How can a traffic ticket affect you?

1.    Introduction

You know how they say, “Everything’s bigger in Texas?” Well, they say that because it’s true. Texas is a huge state. A huge state means that people drive…a lot. The most common legal issue that Americans deal with is a traffic ticket. Every single person has either had a traffic ticket or knows someone who has. They are an unfortunate part of driving throughout the Lone Star State. 

One of the most common questions people ask my office is, “How does a traffic ticket affect me?” The point of this blog post is to attempt to generally answer that question. 

2.    Criminal record

The first thing to know is that traffic tickets are criminal matters. They are Class C misdemeanors. A conviction of a Class C misdemeanor is, technically, a criminal conviction. Now, before we get carried away, I will tell you that most jobs, professional licenses, and background checks typically overlook class C misdemeanors. So, it’s not usually that big a deal. There are certainly exceptions to this. There are Class C Misdemeanor theft and other violations that can and will impact your options in the future. 

However, it is important to note that simply going into the court and paying the fine on the violation is a plea of guilty. This is something that most of the Court’s staff won’t tell you about, and something you won’t realize until it’s too late. 

I know this is coming from an attorney, so take it at face value, but I always recommend that an individual have representation if they are going into a court. Put it this way, I don’t do the plumbing on my house nor do I do my own dentistry. You shouldn’t do your own legal work. 

3.    Driving Record

Points

In Texas, the point system is called the Driver Responsibility Program (DRP). For each violation you receive, points will be added to your driving record. The accumulation of points could result in a suspension or other penalties, such as surcharges and fines.

When you are convicted of a traffic offense in Texas, you will be given:

  • 2 points for any moving violation.
  • 3 points for violations resulting in a collision.

All convictions are added to your driving record and will stay on your driving record for 3 years.

License Suspensions

License suspensions can occur if you accumulate too many moving violations within a specified period of time.

In Texas, you license may be suspended if:

  • You have 4 moving violations or more within 12 months.
  • You have 7 moving violations or more within 24 months.

In addition, you may have your license suspended automatically for more serious violations, such as:

  • Causing an accident while uninsured.
  • Violations involving drugs or alcohol.
  • Collisions involving a fatality that are related to reckless driving.
  • Underage drinking.

Surcharges

Depending on the number of points placed on your driving record, you may be required to pay a surcharge. A surcharge is a fine that must be paid in addition to court fees or other penalties.
You may be required to pay a surcharge if:

  • You have 6 points or more on your driving record.

You receive an automatic conviction for a serious offense, such as:

  • Driving while intoxicated (DWI).
  • Driving without:
  • Auto insurance.
  • A driver's license.

Surcharges are assessed annually while your driving record holds points above the legal limit. The amount of the charge can vary each year based on your driving record status.

For moving violations, surcharge rates are as follows:

  • Up to 6 points: $100.
  • Each additional 1 point: $25.

Automatic surcharges for more serious convictions include:

  • DWI (1st conviction): $1,000.
  • Driving without insurance: $250.
  • Operating a vehicle without a license: $100.


Here is a list of common violations that could result in 2 points being added to your driving record:

  • Lane changes that are considered unsafe.
  • Failure to use turn signals.
  • Illegally passing a vehicle on the right.
  • Child safety restraint violations.
  • Speeding over 10% above the designated limit.
  • Traveling under the minimum speed limit.
  • Operating a vehicle recklessly.
  • Running a red light or stop sign.
  • Open alcoholic containers.
  • An unsafe following distance.
  • Failure to yield the right of way to pedestrians.
  • Fleeing the scene of an accident.

Insurance

Every time you are convicted of a moving violation, the infraction goes on your driving record. If and when your insurance carrier pulls your driving record and they find out that you have received a conviction for a moving violation, the carrier deems you more of a risk and can raise your rates around 10-15%. When you hire an attorney and if you are able to resolve your case without a conviction, the violation does not appear on your driving record and your rates do not increase. 

4.    Civil Liability

The last piece of advice I can give you about the lowly traffic ticket is that sometimes, a traffic ticket can have much greater impact than the initial municipal or justice of the peace case. If you are involved in an accident and you are ticketed as a result of that accident, you might have to resolve the ticket before the legal consequences of the accident are finalized. A negligence cause of action in Texas has a time limit of 2 years to bring a lawsuit. The ticket will likely go to court much earlier than that. A plea of guilty on the ticket case in municipal or JP court might have more substantial repercussions in civil court if you were to be sued 

5.    Closing

The primary purpose of this article is to give you some basic information on how a traffic ticket can impact you in many more ways than just the initial cost of the fine. As always, these articles should never be considered a replacement for competent licensed counsel. I always recommend that you hire an attorney if you are going to be going to court. This advice applies whether you are in Municipal Court or Federal Court. 

Can I Recover Attorney's Fees For A Breach of Contact Case?

Contracts can be as complicated as a multi-million dollar business merger or as simple as an agreement to cut your grass. When all parties uphold their ends of the agreement, everything goes along fine. However, when one party fails to deliver upon their promise, you might be damaged financially as a result.

People who have been damaged by another individual’s breach of a contract want to be made whole.  However, if a party to the agreement refuses to abide by its terms, the other party or parties might have to hire an attorney and file suit, which can be expensive. However, under Texas Law, a party suing to recover for a breach of a contract may be able to recover their own attorney’s fees as well.

The general rule in Texas is that each party pays its own attorney’s fees.  Turner v. Turner, 385 S.W.2d 230, 233 (Tex. 1964).  However, attorney’s fees are recoverable under Tex. Civ. Prac. & Rem. Code § 38.001 in lawsuits for (1) rendered services; performed labor; (3) furnished material; (4) freight or express overcharges; (5) lost or damaged freight or express; (6) killed or injured stock; (7) a sworn account; or (8) an oral or written contract.  The most common lawsuits where this section is invoked by litigators are suits on sworn accounts, oral or written contracts and lawsuits for rendered services or performed labor. Tex. Civ. Prac. & Rem. Code § 38.001.

One thing to note is that this statute is not left to the judge’s discretion. This means that, the judge (provided that proof and pleading and other requirements are met) does not have discretion in awarding fees to the prevailing party.  D. F. W. Christian Television, Inc. v. Thorton, 933 S.W.2d 488, 490 (Tex. 1996).  Attorney’s fees are recoverable for work before and during trial. 

Additionally, attorney’s fees may be recoverable past trial and through the appellate process.  Neal v. SMC Corp., 99 S.W.3d 813, 818 (Tex. App. — Dallas, 2003, no pet).  Attorney’s fees can also be recovered in cases where the attorney is working on a contingent fee (e.g. 33% of the recovery).

People who have been wronged in a breach of contract case should be able to be made whole and recovering attorney’s fees spent to make a person whole is a vital part of that process.

Basics of Contracts in Texas

A contract is a legally binding agreement between parties to do or not do something. Businesses owners enter into contracts for a multitude of reasons. It is essential for business owners to have a good understanding of the basics of contract law. The first consideration when examining any contract is to determine whether a contract has been made. Once a contract has been created, it must be determined if there are any issues that call into question its validity. Lastly, if there has been a breach of the contract, there is a question of whether damages have occurred.

Contract Components

Offer, acceptance, and consideration are the three basic elements for a contractual relationship to be created.

Offer

The first step to a contract is an offer. An offer is a written or spoken statement by a party of his or her intention to be held to a commitment upon acceptance of the offer. Many business owners have become involved in legal disputes because, during negotiations, a customer believed an offer had been made when the businessperson believed the parties only were discussing possible options. A businessperson should carefully consider whether his or her statements or the statements of other parties constitute offers. There are a number of factors to look at to determine whether a statement constitutes an offer.

