Thursday, August 31, 2017

New “Driving While Texting” Law Goes Into Effect Friday in Texas

Originally published by Bob Kraft.

Just a quick reminder that the new texting law goes into effect September 1 in Texas. Here are some key points:

It will be illegal for a driver to send or read text messages while the vehicle is moving. If you are stopped at a light, anything goes.

You can use your cell phones for navigation or music. You might get pulled over though if an officer thinks you are texting.

You can use a cell phone to report an emergency and you can even read a text while driving if you have reason to believe it is regarding an emergency situation.

First offenders can be fined up to $99 and repeat offenders can be fined up to $200.

This law is a step in the right direction, but as a practical matter it is going to be very difficult to enforce. Please use some self-control and don’t focus on your phone while driving.

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College Students Need A Power Of Attorney

Originally published by Gerry W. Beyer.

Across the nation, college students are returning to their dorms and apartments to commence another semester of studious endeavors. For parents, this transition back to school may be filled with last-minute errands to check off to-do list items. Usually absent…

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IRS Announces Plan Loans, Hardship Distributions Relief For Victims Of Hurricane Harvey

Originally published by Michael Williams and Randye Snyder.

On August 30, 2017, in Announcement 2017-11, the IRS provided retirement plan loan and distribution relief from retirement plans described in Code Sections 401(a) (including 401(k) plans), 403(a), 403(b), and governmental eligible deferred compensation plans described in 457(b) (collectively “Retirement Plans”) to affected participants.

An affected participant includes an employee or former employee whose principal residence or place of employment on August 23, 2017, was located in one of the Texas counties identified for individual assistance by the Federal Emergency Management Agency (“FEMA”) because of the devastation caused by Hurricane Harvey or whose lineal ascendant or descendant, dependent, or spouse had a principal residence or place of employment in one of these counties on that date. The counties identified for individual assistance by FEMA can be found on FEMA’s website at  (As additional areas in Texas or other states (including parishes in Louisiana) are identified by FEMA for individual assistance because of Hurricane Harvey damage, the same relief will also apply, from the date specified by FEMA as the beginning of the incident period, and that date should be substituted for references to August 23, 2017.)

This Retirement Plan relief is in addition to the relief already provided by the IRS in News Release IR-2017-135, which generally gives affected taxpayers until January 31, 2018, to file most tax returns (including individual, corporate, and estate and trust income tax returns; partnership returns, S corporation returns, and trust returns; estate, gift, and generation-skipping transfer tax returns; employment and certain excise tax returns; and the filing of Form 5500 series returns), that have either an original or extended due date occurring on or after August 23, 2017, and before January 31, 2018.

Specifically for Retirement Plan loans and distributions on account of Hurricane Harvey, Announcement 2017-11 provides for their availability even if the Retirement Plan does not specifically provide for them currently, as well as providing relief from certain procedural or verification procedures otherwise generally required under Retirement Plans with respect to loans and hardship distributions.

The Announcement provides that plan administrators may rely upon representations from the employee or former employee as to the need for and amount of a hardship distribution, unless the plan administrator has actual knowledge to the contrary.  The distribution made upon such representation is treated as a hardship distribution for all purposes under the Code and regulations.

Announcement 2017-11 further provides that Retirement Plans can disregard the reasons that normally apply to hardship distributions and may make a distribution to a participant on account of any hardship of the participant relating to Hurricane Harvey (meaning the affected participants can use the hardship distributions for food, shelter, etc.). Additionally, the six-month prohibition on elective deferrals to a Retirement Plan by a participant taking a hardship distribution will be waived.

Retirement Plans that do not currently allow participants to take loans and/or hardship distributions will be allowed to provide loans and/or hardship distributions prior to the formal adoption of any amendments allowing them.  However, Retirement Plans must be amended to provide for the loans and/or hardship distributions no later than the end of the first plan year beginning after December 31, 2017.

However, it is important to be aware of a few key items:

  • unless the amounts distributed have already been taxed, the distributed amount will be included in gross income and will be subject to the 10% additional tax, if otherwise applicable
  • the amounts available for loans and distribution must not exceed the maximum amount that would be permitted under the Retirement Plan or under the Code and the applicable regulations
  • other Code and ERISA loan requirements, such as the length of the term of the loan,  repayment rules, interest and security requirements and default rules continue to apply
  • the normal spousal consent rules, if applicable, will still apply
  • as soon as practicable, the plan administrator of the Retirement Plan must make a reasonable attempt to assemble any forgone documentation

Finally, loan or hardship distributions from a Retirement Plan account to the plan participant must occur on or before January 31, 2018 to qualify for the relief authorized in this Announcement.

If you have any questions or want more information about Announcement 2017-11, please contact Randye Snyder or Michael Williams.

Disclaimer: This Blog/Web Site is made available by the law firm of Liskow & Lewis, APLC (“Liskow & Lewis”) and the individual Liskow & Lewis lawyers posting to this site for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice as to an identified problem or issue.  By using this blog site you understand and acknowledge that there is no attorney client relationship formed between you and Liskow & Lewis and/or the individual Liskow & Lewis lawyers posting to this site by virtue of your using this site.  The Blog/Web Site should not be used as a substitute for legal advice from a licensed professional attorney in your state regarding a particular matter.

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State Bar of Texas joins with ABA, FEMA to assist Harvey survivors

Originally published by Amy Starnes.

The State Bar of Texas, the American Bar Association (ABA), the Federal Emergency Management Agency (FEMA), and other organizations have partnered to help provide legal and recovery assistance to people affected by Hurricane Harvey.

A toll-free legal hotline (800-504-7030) is available to connect low-income individuals affected by the disaster with local legal aid providers who can help with:

  • Assistance securing government benefits as they are made available to disaster victims;
  • Assistance with life, medical, and property insurance claims;
  • Help with home repair contracts and contractors;
  • Replacement of wills and other important legal documents lost or destroyed in the disaster;
  • Consumer protection issues such as price-gouging and avoiding contractor scams in the rebuilding process;
  • Counseling on mortgage-foreclosure problems; and
  • Counseling on landlord-tenant problems

You can read the full press release here.

More information can be found at

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Federal Government Hits Pause on Upcoming Pay Reporting Requirement

Originally published by Georgia Jolink.

In a move that will surprise few, the federal Office of Management and Budget (“OMB”) has “stayed” the upcoming EEO-1 compensation data reporting requirement, pending further review. As we previously wrote about here, in 2016, the Equal Employment Opportunity Commission (“EEOC”) implemented a rule requiring employers with 100 or more employees (and federal contractors with 50 or more employees) to include compensation data in their annual EEO-1 reports. Covered employers were already required to file an EEO-1 report tracking race/ethnicity and sex; the stay does not impact this requirement.

The pay data collection requirement has stirred controversy since it was first proposed by the Obama-era EEOC. Employers argued that collecting and reporting on comprehensive pay data would create an undue burden. In response, the government moved the proposed EEO-1 filing deadline from September 30, 2017, to March 31, 2018, to provide employers with additional time to comply with the new requirement.

Then, on August 29, 2017, the Office of Information and Regulatory Affairs (“OIRA”), a branch of the OMB, pressed pause on the compensation data requirement. In a memorandum to EEOC Acting Chair Victoria Lipnic, the OIRA wrote that some aspects of the new requirement “lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.” The memorandum directs the EEOC to submit a new information collection package for the EEO-1 form for the OMB to review.

So what should employers do until the stay is lifted? First, covered employers still must file a “traditional” EEO-1 form on March 31, 2018, with information on their employees’ race/ethnicity and sex. However, they are not required to file information on compensation data at this time. Employers can even use the updated EEO-1 form and simply leave the salary information blank. Second, companies should not discard their pay data information just yet, in case the government lifts the stay.

