Abogado Aly: March 2019

Her husband died a couple of months ago. She found what appeared
to be a Will in his desk drawer. He had typed it up, signed it, and tucked it
away for safe keeping. He likely thought he had his bases covered.

He was wrong. Although the Will outlined how he wanted his property
distributed after he died, it did not comply with the Texas statutory
requirements for a valid Will.

As a result, his property will pass according to the terms of the Texas intestacy statutes which provides that if a married person who doesn’t have any children dies without leaving a Will, and is survived by his parents, his spouse will only inherit a 50% interest in real estate he owned before marriage, with his parents inheriting the other half.

So rather than inheriting all this real estate as he wanted, his wife will have to share ownership in that property with her estranged in laws.

If you’re going to go through the trouble of dictating how
you want your property distributed after you die, it is really important that
you follow all formalities necessary to make a Will valid; otherwise, all your
efforts will be for naught.

Testator Legal and Testamentary
Capacity

To be valid, the Will must identify the testator and demonstrate that the testator had testamentary capacity and testamentary intent.

To establish testamentary capacity, Section 251.001 of the Texas Estates Codes requires that the testator is over 18 years old, lawfully married, or a member of the armed forces and that the testator is of sound mind. Being of sound mind means that testator must be able to understand the business in which he is engaged, the effect of making a Will, the nature and extent of his property, the persons who are the natural objects of his bounty, and how all these elements relate form an orderly plan for disposing of his assets.

Testamentary intent is established if the testator intends to make a revocable disposition of his property to take effect after he dies. It can be established by labeling the document a Will and indicating how property should be distributed after death, as long as it is signed without compulsion or duress.

Will Must Be In
Correct Form

To be valid, a Will must also be in the correct form. Texas recognizes
two types of written Wills.

A Holographic Will is a handwritten Will. To be valid, it
must be completely in the handwriting of the testator and signed by the testator.
There is no requirement that witnesses sign a holographic Will.

An attested Will is a Will that is not wholly in the
handwriting of the testator. It is usually typed. To be valid, it must be signed
by the testator, or another person at his direction and in his presence, and
also signed by two credible witnesses. If it is not signed, or simply signed by
the testator, as in the example above, it is not a valid Will.

A Cautionary Tale

The situation above illustrates the benefits of having a
lawyer guide you through the estate planning process rather than doing it on
your own.

Had the deceased husband contacted an attorney, the attorney would have explained the statutory requirements of a valid Will to him and given him instructions on how to sign his documents in compliance with the statutes so that his wishes could have been carried out.

A qualified attorney is not just a document preparation
service, but a trusted counselor who can advise you on the best way to protect
your family, and preserve and distribute your assets in the manner you choose.
One of my clients explained recently that he wanted the advice of a lawyer
because “I don’t know what I don’t know.”

Yes, it will cost more to have an attorney prepare your estate plan. But the costs and consequences of an invalid Will can be significant. Isn’t the extra cost worth your peace of mind?

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

from Texas Bar Today https://ift.tt/2OCJ4yE
via Abogado Aly Website

SCOTUS Issues Eleventh-Hour Stay in Execution of Texas Buddhist Inmate

Originally published by Texas Lawyer.

The stay for Patrick Murphy is in contrast to a 5-4 February ruling by the high court to deny a stay requested by an Alabama inmate who wanted his Muslim imam to attend his execution.

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

from Texas Bar Today https://ift.tt/2WzAbsl
via Abogado Aly Website

Venezuela and U.S. trademark owners

Originally published by Susan Ross (US).

US owners of patents and trademarks who have registered them in Venezuela find themselves in the unusual position of being prohibited by the US government from paying Venezuela any required fees in the Venezuelan cryptocurrency, the Petro. For more information, please read our Legal Update.

The post Venezuela and U.S. trademark owners appeared first on The Brand Protection Blog.

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

from Texas Bar Today https://ift.tt/2OCIZek
via Abogado Aly Website

Money, Debt, and the Modern Divorce – Part Two, the Wildcards

Originally published by Bryce Hopson.