Is the person making the offer serious? A business executive who jokingly suggests the sale of a successful business in exchange for a good bottle of scotch is not making an offer. On the other hand, a business executive who writes up an offer on a bar napkin may be perfectly serious. A court will look at the context in which the statement was made to determine whether it was a valid offer.

Does the statement show a willingness of the party to be held to its contents? A person requesting a price quote or opening negotiations is not making an offer. An advertisement usually is viewed as an invitation to an offer rather than an offer itself.

Does the statement contain definite terms? If the subject matter is identified, the parties are identified, the price is set, quantities are determined, and a time is set for performance, an offer very likely has been made. There should be enough information contained in the statement that, if needed, a court would be able to enforce the contract or determine the damages.

Acceptance

The second requirement for a valid contract is acceptance of the offer. In order for an acceptance of an offer to be effective, it must be made while the offer is still open. In some situations, the company making the offer gives a definite time frame:

"My company will sell you this computer software for $2000, but you must decide whether to buy it within two days."

Other ways an offer may end include: the person making the offer withdraws the offer, the person who receives the offer rejects it, a reasonable amount of time passes after the offer is made, or the subject matter of the offer is destroyed before acceptance.

Unless an offer specifies otherwise, an offer can be accepted though the mail. An important rule known as the "mailbox rule" says that an acceptance is effective once it is put in the mailbox. If the offeror attempts to withdraw the offer after the acceptance is mailed but before it is received, the person accepting the offer can hold the offeror to the contract. For this reason, anyone making an offer should be aware that it might be accepted, by means of the mailbox rule, before the offeror knows of the acceptance. This can cause problems for the offeror if he or she assumed the offer was rejected and found another buyer. To avoid possible confusion, some businesses will specify in an offer that acceptance of the offer is only effective upon receipt of the acceptance.

If a person changes the conditions of an offer in responding to the offer, the offer is rejected and the changed conditions constitute a counter-offer:

"I want to buy the software, but I will pay only $1500 for it."

In this scenario, the person who made the original offer can respond to the counter-offer by accepting or rejecting it, or proposing yet another offer.

There are two ways a person can accept an offer: by promising to do something, or by performing the desired act. In the first type, known as a bilateral contract, a customer accepts an offer to sell computer software by promising to pay $2000 for the software. In the second type, known as a unilateral contract, a business owner offers a contractor $1000 to replace ceiling tiles and the contractor replaces the tiles; the contractor accepted the offer by performing the act requested.

Consideration

Consideration is a legal concept that describes something of value given in exchange for a performance or a promise of performance. The presence of consideration distinguishes contracts from gifts. Consideration can be a promise to do something there is no legal obligation to do, or a promise to not do something there is a legal right to do.

Promises to exchange money, goods, or services are forms of consideration. All parties in an agreement must give consideration in order to create a contract, but courts typically do not make a determination about the adequacy of the consideration unless there is evidence of some type of wrongdoing by the party benefiting most from the contract.

Defenses to Contract

Once it is determined that the basic elements of a contract exist, it must be determined whether there are any defenses that call into question the validity of the contract. There are some defenses that make the contract automatically unenforceable (void) and other defenses that give the parties the option not to enforce the contract (voidable).

Legality of the Contract

Although two persons may exchange an offer, acceptance, and consideration, if the subject matter of the contract is illegal, a valid, enforceable contract does not exist. For example, if a person offers to pay another person money for illegal drugs, and an acceptance is made by the promise to deliver the illegal drugs, this is nevertheless a void contract.

Capacity of the Parties

In order to be bound to a contract, the parties must be competent to enter into the legal arrangement. Underage persons, persons who are mentally ill, and intoxicated persons usually are not bound by the contracts they enter. However, a minor may have the option of enforcing a contract under some circumstances.

Agency

A business may challenge the validity of a contract by alleging that the person who signed the contract for the company was not an agent of the company and therefore had no authority to act on the company's behalf. Agency is a legal status—one party, the agent, has authority to conduct business for another party, the principal. Unless they have very small businesses, most business owners must rely on other people to conduct business and enter into contracts on behalf of their businesses. Thus, agency is a common aspect of doing business. Because principals are bound by contracts entered into by their agents, business operators should be familiar with the laws of agency.

An agent's authority to enter into contracts on behalf of the business can be actual, implied, or apparent. Actual authority is authority that the principal has intentionally given to an agent who has accepted it. The clearest example of creating actual authority is when a business owner hires someone to negotiate purchases for the company. Implied authority may result from the agent's relationship with the principal or the principal's business, from custom, or by acquiescence. For example, a principal might not intentionally authorize an employee to make credit purchases for the business, but if the principal repeatedly pays debts incurred by the employee, he or she may inadvertently create implied authority in that employee. Apparent authority results when the principal acts in a way that causes third parties reasonably to assume that the agent has authority. For example, if a business owner is aware that an employee is claiming authority to act on behalf of the business, the principal should clarify that the employee is not authorized to enter into a contract on behalf of the business, or the employee's apparent authority may bind the business.

Mistake, Duress, and Fraud

A mutual mistake—a mistake by both parties to a contract on an important issue—makes the contract unenforceable. However, a mistake by only one party does not necessarily make the contract void. A contract is not necessarily unenforceable because one party has made a miscalculation or wrong assumption.

Duress is the use of force or pressure by one party to make the other party agree to the contract. The force does not have to be physical—it may be mental pressure. The use of duress makes the contract voidable by the party under duress. Fraud is the intentional misrepresentation of an important issue of the contract. The presence of fraud in a contractual proceeding makes the contract voidable by the party upon whom the fraud was perpetrated.

Statute of Frauds

Contracts, in many instances, do not have to be in writing to be legally binding. However, a rule known as the Statute of Frauds requires that some contracts must be written to be valid. Under Texas law, contracts involving the sale of real estate, contracts concerning the sale of goods worth more than $500, contracts that cannot be performed within one year, contracts to pay off someone else's debts, and marriage contracts must be in writing.

Parol Evidence Rule

Although it is not a defense to a contract, the parol evidence rule may affect the contents of a contract and how a contract is enforced. The parol evidence rule applies once parties have come to a final, written contract. Once there is a final, written contract between the parties, the parol evidence rule forbids the introduction in a court proceeding of any previous agreements between the parties on the subject matter of the contract. The parol evidence rule permits the judge or jury in a contract dispute to look only at the written contract and not at any previous discussions between the parties. The reasoning behind the parol evidence rule is that all factors that are important to the agreement and that have been decided by the parties should be stated in the final, written contract. The parol evidence rule does not, however, forbid the introduction of subsequent agreements between the parties.

Contract Termination

Once there is a valid contract between parties, it can end in several ways. A contract with a stated, limited time span simply expires at the end of the stated time. If a person is hired to work for two weeks, the contract concludes at the end of two weeks. In many instances in which there is a specific time frame stated in the contract, parties to the contract might have the option to extend the contract for a longer period of time.

Contracts also may be project specific. A contract may be made for the provision of goods for a project, and upon the completion of the project the contract for these goods or services ends. Parties to a contract may mutually agree to rescind the contract. In that case, the parties may agree on the duties and responsibilities of each party after the rescission.

A contract also may end because of a breach. A breach occurs when a party does not fulfill his or her responsibilities under the contract. A breach may be minor or major. A minor breach is one that affects small, minor details of the agreement and may not affect the outcome of the contract. However, a major breach is one that does affect the subject matter of the contract and may affect the outcome of the contract. This is also known as a material breach. When there has been a breach of a contract, the question of damages is raised.

