Friday, February 16, 2018

Top 10 from Texas Bar Today: Emojis, Non-Competes, and Car Washes

Originally published by Joanna Herzik.

To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.

10. Is the Allocation Well Debate About to Boil Over?Charles Sartain of Gray Reed & McGraw, P.C. @GrayReedLaw in Dallas

9. Protecting Your Business’s WebsiteThe Kumar Law Firm PLLC in Austin

8. Non-Competes At the End of EmploymentRob Radcliff @robradcliff of Weinstein Radcliff LLP in Dallas

7. Success Story of the Month – “If I Don’t Get a Death Certificate, It May Kill Me!”Michael B. Cohen @dallaselderlaw of Michael B. Cohen Attorney and Counselor at Law in Dallas

6. Only You Can Prevent Your Information From Being SharedJeff Zane of Merlin Law Group @MerlinLawGroup

5. Enforcing Non-Compete Agreements in Texas with an Injunction Requires Proper TimingLeiza Dolghih @TexasNonCompete of Lewis Brisbois Bisgaard & Smith LLP in Dallas

4. Nursing Home Chain Facing Several Lawsuits Files for BankruptcyJeff Rasansky of Rasansky Law Firm @rasanskylawfirm in Dallas

3. How much is a car wash worth?David Coale @600camp of Lynn Pinker Cox & Hurst, LLP in Dallas

2. Your Emoji Use Just Formed a ContractErin Begun of King Fisher in Dallas

1. BigLaw Business Development Secrets for Small Firms – Amy Boardman Hunt of Muse Communications, LLC @MuseCommLLC

 

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Success Story of the Month – “If I Don’t Get a Death Certificate, It May Kill Me!”

Originally published by Michael Cohen.

Client’s late husband (he died last month) has an estate that predominately consists of an individual account, a life insurance policy and a retirement account.  Client was named as a beneficiary of the retirement account and the life insurance policy.  She was also the sole beneficiary and executor of her husband’s Will.  Since the individual account had no beneficiary designation, it is necessary for her to probate the Will so that the bank would allow her to transfer funds to herself (banks and other financial institutions generally require letters testamentary, which are usually received when the court admits the Will to probate – in other words, the court says the Will is valid).  Client has very little funds and needs money quickly to be able to live.  She doesn’t think she can wait for a court order.  Usually it doesn’t take long to get the proceeds of a life insurance policy or a retirement account since generally all that is needed is a death certificate and perhaps the completion of a form.  However, in this case, client’s late husband died under unusual circumstances – he choked and immediately died after getting his head stuck in the rails on his bed that prevented him from falling out of the bed (the deceased was disabled).  Normally, it only takes a couple of weeks to get a death certificate.  However, when death has resulted from unusual circumstances as in this case, the medical examiner has to do a thorough investigation (i.e. autopsy, etc.) to determine the cause of death and such examination could take several months.  Client can’t wait as she needs money to live on as soon as possible.  So how do you solve the problem? After finding out from the Bureau of Vital Statistics that a death certificate was being held up by the Medical Examiner’s office, we contacted the Medical Examiner’s office who told us funeral homes can issue a “Pending Death Certificate”.  Client requested the “Pending Death Certificate” and has already received some proceeds from the retirement account (although the life insurance company would likely delay payment of the policy pending the investigation) so she can continue to live without stress – which makes this our success story of the month.

Simple planning could have been done to prevent this situation, including some planning even without legal documents.  It can be as easy as putting more funds in the joint account, changing husband’s individual account to a joint account or simply giving signing rights only on the individual account (powers of attorney terminate upon death).  However, many possibilities should be discussed (what if the deceased didn’t trust his wife or if she had creditor problems or she was disabled or if he was concerned she might remarry).  Bottom line, planning can be simple for you to prevent future problems.  You don’t have to feel like waiting for a death certificate might kill you!

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Why Texas is a Leader in Wind Power

Originally published by Environmental and Energy Law Blog.

 

Although Texas has long been a leader in global oil production, the state is also one of the top producers of wind energy in the world. In fact, just five countries produce more wind energy than Texas does. Obviously, the state also leads the nation in electricity-generation capacity from wind, far outpacing the second-ranked state, Oklahoma. These were among the findings in the American Wind Energy Association’s fourth-quarter report that was recently released (here).

