Dead Man Walking Because of Sleeping Lawyer

The continuing march by the State of Texas to execute George Edward McFarland adds to the often-repeated phrase associated with death penalty cases, “only in Texas.” 

 

Texas has probably executed at least ten innocent people (far more than any other state). The Lone Star State has executed five men who did not personally kill anyone. The state even executed a man for a murder to which another man had confessed to, pled guilty for, and was serving a life sentence due to the murder.

 

“Only in Texas,” as they say.

 

George McFarland’s case falls into the “only in Texas” category.

 

Here are the core facts surrounding McFarland’s death penalty conviction:

 

• On November 15, 1991, a Houston store owner named Kenneth Kwan and his security guard, James Powell, were the victims of an armed robbery.
• Two Black men perpetrated the robbery—one masked, the other not.
• Kwan was killed during the robbery with five gunshot wounds, three of which could have been fatal.
• There were five witnesses to the robbery: two customers inside Kwan’s store, Kwan’s wife, Powell, and a friend of Kwan (Carol Bartie), who was sitting in a vehicle parked outside the store. Four of the witnesses told the police they could not identify either suspect, while Bartie expressed serious uncertainty about being able to identify either suspect.
• On November 19, 1991, McFarland’s nephew, Craig Burks, called Houston’s Crime Stoppers and implicated McFarland, Albert Harris, and Michael Clark in the robbery/murder of Kwan. Burks would later offer sworn testimony that McFarland confessed to him that he killed Kwan. But Burks also stated that McFarland admitted to him that Albert Harris killed Kwan.

 

Inconsistencies and Uncertainty

 

The ensuing police investigation led to a Harris County magistrate issuing an arrest warrant for McFarland on January 2, 1992. The following day, Bartie identified McFarland in a photo spread and physical lineup as one of the robbers and the shooter of Kwan, despite the inconsistencies in her statements given to the police on the date of the offense. 

 

McFarland was not represented by counsel during these January 3 lineups. The right to counsel in Texas does not attach until a formal criminal complaint is filed, per Texas Court of Criminal Appeals precedent. That complaint was not filed against McFarland until the following day, January 4.

 

After his arrest and police lineups, McFarland retained a longtime Houston criminal defense attorney to represent him on the capital murder charge—72-year-old John Benn, who had never represented a client charged with a capital murder case under Texas’ new death penalty statutes. 

 

The trial judge appointed Sanford Melamed as “second chair” counsel but with the caveat that Benn would act as “lead counsel” in charge of the defense. The two attorneys had little contact before their client’s trial. It’s not certain if they ever spoke to each other about the case.

 

Counsel Napped During Death Penalty Trial

 

During McFarland’s August 1992 trial, Benn’s trial performance was a study in incompetence as he continuously displayed his factual and legal unpreparedness before the court and the jury. Worse yet, the attorney slept throughout significant portions of the trial with a court bailiff repeatedly having to nudge him awake in the jury’s presence.

 

Not surprisingly, McFarland was convicted of capital murder and sentenced to death. His conviction and sentence were upheld four years later on direct appeal by the Texas Court of Criminal Appeals (TX Crim App). The appeals court casually dismissed Benn’s sleeping throughout significant portions of the trial as appropriate naps because McFarland’s “second chair” counsel was awake during Benn’s sleeping sessions.

 

The TX Crim App’s cavalier handling of the sleeping issue failed to consider that the trial judge specifically instructed “second chair” counsel to follow the lead of primary counsel, Benn. 

 

In 2005, the TX Crim App had a second look at Benn’s sleeping issue in a post-conviction habeas setting. The appeals court concluded: “We agree that applicant did not have Mr. Benn’s active assistance during his postprandial naps and that those naps occurred during ‘critical stages’ of his trial.”

 

But the TX Crim App once again said since “second chair” counsel was wide awake during Benn’s “postprandial naps,” McFarland did not suffer any “prejudice” because, as Benn himself put it, the 72-year-old attorney liked taking “afternoon naps,” even during a death penalty trial.

 

On February 14, 2022, the Fifth Circuit Court of Appeals, in a ruling indicative of that court’s political ideology, agreed with the TX Crim App. The appeals court pointed out that it could not locate any case “where a sleeping co-counsel” would trigger the kind of prejudice needed to upset a guilty verdict. 

