Weee Little Shenanigans!

St. Paddy’s Day

St. Patrick’s Day is this weekend and you may not realize the legal ramifications if you partake in some holiday traditions.

For example, if you plan to pinch someone, or catch a leprechaun to get wishes, then you need to be informed now before heading out on March 17th for your green beer and Shenanigans!

No green? Pinch your way to an assault!

You know the way it works; if someone isn’t wearing green, then they must be pinched! However, do you realize that pinching someone may open you up to criminal and civil liability?

I know it’s a buzz kill, but it’s true. Despite this being tradition,

pinching someone without their consent has legal ramifications. You commit an Assault if you intentionally or knowingly cause physical contact with another when you know, or reasonably should believe, that the other will regard the contact as offensive or provocative.

You can be prosecuted criminally for assault, which is a Class C Misdemeanor, or you can be sued civilly for damages. In essence, think twice before pinching.

—See Tex. Pen. Code § 22.01 (a)(3);

Leprechauns and Wishes!

The legend of the Leprechaun states that if you capture him, then he must grant you three wishes. The question is, can you legally enforce his wish granting? Can you even legally capture him? The answer: Probably not and definitely no.

The promise to grant wishes would be governed by contract law. To have a valid contract, two individuals must come to a mutual agreement to exchange something of value. However, any promise or agreement made under duress would be voidable. Capturing a Leprechaun and forcing him to grant you wishes would likely qualify as duress and allow him to void the wishes.

Kidnapping/False Imprisonment

This brings us to our next point. If you capture and hold a Leprechaun, without his consent, and demand your three wishes, then you could be criminally prosecuted for aggravated kidnapping, and sued civilly for false imprisonment.

Aggravated Kidnapping occurs if you intentionally or knowingly abduct another person with the intent of holding them for ransom or reward; which is a third degree felony.

—See Tex. Pen. Code § 20.04

False imprisonment occurs if you willfully detain someone, without their consent, and without authority of law. You could be liable for damages to the Leprechaun, as well as any damage or injury that occurs if he attempts to escape.

—See Sears, Roebuck & Co. v. Castillo, 693 SW 2d 374, 375 (Tex. 1985)

Luck o’ the Irish

For whatever reason you celebrate St. Patrick’s Day, go and enjoy it wisely and safely.  Of course, now that you’re informed of the legal pitfalls, you can celebrate without needing to rely on your four leafed clover to avoid visiting your attorney the next day!

--Authored by James R. Palomo, Esq.,

Matthew Harris Law, PLLC  - Civil Litigation Division

1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309

Tel: (806) 702-4852 | Fax: (800) 985-9479

FrontDesk@MatthewHarrisLaw.com 

Emancipated Minor

What Would You Do With It?

Teenagers want freedom from their parents like the neighborhood dog wants that Buick it chases.  But both beg the same question; what would they do with it even if they got it?

Some people wrongly believe that minors are automatically emancipated if they live apart from their parents for a length of time, but that isn’t true.  Minors may be emancipated in Texas if they meet certain requirements, but this is something that MUST be determined in Court.

Don’t Call it Emancipation

Texas law doesn’t actually allow a minor to “emancipate;” instead, it allows a minor to “remove the disabilities of minority."

—See Tex. Fam. Code § 31.001

You see, as a minor in Texas, you have many disabilities that adults do not have.  For example, you are not allowed to vote, buy tobacco, make decisions regarding your education, write a Will, and most importantly cannot enter contracts.

What Disabilities of Minority Can Be Removed?

The Court can remove your disabilities for a limited or general purpose.  If for a general purpose, then certain educational decisions are transferred to the minor, except as provided by federal law, and you would have the “capacity of an adult, including the capacity to contract.”

—See Tex. Fam. Code § 31.006

The capacity to contract is the most important because that is your ability to rent an apartment, buy a car, and open a bank account.  What this DOESN’T do is allow you to buy tobacco, vote, write a Will, or any other action where minimum age is controlled by statute or constitution.

How Do I Get My Disabilities of Minority Removed?

A minor can petition the Court if the minor is a Texas resident, is 17 years old (or 16 years old and living separate and apart from the minor’s parents, conservator, or guardian), and is self-supporting and managing the minor’s own financial affairs.

Your petition must be verified (signed in front of a Notary) by a parent or appointed guardian or conservator, and must include information regarding the name and residence of minor, parent, guardian, and conservators.

Also, your petition must include the reasons that the removal would be in the “best interest of the child” as well as the purposes that the removal are requested (general or limited).  The Court cannot make any decision regarding children unless it is in the child’s best interest, so be prepared to fully articulate why this removal is best.

—See Tex. Fam. Code § 31.002

The Hearing

Yes, this is the type of thing in which a hearing is required, but the Court must appoint an Attorney to represent you at this hearing and to represent your interest to the Court.

Because this is such a big decision, do not expect for the Court to simply rubber-stamp your request and be prepared to fully articulate why this is in your best interest.  This may sound difficult, but hey, you’re asking to be treated as an adult and being an adult is quite difficult.