Damages

The type and amount of damages due to a party when there is a contract breach depend on many factors, including which party breached the contract, what damages were incurred, what the contract states with regard to damages, whether the breach was material, and the subject matter of the contract.

When a person is harmed by a breach, courts usually award only foreseeable damages. Foreseeable damages are those damages that the parties anticipated or should have anticipated at the time the contract was formed.

Money Damages

In most cases of an injury resulting from a breach of contract, the injured party receives money damages. The court awards the amount of money needed to place the person in the position he or she would have been in if the contract had not been breached. For example, suppose a business owner contracts with a roofer to put a new roof on a warehouse but the roofer stops in the middle of the job and refuses to finish the new roof. If the business owner finds another roofer to finish the job at an additional cost of $15,000, the damages are $15,000.

Although a person normally is entitled to the money difference between what was promised and what it costs to complete the promise, the injured party must try to "mitigate" the damages.

Mitigation means the injured party takes reasonable steps to limit the extent of the injury and finish the job. In the previous example, the business owner must make reasonable efforts to find another party to finish the roof and must take reasonable steps to protect inventory in the warehouse from exposure due to the lack of a roof. If the business owner refuses to look for another roofer and consequently inventory in the warehouse is ruined, the breaching roofer will probably be able to successfully defend against paying for the cost of the ruined goods.

Specific Performance

There are some situations in which money damages are inadequate. Typically, awarding money damages for a breach of contract involving the sale of land does not put the injured party in the same position he or she would have been in if the contract had been fulfilled. Because real estate is unique, one cannot simply go out and buy different property to replace the property for which one originally contracted. In a case such as this, the court may order the breaching party to perform the duties required by the contract. This remedy is called specific performance. Specific performance is ordered by courts only in rare cases in which the subject matter of the contract is unique, making it difficult to put a monetary amount on the damage incurred as a result of the breach. Specific performance is not awarded in personal service contracts. In the previous example, the court would not order the original roofer to complete the job.

Liquidated Damages

In an attempt to set a monetary damage amount in a case in which it may be difficult, the parties may include a provision that specifies the amount of damages in event of a breach.

Such predetermined damages are called liquidated damages. For example, a company may put down "earnest money" for space in a mall and agree in the real estate contract to forfeit the earnest money to the mall owners as a damage award in the event of a breach. If the business owner decides not to open the store, the earnest money will be awarded as liquidated damages.

Rescission

In most contract disputes, a court puts the nonbreaching party in the position he or she would have been in if the contract had not been breached. However, there are times when the court may place the party in the position he or she was in before the contract was executed. This remedy is known as rescission. Rescission may be selected in cases in which one party intentionally misrepresents a material fact, for example. If a party has delivered goods or money to another party who fails to perform his or her duties under the contract, the court may decide simply to order that the goods or money be returned. The nonbreaching party then is in a position to contract with someone else.

Conclusion

In conclusion, contracts in Texas can be a complex and difficult matter to deal with as a business owner. On the surface it seems straightforward. Offer, acceptance, and consideration. However, often times, the details of the offer, the terms of acceptance and the type of consideration put additional matters into the equation. As always, my recommendation is to contact a legal professional with any and all your legal needs. This article is intended to be general information so that you can better understand the issues pertaining to contract in Texas, but each situation is unique and should be discussed with your attorney. 

 

 

 

Contempt In A Family Law Case

This week I’m continuing a series of posts regarding the potential remedies one might have if they find themselves in a situation where the other parent of their child refuses to abide by a current court order. This week’s post will be on enforcement by contempt. (As usual, this post is not intended to be a substitute for legal advice. Your situation is unique and requires individualized legal advice. Please contact an attorney to discuss your case. This article is intended to be general information on the subject.)

It’s a phrase that’s familiar to anyone who has ever watched any type of courtroom drama, “I hold you in contempt!” In the broadest sense contempt simply means that you are not following the direction or order of the court. What does this phrase really mean in the context of a family law case?

A court may enforce by contempt a final order for possession of and access to a child. Tex. Fam. Code Ann. § 157.001(a), (b). The court has the authority to hold a person in contempt for failing to abide by the current orders in a family law case.  In order for a court to hold an individual in contempt, a motion for enforcement must be filed in the court of continuing, exclusive jurisdiction. Tex. Fam. Code Ann. § 157.001(d). The court of continuing, exclusive jurisdiction is usually the court that rendered and entered the order you are trying to enforce. 

Like most enforcement situations, my advice is to first check the underlying order to determine the exact nature of the violation and the provision of the order being violated. The underlying order sought to be enforced by contempt must set out the details of each obligation in clear, specific and unambiguous terms, and the order must not rest upon implication or conjecture or be uncertain or susceptible to different meanings. Ex parte Slavin, 412 S.W.2d 43 (Tex. 1967). If the order is vague or ambiguous, the order may be clarified so as to be enforceable by contempt, Tex. Fam. Code Ann. § 157.421. The request for clarification may be made before a motion for contempt is filed, in conjunction with a motion for contempt, or after the denial of contempt. Tex. Fam. Code Ann. § 157.424.

Once the motion has been filed, the court must set the date, time, and place of the hearing and order the respondent to personally appear and respond to the motion. Tex. Fam. Code Ann. § 157.061(a). The other parent must also receive adequate notice of the date of the hearing. Tex. Fam. Code Ann. § 157.062(a), (b).

Assuming that you are successful in your request to have a court enforce an order by contempt, the court will issue an enforcement order. An enforcement order must include in ordinary and concise language the provisions of the order for which enforcement was requested, the acts or omissions that are the subject of the order, the manner of the respondent's noncompliance and the relief granted by the court. Tex. Fam. Code Ann. § 157.166(a).

The court may also impose incarceration or a fine for criminal contempt. If the order imposes such a penalty, an enforcement order must contain findings identifying the provisions of the order for which enforcement was requested and the date of each occasion when the respondent's failure to comply with the order was found to constitute criminal contempt. Tex. Fam. Code Ann. § 157.166(b). If the enforcement order imposes incarceration for civil contempt, the order must state the specific conditions on which the respondent may be released from confinement. Tex. Fam. Code Ann. § 157.166(c).

Contempt is a powerful tool at the disposal of anyone who is the victim of another party who is not following the orders of the court. In the context of a family law case, contempt is the likely remedy for all manner of violations of the court’s order. If you have any questions or comments regarding contempt or family law case, please feel free to contact us. 

Habeas Corpus Child Custody - Get Your Child Back

Family Law deals with a great number of difficult situations. Ending a marriage or a relationship where a child has been born can be of the most difficult. One of the main issues individuals will face is sharing their child with the other parent. Obviously, it is legally required and in the best interest of both parents and the children involved for everyone to abide by the current court order. However, what do you do if the other parent refuses to return your child? This article discusses one option of enforcement if the child has not been returned to the parent: Habeas Corpus.

 

1. Consult your Orders

 

The first step is to consult the most recent orders from the court on your case. The court orders establish the rights and duties of both parents regarding the child or children. The main determination to make is what time and date are you supposed to have your child according to the court order? If the order requires the return of the child on a specific time and date and the other parent does not comply, that parent is in violation of the court’s orders.

 

What happens if there is no court order governing right to possession of child? This would occur if there has been no prior litigation adjudicating the rights and duties of the parents regarding the child. If the right to possession of a child is not governed by an order, the court in a habeas corpus proceeding involving the right of possession of the child:

 

(1)   must compel return of the child to the parent if the right of possession is between a parent and a nonparent and a suit affecting the parent-child relationship has not been filed; or

 

(2)   may either compel return of the child or issue temporary orders if a suit affecting the parent-child relationship is pending and the parties have received notice of a hearing on temporary orders set for the same time as the habeas corpus proceeding.

