Matthew Harris Law

Weee Little Shenanigans!

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 11 Mar 2013 12:00:00 +0000

St. Paddy’s Day

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

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

No green? Pinch your way to an assault!

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

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

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

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

—See Tex. Pen. Code § 22.01 (a)(3);

Leprechauns and Wishes!

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

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

Kidnapping/False Imprisonment

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

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

—See Tex. Pen. Code § 20.04

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

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

Luck o’ the Irish

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

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

Matthew Harris Law, PLLC - Civil Litigation Division

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

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

FrontDesk@MatthewHarrisLaw.com

Emancipated Minor

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 04 Mar 2013 13:00:00 +0000

What Would You Do With It?

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

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

Don’t Call it Emancipation

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

—See Tex. Fam. Code § 31.001

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

What Disabilities of Minority Can Be Removed?

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

—See Tex. Fam. Code § 31.006

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

How Do I Get My Disabilities of Minority Removed?

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

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

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

—See Tex. Fam. Code § 31.002

The Hearing

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

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

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

Matthew Harris Law, PLLC - Family Law Division

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

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

FrontDesk@MatthewHarrisLaw.com

Orphan Adoptions

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 25 Feb 2013 13:00:00 +0000

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?

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 18 Feb 2013 13:00:00 +0000

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!

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 11 Feb 2013 13:00:00 +0000

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

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 04 Feb 2013 13:00:00 +0000

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!

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 28 Jan 2013 13:00:00 +0000

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

noreply@blogger.com (Matthew Harris Law, PLLC) — Tue, 22 Jan 2013 13:00:00 +0000

License to Drive…Not Anymore

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

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

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

The Solution

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

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

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

Who Qualifies?

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

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

The Process

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

Tex. Trans. Code §§ 521.242, 521.244

The Conclusion

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

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

Matthew Harris Law, PLLC - Civil Litigation Division

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

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

FrontDesk@MatthewHarrisLaw.com

Your Lead Foot

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 14 Jan 2013 13:00:00 +0000

License and Registration

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

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

What is “Speeding”

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

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

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

Please Sign Here

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

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

The Aftermath

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

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

Conclusion

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

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

Matthew Harris Law, PLLC

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

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

Attorney@MatthewHarrisLaw.com

You're in the Militia

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 07 Jan 2013 13:00:00 +0000

A Well Regulated Militia

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

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

Reserve Militia

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

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

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

Calling of Forces

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

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

Probability of Being Called

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

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

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

Matthew Harris Law, PLLC - Civil Litigation Division

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

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

Attorney@MatthewHarrisLaw.com

Holiday Road Trip Prep

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 21 Nov 2011 13:21:00 +0000

You’re Ready, but Are You Prepared?

The bags are packed and the car is loaded, but are you prepared for the legal trouble that is waiting for you down the road?

Below we’ll discuss how to respond to police questioning during a traffic stop, what to do if you are in a traffic accident, and how to protect yourself from angry drivers and domestic violence.

As millions more people are expected to travel this holiday season, you need to be prepared to assertively protect your, and your family’s, legal interests while far from home.

Police Questioning During a Traffic Stop

If you are pulled over, common courtesy and a smile will carry you a long way. However, you need to remember that the officer isn’t there to help you protect your constitutional rights.

You MUST provide identification, proof of insurance, and registration, but when the officer asks you how fast you were going, where you’re coming from, etc., he is purely trying to find some probable cause to search your vehicle and those are questions you shouldn’t answer.

If he asks to search your vehicle, it’s because he doesn’t have a reason and wants to go fishing. After license, insurance, registration, you should assert this phrase, “I do not answer questions without my attorney present, and I do not consent to any searches.”

For more info on this topic, see: Right to Remain Silent?

Traffic Accidents While Travelling

Traffic accidents are scary, but even scarier when you’re far from home. AFTER attending to injuries and/or calling 911, immediately take pictures of the property damage if it is safe to do so. Write down the names/addresses of witnesses or other parties. Write down your version of events immediately while fresh in your memory.

If you speak to the other driver, do NOT try to take the blame for the accident, offer to pay for their medical bills simply because you feel bad for being involved. These actions can only hurt you because you don’t know the whole story and may not actually be at fault.

For more info on this topic, see: Where to Sue After a Wreck?

Angry Drivers and Domestic Violence

Whether you are accosted by an aggressive driver on the road, or a family member at your destination, your response should be the same; call the police. I know this seems to go against my advice above, but police are there to keep the peace and keep you safe.

