Your Lead Foot

License and Registration

I know you’ve done it.  You’re running late for work or to get your kids somewhere on time, so you speed just a little; what can it hurt right?

Well if you get caught, it can mean a fine, points on your license, and surcharges.  If you get too many points you will lose your license under the Texas Driver Responsibility Program. 

What is “Speeding”

As a driver upon the roads of Texas, you “may not drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for actual and potential hazards then existing.” Tex. Trans. Code § 545.351  Now, I know you may think that gives you permission to drive as fast as you want to, as long as it is safe, but according to § 545.352(a) “a speed in excess of the limits established by Subsection (b) or under another provision of this subchapter is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful.”

The statute then gives maximum speed limits: 30 mph in an Urban District, 15 mph in an alley, 70 mph on a numbered highway not in an Urban District, 15 mph on a beach, etc.

However, there is another side to the coin.  If you are going too slow, § 545.363 states; “(a)  An operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.”

Please Sign Here

If you received a speeding ticket, then you were asked to sign it and agree to appear in Court on a certain date.  If you wish to dispute your ticket, then you MUST make an appearance.

The speed you were cited for will affect your fine, as well as the possible points on your license.  The amount of your fine is set by the municipality you are in and how much over you were going, so you will need to contact the Court to get the amount of your fees.  Each municipality in Texas sets their fines based on what their Commissioners Court has agreed upon.  Also, tickets can be reported to your insurance, which can increase your insurance costs every month.

The Aftermath

You do have options for ways to handle your ticket.  Your options are to pay the fine and admit your guilt, plead not guilty and attempt to negotiate a plea deal with the prosecutor, or plead not guilty and fight the ticket. 

Depending on your circumstances, you may be eligible to take a Driver’s Safety Course (defensive driving) and have your ticket dismissed.  However, you may only take defensive driving one time per year; but if you have a CDL, then this isn’t an option.

Conclusion

In Texas, our police have several ways to catch you speeding, whether it is by radar, laser, speed camera, helicopter, or even airplane.  The most important thing for you to know is your rights.  Although you may not need an attorney to help you simply pay a fine, if you decide to contest it, there simply is no substitution for an experienced attorney on your side.

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

Matthew Harris Law, PLLC

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

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

Attorney@MatthewHarrisLaw.com 

You're in the Militia

A Well Regulated Militia

You’ve read the 2nd Amendment, which prevents the state from infringing on the right of the people to keep and bear arms; so you know that it also provides that a well regulated militia is necessary to ensure the security of the free state.

Although the word “militia” may conjure up thoughts of roving gangs in the middle east, the militia was the cornerstone of our independence during the American Revolution.  In fact, the militia is still alive and well today, and you are most likely a member of it.

Reserve Militia

According to the Texas Government Code, the “Reserve Militia means the persons liable to serve, but not serving, in the state military forces.”  The “state military forces” include any active militia or other military force organized under state law.  Tex. Gov. Code §S 431.001

“A person is subject to military duty if the person is: able-bodied; a citizen or a person of foreign birth who has declared an intent to become a citizen; a resident of the state; at least 18 and not more than 60 years of age;  and not exempt.”  Tex. Gov. Code § 431.081

Since the exemptions are focused on persons holding public office, certain titles, or mental disabilities, it is most likely that you are liable to serve in the state military forces and therefore are a member of the Reserve Militia.

Calling of Forces

As a member of the Reserve Militia, you might wonder what your duties and responsibilities are.  Well, the Governor of the State of Texas would first turn to the state military forces “to repel or suppress an invasion of or insurrection in or threatened invasion of or insurrection in the state or if the governor considers it necessary to enforce state law.”  However, if the Governor needs more force, then he “shall call the part of the reserve militia that the governor considers necessary.”  Tex. Gov. Code § 431.111(a)

Therefore, it is possible for the Governor to call the state military forces to suppress an invasion or enforce state law, realize that the current forces are insufficient, and call you to service as a member of the Reserve Militia.

Probability of Being Called

Let’s be real, the probability of you receiving a phone call tomorrow telling you to report to city hall with a rifle, ammunition, and 3 days supply of food is relatively slim.  In fact, I’d be willing to bet money that you won’t receive that call tomorrow, but the day after that may be a different story.  Unfortunately, I don’t have a crystal ball that allows me to see the future.

Whether you ever receive that call or not is of little consequence.  Certainly we all pray that day never comes, but that doesn’t mean that we shouldn’t be prepared for such a possibility.  If it weren’t possible, then these laws wouldn’t exist.  As citizens of a free state, it is our responsibility to remain prepared to ensure that it remains free for our children.

--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

Attorney@MatthewHarrisLaw.com 

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