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

Matthew Harris Law, PLLC  - Family Law Division

1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309

Tel: (806) 702-4852 | Fax: (800) 985-9479

FrontDesk@MatthewHarrisLaw.com

Orphan Adoptions

Deceased Parent

Losing your spouse or partner is hard; losing that person when you have a child together is even harder.  Eventually, you will move on and you may even remarry at some point.

If you remarry, and your spouse wants to adopt, what do you do? Can they adopt your child?  What happens to the survivor’s benefits from Social Security?

Presumption of Paternity

During this adoption process, you will hear about the father being adjudicated and the “presumption of paternity.”

The presumption of paternity can happen in different ways; such as the voluntary signing of the birth certificate, the mother and father being married prior to the child’s birth, a prior Court Order, or an Acknowledgement of Paternity being signed and filed.

—See Tex. Fam. Code §  160.204

If something happened to your partner before the child was born and the father could not be properly adjudicated, you may to need start looking for copies of the death certificate, and possible DNA tests for both social security and the Courts.

Survivors Benefits, Do I Lose Them?

According to the Social Security Administration’s website, “the adoption of a child already entitled to survivor's benefits does not terminate the child's benefits.”

Getting Your Child’s Permission

During the adoption process your child may have to give consent to certain actions.  For example, if your child is age 10 or older, then he/she must consent to their name being changed.  If your child is age 12 or older, then he/she must consent to the adoption and must appear at the final hearing.  However, the consent to the adoption and appearance at the final hearing may be waived by the Court if that is in the child’s best interest.

—See Tex. Fam. Code §§ 45.002, 162.010, & 162.014

How Do We Do This Adoption Thing?

You will want find a good attorney who handles adoptions regularly and whom you feel comfortable speaking with.  Then the process of the adoption can begin just like any other step-parent adoption.

A petition for adoption will need to be filed, the adopting spouse will need to have a criminal back ground check, and a post-placement social-study will need to be done prior to the final order from the Court.

—See Tex. Fam. Code §§ 162.0085 & 162.003

The biggest difference between a deceased-parent adoption is probably also the most obvious.  Because the other parent is deceased, there is no need to terminate their parental rights.  This will reduce some of the costs associated with pursuing an adoption.

For more information about the adoption process, see our How to Adopt a Child blog.

--Authored by Emily D. Walterscheid, edited by Matthew L. Harris, Esq.

Matthew Harris Law, PLLC  - Family Law Division

1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309

Tel: (806) 702-4852 | Fax: (800) 985-9479

FrontDesk@MatthewHarrisLaw.com 

No Proof Needed?

License and Insurance!

You’re driving down the road and without warning, your rearview mirror illuminates with the red and blue lights of a police car.

As the officer approaches your car, you pull out your driver’s license and continue to fumble through your glove box for your insurance card.  Suddenly, you remember that your insurance just renewed and you don’t have the new card in your car.

Proof of Insurance

In Texas, as a condition to driving a motor vehicle, you must establish financial responsibility for your vehicle.  This is usually under a commercial insurance provider, but can also be through a surety bond, a deposit with the comptroller, or self-insurance.

—See Tex. Trans. Code § 601.051

Also you must carry evidence of this financial responsibility.  Upon the request of a peace officer, or a person involved in an accident, you must show this evidence.

If you fail to have this evidence with you then you are “presumed to have operated the vehicle in violation” of the law that requires you to have it.

—See Tex. Trans. Code § 601.053(c)

Check Your Database, Officer

As you can imagine, there is a database for just about everything, insurance included.  There is a database established under the Texas Department of Insurance, called TexasSure, which keeps track of who has insurance and who doesn’t.  Most likely, the officer knows if your vehicle is insured before he even gets out of his patrol car.

The same law that presumes that you do not have insurance unless you provide proof also states that it does not apply “if the peace officer determines through use of the verification program...that financial responsibility has been established for the vehicle.”

—See Tex. Trans. Code § 601.053(c)

In essence, if the officer reviews the insurance database, and sees that you have valid insurance, then he is not allowed to presume that you have operated the vehicle in violation of the law requiring you to have it.

Penalties

There are penalties for operating a motor vehicle without financial responsibility; $175-$300 fine for first offense, $350-$1,000 fine for second offense.  Also, the Driver Responsibility Program can suspend your license and assess further surcharges against you that can be even higher than the ticket.  But, you have a defense to prosecution if you show proof that you had insurance at the time of the offense to the Court.

—See Tex. Trans. Code §§ 601.191, & 601.193

*OPINION WARNING* If you will notice, the law provides a penalty for operating a vehicle without financial responsibility, and you are presumed to have committed that offense for failure to have proof of it; but that presumption is removed if the officer sees that you have insurance in the database.  Because the law does not set out a punishment specifically for “failure to provide proof of insurance,” I argue that the officer has no authority to issue that ticket and if he does, then he has misapplied the law.  Too bad no one has argued this to an appellate court yet...

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

Matthew Harris Law, PLLC  - Criminal Law Division

1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309

Tel: (806) 702-4852 | Fax: (800) 985-9479

Attorney@MatthewHarrisLaw.com 

Get Outta Here!