In the first post of Money, Debt, and the Modern Divorce, we covered the regulars of marital liabilities, the biggies, aka mortgage and credit card debt. While no walk in the park, these complicated financial dilemmas are nothing new for the family law attorney.

Here we address those unique situations we don’t see every day, but often enough to take notice.

The Wildcards

Unique situations involving expensive, luxury gifts made by one spouse to the other during the marriage on which a liability is attached do occur. A spouse’s separate property generally refers to property owned prior to marriage; property acquired by gift, devise, or descent during marriage; and certain categories of recovery for personal injuries sustained by the spouse during marriage. Additionally, if one spouse makes a gift of property to the other, the gift is presumed to include all the income and property that may arise from that property.

With the above-stated provisions (found in Chapter 3 of the Texas Family Code) in mind, consider the following hypothetical: Joe visited the Ferrari dealership and declared he wanted to buy a brand-new Ferrari for his wife’s 50th birthday. Joe purchased the 2018 Ferrari Portofino, sticker price $215,000, for which he paid $15,000 down using separate property funds and financed the remaining $200,000. Joe put a red bow on the Ferrari, parked it in the driveway, and called Jane outside where he smugly or sweetly (who knows) presented her with the keys. Freshly fifty, one month later, Jane filed for divorce. Woops.

How would this vehicle and the debt therein be handled? There is clear and convincing evidence that Joe intended the Ferrari as a gift. The Ferrari, then, is presumed to be Jane’s separate property, an interspousal gift made during marriage for which Joe furnished separate property as a down payment. One argument says the Ferrari should be confirmed as sole and separate property of Jane sans the attached debt. Under this argument, Jane would be awarded the $215,000 asset as separate property, which means the value she is receiving in the vehicle is not being offset by the debt, nor is it being accounted for in the just and right division of the community estate. In other words, this is a windfall for Jane as she receives a substantial asset that is not made part of her piece of the community pie.

Further, nothing in the Family Code (or any other provision of law) establishes a link between Jane and the liability on the Ferrari that is held in Joe’s name alone. Joe acted on his own in purchasing the Ferrari, Jane was not present when the debt was accepted, and Joe talked the salesman’s ear off that he was purchasing the Ferrari as a gift for his wife: evidence that the creditor could not have reasonably believed that Joe was acting as an agent for Jane or that she intended to bind herself to the repayment of this debt. Jane should receive the full value of the Ferrari as her separate property, the value of the Ferrari should not be included in the overall division of the community estate, and the debt on the Ferrari should remain Joe’s obligation.

Conversely, one could also argue that Jane’s act in accepting the Ferrari is evidence of her willingness to be contractually bound and assume either sole responsibility, or at least shared responsibility, for the repayment of the debt. This argument might be further bolstered with evidence that Joe shared details with her regarding the purchase and she was put on notice of the debt associated with the vehicle at the time she accepted possession. Further, if Joe had intended the gift to be given free and clear of any debt obligation to Jane, he would have made such a recital in the loan documents specifying his intent that the creditor look solely to his separate property for satisfaction of the debt. By not doing so, Joe merely gifted to Jane $15,000 in the form of his separate property down payment on the vehicle. This line of thinking contends the vehicle and outstanding debt should be characterized as community property; i.e., both should be accounted for in the overall division of the community estate.

Let’s assume that the Ferrari was confirmed as Jane’s separate property free and clear of the debt, which Joe remains solely obligated to pay. What happens when Jane goes to sell or trade-in the Ferrari one year after her divorce is finalized? What happens when Joe decides to stop making payments 6 months after the divorce because he would rather be held in contempt than continue to fund his ex-wife’s joyrides? Even though the Ferrari was confirmed as Jane’s separate property, it was titled in her name only, and Joe remains fully responsible for the debt, in order for Jane to trade-in the old Ferrari for a new Ferrari (it has been a year since the divorce, after all, and the 2020 Ferraris really do get better gas mileage), she would need to secure possession of the title, which would only occur when Joe satisfied the debt obligation.

Further, Jane would be trading in her separate-property vehicle subject to the collateralized debt obligation that is in Joe’s name, and that is printed on the front of the car’s title. What if she just wanted to sell the vehicle and get as much money as she could, would she need the third-party creditor to be part of the transaction? Alas, no easy answers. This hypothetical highlights the dichotomy between the marital property liabilities between spouses and marital property liabilities between a spouse and a third-party creditor.