 

Against that legal backdrop, the Fifth Circuit concluded that McFarland had failed the surmount the high bar of deference the federal court had to give to the TX Crim App’s handling of the sleeping counsel issue.

 

Sleeping Lawyer More Dangerous Than Absent One

 

The Fifth Circuit’s ruling in the McFarland case is head-scratching because more than two decades ago, the court reversed a death penalty conviction obtained against Calvin Gerold Burdine by Harris County prosecutors because Burdine’s appointed counsel “slept repeatedly throughout the guilt-innocence phase of his 1984 capital murder trial.” 

 

In the Burdine decision, the majority of the court found that “a lawyer asleep in the courtroom is more harmful than one who is physically absent.” However, justices dissented vigorously, concluding much like the TX Crim App that an attorney sleeping during a death penalty trial does not necessarily result in the trial “losing its character as a confrontation between adversaries, nor [does] it render the trial fundamentally unfair.”

 

“Only in Texas” can you find two death penalty cases where attorneys slept during the trials. Both cases were prosecuted by the Harris County District Attorney’s Office under the leadership of Johnny Holmes, a district attorney. His 21-year career as D.A. was marred with innumerable instances of prosecutorial misconduct. The Holmes DA’s Office obtained more than 200 death penalty convictions, resulting in executions of at least seven innocent men for crimes they did not commit.

 

There is a singular, although stark, contrast in the Burdine/McFarland cases.

 

Many believed that Burdine, an openly gay white man, was targeted by Holmes for prosecution because of Burdine’s sexual orientation. The prosecutor argued against a life sentence and said prison is “fun” for gay men.

 

On the other hand, Holmes targeted McFarland, a black man, for prosecution in the Kenneth Kwan murder case because he was the “most criminal” of the three black men suspected of being involved in Kwan’s murder.

 

Here’s the social rub in the two cases: 

 

Burdine, the white man, was given a new trial and released from death after more than two decades of custody. McFarland, the black man, was denied a new trial and remains on death row, where he has been for more than 29 years. 

 

Burdine, the white man, was freed; McFarland, the black man, will be executed.

 

Holmes’ prosecutors in both cases never conclusively proved beyond a reasonable doubt that either Burdine or McFarland were the actual killers. Both were the only ones chosen for prosecution, although other suspects could have been the actual killers. 

 

But there is one undeniable similarity in both cases: the two men were convicted and sentenced to death because their attorneys slept during their trials.

 

Yet, “only in Texas” will the courts allow the white man to go free while sending the black man to the death house.

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Immune? ERCOT, not.

An 11-1 en banc opinion concluded that ERCOT lacked sovereign immunity against fraud claims by a power producer. The opinion noted, inter alia, that this conclusion was consistent with ERCOT not receiving tax revenue, with the structure of the PUC’s regulations about ERCOT liability, and with the law about derivative immunity for “self-regulated organizations.” The Court also rejected ERCOT’s alternative argument that the plaintiff’s claims fell within the PUC’s exclusive jurisdiction.

A dissent “would conclude that the original panel opinion was not clearly erroneous, the majority’s decision undermines the constitutional-avoidance doctrine, and the PUC has exclusive jurisdiction over Panda’s complaints ...”

The Texas Lawbook has further detail. (By way of general background, Erwin Chemerinsky’s 2001 article “Against Sovereign Immunity” remains a classic on that side of the issue.)

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Good insight from 3 CTA5 judges

The Texas Lawbook summarizes the many practical pointers from an hour-long discussion among Judges Haynes, Costa, and Ho at the recent Bench-Bar conference of the Northern District of Texas. Judge Hendrix from that District’s Lubbock Division moderated.

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How To Modify A Child Custody Order In Texas (What Parents Need To Know)

https://www.bryanfagan.com/site-search/?C=modifcationAll our lives changed over time. No matter how stable or consistent your life is you are sure to undergo some changes given the passage of time. For example, we all get older and as a result, our health needs to change. What may not have been a physical issue for you in your 30s may now be a concern in your 40s. On the other hand, what was a concern for you physically speaking in your 30s may have been improved due to lifestyle changes and is no longer a worry of yours now that you are in your 40s. Many of us have been fortunate enough to see the health of our children improve over time as they battled through childhood illnesses like colds and ear infections only to see those type of problems goes away as they get older.

