Cheers, Kiddo!

It Isn’t Always Illegal for Minors to Drink

You’re sitting around with your friends watching the game and having some beers.  While you’re reaching for chips, your minor child grabs your beer and starts chugging.

Uh oh.  Fear grips you because you’re certain that you just committed a crime.  Well, it isn’t illegal for your minor child to drink, at least, not under these circumstances.

Minors May Not Possess/Consume Alcohol

According to the Texas Alcoholic Beverage Code, it is illegal for a minor to possess alcohol.  It is also illegal for a minor to consume

alcohol.  The penalties for possession/consumption of alcohol by a minor are actually quite stiff.

—Tex. Alco. Bev. Code §§  106.05(a) & 106.04(a)

Possession/Consumption is a Class C Misdemeanor, which can include: a fine of up to $500, mandatory community service, mandatory alcohol awareness program, and automatic suspension of the minor’s driver’s license.  If the minor isn’t a child, and has two such convictions, then there is a fine from $250-$2,000, and up to 6 months confinement, as well as the other penalties.

—Tex. Alco. Bev. Code § 106.071

In the Visible Presence of  Parent/Spouse/Guardian

Although it is still an offense for a child to consume alcohol, there is an affirmative defense to prosecution if it is done in the “visible presence of the minor’s adult parent, spouse, or guardian.”  The same goes for possession of alcohol.

—Tex. Alco. Bev. Code §§  106.05(b)(2) & 106.04(b)

Because you’re very observant, you’re probably wondering what the consequences are for providing alcohol to a minor.  Well, that is a Class A Misdemeanor (up to 1 year in jail and $4,000 fine).  However, a person may purchase or furnish alcohol to a minor if the person is the minor’s parent, spouse, or guardian, and is in their visible presence while the minor consumes it.

—Tex. Alco. Bev. Code § 106.06

Unless the Minor Calls the Police

New laws were put in place in 2011 that prevents prosecution of minors who possess/consume alcohol if they request emergency medical attention for possible alcohol poisoning; whether it is for themselves or another, as long as they remain on the scene and cooperate.

—Tex. Alco. Bev. Code §§  106.05(d) & 106.04(e)

Do NOT Send Me Hate Mail

Just because providing alcohol to your minor child is legal, doesn’t mean that it is a good idea.  Also, just because I am informing the public about their legal rights, doesn’t mean that I condone it.  The law is the law; and these are the laws of our beloved State.  However reckless you think these laws are for children, they are nowhere near as lenient as some other countries.

In many European countries, the legal drinking age is much lower than in the United States, yet their binge drinking rates are still much lower than ours.  In Italy, the minimum drinking age is 16, just as in Asturias.  On the other end of the spectrum are countries like Yemen, Saudi Arabia and Kuwait where alcohol is entirely illegal.

-International Center for Alcohol Policies, “Minimum Age Limits Worldwide”

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

Matthew Harris Law, PLLC  - Criminal & Family Law Divisions

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

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

FrontDesk@MatthewHarrisLaw.com 

Occupational Licenses

License to Drive…Not Anymore

So your license was suspended and well, you still need to drive. Whether you are just a terrible driver with too many tickets or you’ve been accused of committing a DWI/DUI, your license can be suspended for many reasons.

You may be tempted to drive even though you do not have a valid driver’s license. DON’T DO IT! Getting caught driving with a suspended license will just make things worse for you!

Fortunately, there may be a solution that can get you behind the wheel; depending on how/why your license was suspended.

The Solution

You may qualify for an occupational driver’s license.  Under Texas law, individuals whose license has been suspended can apply to get an occupational license, also known as an “essential needs license.” 

To show that you have an essential need, you have to show that you are a person needing to operate a vehicle: in the performance of an occupation or trade or for transportation to and from the place at which you practice your occupation or trade; for transportation to and from an educational facility in which you are enrolled;  or in the performance of essential household duties.  Tex. Trans. Code § 521.241(1)

The purpose for this law is to allow individuals to still function in everyday life, despite having their licenses revoked, as long as they qualify.

Who Qualifies?

Most individuals who have had their licenses revoked will qualify for an occupational license with a few exceptions. If your license was revoked because of medical reasons or for delinquent child support, then you are not eligible. Unfortunately, if you have a CDL, you are not eligible for an occupational license either.  (Texas DPS website)

Also, there are mandatory waiting periods under certain circumstances.  If your license was suspended in the past five years due to an offense involving drugs or alcohol then you must wait 90 days.  If your license was suspended in the past five years because of an intoxication-related conviction then you must wait 180 days. If your license has been revoked for a second time in the past five years as a result of an intoxication-related conviction then you must wait one year. Tex. Trans. Code § 521.251

The Process

To get an occupational license you must file a petition in the County where you reside or where your license was suspended. Once the petition is filed, you will have to attend a brief court hearing where a judge will determine your fate.  If he grants your application, it is sent to the Department of Public Safety to issue your license and it will last for one to two years. 

Tex. Trans. Code §§ 521.242, 521.244

The Conclusion

If your license is revoked, look into getting an occupational license. Yes, an occupational license is restrictive on when and where you can drive but it is worth having the peace of mind that will not face further charges for driving while license suspended. 

--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 

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