 

Tex. Fam. Code Ann. § 157.376(a); Rodriguez v. McFall, 658 S.W.2d 150 (Tex. 1983) (mother entitled to return of child from paternal grandparents); Whatley v. Bacon, 649 S.W.2d 297 (Tex. 1983) (surviving father entitled to habeas against maternal grandparents).

 

If the order provides that you have a right of possession, the first step should be to contact the other parent to try to resolve the issue without litigation. It’s always best if the parents can work together outside of the judicial system. This will avoid unnecessary costs as well as time away from family and work.

 

2. Consult your attorney

 

Let’s assume that you have consulted the orders and determined that you have the right of possession and the other parent has not returned the child. The next call you should make should be to your attorney. Your attorney can advise you what your next steps are and what pleadings to file in order to have your child returned to you. Keep in mind that this article is intended to provide general advice and that there might be (and probably is) facts specific to your situation that would require a different tactic than what is mentioned in this article. Always consult with a legal professional before going to court.

 

I always recommend that individuals contact an attorney as soon as possible because letting too much time expire might cause difficulties in asserting your rights. If the parent without the child has by consent or acquiescence relinquished actual possession and control of the child for six months or more preceding the date of the filing of the petition for the writ, the court may either compel or refuse to order return of the child. Tex. Fam. Code Ann. § 153.373(a). The court may disregard brief periods of possession and control by the relator during the six-month period. Tex. Fam. Code Ann. § 153.373(b).

 

As always, it is very important that you consult an attorney as soon as possible so that they can guide you and inform you of your rights and obligations.

 

3. Habeas Corpus

 

A writ of habeas corpus under Chapter 157 of the Texas Family Code is used by the parent with a legal right to possession of a child in an effort to regain possession from a person wrongfully retaining the child. The sole issue in almost all habeas corpus proceedings is whether the person who is claiming the right to the possession of the child is currently entitled to possession of a child by virtue of a valid court order. This is the reason you will want to consult your most recent orders to determine who has the right of possession.

 

The parent entitled to possession may file a petition for a writ of habeas corpus in either the court of continuing, exclusive jurisdiction (the court that issued the most recent orders in most cases) or in a court with jurisdiction to issue a writ of habeas corpus in the county in which the child is found. Tex. Fam. Code Ann. § 157.371(a). Ex parte Jabara, 556 S.W.2d 592 (Tex. Civ. App.—Dallas 1977, no writ).

 

Although a habeas corpus proceeding is not a Suit Affecting the Parent Child Relationship (known as a SAPCR), the court may refer to the provisions in the Family Code under Title 5 for definitions and procedures as appropriate. Tex. Fam. Code Ann. §§ 101.001 et seq., 157.371(b).

 

Subject to the Uniform Child Custody Jurisdiction and Enforcement Act and the Parental Kidnaping Prevention Act, 28 U.S.C.A. § 1738A, if the right to possession of a child is governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child must compel return of the child to the parent with the right to possession only if the court finds that parent is entitled to possession under the order. Tex. Fam. Code Ann. § 157.372(a); Strobel v. Thurman, 565 S.W.2d 238 (Tex. 1978) (the granting of a writ of habeas corpus “should be automatic, immediate, and ministerial … upon proof of the bare legal right to possession.”); In re Lau, 89 S.W.3d 757 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (habeas must be granted in absence of written finding of serious immediate question regarding child's welfare).

 

In a suit in which the court does not compel return of the child, the court may issue temporary orders if a SAPCR is pending and the parties have received notice of a hearing on temporary orders set for the same time as the habeas corpus proceeding. Tex. Fam. Code Ann. § 157.373(c). Notwithstanding any other provision of law, the court may render an appropriate temporary order if there is a serious immediate question concerning the welfare of the child. Tex. Fam. Code Ann. § 157.374; In re Lau, 89 S.W.3d 757 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (habeas corpus petition must be granted in absence of written finding of serious immediate question concerning child's welfare).

 

A Habeas Corpus proceeding is a powerful tool the be used by a parent whose child has been wrongfully kept from them. In another article I will discuss other method of enforcement of court orders. As always, please contact The Moon Law Firm if you have any questions or comments regarding Texas Family Law. I look forward to working with you.

 

Landlord/Tenant - Security Deposits

Most of us have had the experience of renting residential property. Very few of us are fortunate enough to have gone from our parents’ home to our own right off the bat. This means leases, landlords, and security deposits. 

The focus of this article is to answer some very common questions for both landlords and tenants regarding security deposits. Please keep in mind that The Moon Law Firm handles any and all landlord/tenant issues both in and out of court. If there’s any questions you have please contact us at 713-999-9398 or at JMoon@MoonLawFirm.com.

“What exactly is a security deposit?”
A security deposit is any advance of money, other than a rental application deposit or an advance payment of rent that is intended primarily to secure performance under a lease of a dwelling that has been entered into by a landlord and a tenant. According to the Texas Property Code, anything given to a landlord primarily to secure performance under a lease agreement is a Security Deposit. Usually a deposit is a sum of money given to a landlord by a tenant to be used to repair damages to the property caused by the tenant’s residency in the property.  

“When does a landlord have to refund a deposit?"
Once the lease term has expired, a tenant must give the landlord a written statement of the tenant's forwarding address for the purpose of refunding the security deposit. If the tenant does not provide this WRITTEN notice the landlord does not have to follow the usual rules regarding the refund of the deposit. However, if the tenant does not provide the landlord with this written notice of forwarding address, the tenant HAS NOT forfeited the right to a deposit! This simply means that the landlord cannot be held liable if he/she doesn’t provide the tenant with the deposit and statement of damages in a timely manner.  

Assuming the tenant has sent the landlord a timely notice of the forwarding address, the landlord must refund your security deposit on or before the 30th day the tenant leaves the premises.  

“When can a landlord keep a security deposit?"
A landlord can withhold amounts to repair damages for which the tenant is legally responsible under the lease or as a result of breaching the lease agreement. This means that, if the tenant damages the premises, the landlord can withhold from the security deposit amounts for repairing that damage.  

“What about normal wear and tear?"
A landlord may not withhold amounts from the security deposit for wear and tear. 

"What the heck is normal wear and tear anyways?"
"Normal wear and tear" means deterioration that results from the intended use of a dwelling, including, breakage or malfunction due to age or deteriorated condition, but the term does not include deterioration that results from negligence, carelessness, accident, or abuse of the premises, equipment, or property by the tenant, by a member of the tenant's household, or by a guest or invitee of the tenant.

"Doesn’t a landlord have to give a statement of the damages?"
Yes. If the landlord retains any portion of a security deposit, the landlord must give the tenant any remaining portion of the deposit and a written description and itemized list of all deductions. The landlord is not required to give the tenant a description and itemized list of deductions if the tenant owes rent when he surrenders possession of the premises and there is no controversy concerning the amount of rent owed. 

This means that unless all parties involved do not dispute that there is rent owed, a landlord must provide an accounting. A landlord is presumed to have refunded a security deposit or made an accounting of security deposit deductions if, on or before the date required under this subchapter, the refund or accounting is placed in the United States mail and postmarked on or before the required date. Furthermore, the landlord must maintain accurate records for security deposits.  

"What happens if a landlord withholds a deposit?"
A landlord who doesn’t refund the security deposit or provide a detailed accounting within the 30-day deadline is presumed to be acting in bad faith. This means that the landlord may be subject to triple the amount of the withheld portion of the security deposit as well as the tenant’s attorney’s fees. Furthermore, the landlord forfeits the right to withhold any portion of the security deposit or to bring suit against the tenant for damages to the premises. 