If someone intentionally or knowingly: threatens you with imminent bodily injury, or causes offensive or provocative contact, then that person has likely committed an assault. The worst thing you can do is respond in kind with your own assault because the last one in is always a rotten egg. If the assault is such that you must defend yourself, then just use enough force to repel the attack, and then call the police.

For more info on this topic, see: Can I Carry a Handgun?

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

Matthew Harris Law, PLLC - Criminal Defense & Civil Litigation Divisions

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com

Adjusting Child-Support

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 14 Nov 2011 12:00:00 +0000

Nothing Stays the Same

Whether you are paying or receiving child-support, surely you don’t expect the amount will stay the same indefinitely.

Since you know that child-support is based on a percentage of income, it stands to reason that income/support can fluctuate with the economy, promotions, demotions, etc.

When the income level varies, then so too can child-support.

How is Child Support Calculated?

This is an often confusing topic that I am frequently asked. Most often, support is calculated at 20% of the non-custodial parent’s income after taxes. (2 kids=25%, 3 kids-30%, etc.) This isn’t the complete law, but just a basic rule of thumb.

This amount is different if you have children with more than 1 person and the percentage can be varied by the Judge, but the amount must be in the best interest of the child.

When Can Child-Support be Modified?

To keep child-support obligations current, Texas law allows either party to request a modification after 3 years if the support amount would change by 20% or $100. The law also allows a modification if the circumstances of the child, or a person affected by the order, have materially and substantially changed.

It is easy to figure out if the support amount has changed (well, as easy as math), but the “material and substantial change” is a little more difficult to explain in detail today, so that is something I’ll leave you to discuss with your attorney.

What About a Less-Paying Job?

Due to the economy that we’re in right now, many parents have been laid off and had to take lesser paying jobs. If the support would change +/- the above amounts, then it can be modified and the parent isn’t stuck at their highest wages forever.

However, since some parents are less than honorable, Courts take a very close look when a parent has suddenly started making less money and asks to pay less child support. The issue to beware of is when that parent intentionally becomes underemployed to earn less money in an attempt to reduce their child support.

If the Court finds that the parent is intentionally underemployed, then the Court may assess a child-support amount in accordance with their earning potential.

Conclusion

If there has been a material and substantial change of circumstance, or you have had a change of income, you can petition the Court to Modify the Parent-Child Relationship and the Court will issue an Order that reflects the correct child-support that you should pay.

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

Matthew Harris Law, PLLC - Family Law Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com

Your Court Appearance

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 07 Nov 2011 12:00:00 +0000

Normal to be Nervous

It is a day that you have been nervous about since you first got notice in the mail. You have a Court Date.

Even if you are looking forward to this date so you can have a final resolution of this matter, it is normal to be apprehensive because of the inherent uncertainty that you are facing.

Let’s discuss how you can set yourself up for success.

Dress for Success

Your appearance in Court can have a big impact on how you appear to the Court. The courtroom is a somber place and you should dress in a manner that shows respect for the Court and the process of justice.

This means no: basketball jerseys, shorts, flip-flops, baseball caps, or low-cut shirts. You aren't expected to wear a suit or a dress, but wearing slacks with a shirt & tie, or a nice blouse, shows the Court and/or jury the proper respect and that you take this seriously.

Your Convincing Testimony

Your testimony must be convincing or else it may be seen as untruthful and cast you in a negative light. Although you may fancy yourself a convincing person, you may not be prepared to bear your soul on the witness stand.

Confident people are convincing. Think about what you are going to say and then say it with confidence. Clear speakers are convincing. Speak loudly and clearly so that everyone can hear you, however, speak slow enough so the court reporter can keep up while typing.

Pay Attention to Your Attorney

Hand-in-hand with your convincing testimony, be certain that you are answering the question that your attorney has asked, and not what you think they attorney is trying to get you to say. It is up to your attorney to ask the right questions.

When testifying, your attorney will attempt to shield you from inappropriate questions asked by your opponent. If you notice your attorney stand, or say "objection" then the best thing you can do is just stop talking.

The attorneys and Judge must confer to determine how to proceed, and if you answer the question over objection then you'll negate the protection your attorney asking for.

Breathe

This seems overly simple, but you need to remember to do it often, especially if you are testifying. Imagine that your breath is the space between paragraphs, and reading stories with paragraphs are much easier to understand than full pages of text.

