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

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