Property

Okay, forget the Ferrari. Consider the following hypothetical dealing with a residence and mortgage owned prior to marriage: Joe purchased a residence in December 2016 for $500,000; he paid $250,000 cash as a down payment and financed the remaining $250,000 in his name as a single person. In March 2017, Joe met Jane, and after a three-week whirlwind romance, they married and began residing in Joe’s separate-property residence. In May 2017, Joe decided that he wanted to do something special for Jane to celebrate their two-month anniversary, so he gifted her 50% of his separate-property residence (the conveyance contained gift recital language). In June 2017, the honeymoon phase had passed, and Joe and Jane realized that the current had dropped on their passionate limerence.

They agreed to file for divorce and go their separate ways. Unfortunately for Joe, Jane took the position that she would go her separate way after he paid her for her 50% interest in the residence that he had gifted to her during their brief marriage. Joe acknowledged that their marriage, albeit short, was valid and that his intent was to voluntarily gift Jane half of his residence, free from any chains of duress or undue influence, and spurred only by his robust and ardent love. Under these facts, what is Jane entitled to receive with regard to the residence in the divorce? Ouch.

In this hypothetical (and in other similar situations involving a gift to a spouse that conveys an interest in a separate-property residence owned prior to marriage), the person receiving the gifted interest can argue that the value of her interest should be based on the value of the house as if no mortgage debt existed. Jane could argue that she was gifted a 50% interest in the asset—not the debt—so she should receive $250,000, which represents half of the total value of Joe’s residence free and clear of the mortgage debt.

Since an interspousal gift is presumed to include all the income and property that may arise from that property, without a specific reference that the gift conveying the 50% interest in the residence to Jane was being transferred subject to the debt attached to the residence, and without a specific reference that limited the conveyance to 50% of the current equity in the residence only and not the total value of the house, Jane could argue that Joe gifted to her the $250,000 portion of the residence that was not encumbered by the remaining mortgage debt. As such, Jane should receive $250,000 in value as her separate property, and Joe will receive the other $250,000 in value and the $250,000 mortgage indebtedness.

Brokerage Accounts

Another interesting martial property liability conundrum that pops up on occasion is the brokerage account that is pledged as collateral for a loan issued by the brokerage to the account holder. For example, Joe has a Merrill Lynch containing $1,500,000. Joe requests a loan from Merrill Lynch for $1,000,000 to purchase a business that sells mittens. Merrill Lynch issues the loan, and Joe’s account is pledged as collateral for the new loan account. After the factory that produced the mittens burned down when an employee was smoking a cigar on the assembly line, the financial hardship drove Jane and Joe apart: they agreed it was best for both to leave the ash in the past and get divorced. Despite the $1,500,000 account being made up entirely of cash, Jane is only permitted to transfer $500,000 from the pledged account as Merrill Lynch will not permit transfer of funds below the collateralized loan amount.

While Joe would be more than glad to use the funds in the pledged account to pay off the loan balance, the Merrill Lynch account is the only source of liquidity in their entire estate and paying down the loan would swallow two-thirds of their cash and create an untenable lack of liquidity for Jane. Yikes.
Similar to loans against a 401(k), it is vital to double-check that the accounts being divided in a divorce are not encumbered by debt or pledged as collateral. However, unlike a 401(k), when a brokerage account is pledged as collateral for an outstanding loan balance, this can sometimes create liquidity complications that may mitigate settlement options and stagnate negotiations. On the other hand, having the option to pledge brokerage accounts with little to no cash basis as collateral for a loan that provides an influx of liquidity into the estate may be a beneficial bargaining chip when negotiating a settlement with a spouse who needs immediate access to cash.

As generational shifts and social changes have made debt more tolerable and socially acceptable than ever, complications spawned from marital property liabilities in divorce are becoming more prevalent. Buyers beware!