Also, taking a deep breath from time to time will help to calm you down and make you appear more confident. Being calm is important because worrying doesn’t win trials.

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

Matthew Harris Law, PLLC - Civil Litigation Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com

Minor Traffic Offense Arrests

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 17 Oct 2011 23:00:00 +0000

Arrested for THAT?!

As you are driving to/from work today, you’ll probably do something that could land you in jail. I’m not implying that you’ll knock over a bank; just that you drive poorly.

By driving poorly, I mean that you’ll probably commit some benign traffic offense. Unfortunately, you can be arrested for violating even the benign traffic laws in Texas.

Violating Traffic Laws

Let me first clarify what these “traffic laws” are. We’re not talking about Driving While Intoxicated or other serious crimes

that happen to involve a motor vehicle, but just those simple rules that you learned to pass your driver’s test and then tried your best to forget about.

We’re talking about REALLY minor traffic offenses like: improper lane change, parking your vehicle on the wrong side of the road, or even failure to wear a seatbelt. Even though these are normally fine-only offenses (no jail time), an officer can arrest you for committing these crimes in his presence. However, there are a couple of exceptions.

The Two Exceptions

There are two circumstances where an officer cannot arrest you if you provide a written promise to appear. You know this “promise to appear” as “signing the ticket.”

You’ll be happy to know that one of those offenses you can not be arrested for is speeding. It’s a huge sigh of relief to you and your lead foot, I know. The other offense that you cannot be arrested for is violation of the open-container law. That is, if you sign the ticket.

Why Arrest For Traffic Offenses?

This may surprise you, but officers will use minor traffic stops as a pretext until they find something really juicy. Some of our state’s biggest drug busts happened that way.

If the officer simply writes you a ticket, he has to let you go. Although, he may ask you for permission to search your car which I HOPE you do not agree to. But if the officer arrests you first, he can search your car incidental to that arrest. Starting to get the picture?

What Should I Do If This Happens To Me?

If this happens to you, there isn’t much you can do. All I can recommend is that you remember that you have rights that are there for your protection; mainly your right to remain silent and your right to an attorney.

Above all though, my best advice is that you not violate those traffic laws because they are there for your safety and mine. I mean, seriously, wear your seatbelt kids.

See: Texas Trans. Code § 543.004

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

Matthew Harris Law, PLLC - Criminal Defense Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com

The Honorable "Rusty" Ladd

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 03 Oct 2011 12:12:00 +0000

Loss of Justice

With the tragic and untimely passing of my dear friend and mentor, the Honorable Larry “Rusty” Ladd, my first emotion is an overwhelming sense of loss.

Not just the loss of someone that I admired and revered, but the loss to our justice system and the loss to everyone that would have heard his passionate message of freedom.

His Love of Freedom

Rusty’s love of freedom wasn’t just confined to his role on the Bench; he also loved the freedom he felt on his motorcycle.

Those that know Rusty know that this isn't his first motorcycle wreck. Some years ago, he was driving through an intersection here in Lubbock and again, someone pulled out in front of him. After this wreck, his wife Irene said, "no more motorcycles." Actually, in his version, those were her first words on his hospital bed and he didn't blame her one bit.

Some years later, he started getting the motorcycle bug again, but he didn't dare tell Irene. One day he and Irene were sitting at a red light and beside them a biker pulls up on an old Harley.

According to Rusty, the biker looked like he was on his way out of town with a bedroll strapped to the back. Rusty looked out on this biker, with what must've been a longing stare like a caged bird next to a window, because Irene put her hand on his and said, "It's time."

She knew how much Rusty loved to ride and she knew how much he loved that freedom. She told Rusty that he could get another motorcycle, as soon as the kids were graduated and off to college.

Mourn but Honor

I can’t help but mourn the loss of a personal hero, but I have to remind myself that he’s in a better place now. If he saw me carrying on the way I have these past few days, I know he’d just probably look at me over his glasses with his sharp gaze and wry smile and tell me that there are better things I could do with my time such as feeding the homeless.

He’d probably tell me to have a steak for him at Cagle’s, and ask me to remember the things he taught me about people and about how we should never lose sight of them in our application of the law.

So even though all I want to do is mourn his passing, I’ll do my best to honor his memory by applying his message as I progress in my career. Although it is of little consolation, I do take some solace in the fact that he died doing something that he loved; we should all be so lucky.

Rest in Peace my friend, and I’ll see you at the next docket call.