Your family has likely changed during this time, as well. Babies are born sadly other people pass away. Kids start playing a sport and then stop due to a lack of interest. Our children pick up a sport and it becomes their number one interest, and you find yourself sitting on your backside most weekends in gymnasiums scattered all around the city of Houston. You may have started a new job in that job grew into a small business that you opened as a side hustle. Or, you may have relocated to find new work or start fresh after a divorce.

Whatever the specific circumstances that you are facing in your life, you need to understand that if you have a child custody order that is no longer fitting your family very well that you can modify or change that order. Modification of child custody orders takes place every day in Harris County and family courts across Texas. However, getting your modification approved by a court is not as easy as sending in the requested changes to a judge and having him or her rubber stamp them. Rather, very frequently this is a process where you and your Co-parent must negotiate with one another about tedious details involving the life of you and your children. These negotiations can get to the heart of the relationship that you have with your children and can alter, for better or worse the nature of that relationship. 

With so much at stake in this type of case, it is advisable to at least inquire about how an attorney who practices in family law can’t help you and your family 2 manage these changes and see to it that you can successfully negotiate for new custody orders if that is what your family needs. To begin today’s blog post I am going to discuss with you some of the advantages that having an attorney to assist you in your case can present not only in the short term but in the long-term period many people consider only these short-term financial implications of hiring a lawyer. However, the impacts of having an experienced family law attorney to help guide you in your case R frequently long-lasting and crucial to the development of your family and your relationship with your children.

The benefits of having an attorney in your child custody modification case

Figuring out that your current child custody orders no longer fit the needs of your family can be a bit of a disconcerting situation to be in. You and your family have operated under these orders as best as you can for four years and now find that something has changed in the life of your family that renders these orders no longer workable. We have already covered some of these circumstances and what they may be in the opening part of today’s blog post. Whatever your specific circumstance is it is not out of the question for a major overhaul to your child custody order may be needed. Or you may need a very slight change to account for an issue that arose organically as a result of the passage of time.

The first thing that I would look for when it comes to the need to possibly amend or change a child custody order is to first determine whether the current order is unworkable. This means familiarizing yourself with the order all over again. I always recommend to people that they have a copy of their court order at home either on their computer or a physical copy in their desk drawer that they can refer to. This way you can know for certain what the order says and will not be in a position where you thought the order said one thing when it said something else. The last thing you want to do is go through the trouble of worrying about the order and get to the precipice of filing a modification case only to find that the order does not say what he thought that it did. Any money or time invested into going through and modifying the order would have been lost because you didn’t need to do all the worrying and stressing out, to begin with. 

Next, when you look at that order you need to determine what your role is when it comes to a particular facet of your Child’s life. If you are interested in becoming your child’s primary conservator, then you should view the order and look at it from the perspective of what rights do you have currently and what rights do you want to gain. There may be ways for you to increase your role in your child’s life without having to go through the court process. Realistically, this means discussing directly with your Co-parent each of your roles and raising your children and what, if anything, can be done to allow you to have an increased role in the life of your child. Many times, you will find that the orders are fairly clear about what your responsibilities are and what your Co-parent’s responsibilities are. However, in other situations, it may be that you all can manage a modification on your own that works well for your family and do not have to go through a formal modification process through the court.

Informal modification of a child custody order

As I was saying, it is possible to modify a child custody order in Texas without going through the courts. This is done all the time and families are just like yours. You and your Co-parent would have to work together to discuss the issues and first determine if there is an actual issue or not. For example, one or both of you may have been misreading an order and I’ve come to find out that what you believed was the case in terms of that order or requirement is not true. In that situation, you may be able to talk through a solution to the problem that does not involve going through court. 

So long as both of you can honor that agreement then this is an ideal scenario. You would be able to save the time associated with going through a court case. As I’m sure that you can remember from your initial child custody or divorce case the rest of your life does not come to a screeching halt when you file for a family law case. Just because it feels like to you the family law case is the only thing going on in the world that simply is not true for your entire life. Your job will still have an important say in how much free time you have. Your children’s activities are still going to be ongoing despite the family law case. Other family commitments, church commitments, and the list go on and on. The rest of your life will not come to us halt just because you file a family law case. By avoiding the filing of a family law case, you allow yourself to invest your time in other areas. 