We will continue to track this development, so keep checking the blog for the latest updates!

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Ft. Worth Court Rejects Arbitration Agreement

Originally published by Thomas J. Crane.

Many employers have started posting their employee polices online, and not in hard copy format. If so, they will run into the issue presented in Doe v. Columbia North Hills Hospital, 2017 WL 1089694 (Tex.App. Ft. Worth 3/23/2017). Jane Doe was sexually assaulted by a male co-worker. When she sued her former employer, it invoked an arbitration agreement to which she ostensibly agreed. But, Columbia Hospital did not issue a paper copy of the employee manual. It did not ask for physical, paper copy signatures of employees acknowledging receipt of the policies. Instead, it posted the policies online and told employees they must review the policies. The review was part of the Hospital’s orientation. It required the employee to acknowledge she had received “orientation” on problem solving and grievance procedures. But, nothing in the paper specifically mentioned arbitration.

The employer invoked arbitration. The employer won at arbitration. The employee then challenged the alleged arbitration agreement. The Ft. Worth Court of Appeals rightly noted that basic contract principles require that a party to an agreement understand the agreement. A person drafting the agreement, for example, cannot include a provision in the agreement that has type face so small that the other party cannot read it. The court found that the online positing of an arbitration agreement did not provide notice to the employee. The word “arbitration” was never used in any warning to employees asking them to review the online policies. The statement about “problem solving” and “grievance procedures” said nothing about arbitration. The court added that even if the Hospital had specifically pointed to an arbitration policy and said be sure to review it, that might not impose a duty on the part of the employee to read the arbitration policy – unless the employer specified the term of the arbitration agreement. Other courts reviewing online postings have reached a similar result.

The court noted a recent Supreme Court of Alabama decision that found an employee who could have accessed an online agreement was different than a person who actually did access an online agreement. Ms. Doe did not dispute she was warned to review the online policy about grievances. Instead, she claimed the Hospital never mentioned the arbitration policy and she never read the policy. See the decision here.

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Client Development Coaching: I Answer the 7 Questions

Originally published by Cordell Parvin.

A friend read my blog Tuesday: 7 Questions to Answer to Develop a Successful Client Development Coaching Program and asked me to answer the questions I posed.

She said she wanted my “Client Development Coaching for Dummies” answers. She finally convinced me to answer the seven questions.

  1. Setting a group goal creates a team. One lawyer I coached said his group felt like a firm within the firm. The hope is that no one will want to let the team down.
  2. Agreeing on 25 action items makes the goal more focused. Goals without actions are like New Years Resolutions that never get done. It also provides a talking point for each group meeting. “How are you doing on those 25 action items?”
  3. Creating a plan forces the lawyer to start thinking strategically and how best to use his/her time. I want the lawyers to have something to aim at and know when they are off-course.
  4. We break down the yearly plan into 60 or 90 days actions because it is more likely the participants will do the activities if they are in smaller chunks. It also provides for accountability when I have the telephone coaching sessions with them between the in person sessions. My beginning agenda item is a report on how they are doing on their 60 or 90 days action plans.
  5. When they share their plans with me, I have “nagging” rights. Again, my goal is to find ways for each participant to be accountable.
  6. Reporting monthly is one more way to be accountable. When the reporting is on a portal page or in an email that is shared with the group and with a firm leader, no one wants to have nothing to report. It also enables me to keep up with what each lawyer is doing, which makes the coaching sessions more focused.
  7. I have to build a personal relationship to better understand the lawyer’s unique talents, opportunities, and challenges. I also must earn their trust to be able to help them find the path that will work best for them.

I hope this is helpful.

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Houston Bar to offer legal assistance to those impacted by Harvey

Originally published by Lowell Brown.

Editor’s note: The Houston Bar Association issued the following news release on Wednesday. 

The Houston Bar Association (HBA) is responding to the questions and legal needs of those affected by Hurricane Harvey in a number of ways. For updated information on legal aid and other services, visit, or call 713-228-0732 or 713-759-1133.

“It is imperative that we join together to help those in need in our community,” said Alistair B. Dawson, president of the Houston Bar Association. “The HBA and the Houston Volunteer Lawyers will join the legal community in assisting with disaster relief efforts for the public, as well as our members. Houstonians displaced by this horrific storm need our help and they need it now. We need volunteers to step up and help those in need.”

Starting on Friday, September 1, the HBA’s Houston Volunteer Lawyers (HVL) will work with Lone Star Legal Aid to staff booths at some of the shelters housing those who have been displaced as a result of the storm. There will be booths at the George R. Brown Convention Center initially, and then at the Toyota Center and NRG Stadium. Booths will be expanded to additional shelters next week. Lawyers at these locations will address legal questions for those who are housed at the shelter temporarily.

From Tuesday, September 5 to Friday, September 29, the HBA’s LegalLine will have volunteer attorneys answering calls from 3 p.m. until 5 p.m., Monday through Friday. Extended LegalLine hours will be available from 5 p.m. to 9 p.m. on Wednesday, September 6 and Wednesday, September 20. The public can call 713-759-1133 and speak to volunteer attorneys who will answer their questions, provide brief legal advice, and refer them to appropriate resources for help. The attorneys will be able to answer questions on insurance, landlord/issues, contracts, lost documents, FEMA matters, and other disaster-related topics.

​HVL is working with other local and state legal services providers to coordinate legal aid for low-income individuals affected by the storm. HVL will set up legal advice clinics to meet the needs of the community in various locations across the city and also will visit area shelters to provide information about how to access legal services and to answer questions.

For more information on resources for people affected by this storm, contact the Houston Bar Association office at 713-759-1133 or visit

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Texas Supreme Court adds, amends Harvey-related orders

Originally published by Lowell Brown.

Editor’s Note: The Texas Supreme Court issued the following advisory Wednesday regarding its emergency orders related to Hurricane Harvey.

The Texas Supreme Court has amended orders relating to problems created by Hurricane Harvey and its aftermath, amending one to allow out-of-state lawyers to practice temporarily in Texas and adding others (1) to permit the Aransas County court at law to sit in San Patricio County and (2) extending the August 31 deadline to pay State Bar membership fees for attorneys whose principal offices are in areas subject to disaster declarations.

The following orders have been issued and posted to the Court’s webpage:

Joint Order with Court of Criminal Appeals to Modify and Suspend Court Proceedings

  • All courts in Texas should consider disaster-caused delays as good cause for modifying or suspending all deadlines and procedures—whether prescribed by statute, rule, or order—in any case, civil or criminal.

Emergency Order Resetting Limitations in Civil Cases

  • Because statutes of limitations are not subject to a good-cause exception, the Supreme Court orders, pursuant to Government Code Section 22.0035(b), that any applicable limitations statute is suspended for any civil claim if the claimant shows that the disastrous conditions resulting from Hurricane Harvey prevented the timely filing of the claim despite the party’s and counsel’s diligent efforts. Any such suspension extends only to the date on which it becomes reasonably possible to file the claim despite the disastrous conditions, taking into account the circumstances.
  • Expires September 28, 2017, unless the Court extends it.

Order Permitting Out-of-State Lawyers to Practice Temporarily in Texas

  • Affects attorneys in good standing where they are licensed to practice law outside Texas and either (1) are displaced because of Hurricane Harvey and are practicing in Texas remotely as if the practicing in their home jurisdictions or (2) are retained by a legal-aid or pro bono program or a bar association providing services to Hurricane Harvey victims. Attorneys must register for temporary practice (form attached to order) with the State Bar of Texas and agree to abide by the Texas Disciplinary Rules of Professional Conduct and to submit to Texas disciplinary jurisdiction.