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

Matthew Harris Law, PLLC

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com

Your Risky Space Travel

noreply@blogger.com (Matthew Harris Law, PLLC) — Tue, 27 Sep 2011 00:57:00 +0000

The Final Frontier

Since you were a kid and watched Star Wars and/or Star Trek, you’ve always dreamed of going into space one day. However, you never really had the motivation to become an astronaut.

With Space Tourism looming on the horizon, the Legislators in Texas have recently made our state attractive to those businesses by limiting liability for space flight activities.

This means a greater chance of space travel from Texas.

What Are Space Flight Activities?

According to the text of the new law, Space Flight Activities encompass pretty much anything you can imagine NASA doing; such as preparing for launch, flight, or reentry; the conduct of launch; conduct between launch and reentry; reentry and descent; landing; and postlanding recovery operations.

However, the law doesn’t just limit the liability of space flight activities conducted by NASA, but to any “Space Flight Entity” that is conducting space flight activities.

What is a Space Flight Entity?

A Space Flight Entity means a person who has obtained the appropriate FAA license or other authorization, and also includes a manufacturer or supplier of components used in space flight activities and employees, stockholders, members, managers, or partners of such entities.

How Much Liability is Limited?

The space flight entity is not liable to any person for a space flight participant injury or damages arising out of the space flight participant injury if that participant has signed the new statutory agreement and warning statement. Texas CPRC § 100A.003

However, this new law does not limit the liability for an injury that is proximately caused by the space flight entity’s gross negligence evidencing willful or wanton disregard for the safety of the space flight participant or for an injury that is intentionally caused by the entity.

What Does This All Mean to Me?

Here’s the simple breakdown, companies are going to follow the path of cheapest revenue. One factor that makes business expensive is potential lawsuits. This law prevents huge lawsuits against space tourism companies unless there is willful or wanton gross negligence or unless they intentionally cause an injury.

Since space tourism companies have less worry about these lawsuits in Texas, we may see more of them here. Although, since you’ll have limited recourse if something goes wrong, I suggest you ensure your life insurance policy is in order, and your Estate Plan is complete.

Source: HB 115 (to become Texas CPRC § 100A)

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

Matthew Harris Law, PLLC - Civil Litigation Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com

Every Trucker's Nightmare

noreply@blogger.com (Matthew Harris Law, PLLC) — Tue, 20 Sep 2011 12:00:00 +0000

Scared of the Mailman

You’re a Peterbilt driving, air-horn honking, Convoy listening Truck Driver. You worry about the clearance of that bridge ahead, but you don’t need to spend your hours on the road worrying about whether you’ll get that dreaded letter.

DPS sends CDL Suspension Notices by mail and they are every trucker’s nightmare because losing your license means losing your job. Losing your job means losing your way of life.

What to Do With the Letter?

When DPS sends their Notice of Intent to Suspend your CDL, that is their notification to you that unless you take some action, then they are going to suspend your license. It is very important for you to take that action because then you at least have a chance to be heard.

To be heard, the very first thing you want to do is request a hearing. This hearing may take place before an Administrative Law Judge, or it could be transferred to one of your local Justices of the Peace. Requesting this hearing isn’t the surefire way to save your license, but that will at least give you a fighting chance if the DPS has made a mistake.

Your attorney can go over your case with you and determine whether there is a factual, or procedural basis to contest the proposed suspension of your license.

How to Prevent Getting a Letter

The Texas Transportation Code provides a laundry list of violations for which your license could be suspended, but the most confusing is the provision that allows suspension for “two serious traffic violations...within a three-year period.”

These “serious traffic violations” amount to traffic tickets that you only worried about the price of the fine; such as following too closely, improper lane change, reckless driving, speeding. Since you probably got these tickets out-of-state, you didn’t think much of them and just sent in the fine.

The problem with sending in the fine is that it amounts to a Plea of Guilty and is a conviction on your record. When you receive such a ticket, you should consult with your attorney to see if there is any way to resolve that ticket without it resulting in that conviction so it doesn’t stick to your record.

Ultimately, the short answer to prevent getting the letter is to avoid getting any traffic citations, and if you do get traffic citations, fight them individually because fighting them at your suspension hearing might be too late.

Tex. Trans. Code—§ 522.003, 522.081

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

Matthew Harris Law, PLLC - Civil Litigation Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com

How to Punish Your Ex

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 12 Sep 2011 11:00:00 +0000

Child Support & Custody

When you and your Ex had a child together, you two became stuck together for the rest of your lives whether you like it or not.