Next, you can consider the stress in worry involved in a case. Even if you hire an experienced family law attorney to assist you in representation for a modification case there will undoubtedly be some worry associated with filing a modification. It is normal to have concerns over the money spent and finally filing the case in hiring a lawyer as well as the outcome and negotiation process. Depending on the circumstance that you are attempting to modify the difference between winning and losing a modification case can have a profound impact on your relationship with your children now and in the future. This is enough to worry any sensible parent. However, if you and your Co-parent can work out an agreement together you may not only be able to solve your current problem, but you may be able to avoid feature issues due to opening up the lines of communication.

I think this is an under-discussed yet very important topic. Many times, you and your Co-parent may become comfortable with your court orders to the point where you find that weeks or even months go by without speaking with one another period on some level you may find that this is a good thing given the nature of your relationship together. Simply avoiding the conversation is a great way to avoid disagreements with one another that can lead to animosity and difficulty when it comes to Co-parenting. To that end, avoiding interaction can be a good thing in some regards. However, in many other ways not having the ability to interact with your Co-parent is a negative especially when your child could stand to benefit from the two of you interacting on a more regular basis.

For example, let’s suppose that your child had been struggling in school and the schoolteacher and counselors had sat the two of you down and asked that you coordinate with one another when it comes to your child completing homework assignments before the next day. Depending on the nature of your custody schedule you may find yourself in a position where it is difficult to be able to do always do that because your child goes back and forth in between your homes frequently. Therefore, being able to make sure that the other parent knows how much of an assignment has been completed and any issues that child is having and completing the assignment is extremely important. 

The inability to interact with your Co-parent to the point where you all can’t even discuss issues like this is a major sign that your Co-parenting skills need to be worked on immediately. It is not necessarily your fault that your skills have deteriorated. However, if you find yourself hesitating to even bring up a potentially difficult subject with your Co-parent like coordination of homework then you’re in a position where you need to consider what can be done to improve those skills. I find that working together to perform a slight modification of your child custody orders can be just what you need to enhance those skills and rebuild the muscle memory it takes to be able to discuss important issues with your Co-parent. 

However, there is a downside to informal modification of child custody orders. The main difficulty that I can see is that instead of having a court order that is signed off on by a judge, an informal modification of a child custody order does not carry any legal weight. This means that, at any time, you or your Co-parent could decide to go back on your word and refused to honor the handshake agreement you had on this modification. Legally speaking there is nothing wrong with this. It may frustrate or even anger you, but you are Co-parent and you are only legally bound to follow the orders that are outlined in the child custody agreement signed by the judge. 

Therefore, if you need something more definite and certainly more enforceable in the future then a child custody agreement that is informally made with your Co-parent may not be for the best. in that case, you should consider your options when it comes to modifying a court order by going through the legal process. However, this does not need to be an intimidating process and can be something that you manage effectively along with your attorney.

What does it take to modify a child custody order?

Ultimately, this is the question that you need to ask yourself. When it comes to modifying a court order you need to be aware of what it takes to achieve your goal and modify the order. A modification case is not like a divorce case. You are not guaranteed to be able to modify your child custody order simply because you ask for the change period rather, the judge has to find that certain legal requirements are met. Let’s walk through those legal requirements as we close out today’s blog post.

Above all else, a judge needs to find that the requested modification it is in the best interests of your children. You will probably recall if the best interest standard was utilized in your initial child custody case whether it was a divorce or straight child custody case. The best interest of your child standard is one that is utilized throughout the country to help families and decide about whether proposed changes or court orders are set up to serve the needs of your child both now and in the future. Family court judges are given a great deal of discretion when it comes to considering the best interest of your child. While there are factors a judge can look to when it comes to determining the best interest of your child your judges’ specific experiences and the specific circumstances of your child will be incredibly important when determining whether a proposed change is in your child’s best interest. 

Additionally, when it comes to changes in the form of a child custody modification you need to be aware that the court will also be looking to a specific legal standard to determine if it can even consider the changes that you are proposing. That standard is called material and substantial change. Specifically, the judge will need to determine whether a material insubstantial change has occurred in the circumstances of you, your Co-parent, or your children that would necessitate the proposed changes. Material and substantial means a significant change in one of your lives. This should give you an indication that a court will not be willing to amend or change a child custody order yes, the circumstances absolutely and overwhelmingly call for it. However, if you and your Co-parent can negotiate between yourselves before seeing a judge you all can reach modification based on pretty much whatever circumstances you would like so long as they are in the best interests of your children.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about her family circumstances may be impacted by the filing of a divorce or child custody case.