"Is a security deposit last month’s rent?"
No. A security deposit with the landlord does not mean that the tenant does not need to pay the last month’s rent. A tenant who withholds the last month’s rent on the basis of the security deposit is presumed to have acted in bad faith and may be liable for triple the usual amount of damages. 

If you have any questions about landlord/tenant issues, The Moon Law Firm can help! Please contact us at 713-999-9398 or at JMoon@MoonLawFirm.com

EXPUNCTION AND NON-DISCLOSURE ORDERS IN TEXAS

Nearly everyone, at some point, has made a mistake or has been in the wrong place at the wrong time resulting in some type of criminal charge or conviction. This could be anything from a traffic ticket conviction all the way up to a felony conviction. While most convictions cannot be removed from a person’s record, Texas law does allow individuals to permanently remove information about an arrest, charge or conviction from their permanent records in certain circumstances. This is called an expunction. Once a person’s record is expunged, all information is removed from the criminal record and that person can deny the incident ever occurred.

Records eligible for expunction include:

1.    An arrest for a crime that was never charged;

2.    A criminal charge that was ultimately dismissed;

3.    Certain qualifying misdemeanor juvenile offenses;

4.    Conviction of a minor for certain alcohol offenses;

5.    Conviction for Failure to Attend School;

6.    Arrest, charge or conviction on a person’s record due to identity theft by another individual that was actually arrested, charged or convicted of the crime;

7.    Conviction for a crime that was later acquitted by the trial court or the Criminal Court of Appeals;

8.    Conviction for a crime that was later pardoned by the Governor of Texas or the US President.

There is a fair amount of misunderstanding regarding expunctions by non-lawyer Texans. Most individuals with criminal records are not eligible for expunction. The Court will not grant an expunction to adults who have received deferred adjudication or probation or who have been convicted of a felony within five years of the arrest the person is seeking to have expunged. This is important for people to understand, because many times a criminal defendant is told that a deferred adjudication or other type of “pre-trial diversion” will result in the charge not being on the defendant’s record. This is not the case. A deferred adjudication or other type of pre-trial diversion means that the defendant will not receive a conviction for the charge, however the fact that the defendant was charged will still appear on the defendant’s record.

The Court will also not consider expunction if the offense is part of a “criminal episode” and the applicant for the expunction either has charges pending for a different crime that occurred during that same episode or the person was convicted of a crime that occurred during that same alleged episode. 

Finally, a person cannot file a petition seeking expunction of a felony charge that has been dismissed if the statute of limitations for the crime subject to the dismissal has not yet expired. The statute of limitations is the amount of time that the state or county has to prosecute an action against a person after that person has been arrested for an offense. The statute of limitations is different depending on the crime, but most are at least three years.

Juvenile Offenses

In many instances, any record of a conviction for an offense that a person committed when that person was a minor can be expunged. A misdemeanor punishable by fine committed prior to the age of 17, an offense committed by a minor under the Alcoholic Beverage Code and a conviction for Failure to Attend School are all offenses that may be expunged. As in expunctions for an adult, the individual must follow certain procedures and meet specific criteria before the court will expunge the person’s record. For example a person cannot apply for an expunction for a juvenile record until after that person has reached a certain age. Additionally, a person cannot have had multiple convictions.

When a juvenile offender is convicted of an offense, the courts are sometimes required to give the child and the child’s parents information about the expunction process and how to apply for an expunction. Different procedures can apply to expunctions for juvenile offenses. Consequently, you should conduct additional research or consult an attorney before attempting to apply for an expunction of a juvenile record.

Applying and Obtaining an Expunction

Prior to beginning the process for expunction, you should review Chapter 55 of the Texas Code of Criminal Procedure and any other statutes that may apply to the offense you are attempting to have expunged. The first step in gaining an expunction is to file a Petition for Expunction with the district court requesting that the court grant an Order for Expunction. A basic form for both the Petition for Expunction and Order for Expunction are included at the end of this pamphlet. As with any legal proceeding, errors in following procedure can have serious consequences. Therefore, it is always advisable to seek the assistance of an attorney.

The person applying for the expunction, known as the Petitioner, will have to prepare and file the Petition or hire an attorney to do so. The Petition should include certain personal identifying information of the Petitioner, the offense charged, when the arrest occurred, when the alleged offense occurred, the name of the arresting agency and a list of all of the agencies or facilities that may have a record of the arrest. If the offense was charged, the Petition should also contain the cause number for the case, the name of the court, how the charge was resolved (i.e. dismissed, no billed by the grand jury or acquitted) and the date the charge was resolved. The Petition must be verified, meaning that you must have it notarized when it is signed. Finally, the Petition should contain a blank “notice of hearing” so that the court can set a hearing on the issue.

After completing the Petition, it will need to be filed with the proper court. Whether the Petition should be filed in municipal, county or district court will depend on the level of the offense. If the offense was charged, then the Petition will most likely need to be filed in the same Court that was assigned to the case when it was originally charged. After the petition is filed, the court will schedule a hearing and send notice of the hearing to all applicable agencies and facilities, known as Respondents. After the notice has been properly sent, the court will conduct a hearing to allow the Respondents an opportunity to contest the expunction. However, if the Petitioner meets all of the necessary requirements, the court will grant the expunction.

After the court grants the expunction, the Petitioner will need to present an Order for Expunction to the court for the judge’s signature. The court will likely expect the Petitioner to have an Order drafted and ready for the judge to sign at the hearing on the expunction. The signed Order must then be submitted to any and all agencies or organizations that may have records or files relating to the expunged offense. The records will then either be deleted or returned to the court clerk pursuant to the court’s Order for Expunction.

Nondisclosure Orders

If expunction is not an option due to the nature of the offense, charge or conviction, it may be possible to obtain an Order for Nondisclosure. A nondisclosure order does not completely destroy all record of any offense, but will limit the accessibility of the records. Records subject to a nondisclosure order are removed from public record and cannot be released or accessed by certain private parties. However, the records will remain available to government agencies and will be admissible in certain court actions. Under the Government Code §411.081, a person who has successfully completed deferred adjudication and received a discharge and dismissal of the deferred adjudication may apply for a nondisclosure order. In addition to successful completion of probation or deferred adjudication, an individual must meet certain criteria in order to qualify for a Nondisclosure Order. For example, a person cannot apply for a nondisclosure order until after the statutory waiting period has passed. During that time, the applicant cannot have been convicted of any other offenses. The waiting time varies anywhere from 0 to 10 years depending on the offense. Individuals charged with family violence, a sex offense requiring registration, aggravated kidnapping, murder and some other specific types of offenses will likely not be able to obtain a Nondisclosure Order.

The process for obtaining an Order of Nondisclosure is substantially similar to obtaining an Order for Expunction. A petition must be filed with the court that was involved with the original offense. A hearing will be conducted after proper notice to the required parties and the court will determine, at that time, whether to grant the order. It should be noted that the court generally has more discretion to decide whether or not an Order for Nondisclosure should be granted than a judge would when an expunction is requested. The judge will deny the order if justice would not be served by granting the order.

No agency, system or person is perfect and mistakes can happen. Although the criminal justice system may be tough on offenders, the law tries to allow those mistakes to be remedied. Whether the error is made by the system or the offender, the law attempts to right wrongs and, when deserved, give second chances.

It is important for those with criminal records to understand their options and rights regarding the expunction and non-disclosure orders. The Moon Law Firm handles expunctions and non-disclosure order requests. If you are in need of these services, please contact us. 