Since you two are no longer a couple, it can be difficult to get them to play by the rules when it comes to paying child support, being civil, or even letting you exercise your visitation according to the Court’s Order.

However, I sincerely hope that you don’t use this information to punish your Ex, but use it to help your Ex understand the consequences for keeping you from exercising your rights.

Your Legal Rights

Whether you and your Ex are bound by a Divorce Decree, or if you weren’t married and sought an Order to set out the visitation and child support amounts, your rights are the same under each. You have a right to rely on that Judge’s Order.

When the Judge entered the Decree/Order, he made sure not to leave any ambiguities regarding your visitation and child support. The child support amounts are described down to the penny and days due and the visitation down to the hour of the day for transfers. For the record, the Judge doesn’t like when someone disregards their orders.

When your Ex doesn’t stick to their terms, you don’t have to take it; you can take action.

Your Plan of Action

Like I said above, I hope that you will use this information to show your Ex the consequences of their actions so they will hopefully change their ways, but you and I both know that your Ex doesn’t respond to logic. Your plan of action should include a Motion for Enforcement.

Under the Texas Family Code, the Court can enforce a final order for child support and/or visitation by contempt. Each occasion where your Ex failed to comply with the Court’s order is punishable by Contempt of Court.

What is Contempt of Court?

You see it on TV all the time, but when the Court finds someone in contempt, the Judge is basically saying that the person failed to obey a Court Order. This is why you usually hear the Judge give a warning first on your standard overly dramatized TV show.

The punishment for contempt is fairly harsh though. Contempt is punishable by up to 6 months in jail and a $500 fine. Don’t forget that each violation is it’s own contempt.

How to Protect Your Enforcement

Every single one of my Family Law clients hear a similar pitch: I strongly recommend keeping a very detailed log of you and your Ex’s interactions regarding child support and custody. Memories fade over time and you may find yourself in the above situation and desperately needing to remember what day your Ex disobeyed a Court’s Order.

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

Matthew Harris Law, PLLC - Family Law Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com

Hardship Driver's License

noreply@blogger.com (Matthew Harris Law, PLLC) — Tue, 06 Sep 2011 11:00:00 +0000

Driving You Crazy

Well your kid has finally done it. They’ve convinced you that they need a driver’s license before they turn 16. I remember getting a hardship license when I was 15 because of my job’s hours.

However, before you start shopping for a safety-focused car for your child, let’s discuss the requirements and the new law.

Who Qualifies for Hardship License?

The Department of Public Safety (aka DMV) may issue a license to a person if failing to issue one “will result in an unusual economic hardship for the family of the applicant, the license is necessary because of the illness of a member of the applicant’s family, or the license is necessary because the applicant is enrolled in a vocational education program and requires a driver’s license to participate.”

Recent Change in Law

In addition to qualifying for a Hardship License, the child must meet some requirements. They must pass a “driver’s training course,” be a certain age, and pass the licensing test. Here’s the tricky part; as of September 1, 2011, the law has changed 2 of these.

Driver’s Ed—The applicant, your child, isn’t eligible to take the driver’s training course until they are 15 (was 14), and this course now must be approved by the Texas Education Agency and conducted by a licensed driver’s education school. No more home-taught driver’s ed?

Certain Age—To apply for the license, the applicant must now be at least 15 years and 180 days. For those of you doing math at home, yes that is 6 months. (15 1/2 years old)

Exceptions and Possible Loophole

The law states that “if the department determines that an applicant must assist in the responsibilities imposed by a family illness, disability, death-related emergency, or economic emergency, then they may issue a temporary license to an applicant who has satisfied” the driver’s education requirement.

In my interpretation, it looks like someone can get a Hardship License earlier than age 15 1/2, but would be limited to the earliest they can complete driver’s ed after turning 15.

New Law, New Penalty

One big change to the Hardship License law is the penalty if the hardship license holder receives a Moving Violation. (i.e., speeding, running stop sign, failure to signal turn)

The previous law gave the department the option of suspending a Hardship License if the licensee is convicted of a moving violation. Under the new law, the department shall (must) suspend the license for that moving violation conviction.

Oh, and just in case you are wondering, paying the ticket fine is a plea of guilty and is a “conviction” for that violation.

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

Matthew Harris Law, PLLC - Family Law Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com

How to Adopt a Child

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 29 Aug 2011 11:00:00 +0000

So You’ve Decided to Take in a Stray?