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When is Real Estate Placed in Service?

Several tax laws are triggered by when property is purchased. Other tax laws are triggered when property is placed in service. Depreciation on real estate is a good example. It is triggered when property is purchased and placed in service. These dates raise questions about whether property is placed in service and sits idle or...... Continue reading When is Real Estate Placed in Service?

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Conducting a Trial: Things Self Represented Litigants Should Know

Are you in the process right now of considering whether you want to hire an attorney to represent you in a divorce or child custody case? The issues that surround hiring an attorney go well beyond the legal matters associated with your case. I don’t think anyone I would argue that your case would benefit from having an attorney representing you when it comes to the legal parts of your case. A family case, just like any other legal matter, does include questions about the law and its application to your case. A lawyer understands the Texas Family Code and how it applies to your circumstances. No matter how much you study the law or watch YouTube videos you will not be able to be as prepared for your case as an experienced attorney would be. 

Before we get into the topic of what you as a self-represented person should know heading into a divorce or child custody trial, I wanted to also take this opportunity to share with you some of the advantages of having an attorney on board from the beginning of your case. A great deal of the benefits of having an attorney representing you is not seen specifically in the courtroom. There are many aspects of a case that do not show up in court but matter a great deal, nonetheless.  

Getting your case off the ground

Many times, I have encountered people who are considering getting a divorce but don’t know where to start. Other times I have worked with people who are nervous about starting the process because of what it could mean to their family and their future. Suppose that you know that a divorce is the next logical step for you and your family. However, because you have been a stay-at-home parent for many years you were concerned that if you get a divorce, you will not be able to afford to pay rent or the mortgage on your home. For these financial reasons, you may be considering staying in a marriage that is not healthy for you or your children.

Other times you may be in a position where you have tried to go through counseling with your spouse and have seen some positive results but are still having trouble with one issue or another. In that case, you may be conflicted in terms of determining whether divorce is best or staying in your marriage, and continuing to try to reconcile with your spouse will be the better option. It is normal to feel conflicted when going through something as difficult as a potential divorce.

Anyone who has gone through a divorce will sympathize with you in terms of the difficult decisions that you have in front of you. If you and your spouse are not communicating well with one another now you may not know if your spouse is considering a divorce from you. In that case, you may have to consider your options in terms of continuing to ponder whether divorce is best or just biting the bullet and moving fully towards a divorce. You may have even brought close friends and family into the equation and have asked their opinion on a subject that is extremely personal and not pleasant to discuss.

Ultimately, however, you need to decide about what you want to do and how you want to proceed with a divorce. Whatever decision you make needs to be based on what is in the best interests of your family, your children, and yourself. many people going through this process will continue to vacillate between getting a divorce and not getting a divorce. You can rationalize yourself into and out of a divorce daily if you allow yourself to get to that point. What seems like a good idea today may seem like less of good idea years or weeks down the line. Before you know it you can be a significant period away from the original period where you were making your decision only to find that you have not come to a resolution one way or another.

, the point I’m trying to make to you is that sometimes the hardest part of the divorce cases simply making up your mind to determine whether you should get a divorce at all. When both options sound good to you for different reasons that are a recipe for disaster in terms of doing what is best. Having an attorney involved in your situation can do several positive things for you and your case. And that doesn’t mean that the attorney is always going to lead you towards a divorce, either. Many times, an attorney will talk to you about your options, and you will determine that a divorce is not necessary or in your best interests at least right now.

However, sometimes an attorney will talk to you about your divorce situation, and you will determine that getting a divorce is in your best interest. Even when you come to that conclusion there is still the issue of getting your case off the ground and filed.

In that circumstance, you need to ask yourself whether you know enough about the divorce process in Texas to the ability to file your case. This is not a theoretical exercise. On the contrary, if you decide to get it divorced but to do so without the assistance of an attorney you will find yourself in the position where you need to file your case to get the process started. Like anything else, filing a legal case involves a process where you need to learn the necessary steps. 

Additionally, filing a divorce case is not something where there is more than one way to do it. Rather, the district or county clerk where you are a resident has a specific process where you must follow the necessary steps to get the intended result. Your failure to follow the steps can lead to unnecessary delays and other problems. Delays in this context mean time and money that will essentially have been wasted.