Read Money, Debt, and the Modern Divorce – Part One

About the Author

Bryce Hopson is an associate attorney at Hance Law Group. Bryce excels in breaking down complicated legal issues and examining them with his clients in a clear, comprehensible, and concise manner, in matters such as property division, child custody, and pre-marital agreements.

To schedule an initial consultation with Larry and the Hance Law Group team, please call us at 469.374.9600 or email Kelly Bailey at kbailey@hancelaw.com.

The post Money, Debt, and the Modern Divorce – Part Two, the Wildcards appeared first on Hance Law Group | Trusted Dallas Family Law Attorneys.

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

from Texas Bar Today https://ift.tt/2Wr71eO
via Abogado Aly Website

Thursday, March 28, 2019

Church Tax Benefits: Does 7th Circuit Ruling on Cash Parsonage Allowance Exclusion Protect Other Church-Specific Benefits?

Originally published by Nonprofit Blogger.

In a much anticipated decision, the U.S. Court of Appeals for the Seventh Circuit concluded that the exclusion from gross income of cash parsonage allowances under Internal Revenue Code section 107(2) is constitutional, reversing a federal district court decision to…

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

from Texas Bar Today https://ift.tt/2HMDVU3
via Abogado Aly Website

Top 15 Ideas to Improve Client Service

Originally published by Cordell Parvin.

Learn about their business and their industry at your expense.
Identify needs of client and services that have a high impact on the client’s ability to achieve its goals and become expert in those services.
Ask clients to identify their objectives before beginning work and then offer a plan to achieve those objectives.
Place lawyers in clients’ offices so they can truly know the clients’ needs, wants and desires.
Conduct seminars and workshops for clients. Obtain CLE credit if client has an in-house legal staff.
Seek to use technology to improve efficiency and provide more cost effective services.
Establish scope of work, provide an estimate of time, and prepare a budget at the outset.
Advise clients when scope of work has changed, time required to perform work, or fees may exceed the budget.
Prepare an agenda for each meeting with specific stated objectives and be prepared for the meeting.
Keep client informed of progress.
Exceed client expectation-throw in some extras.
When something goes wrong, apologize.
Let clients know when they, or others, can do the work better, or at a lower cost.
Make sure bills are accurate, reflect value of the work performed, do not have names of billers unfamiliar to the client, and prepared in accordance with the clients needs.
Get to know your client representatives on a personal level.

The post Top 15 Ideas to Improve Client Service appeared first on Cordell Parvin Blog.

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

from Texas Bar Today https://ift.tt/2FJ13k1
via Abogado Aly Website

Can you file a motion for new trial in your divorce case after a default judgment was rendered against you?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

In the State of Texas, after you have been served formally with a divorce petition as filed by your spouse, you have until 10:00 a.m. on the first Monday that occurs after the expiration of twenty days to file your response to the lawsuit. If this seems like the most confusing deadline that you’ve ever been presented with in your life then you are not alone. Basically you should count twenty days after your service date, then find the next Monday that falls on the calendar. By 10:00 on that Monday you must have filed an Answer.

Does the following situation ring a bell with you?

What if you and your spouse have been discussing your case for a certain period of time and you know that you and her have agreed on all of the terms of your divorce. Property andchild custody issues have been completely sorted out. Even though you may not be too excited about proceeding with the divorce you nonetheless agree that the terms that you’ve agreed to are fair to both of you and are in the best interests of your kids. Now that it’s all said and done you feel good about what you were able to accomplish.

Now you find yourself looking at a bunch of legal papers that a strange person just handed over to you when you got home from work. A bit confused, you call your wife to see what this is all about. She reminds you that she has hired an attorney to help her and you take your agreements and put them into a format that the judge will be willing to sign off on. She goes on to tell you that the strange man at your house and the legal papers are all a part of the necessary legal formalities. Nothing at all to worry about, though.

You recall having signed a document known as a Final Decree of Divorce that took all of your agreements and put them into writing. You did this with your spouse and she told you that she would take the document to her attorney to file with the judge and that would conclude your case. No muss, no fuss, all done in relatively quick and painless fashion. You could put your feet up and worry about other, more pressing issues your spouse’s attorney told you.