Many years ago, when I was but a wee lad, I was adopted. As an adoptee (stray), I feel a sort of obligation to adopt a child into my home one day. It’s like some sort of pyramid scheme.

I tell you this because I’ve had the same thoughts as you have now and I just didn’t know where to begin. Let me explain how simple this process can be and show you where to begin.

Step 1: Terminate Parental Rights

Before an adoption can be granted, the prior parents’ rights must be terminated. I have an entire Blog Post devoted to this topic that I recommend you checking out first. However, the termination can be pursued simultaneously with the adoption so that they are combined at the final hearing. In fact, this is the recommended method.

Step 2: Preadoptive/Postplacement Social Studies

Sounds scary doesn’t it? Don’t worry, the name is the scariest part. Most likely, the child has already been living with you for awhile so you can combine both of these into one.

Basically, a social worker will visit and inspect your home, interview you and your spouse, and interview the child. They are not looking for reasons to disqualify you as parents but gathering information that they will supply to the Court on whether they recommend your home as being in the best interest of the child. This step usually takes the longest so you’ll start it first.

Step 3: Criminal History Report

This part worries people because they are afraid that a minor lapse in judgment in college is going to ruin everything. Having a blemish on your record doesn’t stop you from being able to adopt, but the Court just wants to have all of the information available to decide on.

Step 4: Health, Social, Educational, & Genetic History Report

If you are closely related to the child, this report isn’t required. Think of this report as a Carfax for the child. It chronicles any genetic predispositions to diseases up to the child’s grandparents, the status of educational developments since birth, immunization and health records, and so on. For non-family adoptions, this report is very helpful.

Step 5: Final Hearing

I didn’t include File the Petition as the first step because I think it is better to discuss it here. Everything that you want the Judge to Order at the final hearing must be requested in the Petition. Basically, you can’t get it unless you ask for it. Don’t neglect the name change.

At the Final Hearing, you and your spouse will take the witness stand and “prove” all of the things listed above. Once all of the testimony is entered, you will ask the Judge to terminate the prior parent-child relationship and grant the adoption.

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

Matthew Harris Law, PLLC - Family Law Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com

Picking your Estate Executor

noreply@blogger.com (Matthew Harris Law, PLLC) — Fri, 26 Aug 2011 02:39:00 +0000

News Flash

After reading this post, you are going to die. (on a long enough timeline) A very macabre observation, I know, but I only mean to point out that we must all make plans to prepare for this unavoidable event.

Your plans should include choosing an Estate Executor, and below we’ll discuss some of the factors that you should consider when making this decision. Just to clarify, an Executor is the person that you name in your Will to manage your affairs.

Honesty/Integrity/Trustworthiness

By far, this is the most important factor to consider when choosing an Executor. They will have nearly free reign to all of your assets that you worked your entire life to obtain. It will be their responsibility to protect and distribute these assets according to your last Will.

Texas Law requires that Executors post a bond to cover their actions if they do not act appropriately, but this requirement can be waived by you in your Will if you trust the person that you have named. As my Law Professor always said, if you don’t trust them enough to waive that bond requirement, then maybe you should consider a different Executor.

Ability to Act

Since you’re going through all of this trouble to carefully choose your Executor, it would be a shame if that person wasn’t able to perform the duties that you desire.

You should ask that person if they’re even willing because they have to accept these duties and may refuse if it is sprung on them. Consider where that person lives since you will want someone locally to meet with the Court, attorney, and personally manage the assets.

Something else to consider is that person’s age/health. Obviously, your Executor has to outlive you in order to manage your estate, so it is wise to evaluate their likelihood of doing so. Most people defer to their eldest child, but the options are limitless.

Along with their ability to act for you, it is prudent to consider what type of lifestyle they lead. If they are a single mother with eight children, ages 1-9, then they may already have enough responsibility in their lives and may have difficulty squeezing more in for you.

Ability to Act Responsibly

Not to be confused with their integrity or honesty, you should choose an Executor that will act responsibly in managing your estate. Even an honest person can be fiscally irresponsible.

Determine whether they have any experience managing money or even taking part in business transactions. Ask if they have made investments or managed a company.

You’ll want to consider whether they would act professionally when the family has a disagreement over a course of action and be firm in their decisions. You should also consider if they would be willing to consult with an attorney if they run into trouble.

After you’ve made your selection, do it all over again because you’ll need a back-up or two.

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

Matthew Harris Law, PLLC - Estate Management Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com

Terminating Parental Rights

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 22 Aug 2011 11:00:00 +0000

It’s a Dirty Deed

Any time I discuss the topic of terminating parental rights, many people become visibly uncomfortable.

