each case is different and requires a different approach, and sometimes a combination of more than one of the above described collection methods.  The above is only meant to give you a cursory overview of some options and not nearly detailed enough to be relied upon as a guide to the relevant law.

You and your attorney should sit down and discuss your goals and formulate a plan to attempt to collect what is owed to you.  Regardless of how you choose to proceed, you will certainly need patience because collection of judgments is rarely a speedy affair.

Source: Tex. Civ. Prac. & Rem. Code § 63.001(3).

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

Matthew Harris Law - Business Law Division

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

Attorney@MatthewHarrisLaw.com 

(806) 318-8482 

www.MatthewHarrisLaw.com

Where to Sue After a Wreck?

Hold On!

That was the last thing you yelled before the tempered automotive glass exploded around you and the loose change in your console took flight.  As the twisted mass of steel that was your trusty car only moments ago comes to a stop, you slowly realize what's happening; you're in a car wreck.

The 5 Ws.

If you've ever had a reason to consider a lawsuit, you probably focused your time on the other 4 Ws (Who, What, When, & Why), but I bet you didn't spend much time considering the "Where."  However, knowing where you can file your lawsuit can sometimes be just as important as knowing who you can sue.

Since you're the person initiating the lawsuit, you get first choice in where to file the suit and as any real estate agent will tell you; the key is location, location, location.  When you challenged someone to a race as a kid, you wanted it in your own backyard because you knew where every dip, hill, and pothole was.  You want this same advantage in court.

Where Did He Come From?

Those are your first words to yourself as the airbag smoke clears the air.  That is, IF you can even speak with lungs full of that pungent chemical concoction that feels like you're inhaling sand.  Those of you that have smelled it know exactly what I'm talking about.  Although it may seem like he just came out of nowhere, you know that he didn't magically appear out of thin air; and that's our first clue of where to file the lawsuit.

That's right, where does he live?  One of your first options in choosing where to file is the other guy's county of residence.  I won't go into the endless possibilities for his county of residence being beneficial for you, perhaps he has a bad reputation at home and you know that it will work to your advantage, but that's the sort of strategy that you and your attorney need to discuss.

(Alternatively, if the other guy was driving a company truck and you're suing the company, you can choose to file your suit in the county of that company's principal office in Texas.)

Where Am I?

Your passenger hit her head terribly hard during the wreck and doesn't know what just happened.  You two were on a road trip far from home; still in Texas, but in a different county.  This is our second clue of where to file the lawsuit.

Where did the wreck take place?  Under Texas law, you can choose to file your lawsuit "in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred."  Depending on your facts, you'll have to decide whether this county gives you some advantage, but it's important to know your options.

Where Do You Live?

As you're being loaded onto a stretcher while being swarmed over by paramedics, they're yelling questions at you and trying to determine how badly you're injured.  One of the questions they ask as they load you on an air ambulance is about your home address to test your short term memory; and that's our third clue of where to file the lawsuit.

Where is your county of residence?  If neither of the above apply to your situation, then you turn to the county where you resided when the wreck happened.  For most people, this is the county they want to turn to first but Texas law saves it as a last resort.

Trial Strategy

This is by no means an all inclusive summary of Texas law on Venue, but it should be enough to get you thinking about a legal topic that you hadn't considered before.  Choosing the location of your coming fight isn't cheating or even dishonest because it is a well preserved right outlined by your legislature.

Just as you would with any other fight, you want to choose the time and place that gives you the best tactical advantage over your adversary.  I can't tell you which of the above works best because as with any situation, differing facts require differing strategies.  Make sure that you discuss your trial strategy with your attorney at your initial consultation.

Source: Tex. Civ. Prac. & Rem. Code Ann. § 15.002

***Special Thanks to Tammy Fisher of Sonora, Texas for helping choose today's topic and to everyone else that participated in this week's Reader's Choice Poll on Facebook and Twitter.***

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

Matthew Harris Law - Civil Litigation Division

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

Attorney@MatthewHarrisLaw.com 

(806) 318-8482 

www.MatthewHarrisLaw.com

You are NOT the Father!

The Nightmare

If you've ever watched daytime talk shows, you've witnessed a nightmare.  A Mom confesses to cheating and reveals that the Dad might not be the genetic-father.  Sadly, these stories rarely end well.  The host pulls the DNA results out of an envelope and proclaims, "You are NOT the Father!"  

The Dad had no idea that he was raising another man's child and may have even been ordered to pay child support for years before being embarrassed on national TV.

Old Law

The long standing tradition in Texas in such situations has been to require Dad to continue paying the child-support even after such a revelation.  

There was a small exception that allowed another man to step in his place as the child's father, but often the Mom didn't know, or wouldn't tell, who she suspected the actual genetic-father was.  

Basically, the Dad was duped and was required to pay child support on someone else's child for 18+ years.

New Law

Well a couple of weeks ago, May 12, 2011, the 82nd Texas Legislature made a HUGE change in this area of the law under SB 785; effective immediately.  

This bill has now become law and basically says that if the Dad finds out that he might not be the father, gets a DNA test that excludes him as the father, then he can have the parent-child relationship terminated and is no longer obligated to pay child support.  WOW!

Exceptions

Obviously there are some exceptions to follow this monumental change to the law.  If the father adopted the child, participated in assisted reproduction, or he was the intended father under a gestational agreement then he can't ditch his parental-duties.  

These exceptions are obviously necessary because he isn't surprised that he isn't the genetic-father and this isn't intended to be a Baby Lemon Law.

Filing Deadline

Generally, this suit must be filed within 1 year of Dad finding out that he might not be the genetic-father, however, that requirement is quite relaxed right now and won't take effect until September 1, 2012.  

Basically, if a Dad finds out he may not be the genetic-father ANY time before September 1, 2012, then he can file the Termination Suit up until September 1, 2013.

Public Reaction

I know some of you may become outraged and proclaim that this law hurts children and mothers because it takes away a much needed source of child-support.  Some are even referring to it as the "Bastard Bill" because it allows a child to be left without a father.  

I can't tell you how to feel about it, but if you look at it from the Dad's perspective, he has been lied to and been forced to pay child-support for a child that he didn't even father.

However, you know as well as I do that there is a difference between a Dad and a genetic-father.  This new law doesn't just dismiss a Dad that wants to be a part of that child's life.  

On rare occasions, that very same tragic story on that daytime talk-show does have a happy ending when the Dad says, "I don't care what those results say, that's my son/daughter and I'm not going anywhere.

Conclusion

Since this is a brand new law that, as far as I can tell, hasn't had a chance to see the inside of a courtroom yet, it remains to be seen how the courts are going to interpret it.  The above is my opinion on the matter and is only meant for informational purposes and not as legal advice.  If you think this law applies to you, I strongly recommend speaking with an attorney instead of trying to pursue it on your own.

Source:  S.B. 785 - 82nd Legislature of Texas

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

Matthew Harris Law - Family Law Division

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

Attorney@MatthewHarrisLaw.com 

(806) 318-8482 

www.MatthewHarrisLaw.com