Amended Order Permitting Out-of-State Lawyers to Practice Temporarily in Texas

  • References to practicing law in Texas have been changed to practicing Texas law and language requiring an attorney to register with the State Bar of Texas changed to as soon as possible after beginning to provide services under this order.
  • Language referring to an attorney retained by a legal-aid or similar organization has been changed to providing services under this order to assure the order applies to attorneys who provide pro bono services for no compensation.

Joint Order with Court of Criminal Appeals Authorizing the Aransas County County Court at Law to Conduct Proceedings Temporarily in San Patricio County

Order Extending Deadline for Payment of State Bar Membership Fees by Certain Attorneys Affected by Hurricane Harvey

  • For Texas attorneys whose principal offices are counties declared disaster areas, the deadline for paying State Bar membership fees is extended to October 31, 2017. Failure to meet that deadline will result in automatic suspension November 1, 2017.

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What the “Support” in Academic Support Program Could Stand For

Originally published by lawschool academicsupport.

The first day and as a matter of fact, the first week of classes is typically a joyous occasion. Students stop by my office to say hello and some might even give me a hug. They are excited to tell…

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How Will Texas’ New David’s Law Affect Cyberbullying?

Originally published by Law Office of Brett A Podolsky.

Cyberbullying is on the rise in Texas and throughout the United States. Although cyberbullying is a relatively recent phenomenon, it’s a big threat to young people. The Centers for Disease Control and Prevention says that suicide rates among teens and young adults continue to climb each year.

David’s Law (S.B. 179), named for a 16-year-old student who was harassed by his classmates, came about after David Molak’s suicide. His parents worked with Texas Senator José Menéndez to hold cyberbullies responsible when online intimidation and harassment lead to suicide or severe injury of a minor. David’s Legacy Foundation, a nonprofit organization, was established by David Molak’s family with the goals of ending cyberbullying and cyberabuse through education.

What is David’s Law?

Senate Bill 179 was passed by the Texas State Senate and House of Representatives earlier this year. Governor Greg Abbott signed S.B. 179 into law in June 2017. The law takes effect on September 1, 2017. It adds protections relating to cyberbullying and cyberabuse of students.

Previously, Texas lawmakers passed legislation concerning online harassment through impersonation [Tex. Penal Code § 33.07]. Online harassment, called cyberstalking in some states, is a criminal offense that’s committed on computers and computing devices. It is a felony offense to use another individual’s name or persona to create online content or to post on a network or social media sites when such action is employed to defraud, intimidate, or threaten another person.

Although some have argued that the statute undermines Constitutional rights to free speech, others recognize that words can harm. David’s Law specifically protects vulnerable young people from cyberbullies, harassment, and intimidation.

How will David’s Law help administrators improve school policies?

David’s Law requires Texas schools to intervene when bullying or cyberbullying incidents are suspected. It requires school districts to improve their policies. If a teacher or administrator suspects that cyberbullying is occurring, they must act. The parent of a cyberbully may be held responsible for their child’s actions in some cases. A victim’s family may have the right to bring a lawsuit against the bully’s parents.

Have you or a loved one been charged with cyberbullying?
Contact a defense attorney at the Law Office of Brett A. Podolsky today 

How does it relate to cyberbullying of students?

David Molak was a Texas student who was harassed and threatened online. He was bullied on social media, not at school or in the locker room.

David’s Law empowers law enforcement and school administrators to pursue and address bullies preying on students. While the law focuses on rehabilitation, it offers solutions through the following measures:

  • The law requires Texas school districts to create cyberbullying policies and to include them in district policies. Schools must notify the child’s parents if he or she has been bullied or if he or she is allegedly bullying another individual.
  • David’s Law requires Texas school districts to develop systems that allow students and others to anonymously report threats and incidents of bullying.
  • It provides school districts with the ability to investigate off-campus bullying if it “materially” affects the environment at school and allows law enforcement and schools to collaborate on ensuing investigations.
  • David’s Law gives Texas school districts more latitude to put students in disciplinary or alternative education programs or expel students who commit serious bullying behaviors, e.g. coercing a child to attempt or commit suicide.
  • Law enforcement has the increased ability to identify anonymous social media posters through subpoenas.

David’s Law makes it a misdemeanor to bully or harass anyone less than 18 years of age through social media, apps, texts, or other methods. Modeled after a similar law in Maryland, David’s Law focuses on the provision of rehabilitative and counseling services to both victims and aggressors.

How will law enforcement investigate potential cyberbullying incidents?

Under David’s Law, an act of cyberbullying is a misdemeanor crime. Investigators work undercover to unmask the identities of those who threaten others through the “anonymity” of the Internet. After the individual’s identity is discovered, he or she may receive a subpoena issued by a Texas court.

Schools will now be required to report student or parent complaints of bullying to law enforcement. When law enforcement receives notice of a bullying incident, it may proceed to interview teachers, staff, parents, and students to collect additional information. If law enforcement believes the law has been broken, it will authorize an investigation team to scrutinize social media posts, emails, texts, and so on. Criminal charges will be filed if a student has broken the law.

How will punishments affect the high rates of cyberbullying we see today?

Public health statisticians tell us that cyberbullying crimes continue to rise. In 2011, Texas legislators added cyberbullying to the Texas Education Code. Until David’s Law was passed, legal punishments for cyberbullies weren’t fully defined.

Now, bullying is an act in which 1)a student harms another student, 2) results in one student damaging the property of another, or 3) a student is placed in a state of “reasonable” concern of harm.

A verbal, physical, written, or electronic communication may be considered bullying under the law. If a student causes his or her peer to feel fear, or threatens the student’s ability to focus on learning at school, or actually creates a disruption of the school’s usual functions, this is considered bullying under the law.

David’s Law is designed to both prevent and educate would-be cyberbullies. School districts in Texas will implement mental health programs that target cyberbullying behaviors and suicide prevention.

On September 1, 2017, cyberbullying offenders face Class B misdemeanor charges in Texas. If convicted, the defendant faces a six-month jail sentence plus a maximum $2,000 fine. In some instances, the charge may be elevated to a Class A misdemeanor.

If the offender has a prior record of bullying, or if the offender has bullied someone less than 18 years old for the express purpose of encouraging the victim to commit suicide or injure himself, he or she will face 12 months in jail plus a maximum $4,000 fine. In addition, he or she faces enrollment in an alternative education program or expulsion from his or her current school.

If you or someone you love is charged with cyberbullying, it’s crucial to reach out to an experienced cyberbullying attorney as soon as possible. An experienced criminal defense attorney can positively affect the outcome of your case and will vigorously protect your legal rights.

Contact an Experienced Criminal Defense Attorney in Houston TX

Don’t risk the penalties associated with cyberbullying, harassment, bullying, online impersonation, or disruptive activities charges. Do everything possible to protect your personal reputation and good name. If convicted, your permanent criminal record may affect your future education and employment opportunities.

Contact Brett Podolsky, a board-certified-criminal defense attorney and former Assistant Criminal District Attorney for the state of Texas, now to schedule a confidential initial case review. The Law Office of Brett A. Podolsky stands by to take your call.

law office of brett a podolsky

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Is Your LinkedIn Profile Compliant with State Bar of Texas Rules?

Originally published by Amy Boardman Hunt.

Our recent blog post, LinkedIn is Boring But Lawyers Should Be There Anyway, offered up some best practices for lawyers looking to maximize their LinkedIn presence in the least amount of time. In this post, we’ll discuss how to do all that while staying out of trouble with the State Bar of Texas. Lawyers are […]

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State Bar compiling Harvey-related free legal clinics

Originally published by Amy Starnes.

The State Bar of Texas is compiling a list of free legal clinics for the public in the aftermath of Hurricane Harvey. The clinic list is updated regularly on the Bar’s Disaster Relief Resources web page

The clinics can help with insurance questions, landlord tenant matters, consumer and real estate problems, and offer guidance on replacing lost documents, among other issues.