On the other hand, having an experienced family law attorney to help guide you in your case can save you time and money by helping you to get it right the first time. You can read through different blogs on our website to learn about the process of filing for divorce in Texas. This would include drafting an original petition for divorce, temporary orders, filing your case in the right court, setting up a potential temporary order hearing, and then serving the documents upon your spouse. If you are confident in your ability to perform all of these steps in the correct order and the correct place, then you may be in a position to file your divorce. 

On the other hand, if yours is a divorce case that involves children or a significant amount of property then you should consider the potential impacts of filing a divorce without the assistance of a lawyer. Someone in your position has so much more at stake than a person who does not have children nor a significant amount of property in the marriage. With children, you have the risk of harming your relationship with them both now and in the future. Negotiating with your spouse over issues regarding custody and possession is very complex and incredibly circumstantial based on your own set of realities. 

On top of that, Texas is a community property state. This means that Texas views property differently than most other states in the country. You would need to feel comfortable not only figuring out how much property you own, what debts need to be divided where as well as the value of your property but also need to be able to understand and navigate the complicated waters of Community property. Meanwhile, you will still have your full-time job and any other responsibilities that are currently on your plate. Juggling all these balls at the same time it’s a challenge and one that you need to be prepared for if you decide to represent yourself in a divorce case. 

Ultimately, it is your decision whether you want to be represented by a lawyer in your divorce case. There is no requirement in Texas law for you to have an attorney representing you in your case. People proceed on their own without an attorney every day and get a divorce in Texas. What you need to be most concerned with is whether this is the best decision for you and your family. That requires a certain sense of your case and how you will be able to manage the facts and circumstances of your case while caring for your children and going to work every day. If this sounds like a challenge beyond what you’re capable of controlling, then you would not be alone.

Representing yourself in a divorce trial

If you decide to represent yourself in a divorce or child custody case that precedes a trial, there are some pieces of information that I think would be helpful for you to have. To be sure, this information may be more applicable for certain people than others. Beginning with the reality that most divorce and child custody cases do not make it to a trial. For the most part, these family cases tend to settle in mediation or informal settlement negotiations before any courtroom involvement. However, given that it is possible for your case to be the exception rather than the rule blog posts like this can be important to help provide you with basic information about what you may encounter in the courtroom if you decide to proceed without an attorney. 

The first thing I would mention to you is that if you are not represented by an attorney it is more likely, in my opinion, that you will find yourself in a courtroom. The reason for this is that attorneys are adept at being able to negotiate with One another I’ll be half other clients. The reason for this is that attorneys have experience in finding solutions to complicated issues from having worked on many different divorce and child custody cases. Your experience will necessarily be much less and as a result, you may be missing opportunities to be able to negotiate successfully with your spouse or Co-parent. These missed opportunities almost certainly will increase the likelihood of your case going forward to a trial when otherwise you may have been able to avoid that outcome.

The other aspect of this discussion that I think is relevant to consider is that you and your spouse and Co-parent have a history together, to say the least. This history may lead the two of you to be more emotionally committed to your positions it may leave you less likely to be able to Negotiate successfully with your spells. This is something that I have seen firsthand. You and your spouse have an emotional history together that may make it difficult to be able to find common ground for no other reason than you are caught up in the emotion of the negotiations in your past with this person. Even a simple look from the other person that you take is being aggressive or disrespectful is enough to there were often negotiations. Having an attorney means having someone available who can intervene and get in between the two of you.

Then the important aspect of A trial is being able to Not only have persuasive evidence to present to a court but to be able to have that evidence admitted into the record for a judge to consider. The most persuasive evidence in the world will not make a difference in your trial Unless it can be admitted into the record for a judge to consider. This means that you need to familiarize yourself with marking exhibits, offering them into the record, responding to objections from your spouse or their attorney, and then being able to Proceed on and build a case based on that evidence.

Next, there is a certain decorum that you need to be familiar with in terms of conducting yourself in a courtroom appropriately. A courtroom is not the same as your living room or even an attorney’s office. This means that need to learn how to dress, address the court and act well inside of a courtroom. Even if you are a professional person who works in professional environments You may not be prepared for what it means to enter a courtroom and carry on with the trial. The fact is that your circumstances may not allow you to prepare as adequately as you would like for conducting yourself appropriately inside of a courtroom. For example, I would recommend taking the time to head to the courtroom to familiarize yourself with the environment and to see how attorneys practice in court. However, you may not be able to do this due to work commitments or other obligations.