Wind Capacity in the Lone Star State

The association’s report also noted that Texas continues to add wind capacity at a faster rate than any other state in the U.S. On a nationwide basis, 7,017 megawatts of wind capacity came online in 2017, about 9 percent more than in 2016. Moreover, wind energy costs fell by four percent last year to $11 billion. This comes on the heels of a two-thirds cost decline between 2009 and 2016. Would you believe that wind energy is the cheapest option in some areas, current tax credits notwithstanding?

“Today, wind is a mainstream integral part of our energy supply and economy,” said Amy Farrell, the industry group’s senior vice president of government and public affairs.

What’s more interesting is that electricity capacity from wind surpassed coal capacity in the month of December. For the year, wind generated 17.4 percent of Texas’ electricity. Nonetheless, wind farms depend on weather patterns, and coal fired power plants currently produce 54 percent more energy. As developers add wind facilities and aging plants are shut down in the coming year, wind could overtake coal in electricity generation.

Ultimately, Texas installed 1,179 megawatts of wind capacity in 2017, about 17 percent of the nation’s total. Meanwhile, there are more wind projects under construction across the nation, 20 percent of which are in Texas.

The Takeaway

While much of the attention in the media focuses on oil and natural gas production, wind generation continues to gain steam in Texas as well as across the nation. Nonetheless, the development of wind farms as part of the energy mix poses a number of environmental and land use issues. In the end, resolving such issues requires the advice and guidance of experienced energy and environmental attorneys.

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Construction Contracts and Tax: A Splitting Headache?

Originally published by Energy Legal Blog ®.

It has become common practice in many jurisdictions for parties to split construction contracts with an international element. The split structure is intended to provide a reduced tax exposure for the contractor and a resulting pricing benefit for the employer.

Energy, Tax
Tom Swarbrick, Tracy London
view

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Struggling with Reading Comprehension? It Just Might Be Related to "On Line Reading!"

Originally published by lawschool academicsupport.

Are your students struggling with reading comprehension difficulties? Well, it might be just related to something quite surprising…the ever-increasing emphasis in on-line reading over paper-based reading. You see, according to educational researchers in Norway, even controlling for learning differences in…

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Harris County Bail Procedures Held Unconstitutional

Originally published by John Floyd.

In a ruling issued on February 14, 2018, the Fifth Circuit Court of Appeals found there is reasonable evidence that the Harris County bail procedures are constitutionally deficient and that plaintiffs will likely succeed, but vacated the district court’s injunction as overbroad and sent the case back to be modified. The appeals court also ruled that the Harris County Sheriff could not be sued under 42 U.S.C. § 1983.

 

This case began on May 19, 2016, when a 22-year-old Harris County detainee, Miranda Lynn O’Donnell, and other plaintiff, filed a § 1983 class action lawsuit against Harris County Judges, the Sheriff, and bail Hearing Officers alleging that the county’s bail system for indigent misdemeanor arrestees violated Texas’s statutory and constitutional law as well as the equal protection and due process clauses of the Fourteenth Amendment of the U.S. Constitution.

 

Federal Injunction Issued Against Harris County, Bail System

 

The plaintiffs in the lawsuit promptly moved for a preliminary injunction and the County moved for summary judgment. U.S. District Court Judge Lee H. Rosenthal conducted eight days of evidentiary hearings between August and November of 2016. The judge issued her final ruling on December 16, 2016 which made significant factual and legal conclusions, most of which the Fifth Circuit upheld. The most prominent conclusions made by Judge Rosenthal in her 120-page ruling were spelled out in the February 14th ruling by the Fifth Circuit:

 

  • Bail in Texas is either secured or unsecured.
  • Secured bail requires an arrestee to post bail with his or her own money or through a third party such as a bail bondsman who generally charge a minimum 10% non-refundable fee for putting up the bail.
  • Unsecured bail allows an arrestee to be released without posting bond.
  • Nonfinancial conditions may be attached to both secured and unsecured bail.
  • The basic framework of bail in Texas is governed the Code of Criminal Procedure and local rules set up by County Judges.
  • Following an arrest, the prosecutor submits a secured bail amount established by a bond schedule set by County Judges.
  • Formal bonds are set by either Hearing Officers or County Judges; however, most often it is the Hearing Officer who initially sets the amount of bail.
  • Initial bail is generally set at an arrestee’s probable cause hearing which, by law, must be held within 24 hours.
  • County Judges review the Hearing Officer’s initial bail amount and may adjust the amount at a “Next Business Day” hearing.
  • By law, both Hearing Officers and County are proscribed from automatically applying a bail schedule to a given arrestee. Instead, the law requires an “individualized review” based on five enumerated factors, including an arrestee’s ability to pay, the offense, and community safety.
  • Local bail schedule rules are not mandatory.
  • Hearing Officers and County Judges sometimes receive input from Pretrial Services after its interview with the arrestee which may calculate an arrestee’s flight and safety risks based on a point system, and may make specific recommendations about bail.