If you are a legal aid provider or local bar and have Harvey-related clinics to report, please email the details to Amy Starnes at

Disaster Hotline

The State Bar of Texas legal hotline — (800) 504-7030 — is always available to help people find answers to basic legal questions and connect them with local legal aid providers following declared disasters.

Upcoming Clinics

Sept. 1
Houston — The Houston Veteran’s Legal Advice Clinic will take anyone seeking help with legal matters as a result of Hurricane Harvey at 1 p.m., Sept. 1, at the Debakey VA Medical Center, 2002 Holcombe Blvd, Houston. 

Sept. 5
Call-in Hotline — The Lawyer Referral of Central Texas will host a call-in legal hotline from 5:30 to 7:30 p.m., Sept. 5 for disaster-related legal Issues, including insurance questions, landlord tenant matters, consumer and real estate problems. Call 512-472-8303. 

Bastrop — Texas Rio Grande Legal Aid will host a legal clinic at 5:30 p.m., Sept. 5 at the Bastrop Public Library, 1100 Church Street, Bastrop. 

Sept. 12
San Marcos — Texas Rio Grande Legal Aid will host a legal clinic at 6 p.m. Sept. 12 at Centro Cultural Hispano, 211 Lee Street, San Marcos.

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An Insurer’s Obligation to Match: Comparable Materials and Quality

Originally published by Jonathan Bukowski.

Policyholders purchase property insurance and pay lofty premiums with the intention of their insured property being restored to where it was prior to a loss. But what happens when the loss affects only a portion of the siding or has destroyed only a handful of discontinued roofing tiles? Is the policyholder forced to accept mismatching…… Continue Reading


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Court order lets out-of-state lawyers serve Harvey victims

Originally published by Lowell Brown.

The Texas Supreme Court issued an order Tuesday allowing out-of-state lawyers to practice in Texas temporarily if they are displaced by Hurricane Harvey or volunteering to serve hurricane victims.

The order allows an attorney licensed and in good standing in another U.S. jurisdiction to practice in Texas for six months from the date of the order if:

(a) the attorney is displaced from his or her home jurisdiction as a result of Hurricane Harvey and practices in Texas remotely as if located in his or her home jurisdiction, or (b) the attorney provides services to victims of Hurricane Harvey through a legal aid program, pro bono program, or bar association.

Under the order, the attorney must register for temporary practice in Texas as soon as possible after arriving and agree to abide by Texas disciplinary rules. Read the full order here.

Lawyers wishing to volunteer to serve Hurricane Harvey victims can do so by filling out the form at

The Supreme Court issued another order Tuesday regarding the statutes of limitations in civil cases related to delays caused by Hurricane Harvey. The order expires September 28 unless extended by the court. Read it here.

The court previously issued an emergency order authorizing modification and suspension of court procedures in proceedings affected by the hurricane.

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Vick calls Texas lawyers to action in wake of Harvey

Originally published by Guest Blogger.

Editor’s Note: State Bar of Texas President Tom Vick sent the following message to members today. 

As I write these words, many Texans are suffering the ravages of Hurricane Harvey and many are still in harm’s way. This is a trying time for our state and our country. This is a time when mere words fail and action is demanded. So this is a call to action.

First, the State Bar is connecting Texas lawyers who have been adversely affected by the storm with other lawyers who are able to assist them with needs including temporary housing, office space, and cleanup services. If you have been adversely affected or wish to assist a colleague, please take a moment to complete our Hurricane Harvey assistance survey. 

Second, if you would like to donate money to the hurricane relief effort in Texas, you can give through the Texas Bar Foundation by clicking here. All donations collected through this effort will go to benefit the victims of Hurricane Harvey.

Third, we are matching attorney volunteers to disaster-related service opportunities. If you are an attorney who wants to help by giving brief advice, limited-scope service, or full representation to Harvey survivors, please complete the form at Texas law students and paralegals are also encouraged to volunteer.

Other items of interest:

Disaster relief resources
When disasters strike Texas, the State Bar serves as a clearinghouse for disaster response resources for the public and attorneys. The State Bar of Texas legal hotline—(800) 504-7030—helps people find answers to basic legal questions and connects them with local legal aid providers following declared disasters. Please help us by sharing the hotline number and the public resources available at Disaster resources designed specifically for attorneys can be found here.

HB 1774 regarding insurance claims
We have received questions about a bill passed during the latest Texas legislative session that changes the law as it applies to lawsuits relating to certain property insurance claims, including property damage and loss caused by natural disasters. The new law, House Bill 1774, applies to insurance claims and lawsuits filed on or after September 1, 2017. It requires certain pre-lawsuit notices by property owners, changes the amount of interest payable on claims that are determined to be underpaid or paid late, and may affect the amount of attorneys’ fees recoverable in a lawsuit. This change was covered in the Dallas Morning News and the Houston Chronicle.

Emergency suspension of court proceedings
In case you missed the email the State Bar sent yesterday, the Texas Supreme Court and Court of Criminal Appeals have issued an emergency order authorizing modification and suspension of court procedures in proceedings affected by Hurricane Harvey. The order, which is effective through September 27 unless the courts extend it, is available here.

Court closures
Multiple Texas courts and clerks’ offices are closed due to Hurricane Harvey. Visit the Court Closures & Delays page on the Office of Court Administration website for details.

Our thoughts and prayers are with all those affected. We are here to serve you in any way possible.



Tom Vick 
President, State Bar of Texas

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Yes, you may have more than 30 minutes for those depositions.

Originally published by David Coale.

Six tenants intervened in a code enforcement action, seeking to pursue class claims against the property owners. Defendants sought to take their depositions about issues regarding certification, the intervenors moved to quash, and the trial judge allowed the depositions to proceed, but for no more than thirty minutes each. The Fifth Court granted mandamus, finding that “the record includes no evidence or even argument regarding how a deposition of any length wqould cause intervenors to suffer harm or subject them to undue burden,” and also that the intervenors “lack an adequate remedy by appeal because the order severely compromises relators’ ability to present its case on the issue of class certification.” In re: Topletz, No. 05-17-00315-CV (Aug. 24, 2017).

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Landmark Decision Sets YouTube Fair Use Precedents

Originally published by Peggy Keene.

YouTube Fair Use Dispute Last year, two well-known YouTube content creators went to court over claims of copyright infringement.  In 2016, YouTuber Matt Hosseinzadeh, also […]

The post Landmark Decision Sets YouTube Fair Use Precedents appeared first on Klemchuk LLP.

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A New Day for Louisiana Oil and Gas Lenders?

Terminating a Franchise Agreement: How to Get out of a Franchise Business

Originally published by Vethan Law.

how to get out of franchise agreement franchise termination.jpg
A franchise can be a quick way to go into business. If you are the franchisee, meaning the one who is licensing a franchise and operating it, you have the advantage of instant brand recognition and an established market. As a franchisor, the owner of the franchise, you receive payment for the right to use the franchise name and, potentially, royalties on the profits.

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California Jury Awards $417 Million To Plaintiff In Baby Powder Cancer Lawsuit

Originally published by Blizzard & Nabers Blog.

Six baby powder cancer lawsuits have gone to go to trial so far, and while in five of them, Johnson & Johnson (J&J) was found to have failed to warn women of the dangers of talcum powder, the seventh trial in California has blown all past verdicts out of the water. A jury awarded $417 million to a woman who developed ovarian cancer from long-term baby powder use around her groin.

Eva Echeverria used J&J’s baby powder products for feminine hygiene on a daily basis beginning in the 1950s. Unfortunately, Ms. Echeverria was diagnosed with ovarian cancer in 2007 and has undergone extensive treatment to fight the cancer. She was unable to attend her trial because is still undergoing treatment. Jurors awarded Ms. Echeverria $68 million in compensatory damages and $340 million in punitive damages designed to punish J&J for its negligence.