What are the child support guidelines for the State of Texas

It goes without saying that any good parent should support their children. However, one of the most hotly contested issues in any divorce or family matter suit where children are involved is the issue of child support. How is it paid? How do we determine the resources to pay? Who pays? How much? All of these questions are important both to the courts as well as the parties involved in a suit concerning these issues. 

First, We must determine what support is required of parents in the State of Texas. "A parent has the duty to support a child, including providing the child with clothing, food, shelter, medical and dental care,” "and education. Tex. Fam. Code Ann. § 151.001(a)(3). See also In re Z.B.P., 109 S.W.3d 772, 781 (Tex. App.—Fort Worth""2003, no pet.).” The court may order either or both parents to support a child in the previously mentioned ways. This obligation for support continues (1) until the child is 18 years of age or until graduation from high school, whichever occurs later; (2) until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law; (3) until the death of the child; or (4) if the child is disabled, for an indefinite period. Lueg v. Lueg, 976 S.W.2d 308 (Tex. App.—Corpus Christi 1998, pet. denied) (error to order sole managing conservator father to pay child support to possessory conservator mother).

Additionally, there is no requirement that a child reside or spend time with a parent for a court to order child support. In other words, a court can order the obligation of support without ordering that the parent charged with this obligation ever see the child. However, A court may not render an order that conditions the payment of child support on whether a managing conservator allows a possessory conservator to have possession of or access to a child. Tex. Fam. Code Ann. § 154.011 and 153.001(b); Seidel v. Seidel, 10 S.W.3d 365 (Tex. App.—Dallas 1999, no pet.).

In determining whether child support is required, the court’s primary consideration is what is in the best interest of the child. Tex. Fam. Code Ann. § 153.002. This can often times be a vague and amorphous concept, but is the most important factor in determining issues of support. 

The next issue is how to determine what resources are available to the parent charged with support. Resources for the purpose of establishing child support liability include: 100% of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips and bonuses); interest, dividends, and royalty income; self-employment income; net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including non cash items such as depreciation); severance pay; retirement benefits; pensions; trust income; annuities; capital gains; social security benefits other than SSI unemployment benefits; disability and workers' compensation benefits; interest income from notes regardless of the source; gifts and prizes; spousal maintenance; alimony; any other income actually received. In re L.R.P., 98 S.W.3d 312 (Tex. App.—Houston [1st Dist.] 2003, pet. dism'd) (college-student father's net resources include support by paternal grandparents of child).

The following are not included in determining net resources for the purpose of establishing child support liability: (1) return of principal or capital; (2) accounts receivable; (3) benefits paid in accordance with federal public assistance programs; and (4) payments for foster care of a child. The amount calculated here is not necessarily the same as adjusted gross income on a tax form because it might permit a double deduction for an item. Powell v. Swanson, 893 S.W.2d 161, 163 (Tex. App.—Houston [1st Dist.] 1995, no writ) (there was a double deduction of the self-employment tax and self-employed health insurance).

Once the net resources have been calculated, one must determine if there are any applicable deductions. The court must deduct the following items from resources to determine the net resources available for child support: (1) social security taxes; (2) federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction; (3) state income tax; (4) union dues; (5) expenses for the cost of health insurance or cash medical support for the obligor's child ordered by the court under Texas Family Code Section 154.182; and (6) if the obligor does not pay social security taxes, nondiscretionary retirement plan contributions.

In calculating the amount of the deduction for health care coverage for a child under Texas Family Code Section 154.062(d) (5), if the obligor has other minor dependents covered under the same health insurance plan, the court shall divide the total costs to the obligor for the insurance by the total number of minor dependents, including the child, covered under the plan.Tex. Fam. Code Ann § 154.062(e).

One question that is often asked is, “Can they consider the earnings of my new husband/wife in determining these resources?” The answer is, the court may not add any portion of the net resources of a spouse to the net resources of an obligor or obligee in order to calculate child support. Tex. Fam. Code Ann. § 154.069(a); In the Interest of Knott, 118 S.W.3d 899 (Tex. App.—Texarkana 2003, no pet.) (the statutory method for calculating child support was not designed to impose a duty on an obligor's spouse to support the obligor's children using the income of the obligor's spouse). Further the court may not subtract the needs of a spouse or of a dependent of a spouse, from the net resources of the obligor or obligee. Tex. Fam. Code Ann. § 154.069(b).

Now that we have calculated the net resources of a parent for the purposes of child support, it is time to determine the actual amount of support to be awarded. The Texas Family Code contains certain guidelines for the amount of support to be paid. These guidelines are presumed by the court to be reasonable, and an order of support conforming to the guidelines is presumed to be in the best interest of the child. Tex. Fam. Code Ann. § 154.122(a). This means that, if a party would like to deviate from the guidelines, they must overcome the presumption by the courts and show why deviation is in the best interest of the child. 

In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court must consider evidence of all relevant factors, including: the child's age and needs; the parents' ability to contribute to the support of the child; any financial resources available for the support of the child; the amount of time of possession of and access to a child; the amount of the obligee's net resources; child care expenses incurred by either party in order to maintain gainful employment; whether either party has the managing conservatorship or actual physical custody of another child; the alimony or spousal maintenance actually and currently being paid or received by a party; the expenses for a child for education beyond secondary school; whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity; the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties; provision for health care insurance and payment of uninsured medical expenses; special or extraordinary educational, health care, or other expenses of the parties or child; the cost of travel necessary to exercise possession of and access to a child; positive or negative cash flow from any real and personal property and assets, including a business and investments; debts or debt service assumed by either party; any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents. Tex. Fam. Code Ann. § 154.123(b); Lide v. Lide, 116 S.W.3d 147 (Tex. App.—El Paso 2003, no pet.) (there was evidence to support the trial court's variation from the guidelines). In Lide, the court held that Section 154.123(b)(3) mandates that in determining whether application of the guidelines would be unjust or inappropriate, the court shall consider “any financial resources available for the support of the child.” There was evidence that the father had a contract to sell his vet business for $250,000 cash and a 10-year payout on a $200,000 note. The court found this was some evidence to support the trial court's variation from the guidelines and upheld a child support award of $2,500 per month even though the amount would be $1,664 applying the guidelines. See also In re E.A.S., 123 S.W.3d 565 (Tex. App.—El Paso 2003, no pet.). In re E.A.S., 123 S.W.3d 565 (Tex. App.—El Paso 2003, pet. denied).

Assuming, for the sake of this article, that the guidelines will the the determining amounts to be paid, how much are they? If the obligor's monthly net resources are not greater than $7,500, the court must apply the following schedule in rendering the child support order, Tex. Fam. Code Ann. § 154.125(b):

CHILD SUPPORT GUIDELINES

BASED ON THE MONTHLY NET RESOURCES OF THE OBLIGOR

• 1 child 20% of Obligor's Net Resources

• 2 children 25% of Obligor's Net Resources

• 3 children 30% of Obligor's Net Resources

• 4 children 35% of Obligor's Net Resources

• 5 children 40% of Obligor's Net Resources

• 6+ children—Not less than the amount for 5 children

This application will result in a monthly child support figure that is presumed reasonable and in the best interest of the child.

Tex. Fam. Code Ann. § 154.122.