Some see it as a dirty job because they envision a parent getting out of their parental duties scot-free. However, sometimes it is a necessary stepping stone to strengthen a family bond.

How it Strengthens the Family Bond

With the current marriage failure rate hovering right around 50%, it is no surprise that many step-parents are developing close bonds with their step-children, especially when the non-custodial parent is less than ambitious in their duties. When you cross over into deadbeat parent territory (haven’t seen or communicated with the child in years) then terminating their rights and pursing an adoption may help to strengthen that familial bond.

Not all terminations of parental rights are done with the thought of immediately pursuing an adoption. Sometimes parental rights are terminated just because it is best for the child.

Two Ways to Terminate Parental Rights

Everything we do is “in the best interest of the child,” and sometimes it is in the child’s best interests to have their parent’s rights terminated. These usually stem from some incident or ongoing behavior. Their rights can be terminated Voluntarily or Involuntarily.

Voluntary Termination of Parental Rights

By far the simplest method of terminating the parent-child relationship is when the parent does so voluntarily. I won’t go in depth of why a parent would do this, but I’ve seen instances where they do it because they know the child is better off or when they know that their rights are going to be terminated involuntarily anyway and they want to save everyone the trouble.

Parents seeking this route will sign a document called a Mother’s/Father’s Affidavit for Voluntary Relinquishment of Parental Rights. In Texas, this document is about 6 pages long and contains many provisions that are required by law. It must be acknowledged by two witnesses and signed in front of a Notary Public.

Involuntary Termination of Parental Rights

This method is usually the messiest and the costliest of the two. An involuntary termination requires a hearing before a judge and/or jury where the Petitioner has to prove the Grounds for termination and that it is in the best interest of the child to terminate rights.

The Family Code provides a laundry list of grounds that would support termination, such as: abandoning the child without providing adequate support, knowingly placing the child in danger, abandoning the pregnant mother, and many others. (Fam. Code § 161.001)

If you are considering attempting an involuntary termination, I HIGHLY recommend that you speak with your attorney and weigh all of your options instead of trying it alone.

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

Matthew Harris Law, PLLC - Family Law Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com

Criminal Law for Kids

noreply@blogger.com (Matthew Harris Law, PLLC) — Fri, 19 Aug 2011 03:33:00 +0000

He Did WHAT?!

This is the most common reaction by parents when a police officer shows up on their doorstep with a hand on their child’s shoulder.

All children make mistakes and that’s just how they learn valuable life lessons. Unfortunately, some of those mistakes have long lasting consequences that outweigh any valuable life lesson that they may have learned.

Children Aren’t Guilty

Before we talk about their guilt, we have to clarify who qualifies as a child. Most people assume that you’re a child unless you’ve reached your 18th birthday. However, under Texas Law, a child is generally defined as someone who at least 10 years old and less than 17 years old.

According to Texas Law, children aren’t prosecuted according to our criminal procedures like adults are; instead, their law is found under the Texas Family Code. Adults are found guilty of committing crimes, but children are found to have engaged in delinquent conduct.

For example: In the adult system, if someone steals something, they can be found guilty of theft. In the juvenile system, on the other hand, if the child steals something then they can be found to have engaged in delinquent conduct; that conduct being theft.

How to Protect Children During an Investigation

Even though you likely aren’t an attorney, there are steps you can take to help protect your children’s rights until you can speak with an attorney. Do not be afraid to inform the police if you want to invoke your child’s right to remain silent, that you or your child wants an attorney present during any questioning, and that you or your child do not consent to any searches.

Juvenile Records Do Not Disappear at Age 18

There is a common misperception that juvenile records automatically disappear or are destroyed when the child turns 18. There are processes available to have them destroyed when the child turns 18, 21, and 31, but it depends on the adjudication by the court and type of crime the child was found to be delinquent for.

There is a process where some offenses are automatically certified for restricted access, but this isn’t an option for all cases and depends on the type of crime the child was found to be delinquent for and the child’s subsequent record.

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

Matthew Harris Law, PLLC - Criminal Defense & Family Law Divisions

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com

Here's Why You're Not Guilty

noreply@blogger.com (Matthew Harris Law, PLLC) — Mon, 15 Aug 2011 11:00:00 +0000

Your Arraignment

When you’re accused of a crime, at some point you’ll be brought in front of a Judge to make your plea.