The first baby powder lawsuit went to trial in 2013. While the jury found J&J grossly negligence, it did not award the plaintiff any damages. However, the tide turned on J&J in 2016 when three separate baby powder cases went to trial in St. Louis and in all three of those cases, the plaintiffs were awarded millions in damages. This past May, the company suffered another crushing defeat when it lost the fifth baby powder cancer trial.

Up until this latest trial, J&J has been ordered to pay a total of $307.6 million to talcum powder cancer victims, but last week’s gigantic California verdict does more than hurt J&J financially. The previous five cases went to trial in St. Louis, which J&J criticized as a “plaintiff friendly” venue. However, this verdict in a California state court illustrates J&J’s losses aren’t because of jurisdiction, but because jurors believe the company purposefully hid the dangers of talc from consumers.

J&J has repeated stated it intends to appeal all baby powder verdicts, but the California verdict brings the company’s total liability so far to $724.6 million awarded to plaintiffs. With thousands of cases still pending around the country, the company will have to think hard about whether or not pursuing cases in court is better than reaching a settlement.

Baby Powder Ovarian Cancer Lawyers

If you developed ovarian cancer during or after long-term baby powder use, the talcum powder ovarian cancer lawyers at Blizzard & Nabers can help you understand your legal options and file a claim on your behalf. Call us today to schedule a consultation to discuss your case.

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Wrongful Death at Denny’s?

Originally published by Texas Personal Injury News.

Q: Can a wrongful death lawsuit stem from a criminal activity?

Someone going to a Denny’s restaurant might order a slam from the menu. What they would not expect would be a fatal chokehold on the side. But that’s exactly what was reportedly served up to one man at the popular chain one night. And it wasn’t delivered by the staff.

The wrongful death attorneys for one Houston-area family are seeking damages in a civil action against a deputy-sheriff and her husband in connection with a chokehold incident that left a man dead.

Reportedly, the deputy’s husband—described as a trained mixed martial arts fighter– had an altercation with a young man who he claims allegedly urinated in public and then threw the first punch when confronted. The off-duty deputy reportedly arrived to join her family at the restaurant and then also became involved with her husband in restraining the victim who eventually became unresponsive and was rushed to the hospital. She reportedly called for assistance from the Sherriff’s office and EMTs. About a minute of the altercation was captured on video by witnesses.

An autopsy report indicated the man died from “anoxic encephalopathy due to strangulation with chest compression” after three days on life-support. Both the deputy-sheriff and her husband have been criminally charged with murder. In addition, some responding officers were reportedly officially reprimanded for their actions as well.

A wrongful death action is often brought by the close surviving relatives of a victim whose death was caused by the negligence, reckless, or intentional actions or inactions of another person or entity and has left behind relatives who are suffering emotionally and financially due to the victim’s death. In this case, the victim left a 4-year old daughter and her mother behind without his financial support.

In addition to a criminal action, wrongful death actions often arise from the following:

  • Automobile or other transportation accident
  • Exposure to toxic substances or hazardous conditions
  • Medical
  • malpracticeSupervised activity that results in death

Once liability is established, compensatory damages in a wrongful death action may include loss of support, loss of services, loss of prospective inheritance, medical and funeral expenses and punitive damages, depending upon the particular circumstances and the relationship between the victim and the family member. A skilled personal injury attorney can determine who has standing to sue as wrongful death cases are very complex.

If you are a loved one has been injured or loved one has been killed as the result of the actions of another, the attorneys at Chandler, Mathis & Zivley, P.C. can help. Contact us today for a free consultation. We can’t undo your suffering, but we can aggressively fight to obtain compensation to help relieve the financial burden of your loss. With offices in Houston and Lufkin, we serve clients throughout East Texas as well as many other states.

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Big Pharma Faces More Pay-for-Delay Fallout

Originally published by Barry Barnett.


Listen up, direct purchasers of pharmaceuticals.

Since 2013, pay-for-delay antitrust cases against Big Pharma could succeed if they alleged that a brand-name drug company had made “large and unjustified” payments for a competitor to postpone bringing a generic substitute to market. FTC v. Actavis, Inc., 133 S. Ct. 2223, 2237 (2013). But how “large” and how “unjustified” does Actavis require the payments to be?

A new decision by the Third Circuit provides a plaintiff-friendly answer, one that allows claimants in many cases to move beyond the pleading stage into discovery and potentially trial on the merits.

Lipitor and Effexor

The appeal combined review of separate dismissals by one U.S. District Judge, Peter G. Sheridan in Trenton, of two different cases.

Both suits involved blockbuster drugs. One dealt with Lipitor, a lipid-lowering agent that helps treat cardiovascular disease ($5.27B in 2010 sales), and the second concerned Effexor, a treatment for depression, anxiety, and other mental ailments ($1.43B in 2010 sales).

The Lipitor case pitted Pfizer against Ranbaxy. Pfizer had claimed that two patents covered Lipitor. The pharmaceutical behemoth sued Ranbaxy for infringing the patent (in the District of Delaware) after Ranbaxy gave notice it would start selling a Lipitor generic.

Expanding the fight, Pfizer also accused Ranbaxy (in the District of New Jersey) of infringing patent rights in another Pfizer drug, Accupril, which reduces hypertension. In the Accupril case, Pfizer moved for and got a preliminary injunction against Ranbaxy, posting a $200M bond as security.

But in June 2008, Pfizer and Ranbaxy settled, with Pfizer releasing claims for damages from infringement of the Accupril patent and Ranbaxy agreeing not to start selling generic Lipitor until November 2011 — 20 months after Pfizer’s original Lipitor patent expired.

Under the Hatch-Waxman Act, because Ranbaxy had made the first certification to the Food and Drug Administration that it intended to sell a Lipitor generic, other generic makers had to wait 180 days after November 2011 to begin selling their generic Lipitor.

The Effexor litigation followed a similar path. Wyeth owned patent rights in Effexor’s active ingredient, and in 2002 it brought a patent-infringement suit against Teva over Teva’s plans to market a generic Effexor. The case settled after the court made rulings in a Markman hearing. Teva promised not to begin selling its generic until July 2010, and Wyeth agreed not to offer a generic version of Effexor until Teva’s exclusive period ran out 180 days later.

Antitrust cases

The pay-for-delay cases against Pfizer over Lipitor and against Wyeth for Effexor started in 2011. Neither proceeded beyond the pleading stage, ending in September and October 2014, respectively, with orders granting the defendants’ motions to dismiss. See In re Lipitor Antitrust Litig., 46 F. Supp. 3d 523 (D.N.J. 2014); In re Effexor XR Antitrust Litig., No. CIV.A. 11- 5479 PGS, 2014 WL 4988410 (D.N.J. Oct. 6, 2014).

Judge Sheridan dismissed both cases because he believed that Actavis required the plaintiffs to do more than generally allege “large and unjustified” payments for delay of generic entry. He ruled that plaintiffs must also anticipate and rebut possible arguments could call the largeness and unjustified nature of the payments into question.

Third Circuit

The court of appeals disagreed. Regarding the “large” part of the “large and unjustified” test, the 3-0 panel (consisting of Chief Judge Smith and Judges Ambro and Fisher) pointed out that the Lipitor complaint alleged that Pfizer released a claim against Ranbaxy for infringing its Accupril patent “worth ‘hundreds of millions of dollars.’”  In re Lipitor Antitrust Litig., No. 14-4202, slip op. at 59 (3d Cir. Aug. 21, 2017). “Those allegations sufficiently allege a large reverse payment; more detailed, advanced calculations related to those allegations may come later.” Id. (footnote omitted).