Next, you need to learn how to dress inside of a courtroom. For women, wearing the most fashionable outfit that you own to court may not be what is best at all. You should consider dressing in court as you would to a business meeting or church. This means no revealing clothing, and dresses or skirts that go below the knee. Above all else, you do not want to be distracting in your clothes or even in the perfume that you wear. You want the entirety of everyone’s attention to be on the content of your case rather than on any other component of your being in court. For men, wearing a suit in Thai is never a bad option. However, at least being able to put on a pair of khaki pants and a sport coat would be desirable for appearing before a judge and a trial.

Being able to prepare adequately for a trial it’s probably the most important aspect of going to court. Giving yourself one night’s worth of preparation for a trial is not a wise idea when you have a potentially large about of issues at stake in your trial. Ask an attorney how long he or she will prepare for a trial, and you may be surprised to learn just how much time and effort goes into the process of preparing a case for this important step in the process. While you’re at it you should familiarize yourself with the process of appealing a judge’s decision and drafting court orders based on the judges’ decisions. If all of this sounds overwhelming, it’s because it can be. consider your options and then speak with an experienced family law attorney before deciding to represent yourself in a divorce or child custody trial. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case. 

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Software—What Is It? And Other Deep Thoughts to Disturb Your Sleep, Courtesy of the Texas Sales and Use Tax

Software can be taxed differently under the Texas sales and use tax, depending on the rights granted to the purchaser and method of delivery.  Or, at least, so says the Texas Comptroller of Public Accounts (or “Comptroller” for short). Let’s take a look!

Is it the taxable sale or repair of a computer program . . . ?

A computer program is tangible personal property for purposes of the Texas sales and use tax.[1]  A “computer program” is broadly defined as:

a series of instructions that are coded for acceptance or use by a computer system and that are designed to permit the computer system to process data and provide results and information.  The series of instructions may be contained in or on magnetic tapes, punched cards, printed instructions, or other tangible or electronic media.[2]

Since a computer program is tangible personal property, the sale or use of a computer program in Texas is subject to sales or use tax.[3]  The sales price upon which the tax is based includes “all charges made in connection with the sale of the program, which may include charges for installation, modification, repair, maintenance, or restoration, whether or not separately stated.”[4]

The repair, maintenance, or restoration of a computer program by the person who sold the program also is subject to sales or use tax as the repair of tangible personal property.[5]  Taxable computer program repair includes “error correction, technical fixes, and technical support, whether provided over the Internet or over the phone.”[6]

Notice that the repair, maintenance, or restoration of a computer program by a person who did not sell the computer program isn’t subject to tax.[7]  This result may apply even if the person performing the repair, maintenance, or restoration is related to (or, indeed, created for the sole purpose of performing such repair, maintenance, or restoration by) the person that sold the computer program.[8]

Or is it the nontaxable sale of contract programming services . . . ?

On the other hand, contract programming is considered to be a nontaxable service that does not result in the sale of tangible personal property.[9]  “Contract programming” is defined as “[s]services to create or develop a new computer program, or to repair, maintain, modify, or restore an existing computer program, when the person performing the services did not sell, and retains no rights in, the computer program being created, developed, repaired, maintained, modified, or restored.”[10]

Examples of contract programming include creating a new computer where all rights in the program are transferred to the customer, customizing a computer program owned by the customer or a third party, or modifying, repairing, or maintaining a computer program that the developer had created for the customer under a prior contract programming agreement.[11]

Note that contract programming only occurs if the developer transfers all rights, including intellectual property rights, to the computer program being created, modified, repaired, or maintained to the purchaser.[12]  However, the developer can retain rights to an incidental program or component of a program under a contract programming agreement, including installers, drivers, macros,  and subroutines.[13]

Or is it a taxable sale of a data processing service . . . ?

To further complicate things, data processing is a taxable service and therefore subject to Texas sales and use tax.[14]  “Data processing” generally is defined as “the processing of information for the purpose of compiling and producing records of transactions, maintaining information, and entering and retrieving information.”[15]

The Comptroller has taken the position that software as a service (“SaaS”) is subject to Texas sales and use tax as a data processing service.[16]  The Comptroller defines SaaS as “a software application delivery model where a vendor develops a web-native software application and hosts and operates (either independently or through a third-party) the application for use by its customers over the internet.”[17]  Apparently, the distinction between SaaS and the sale of a computer program is that with SaaS “customers do not pay for owning the software itself but for using it.”[18]

Or is it all too much . . . ?