You don’t want to lie to the Judge, so you plan to plea Guilty. What you do not realize is that you’re about to make a mistake that you’ll regret for years because you’re actually Not Guilty.

What Does “Not Guilty” Mean?

Contrary to what some TV personalities preach, pleading Not Guilty does NOT mean, “I didn’t do it.” Heck, it doesn’t even mean, “I’m Innocent.”

Not Guilty simply means:

¨ “I want a chance to see the evidence against me before making a decision.” and/or

¨ “The Government has the burden, and I’m not doing their job for them.” and/or

¨ “I am presumed innocent and I’m not going to volunteer to be guilty.”

How Are You Presumed Innocent?

If you’ve watched Cops, you’ve heard the narrator say that “all suspects are innocent until proven guilty in a court of law.”

Well the problem with that is when you say until, then you presume that they will be proven guilty in a court of law at some point. Well that’s just not how it works.

According to Texas Criminal Law, all persons are presumed innocent unless proven guilty. At this stage of the proceeding, the State has merely pointed a finger at you and accused you of a crime and hasn’t presented ANY evidence against you, much less proved any guilt.

Will Pleading Not Guilty Get You More Punishment?

Absolutely not! This might seem rude, but it is downright dumb to plead Guilty at your arraignment because you throw yourself at the mercy of a Court that you don’t understand.

This might seems surprising, but THE JUDGE DOES NOT WANT YOU TO PLEAD GUILTY AT YOUR ARRAIGNMENT! I hate using all-caps, but it is that important. The Judge will likely even tell you that it is a good idea to consult with an attorney first and highly recommend against pleading Guilty at your arraignment.

It’s like going to the Judge and saying, “I did it, I need to be punished, please punish me!” If I hadn’t seen this happen with my own eyes, I wouldn’t believe it; but trust me, pleading Guilty at your arraignment is the fastest way to get the maximum sentence.

Simple Math/CliffsNotes

In case none of the above is sinking in, or perhaps you want CliffsNotes for your upcoming arraignment, here it is in a nutshell.

Plead Not Guilty + Consult with your Attorney = Protect your Rights

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

Matthew Harris Law, PLLC - Criminal Defense Division

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Tel: (806) 702-4852 | Fax: (806) 576-1318

Attorney@MatthewHarrisLaw.com

How to Prepare for a Consultation

noreply@blogger.com (Matthew Harris Law, PLLC) — Thu, 11 Aug 2011 12:36:00 +0000

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Your Frequently Asked Questions

For your Thursday post, I want to highlight one of the FAQ sections from the New Client Welcome Center on the main law firm webpage.

When should I make an appointment?

We recommend that you plan to make an appointment 2 days in advance. This will give us greater flexibility in creating our schedule and allows us to prepare for our meeting.

If you have a pressing matter and need to meet sooner, we will do our absolute best to accommodate your schedule.

How should I dress for our meeting?

If you need to make an appearance in court, we’ll discuss your wardrobe; but until then just dress comfortably and avoid anything with offensive slogans or images.

What should I bring with me?

Make sure that you bring all of the relevant documents that might help us to evaluate your case. This includes any court documents, letters, pictures, reports, and medical records.

Bring the necessary documents so that you can fill out the Client Intake Form (Fig. 1). Also, please bring any contact information you have for people that are associated with your case (both for and against).

Who else should come with me?

The Attorney-Client Privilege allows you and your attorney to discuss the gritty details of your case without fear of someone forcing your attorney to disclose anything you have revealed.

At Matthew Harris Law, we take the Attorney-Client Privilege very seriously and hold your information in the strictest of confidences. If we allow people that aren’t directly related to your case, such as family members and friends, then you may inadvertently waive that privilege and your attorney could be forced to disclose what you have revealed.

So in an effort to preserve your rights, we ask that you not bring family members or friends to your meetings with us. If you must bring someone else with you, then explain to them why they must sit in the waiting room instead of sitting in the meeting.

Are my children allowed to come to my meeting?

Because much of our practice is devoted to Family Law, we love spending time with kids and truly look forward to helping their legal situations.

We aren’t like other law firms that prohibit children from the office, but we do encourage you to leave children with a caregiver, if they are not directly involved in the case, during your meeting so we can focus on your legal issues.

Matthew Harris Law - New Client Welcome Center

1001 Main Street, Suite 806, Lubbock, Texas, 79401-3322

Attorney@MatthewHarrisLaw.com

(806) 702-4852