The panel rejected Pfizer’s demand for more. Chief Judge Smith wrote:

As explained infra, not only does Lipitor defendants’ request for detailed economic analyses go beyond what is required at this stage of the litigation, but that request also attempts to require Lipitor plaintiffs to disprove what Lipitor defendants must prove. Lipitor defendants suggest that the size of the reverse payment must be determined by the net reverse payment, which accounts for litigation costs and other discounting measures and justifications for the payment. In doing so, Lipitor defendants seem to conflate the Actavis requirement that the reverse payment be “large” with the requirement that the payment be “unjustified.” Their proposed economic valuation demands that Lipitor plaintiffs disprove proffered justifications for the reverse payment settlement agreement. Lipitor plaintiffs, though, need not do so at the pleading stage. Actavis, 133 S. Ct. at 2236.

Id. at 59 n.11.

The also denied Pfizer’s attempt to complicate the pleading of the second half of the “large and unjustified” test:

The alleged reverse payment here was also “unjustified.” As noted earlier, avoiding litigation costs, providing payment for services, or other consideration may justify a large reverse payment. See Actavis, 133 S. Ct. at 2236. To plausibly allege an unjustified reverse payment, an antitrust plaintiff need only allege the absence of a “convincing justification” for the payment. Id. at 2236–37.

Id. at 60. In addition:

While Lipitor defendants speculate as to the actual saved litigation costs, all that need be alleged, at this juncture, is that those costs fail to explain the hundreds of millions of dollars of liability released by Pfizer. Lipitor plaintiffs have alleged just that, and the finely calibrated litigation 61 cost estimates requested by Lipitor defendants and the District Court are unnecessary at this stage in the litigation.

Id. at 60-61. Further:

Actavis does not require antitrust plaintiffs to come up with possible explanations for the reverse payment and then rebut those explanations in response to a motion to dismiss. The Supreme Court clearly placed the onus of explaining or justifying a large reverse payment on antitrust defendants.

Id. at 62 (emphasis in original).

Wyeth fared no better in the Effexor part of the appeal. The court ruled:

First, the alleged reverse payment, here in the form of Wyeth’s no-AG agreement, is plausibly large. The no-AG agreement [i.e., the agreement not to sell an authorized Effexor generic] used by Wyeth to induce Teva to stay out of the Effexor XR market was alleged to have been worth more than $500 million.

* * * *

Second, the alleged reverse payment made through Wyeth’s no-AG agreement is plausibly unjustified. As alleged, the no-AG agreement “cannot be excused as a litigation cost avoidance effort by Wyeth.” Effexor JA212 (DPP Sec. Am. Compl. ¶ 285). Effexor plaintiffs’ complaint states that Wyeth’s litigation costs with Teva would have totaled only between $5 million to $10 million, and those costs “would have been the tiniest of a fraction the size of the payment likely over $500 million effectuated by Wyeth to Teva.” Id. They allege further that the no-AG agreement is not “justified on any procompetitive basis,” asserting that no exchange of goods or services or any explanation justifies the delay of Teva’s entry into the Effexor XR market other than the settlement agreement. Effexor JA212 (DPP Sec. Am. Compl. ¶¶ 286–87).

Id. at 69-70 & 72.


The Third Circuit’s decision in Lipitor emphasizes the simplicity of the “large and unjustified” test under Actavis at the pleading stage. Plaintiffs need not preemptively respond to defense arguments that could undermine the payments’ size or lack of justification. Pay-for-delay cases should thus ordinarily survive motions to dismiss in cases involving blockbuster drugs, which generate hundreds of millions if not billions of dollars in revenue.

Big Pharma will still have a chance to present their justifications at summary judgment, as they did successfully in another recent Third Circuit case. See In re Wellbutrin XL Antitrust Litig., No. 15-2875 (3d Cir. Aug. 9, 2017) (affirming summary judgment against plaintiffs on pay-for-delay claims).

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Wiretapping, GPS Tracking and Divorce in Texas

Originally published by Evan Hochschild.

Wiretapping, GPS Tracking and Divorce in Texas

It used to be that if you wanted to get your hands on walkie talkies, surveillance
equipment or even a tracking device of some sort you would you have to
go to the mall and walk into a Radio Shack or similar store and pay a
hefty price. In today’s world you need only to log on to the internet
and utilize any number of online retailers or other websites that allow
you to buy just about anything your heart desires. If you want to keep
tabs on your spouse that is now relatively easy. The question remains-
should you do it?

With the ready availability of GPS tracking devices and computer related
spyware it almost seems too easy to know exactly what it is your spouse
is up to. If you believe your spouse to be engaging in behavior that is
harmful either to your marriage or to your children then the temptation
may be there to engage in some amateur spying. Unsurprisingly, there are
laws that govern the surveillance of a private individual in regard to
a family law case. The attorneys with the
Law Office of Bryan Fagan would like to use this blog post to discuss the relevant laws in this area of
family law cases that is becoming more and more relevant.

Evolution of surveillance law in the United States

The terrorist attacks of September 11, 2001 in addition to changes and
improvements in technology brought about newer versions of laws that were
previously on the books. Most of us are aware of the law known as the
Patriot Act. The federal government had never before known the ability
to track and store the phone calls, electronic messages and other data
of its citizens. The Federal Communications Commission has also put forth
regulations that mandate cell phone carrier to track the calls of its
subscribers. To do so, GPS technology has been implemented into our cell
phones. If you and I have the ability to tell where our family members
are using this technology, it’s a good bet that the government has
been able to do the same for much longer.

These laws are federal statutes that apply to U.S. citizens generally and
not specifically to any state of the union. Federal law prohibits any
person from intercepting any form of communication without a court order
allowing them to do so or without the consent of one of the parties to
the conversation. Emails, video and tape recorded conversations are all
covered by this law. A peculiar loophole exists, however, in that emails
are not allowed to be intercepted in the short amount of time between
when the email is sent and when it is received but the law says nothing
of obtaining an email from a hard-drive. Of course a person may be violating
another law in doing so but would not be in violation of the Wiretap Act,
as it is known.

Consent matters when it comes to recorded conversations

The Wiretap Act excludes situations where consent is provided either directly,
vicariously or through a spouse. Basically, if one party to a conversation
gives consent for the conversation to be recorded there is no violation
of the Wiretap Act. There are some states that require both participants
in the conversation to give consent, however. Texas is not one of those
states but if you are speaking with a person who is not in Texas this
is something relevant to keep in mind. Finally, Texas does not recognize
a spousal consent exception that is provided for in the federal law.

The Stored Communications Act and its applicability to Texas Family Law cases

Hacking of emails has progressively become more prevalent in divorce cases that the
Law Office of Bryan Fagan handles. Whether or not there is statistical analysis to back this assertion
up I don’t know but it certainly seems to be true. If a spouse can
gain an advantage by logging into their partner’s email account
without permission there is certainly the temptation to do so when the
stakes are high enough.

The Stored Communications Act takes into account accessing electronic information
that is stored in a hard drive or in the “Cloud” without the
account holder’s permission. It is a crime under this law to intentionally
access a server that is owned by an internet service provider or by a
phone company. These same companies cannot share any stored communication
data with a person who does not have permission to obtain that data.

The state of Texas has its own laws that govern the issues of wiretapping,
recording conversations and “hacking” of email and other communications
data. One “old school” method of keeping tabs on a person
is placing a tracking device on their vehicle. We’ve all seen movies
or television shows where this occurs and may even know people in our
own lives who has engaged in this sort of behavior. This is very much
illegal in Texas, so it’s obviously best not to do it in the Lone
Star State. The same can be said of accessing an individual computer or
server without the owner’s permission.