If all of this pondering is keeping you awake at night, we’re here to help.  Contact us to set up a free consultation.

 

[1] See Tex. Tax Code § 151.010.

[2] See Tex. Tax Code § 151.010, 151.0031; 34 Tex. Admin. Code § 3.308(a)(1).

[3] See Tex. Tax Code §§ 151.010, 151.051(a), 151.101(a); 34 Tex. Admin. Code § 3.308(c)(1)(A).

[4] See Tex. Tax Code 151.007(a); 34 Tex. Admin. Code § 3.308(c)(1)(B).

[5] See Tex. Tax Code §§ 151.0101(a)(5)(D), 151.051(a), 151.101(a); see also 34 Tex. Admin. Code § 3.308(c)(2).

[6] 34 Tex. Admin. Code § 3.308(c)(2).

[7] See Tex. Tax Code §§ 151.0101(a)(5)(D), 151.051(a), 151.101(a); see also 34 Tex. Admin. Code § 3.308(c)(2).

[8] See STAR Accession Nos. 201011082L (Nov. 2010), 200508887L (Aug. 23, 2005).

[9] 34 Tex. Admin. Code § 3.308(c)(4).

[10] 34 Tex. Admin. Code § 3.308(a)(2).

[11] 34 Tex. Admin. Code § 3.308(a)(2)(A).

[12] 34 Tex. Admin. Code § 3.308(a)(2)(B); see also Comptroller’s Decision Nos. 115.067 (2020), 103,863 (2011).  Maybe the best way (or at least one way) to think about the distinction between the sale of a computer program versus the sale of contract programming services is by analogy to the federal tax distinction between the transfer of substantially all copyright rights to a computer program (which is a sale or exchange of the copyright) versus the transfer of less than substantially all copyright rights in a computer program (which is treated as a license generating royalties) or the transfer of a copyrighted article (which is either treated as a the sale or exchange of the lease of the copyrighted article).  See 26 U.S.C. § 1.861-18 (discussed in more detail here).  At some point, the Comptroller seems to have made the determination that when all copyright rights in the computer program are transferred to the customer, what is involved is the sale of a copyright (i.e., an intangible), which is not subject to sales or use tax.  See STAR Accession No. 200104173L (Apr. 12, 2001) (discussing transfers of copyrights in photographs).  However, when less than all copyright rights are transferred, the Comptroller’s reasoning appears to be that the transaction is at most a mixed transaction involving the transfer of some copyright rights and the transfer of a computer program (i.e., tangible personal property), but that the tangible personal property aspect in the transaction predominates.  (Or at least, that’s my hot take for something that’s been a thing for a while now.)

[13] 34 Tex. Admin. Code § 3.308(a)(2)(B).

[14] Tex. Tax Code § 151.0101(a)(12).

[15] 34 Tex. Admin. Code § 3.330(a)(1); see also Tex. Tax Code § 151.0035(a).

[16] Comptroller’s Decision No. 115,086 (2020).  The Comptroller also has found that taxable data processing also includes such services as disk defragmentation, data and information storage, and website design, creation, hosting, modification, and maintenance.  See Comptroller’s Decision Nos. 107,961 (2018), 44,736 (2005).

[17] Comptroller’s Decision No. 115,086 (2020).

[18] Comptroller’s Decision No. 115,086 (2020) (citing STAR Document No. 200805095L (May 28, 2008)).  But (and maybe this is getting a tad too philosophical, apologies) what does ownership even mean here?  Isn’t ownership just the ability to use something to the (relative) exclusion of others?  See Tex. Tax Code § 151.005(a)(1) (defining a sale as “a transfer of title or possession of tangible personal property”); Comptroller’s Decision No. 116,506 (2020) (stating that a key element of possession is “operational control” and that “operational control” means ““using, controlling, or operating the tangible personal property.”). The distinction between the sale of a computer program and the sale of SaaS just seems kind of nebulous.  And this distinction should matter (in theory) because, for instance, a) data processing gets a 20% exemption from sales and use tax (Tex. Tax Code § 151.351), and b) the manufacturing exemption could apply to purchases of taxable items used to produce a computer program that is sold to others (Tex. Tax Code § 151.318(a), (p)).

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