Rent is Due!

Your tenant is late on the rent, again, or they have breached the lease in some other way.  You have already told them to pay/fix the breach or get out now!  But what happens when they refuse to pay the rent or fix the issue?  What happens if they refuse to move out?  What can a landlord legally do?

The Solution

As a landlord, you certainly have the ability to tell a tenant to vacate the premises for breaching the a term in their lease, but, only a Justice Court can evict a tenant.

The Process

In order to properly evict a tenant, there are certain actions that you must take in order to prevail.  Prior to filing suit, you must give the tenant proper notice to vacate the property; this is typically three days unless you have agreed in writing to more or less time.

See—Tex. Prop. Code § 24.005

If after giving the tenant the pre-suit notice they have not complied with your demand, you can then file suit in your local Justice of the Peace Court for eviction.  This is also known as a “forcible detainer.” 

The JP Court will have the constable, or some other designated person, serve your tenant with notice of the eviction suit and set the matter for a hearing.

At your hearing, you must present all of your evidence which supports your grounds for eviction, even if the tenant does not appear.  If you win, the court will order that your tenant is evicted and can even award you a judgment for unpaid rent.

See—Tex. Prop. Code § 24.0051

Writ of Possession

But hold on, we’re not done!  Even though the Court may have ordered that the tenant is evicted, your tenant may refuse to vacate the premises and surrender possession of the property to you.  If your tenant refuses to leave, then you must apply for a Writ of Possession.

The Writ of Possession is the forceful Order from the Court that will allow the physical removal of the tenant and their belongings from the premises.  The application for a Writ of Possession may not be made until at least 6 days after the Order of Eviction.

See—Tex. Prop. Code § 24.0061

Alternatives

So you may be you’re thinking, “What if I just lock the tenant out?”  While this may seem like a viable and quick solution, use caution!  The law does allow landlords to lock out tenants but only under very specific circumstances that we’ll discuss another day.

See—Tex. Prop. Code §§ 92.0081(b)(3) & 92.0081(d)(1)(2)(3)

The Conclusion

Sometimes just threatening to evict a tenant could help remedy the problem.  However, sometimes it doesn’t and Texas law gives you options.  As long as you follow the procedures for eviction, it can be relatively painless compared to dealing with a nightmare tenant.

--Authored by James R. Palomo, Esq.,

Matthew Harris Law, PLLC  - Civil Litigation Division

1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309

Tel: (806) 702-4852 | Fax: (800) 985-9479

FrontDesk@MatthewHarrisLaw.com 

2013 Potential New Laws

Currently Being Debated

Every two years, the Texas Legislature meets to discuss and debate new laws for our state.  Well, it is that time again.

Today we will discuss some of the new laws being considered, but I remind you that these are NOT law yet, and may not ever become law.  Also, even if they do pass, the version passed may be changed significantly from the version highlighted here.

If you follow our blog closely, then you know we will keep you advised as to the status of significant bills, just as we did in 2011 when the legislature last met.

See New Laws for Veterans & New Texas Boating Laws

Fingerprinting During Traffic Stops—HB157

This proposed law would allow a driver to “provide one fingerprint from each hand” during a motor vehicle stop in lieu of providing a driver’s license, and would allow the officer to detain the person only for the amount of time necessary to identify that person.  Also, this law would prevent the officer from arresting someone solely for not having their driver’s license.

Copy of Driver’s License to Get/Renew Insurance—HB163

This proposed law states that “an insurer may not deliver, issue for delivery, or renew a personal automobile insurance policy unless the policyholder provides the insurer with a copy of each named insured ’s driver ’s license.”

Combining Concealed Handgun and Driver’s Licenses—HB158

This proposed law would allow a person to include their CHL information on their driver’s license.  Currently, CHL holders must carry a separate license that is quite similar to their driver’s license, so this law would eliminate the need to issue and carry two licenses.

Reduced Penalty for Possession of Marijuana—HB184

This proposed law would reduce the penalty for possession of marijuana in an amount of less than 1 ounce.  The current penalty is a Class B Misdemeanor (up to 6 months in jail and up to $2,000 fine) for possession of less than 2 ounces, but that would change to a Class C Misdemeanor (fine only) if the amount is less than 1 ounce.

Defensive Driving for Commercial Driver’s License Holders—HB355

This proposed law would allow CDL holders the same opportunity to have moving violations dismissed as all other drivers upon completion of a driver’s safety course if he/she was not driving a commercial vehicle at the time of the infraction.  The current law specifically precludes CDL holders from this benefit, even if they were driving a personal vehicle at the time of the infraction, which can severely impact their employment.

Requiring Only One License Plate—HB657

This proposed law would reduce the number of license plates that would be issued upon vehicle registration.  Also, this law would allow operation of a vehicle upon a road while only displaying one license plate if it is displayed on the rear of the vehicle.

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

Matthew Harris Law, PLLC  - Civil Litigation Division

1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309

Tel: (806) 702-4852 | Fax: (800) 985-9479

FrontDesk@MatthewHarrisLaw.com