Laws on surveillance may change, but how you choose a lawyer does not

With changes in technology come changes in laws. That much is apparent
from our discussion today. As the government and the private sector develop
new methods to keep tabs on one another, the law will have to evolve or
be left behind in protecting the privacy rights of you and I in all areas
of our lives.

Family law cases are no different. While it is increasingly easy to get a hold of
information that is not intended for our eyes or ears, we should think
twice before acting before consulting with an experienced attorney. The
attorneys with the
Law Office of Bryan Fagan understand the issues that you face in your
divorce or
child custody case are critically important and the need for strong and effective representation
is just as critical. Our office knows the law and how to apply it to your
and your family’s advantage. If you have any questions about surveillance
law in Texas and its potential impact on a family law case please contact
our office.

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Hundreds of lawyers, law students, and paralegals step up to help Harvey survivors

Originally published by Amy Starnes.

Hundreds of lawyers, law students, and paralegals have volunteered to help those affected by Hurricane Harvey.

If you are an attorney who has been adversely affected or who wishes to assist a colleague, please take a moment to complete our Hurricane Harvey assistance survey.

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Tuesday, August 29, 2017

The Little Paris Bookshop (book review)

Originally published by The Movie Court.

A book review from The Movie Snob.

The Little Paris Bookshop, by Nina George (2015).  I saw a glowing review of this novel, so I picked it up.  Although it was apparently a runaway bestseller in Europe a couple of years ago, and then it was a bestseller in the good old U.S. of A., I thoroughly disliked it.  It’s about a Paris bookseller named Jean Perdu.  He’s 50ish, and he has been nursing a broken heart for 20 years because the woman he loved suddenly left him without so much as a good-bye.  But now things are happening that may finally break Perdu out of his long grief.  How to summarize the things I did not like about this book?  The characters are unbelievable and behave unbelievably.  Coincidences pile up to make things happen right.  The pages drip with neo-hippie philosophizing and cloying descriptions of food and landscapes.  And the more I learned about Perdu’s mystery lover, the more I loathed her.  I kept hoping the book would get better, but it never did.  I urge you to give this one a pass.

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Monday, August 28, 2017

No, you may not have merits discovery yet.

Originally published by David Coale.

In a forceful statement against merits discovery before the resolution of a special appearance, the Fifth Court granted a writ of mandamus to require that “relator’s deposition be limited to matters directly relevant to the issue of jurisdiction if the deposition is taken before the trial court rules on relator’s special appearance,” because “Rule 120a requires discovery be limited to matters relevant to jurisdiciton prior to a ruling on a special appearance.” In re: Stanton, No. 05-17-00834-CV (Aug. 24, 2017) (mem. op.) (citing, inter aliaIn re: Doe, 444 S.W.3d 603, 608 (Tex. 2014)).

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Order allows modification, suspension of court procedures in Harvey-affected proceedings

Originally published by Lowell Brown.

The Texas Supreme Court and Court of Criminal Appeals issued an emergency order Monday authorizing modification and suspension of court procedures in proceedings affected by Hurricane Harvey. The order expires September 27 unless the courts extend it.

“Court proceedings … throughout Texas may be affected by the disaster because of closures of courts and clerks’ offices and difficulties with access, travel, and communication by lawyers, parties, and others,” the order states. “Pursuant to Section 22.0035(b) of the Texas Government Code, all courts in Texas should consider disaster-caused delays as good cause for modifying or suspending all deadlines and procedures—whether prescribed by statute, rule, or order—in any case, civil or criminal.”

Read the full order here.

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How Each Side Can Win In These 3 Common Legal Situations

Originally published by Bob Kraft.

The U.S. judicial system is by its nature adversarial. This is a fact in cases involving issues like child custody, contract disputes, and criminal cases. With that recognized, there are some strategies that can be employed that permit the parties to these types of cases to both enjoy certain benefits through the settlement of a particular dispute or matter.

How Each Side Can Win a Child Custody Case

Child custody issues represent some of the most legally challenging and emotionally trying matters in the judicial system. Both parents involved in a custody dispute can obtain benefits by settling the matter without formal court proceedings.

A settlement saves the parents time and money. Significantly, by reaching a settlement of a child custody dispute, the subject child’s life will be less disrupted.

How Each Side Can Win a Contract Dispute

Contract disputes represent one of the more common types of business cases. Contract disputes can end up the subject of lawsuits. However, negotiations of issues between the parties can provide some real benefits to the parties.

A negotiated settlement permits the parties to a contract dispute the ability to avoid the time and expense of a lawsuit. In addition, through negotiations, each party to a contract dispute is likely to achieve at least some important objectives.

How Each Side Can Win a Misdemeanor Case

A misdemeanor is the least serious kind of crime that can be charged in the U.S. judicial system. Nonetheless, a person charged with a misdemeanor can face serious consequences if a case goes to trial and ends up getting convicted.

The vast majority of criminal cases in the United States, including misdemeanors, are resolved through a settlement and plea agreement. Both sides to a misdemeanor case can benefit from a settlement of a case. Both the prosecuting attorney and the defendant can benefit from a plea agreement.

The state or prosecutor benefits because taxpayer money is not expended on a trial. In addition, a settlement of a case saves time, which is in limited supply in a prosecuting attorney’s office. A defendant benefits from a settlement of a misdemeanor case as well. A defendant is likely to obtain a more favorable sentence via a plea agreement.

In many ways, the U.S. judicial system is designed for negotiations and the settlement of cases. Oftentimes through the negotiation and settlement process, both parties to a case enjoy real benefits.

This article is from Brooke Chaplan, a freelance writer and blogger. She lives and works out of her home in Los Lunas, New Mexico. She loves the outdoors and spends most her time hiking, biking and gardening. For more information contact Brooke via Twitter @BrookeChaplan.

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Friday, August 25, 2017

Is a Texas Home-Equity Loan With Constitutional Defects Invalid?

Originally published by Aimee Hess.

What happens when a Texas family discovers that the home equity loan on their home did not satisfy the constitutional requirements for homestead liens in the Texas Constitution? In the case of Wood v. HSBC Bank, the Wood family took out a home equity loan on their home in 2004. Their loan changed hands a number of times and ended up with HSBC Bank NA. In 2012, the Woods’ notified HSBC that there were defects in the loan that did not comply with the Texas Constitution. HSBC failed to cure the defects. Although it was eight years after closing when the issue was raised, the Woods’ sued HSBC to invalidate the lien on their property securing their loan and for quiet title to the property and forfeiture of all principal and interests payments made on the loan.

The Question For the Texas Supreme Court

The question before the Texas Supreme Court was whether, once the lender declined to cure the defect, was the lien void, or merely voidable. If the lien was void, then the lien was invalid and no statute of limitations applies. On the other hand, if the lien was voidable, then the four-year statute of limitations under Texas Civil Practice and Remedies Code §16.051 applies to the Woods’ case. In other words, because they did not bring suit within four years from the date the loan closed, their claim for quite title and forfeiture of all principal and interests payments made on the loan would be time barred.

Continue reading →

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What Is Your Legacy, And How Is It Different From Your Estate?

Originally published by Gerry W. Beyer.

For the sake of personal planning, it is important to distinguish the difference between your legacy and your estate. From an estate planning/legal perspective, the term “legacy” has a very specific meaning: a bequest of money left to a named…

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Forming a Corporation for Your New Texas Business

Originally published by Austin TX Business Law Blog.

How do I form a corporation in Texas?

Selecting a business entity for your new venture is a critical step.  While there are several potential business structures to choose from, corporations have long been one of the most popular business entities.  If you have determined that a corporation is the right business structure for your business, you will now need to take the appropriate steps to form your corporation.  Our Austin, Texas business formation lawyers at the Kumar Law Firm PLLC discuss forming a corporation in the state below.