 

Gross Inefficiencies, Violations of Due Process and Equal Protection

 

These factual and legal requirements notwithstanding, the Fifth Circuit pointed out:

 

“…the district court found that, in practice, County procedures were dictated by an unwritten custom and practice that was marred by gross inefficiencies, did not achieve any individualized assessment in setting bail, and was incompetent to do so. The district court noted that the statutorily mandated probable cause hearing (where bail is usually set) frequently does not

occur within 24 hours of arrest. The hearings last seconds, and rarely more than a few minutes. Arrestees are instructed not to speak, and are not offered any opportunity to submit evidence of relative ability to post bond at the scheduled amount.

 

“The [district] court found that the results of this flawed procedural framework demonstrate the lack of individualized assessments when officials set bail. County officials ‘impose the scheduled bail amounts on a secured basis about 90 percent of the time. When [they] do change the bail amount, it is often to conform the amount to what is in the bail schedule.’ The court further found that, when Pretrial Services recommends release on personal bonds, Hearing Officers reject the suggestion 66% of the time. Because less than 10% of misdemeanor arrestees are assigned an unsecured personal bond, some amount of upfront payment is required for release in the vast majority of cases.

 

“The court also found that the ‘Next Business Day’ hearing before a County Judge fails to provide a meaningful review of the Hearing Officer’s bail determinations. Arrestees routinely must wait days for their hearings. County Judges adjust bail amounts or grant unsecured bonds in less than 1% of cases, Furthermore, prosecutors routinely offer time-served plea bargains at the hearing, and arrestees are under immense pressure to accept the plea deals or else remain incarcerated for days or weeks until they are appointed a lawyer.

 

“The district court further noted the various ways in which the imposition of secured bail specifically targets poor arrestees. For example, under the County’s risk assessment point system used by Pretrial Services, poverty indicators (such as not owning a car) receive the same point value as prior criminal violations or prior failures to appear in court. Thus, an arrestee’s impoverishment increased the likelihood he or she would need to pay to be released.”

 

Cash Bail System is Shakedown Racket, Penalizes Indigent

 

We have railed against the Texas bail system in numerous posts (here, here, here, here, and here). Most county bail systems are borderline criminal shakedown rackets set up and fueled by the bail bond industry, and allowed to practice its dirty business by judges whose campaigns are funded by these bail bondsmen.

 

In most cases, the cash bail system fails to serve any purpose.  One of the primary purposes of secured cash bail is to assure the defendant’s appearance at trial.  After reviewing reams of empirical data, the district court pointed to just the opposite: the “release on secured financial conditions does not assure better rates of appearance or of law-abiding conduct before trial compared to release on unsecured bonds or nonfinancial conditions of supervision.”

 

The Fifth Circuit remanded the case back to Judge Rosenthal with this basic instruction:

 

“The fundamental source of constitutional deficiency in the due process and equal protection analyses is the same: the County’s mechanical application of the secured bail schedule without regard for individual arrestee’s personal circumstances. Thus, the equitable remedy to cure the constitutional infirmities arising under both clauses is the same: the County must implement the constitutionally-necessary procedures to engage in a case-by-case evaluation of a given arrestee’s circumstances, taking into account the various factors required by Texas state law (only one of which is ability to pay). These procedures are: notice, an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decisionmaker.”

 

Change Must Come to Harris County Bail System

 

These new procedural due process safeguards will not set well with either the Hearing Officers or County Judges who must now perform their constitutionally required duties. Prosecutors will not be happy because they will not have an in-jail system to pressure guilty pleas out of indigent defendants. And bail bondsmen will not be happy because the new procedures should result in more unsecured bonds and significantly lower bail amounts in secured bonds.

 

Criminal defense attorneys, on the other hand, will hold up the Constitution and the Fifth Circuit ruling as a reminder to those resistant to due process change.

 

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Thursday, February 15, 2018

IRAs and 401(k)s Are Safe from Judgments – For Now

Originally published by Gerry W. Beyer.

A judgment debtor who confessed judgments in favor of a …

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