Lastly, there is certainly allowances made if the child needs additional support. The Family Code does not define “needs of the child.” A particular standard of living or lifestyle are not appropriate factors to consider when setting above-guideline support. Mai v. Mai, 853 S.W.2d 615 (Tex. App.—Houston [1st Dist.] 1993, no writ);Matter of Marriage of Thurmond, 888 S.W.2d 269, 278 (Tex. App.—Amarillo 1994, writ denied) (court held it was error for the trial court to consider the lifestyle of the child in setting the amount of child support). Although a child's needs are not limited to the bare necessities of life, needs do not include “the most extravagant demands” without evidence of a compelling justification. Scott v. Younts, 926 S.W.2d 415 (Tex. App.—Corpus Christi 1996, writ denied). See also In re Gonzalez, 993 S.W.2d 147 (Tex. App.—San Antonio 1999, no pet.) (child support award of $6,300 per month was upheld; court of appeals agreed that a bodyguard and nanny were needs of the child). Needs of the child may include private school, extracurricular activities, summer camps, tutoring, medical costs, counseling and educational books. Scott v. Younts, 926 S.W.2d 415 (Tex. App.—Corpus Christi 1996, writ denied); Nordstrom v. Nordstrom, 965 S.W.2d 575 (Tex. App.—Houston [1st Dist.] 1997, writ denied, cert. denied, 119 S.Ct. 1034 (1999). 

If you have any questions or issues regarding child support or any other family law issues, please contact The Moon Law Firm at 713-999-9398 or at jmoon@moonlawfirm.com. 

Can Your Facebook Be Used Against You

Most people have done something that they are not too proud of at one time or another. All of us have those moments we would rather forget forever. Now, however, those moments may be immortalized forever in the pages of social networking sites such as Facebook, Instagram, Twitter and others. Usually these indiscretions are laughed about and then removed from the web. However, they take on a different significance when one is in the middle of a lawsuit. What if you are in the process of going through a divorce, lawsuit or criminal suit? Can social media be used in your case?

The answer to this question, like so many other legal questions, is that it depends. While information on social media websites may contain embarrassing, obscene or even incriminating information, the challenge is getting that evidence admitted in a court of law. Assuming the party admits to the posting, photo, etc. the information can be used as an admission of that party under Texas Rule of Evidence 801(e)2. However, this article will primarily deal with the process of authenticating and admitting this information at trial.

If a party denies that the information another party is attempting to use is genuine, that information will need to be authenticated before being admitted. Authenticating evidence is discussed by Texas Rule of evidence 901. Rule 901 states that, “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Texas Rule of evidence 901.

In layman’s terminology, this means that an item of evidence can be authenticated by other information that proves the item is what the person attempting to use it claims it is. For example, an exhibit can be authenticated by testimony of a witness with knowledge of what the exhibit is, comparisons by expert witnesses, distinctive characteristics of the exhibit, or other similar means. Texas Rule of evidence 901(b) 1, 3, and 4. Using this type of evidence against a party is a two step process. The first step is to establish that the printout from the social media website is an authentic representation of that website. The second step is to link the authentic information to the opposing party.

Authenticating information from a social media site means proving that the information in the computer printout is a fair and accurate representation of the information on the website itself. This may be able to be satisfied by the person who printed the social media information testifying that the witness printed the exhibit; the witness is familiar with the computer and printer used to print the exhibit; and the exhibit accurately depicts the web site as it appeared on that day. Texas Rule of Evidence Rule 1001(a), (c) & (d). The witness does not need to be the author of the website, but rather can testify to the fact that the pages printed from the website are accurate. Id.

Once the information has been deemed to be authentic, the party attempting to use the information must establish that the opposing party is the author of that information. One way to link the opposing party to the information may be to establish that the post or print out contains distinctive characteristics that can be linked to the author. Texas Rule of Evidence 901(b)(4).

Some of these “distinctive characteristics” include the return–address line of an email or instant message, the date and time of the correspondence, the subject line, the contents and context, internal characteristics such as known speaking or grammatical usage, nicknames or specialized terms, or any other circumstances, such as conversations or events either before or after the e–mail or instant message that tend to make it more likely that this message came from a certain person. See Shea v. State, 167 S.W.3d 98, 104–105 (Tex. App. – Waco 2005, pet. ref'd).

Similarly, the connection between a particular chat–room posting and a specific person can be established by the following: 1) the screen name can be traced to the identified person, who has previously used this specific screen name in chat–room conversations; 2) the identified person responded to a request for a meeting with the person using a specific screen name, 3) the person using the screen name identified himself as "X" and that self–identification is coupled with other particularized information that applies to X, such as a street address, e–mail address, job, or personal description, 4) the identified person had information given to the chat–room participant using the specific screen name, or 5) search of the identified persona's computer hard drive shows that the user of that computer used the same screen name as the chat–room participant. See United States v. Tank, 200 F.3d 627, 630–31 (9th Cir. 2000).

Just as e–mails, instant messages, and chat room sessions can be linked to particular individuals by witnesses with sufficient circumstantial evidence to make the link, postings on social websites should also be subject to this same method of authentication.

There’s an old saying that “If you don’t want people to know you've done something, don’t do it in the first place.” This old adage remains true in the digital age as well. Be cautious of what you post to your social media pages because that information can be used against you in court. Additionally, information on social networking sites can be useful information in your lawsuit so it pays to have print outs and be able to authenticate those printouts.

Harris County Fines For Common Moving Violations

MPH Over The Limit

1 - 10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39+

Fine

$135.00

$140.00

$145.00

$150.00

$155.00

$160.00

$165.00

$170.00

$175.00

$180.00

$185.00

$190.00

$195.00

$200.00

$205.00

$210.00

$215.00

$220.00

$225.00

$230.00

$235.00

$240.00

$245.00

$250.00

$255.00

$260.00

$265.00

$270.00

$275.00

$280.00

School Zone

$160.00

$165.00

$170.00

$175.00

$180.00

$185.00

$190.00

$195.00

$200.00

$205.00

$210.00

$215.00

$220.00

$225.00

$230.00

$235.00

$240.00

$245.00

$250.00

$255.00

$260.00

$265.00

$270.00

$275.00

$280.00

$285.00

$290.00

$295.00

$300.00

$305.00

Common Moving Violations 

Failure to Control Speed 

Failure to Drive in a Single Marked Lane 

Ran Stop Sign or Red Light 

 Unsafe Lane Change 

Unsafe Speed  

Driving on Wrong Side of Road

Driving Wrong Way — Divided Highway 

Driving Wrong Way on One Way Road 

Driver's License Violations 

Expired Driver's License* 

Failure to Report Change of Address 

No Driver's License on Demand 

No Texas Driver's License 

Violation of Driver's License Restriction 

Other Traffic Violations 

Expired Inspection Certificate** 

Expired Vehicle Registration

Failure to Wear Safety Seat Belt 

No Insurance

Passing a Stopped School Bus 

Unrestrained Child 

Total Fine and Cost 

$195.00 

$160.00 

$165.00

$170.00

$145.00

$170.00

$225.00

$290.00 

Total Fine and Cost 

$110.00

$85.00

$130.00

$165.00

$110.00 

Total Fine and Cost 

$115.00

$85.00

$130.00

$320.00

$1090.00

$205.00

Duties of Insurance Agents to Their Customers

I.          Duties Of An Insurance Agent

            There is a lot of confusion regarding what an insurance agent does and their responsibilities to their clients. This blog post will outline the basic responsibilities that insurance agents have to their customers.