Selecting a Corporate Name

You will need to start the process of forming your corporation by selecting a corporate name. Your corporation name must include the words “Corporation,” “Incorporated,” “Limited,” “Company,” or an abbreviation of the like.  Your name needs to be unique and not already registered with the Texas Secretary of State.  You can check your potential name online to ensure it is not already taken.  You can then reserve your name with the Texas Secretary of State.

File with the Texas Secretary of State

With your name chosen, you will need to legally create your corporation by filing a Certificate of Formation For-Profit Corporation with the Texas Secretary of State.  Your filing must include your corporate name and address, the name and address of your agent for service, the nature of the business, number of shares, and information concerning board members.

Appoint a Registered Agent

All Texas corporations must have a registered agent for purposes of service.  Your registered agent must agree to accept legal documents or service in the event of a lawsuit.  Your agent can be an individual or business located in Texas.  

Prepare Your Corporate Bylaws

Bylaws set out the basic rules concerning the operation of your corporation.  Although not filed with the state, your bylaws are an essential part of the formation of your corporation. Your bylaws will also be helpful to show if you need to seek financing for your business

Forming a corporation is a complex task that must be done correctly to protect your business in the future.  Contact a business law attorney as soon as possible for assistance with forming your new corporation in Texas.


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Will I Receive Spousal Maintenance in My Texas Divorce?

Originally published by Austin TX Family Law Blog.

When does a court order spousal maintenance?

A divorce can leave you in a difficult financial position.  Splitting apart a household often results in one partner having less income or assets.  While awarding alimony used to be the norm, Texas and other states across the nation have taken steps to limit the use of alimony in divorce.  Alimony is not awarded automatically, but Texas courts can issue an order for spousal support in certain cases.  Our Austin, Texas alimony lawyers at Stinson Moyle, PLLC, discuss your chances of receiving alimony in your Texas divorce below.  

Temporary Spousal Support

Temporary spousal support can be issued as an equitable remedy to assist one partner financially while the divorce is pending.  When couples divorce, one spouse may lack the resources to afford their monthly expenses.  If the other spouse has sufficient resources to pay extra, then the court may order that spouse to pay temporary spousal support.  

Spousal Maintenance

Texas courts are allowed to issue awards for spousal maintenance, traditionally referred to as alimony.  Spousal maintenance shall be awarded for a brief period of time and for limited circumstances under Texas law.  Spousal maintenance may be awarded under the following circumstances:

  • A spouse has a mental or physical disability that impacts their ability to earn a living;
  • A spouse must care for the couple’s child who has a mental or physical disability;
  • The divorcing couple has been married for over 10 years and one spouse is not able to earn a sufficient income to meet his or her reasonable needs;
  • A spouse from which maintenance is being requested was convicted of domestic violence within the past two years.

If the court elects to award alimony, the court will reasonably restrict the period of payments, depending on the exact circumstances surrounding the divorce.

Contractual Alimony

Divorcing spouses have the right to agree to make payments to the other spouse as contractual alimony.  Contractual alimony can be used to equalize the division of marital property.  If you are contemplating divorce, consult with a Texas alimony lawyer for an individualized assessment as to whether you may be eligible to receive spousal maintenance in your divorce.


Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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Legal Legwork: 4 Qualities To Look For In Your Next Lawyer

Originally published by Bob Kraft.

A lawyer is someone you should be able to trust. This is a person who will go to court to represent you no matter what the situation. It’s important to develop a relationship with your lawyer so that you can communicate about evidence and possible outcomes of going to court or settling outside of the courtroom. There are a few qualities that you want to look for when searching for a lawyer so that you hire someone who is on your side.

Look For Comfort

One of the things you need to look for when hiring an attorney is how comfortable you feel in the office and around the staff and attorney. You need to feel like you can talk about anything because if you can’t, then it could impact your case as you might not want to reveal all of the information that is available. Before hiring an attorney, talk to a few to get an idea of their demeanor and how they might be able to assist you in court. Look at the track record that the attorney has in court with each type of case, such as a defense or a family matter, to get an idea of which cases are handled more than others.

What Are The Fees?

Don’t enter into any kind of agreement with the attorney until you understand the fee structure of the office. Some attorneys won’t charge any fees in a malpractice, social security or insurance claim until you win your case. On the other hand, there are attorneys who want to charge astronomical fees with no guarantees of any kind. Think about the type of case that you need an attorney for, looking at whether the case would warrant the fees that are charged. Find out if you can make payments or if everything needs to be paid at one time.


Look at the specialties that the attorney practices in, such as family law or criminal defense. Consider discussing any questions or concerns with a professional, like those at Radano & Lide. There are usually lists of attorneys at courthouses that you can look through that are sorted into specialties so that you find one who will represent you the best.

Office Availability

Make sure you’re able to meet with your attorney during the day. If you aren’t able to go to the office, then at least be sure that you can call the attorney with questions and concerns about your case. You need to find an attorney who has at least two different ways to stay in touch with you and who will communicate with you instead of pushing you off to a member of the office staff.

Your attorney is someone who could hold your freedom in his hands. When searching for an attorney, look for someone who has a good record in the courtroom. You also want to be able to trust your attorney so that you can work together.

Author Bio: Emma Sturgis is a freelance writer living in Boston, MA. When not writing, she enjoys reading and indoor rock climbing. Find her on Google +

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Texting and Driving: The New Texas Law

Originally published by Misha.

texting-and-driving-the-new-texas-law-wormington-and-bollingerEffective September 1, 2017, texting while driving will be illegal in the state of Texas. This is a monumental move for the state and comes in light of reports that injuries and deaths caused by distracted drivers are on the rise in Texas. On June 6th, Governor Greg Abbott signed House Bill 62 into law, solidifying a proposal that will make texting while driving in Texas punishable by a fine of $25-99 for first-time offenders and $100-200 for those who are repeat offenders. Furthermore, House Bill 62 states that if a car accident that results in death or serious injuries is caused by a driver who was texting while driving, the person can face fines up to $4,000 and jail time.

Texting and Driving Statistics

It is no secret that texting and driving has become a growing, deadly problem in the United States. According to AAA, 94% of teen drivers are aware of the dangers of texting and driving, but a reported 35% say they do it anyway. Sadly, 11 teens die every single day as a result of texting while operating a motor vehicle. Smartphones have become a large part of our everyday life, presenting numerous temptations for drivers of all ages. Distracted drivers are some of the most dangerous on the roads today, and many people, unfortunately do not realize how quickly things can change in mere seconds. Here are a few additional statistics that display just how dangerous texting while driving is:

  • The National Safety Council states that smartphones lead to 1.6 million crashes in the U.S. every year
  • Approximately 330,000 injuries occur every year as a result of crashes caused by drivers who are texting
  • 1 out of every 4 accidents in the U.S. is caused by texting and driving
  • Texting while driving is reportedly 6x more likely to lead to an accident than driving while under the influence of alcohol
  • Texting while driving leads to a 400% increase in time spent with eyes not on the road

These are just a few statistics that highlight the dangers of texting while driving. More states are doing what Texas did this summer – implementing stricter texting while driving laws – in the hopes of raising awareness about how deadly texting and driving can be. In regards to House Bill 62, it is important to note that the new law only addresses “reading, writing, or sending text messages via a wireless device”. While many cities within Texas (Austin, Denton, and San Antonio, to name a few) have stricter laws such as hands-free laws, the statewide ban is a step in the right direction.

As McKinney car accident attorneys, we are here to answer any questions you may have and help you understand the implications of this new law. If you have been involved in a car accident in Texas that was caused by a driver who was texting, please contact Wormington & Bollinger today. Thanks to Governor Abbott and House Bill 62, drivers who make the poor decision of texting while driving will now be held liable for their actions. The decision to pass this law shows just how serious texting while driving is, and our lawyers are here to help those who have been impacted by texting drivers.

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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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