            A.        Duty To Procure

            Perhaps the oldest and most discussed duty on the part of an agent is the duty to procure a policy for an insured. In Burroughs v. Bunch,[1] suit was brought by the insured against the agent for failing to obtain an insurance policy on a house which was under construction. The court of appeals then stated the controlling law as follows:

An insurance broker agreeing to obtain insurance has a legal duty to obtain same and if he cannot do so to notify his principal of failure.[2]

            The rule was later emphasized by the Beaumont Court of Appeals in Scott v. Conner.[3] The court stated the law as follows:

It may be laid down as a general rule that a broker or agent who, with a view to compensation for his services, undertakes to procure insurance on the property of another, and who fails to do so, will be held liable for his failure to do so.[4]

            Additionally, in Rainey-Mapes v. Queen Charters, Inc.,[5] the jury found that the agents had agreed to procure a policy free of a particular type of exclusion and were negligent in failing to do so.[6] Therefore, negligence in failing to procure insurance applies not only in failing to procure a policy all together, but in failing to procure a policy of the type requested by the insured.[7]

            The fact that the agent or broker may exercise reasonable diligence in attempting to procure the insurance will not relieve the agent or broker of liability where he has failed to notify the insured of his inability to obtain insurance.[8] In the Powell case, the court of appeals held that:

The rule seems to be settled that if an insurance agent or broker, with a view toward being compensated, undertakes to procure insurance for another and, through fault and neglect, fails to do so, he will be held liable for any damage that results thereby. The failure of an agent or broker, even after the exercise of reasonable diligence to procure insurance, to notify the insured of the agent’s inability to obtain insurance, will likewise impose liability upon him. [Citations omitted.] Obviously, then, an insurance agent has a duty to his client, not to advise the client that he is covered by insurance if he is, in fact, not so covered. The suit is not upon any oral contract of insurance. It is a negligence action. The mere fact that workmen’s compensation coverage on only part of Narried’s business could not be obtained was no defense to the theory of this action. If it could not be obtained after the agent had undertaken to procure the insurance, the failure of the agent to notify the insured of his inability was actionable.[9]

            The basis for imposing liability in this situation is that the agent induced the insured to rely upon his/her promise to procure insurance. As a result the plaintiff reasonably assumed he was insured, when he was not, against the cause which caused his loss.[10]

An agent must also keep clients informed as to progress of application, particularly where client could have avoided risk until coverage was secured.[11] There is also a duty to inform the client if an agent is unable to place the requested insurance.[12]

            Lastly, in order to establish causation of damages, a plaintiff must establish the availability of an insurance policy that would have provided the requested coverage.[13] If no policy would have provided the requested coverage, then a failure to procure insurance cannot be proven.[14]

            B.        Duty To Keep Insured Informed

            Texas courts have held that an agent has a duty to keep his or her clients fully informed so that they can remain safely insured.[15] The Texas Supreme Court, in May v. USAA, recognized a duty on the part of an agent “to keep his or her clients fully informed so that they can remain safely insured.”[16] Additionally, in Trinity Universal Ins. Co. v. Burnette, the court held that an agent has a duty to renew policy, replace it, or notify client of non-renewal.[17] Most commonly, an agent will satisfy this duty by informing an insured of a non-renewal, lapse or cancelation of insurance.

            This issue typically arises in the context of policy expiration dates. In Kitching v. Zamora,[18] the issue before the court was whether an insurance agent could be held liable for failing to keep a customer informed about the expiration date of the customer’s insurance policy. The Texas Supreme Court held that:

An insurance agent, who receives commissions from a customer’s payment of insurance policy premiums, has a duty of reasonably attempting to keep that customer informed about the customer’s insurance policy expiration date when the agent receives information pertaining to the expiration date that is intended for the customer.[19]

            Additionally, this duty to keep an insured informed has been extended to other parties as well. In the Corn case, a mortgage company was a named insured under the policy and also paid the premiums. The holding in the Kitching case was extended when the court held that:

An insurance agent who receives a commission from the payment of the insurance policy premium by the named mortgagee in the policy, knowing that the mortgagee pays for the coverage and whose servicing of the policy includes notification to the insured of the expiration and nonrenewal of the policy, has a duty of reasonably attempting to keep the mortgagee informed about the policy expiration date and nonrenewal.[20]

            C.        Duty In Selection Of Company

            The duty to exercise care in the selection of company has been recognized by Texas courts, particularly in the context of the solvency of the insurers. In Higginbotham & Associates, Inc. v. Greer, the court held that an agent could not be held liable for losses resulting from an insurer's insolvency if the insurer was solvent at the time that the policy was procured, unless the agent or broker subsequently learned or should have learned of facts or circumstances adversely affecting the security of the coverage and failed to take reasonable steps to protect the insured at a time when such steps could have been taken.[21] More specifically, an agent should check the insurer's rating with services such as the National Association of Insurance Commissioners' Report, or Best's Insurance Report, and to avoid placing coverage with an insurer that has received an unfavorable rating.          

            D.        Duty To Acquaint Oneself With Insured’s Business

            At least one court has held there is a duty on the part of the agent to acquaint him or herself with the insured’s business. In Frank B. Hall & Co. v. Beach, Inc.,[22] the insured was a trucking company primarily engaged in the business of hauling and rigging oilfield equipment. The insured’s agent procured a policy with an exclusion for “lifting and rigging” and a definition for the term “in transit” which placed damage suffered by the insured outside of coverage. In addressing the duty owed by the agent, the court of appeals held that an agent’s admitted ignorance of the insured’s business was sufficient factual basis to support a jury’s finding of negligence.[23]

[1] Burroughs v. Bunch, 210 S.W.2d 211 (Tex.Civ.App.—El Paso 1948, writ ref'd).

[2] Id. at 214.

[3] Scott v. Conner, 403 S.W.2d 453 (Tex.Civ.App.—Beaumont 1966, no writ).

[4] Id. at 457.

[5] Rainey-Mapes v. Queen Charters, Inc., 729 S.W.2d 907 (Tex.App.—San Antonio 1987writ dism'd by agr.).

[6] Id. at 913.

[7] See May v. United Services Association of America, 844 S.W.2d 666 (Tex. 1992); Critchfield v. Smith, 151 S.W.3d 225 (Tex.App.—Tyler 2004, pet. denied); Talamantez v. State, 790 S.W.2d 33 (Tex.App.—San Antonio 1990, pet ref’d).

[8] Powell v. Narried, 463 S.W.2d 43, 45 (Tex. Civ. App.--El Paso 1971, writ ref'd n.r.e.)

[9] Id. at 45.

[10] May, at 669.

[11] Gulf-Tex Brokerage v. McDade and Associates, 433 F. Supp. 1015 (S.D. Tex. 1977).

[12] Sonic Systems Intern., Inc. v. Croix, 278 S.W.3d 377 (Tex. App. Houston 14th Dist. 2008), reh'g overruled, (Mar .5, 2009) and review denied, (May 28, 2010) (duty to inform the client promptly if unable to place requested insurance); Zuniga v. Allstate Ins. Co., 693 S.W.2d 735 (Tex. App. San Antonio 1985) (same).

[13] Metro Allied Ins. Agency, Inc. v. Lin, 304 S.W.3d 830 (Tex. 2009).

[14] Trinity Universal Ins. Co. v. Burnette, 560 S.W.2d 440 (Tex. Civ. App. Beaumont 1977, no writ).

[15] Id.

[16] May v. United Services Ass'n of America, 844 S.W.2d 666 (Tex.1992).

[17] Trinity Universal Ins. Co. v. Burnette, 560 S.W.2d 440 (Tex. Civ. App. Beaumont 1977, no writ).

[18] Kitching v. Zamora, 695 S.W.2d 553 (Tex.1985).

[19] Id. at 554.

[20] Horn v. Hedgecoke Ins. Agency, 836 S.W.2d 296, 299 (Tex. App.--Amarillo 1992, writ denied)

[21] Higginbotham & Associates, Inc. v. Greer, 738 S.W.2d 45 (Tex. App. Texarkana 1987, writ denied).

[22] Frank B. Hall & Co. v. Beach, Inc.,733 S.W.2d 251 (Tex.App.—Corpus Christi 1987, writ ref’d n.r.e.).

[23] Id. at 261.