After accepting service and making a phone call to your spouse to receive some reassurance, you hadn’t heard from your spouse or her attorney in sometime. Thinking nothing of it you have gone about your normal routine of seeing your kids and going to work. Nothing major to report one way or another.

One day, however, you get an envelope from a judge’s courtroom with some paperwork inside. The paperwork states “Final Decree of Divorce” at the top. As you look into the document you can see that there are things that you did not agree to included in this version of the Final Decree. Worse yet, as you flip to the back of the document your signature is nowhere to be found- although there is a blank space where you could have signed. Your heart begins to beat a little faster once you see that the judge has signed his name on the decree.

The contents of this Decree are grim as far as you’re concerned. You’re on the hook to pay spousal maintenance, a hefty amount of child support and you do not get to see your kids nearly as often as you had agreed to in the earlier version of the decree. You feel trapped and don’t know what to do or who to turn to. What can be done for you in this type of scenario?

Meeting with a family law attorney to see what the next step is

Now that you’ve figured out that you may

be in some legal trouble, you decide to go seek the advice of a family law attorney. This is the exact thing that you thought you were avoiding by being friendly to your ex-spouse and her lawyer in the first place. You don’t like lawyers and never have. Now you have to grit your teeth and go talk to one anyways to see just how much hot water you are in.

You go in and talk to the attorney who relays to you what I discussed in the outset to this blog post. Your wife properly served you, which required that you file an answer within the time period that I laid out above. You did not do so, which allows your spouse to then go with her attorney with their own order to the judge. She still had to wait the required 60 days to do so, but on day 61 she and her lawyer were in court bright and early in order to get their decree approved by the judge. The lawyer goes on to tell you that the version you signed has no legal weight or significance.

The issue is that the judge didn’t know anything about your agreements or how friendly you were to your ex-spouse or to her attorney. The judge only knows of what your ex-spouse’s attorney stated in that short hearing. The judge looked at the case history and saw that you were properly served, failed to file an answer and that the proper waiting period had been honored. There was no issue, as the judge saw it, on that day to sign the order.

Default Judgments can be reversed

The next part of what the attorney tells you makes you smile, however. You learn that you can overcome a default judgment but that time isn’t necessarily on your side. A motion for new trial can be filed to set aside the default judgment you will need to have the court decide that your failure to file a answer was not intentional nor was the result of a conscious indifference on your part. Additionally, the motion for new trial has within it a defense to your failure to file an answer. Last, the judge needs to determine that if she were to grant your motion for new trial that there would not be any undue delay or injury suffered by your ex-spouse.

Keep in mind that time is not your friend

As I mentioned earlier, time is not on your side when it comes to filing a motion for new trial. You must do so within thirty days of the judge signing your divorce decree. Look to the date as it states on your order, not on the date that you received notice of the decree having been signed. All is not lost if you find yourself in this position but you should do as I suggest in this blog post- meet with an experienced family law attorney who can not only talk you through the elements of a default judgment but can also advise you about your rights it pertains to your specific facts and circumstances.

Questions about motions for new trial in a divorce case? Contact the Law Office of Bryan Fagan

If you have become aware that a default judgment was issued against you in your divorce do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We can speak to you about the possibility of our office representing you in filing a motion for new trial and can appear with you in court to argue that motion.

Your ex-spouse will be in court as well with their attorney arguing against your motion. You should be prepared with your own experienced legal representative to counteract this. Our office has argued motions for new trial in multiple counties in southeast Texas and would be honored to do the same for you and your family.

Our office offers free of charge consultations to people in your position and we will give you honest, candid and complete advice on this subject or any other in family law. Our licensed family law attorneys meet with potential clients six days a week and take great pride in helping people just like you in Houston, The Woodlands, Katy, Baytown, Galveston and in all points in between.

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

from Texas Bar Today https://ift.tt/2WtwoN1
via Abogado Aly Website

‘Revenge Porn’ Becomes Polarizing Legal Issue, Attracting Ample Amicus Briefs

Originally published by Texas Lawyer.

“Revenge porn can shatter lives, destroy careers and devastate families,” Attorney General Ken Paxton said. “Texas has an obligation to bring the perpetrators of these crimes to justice.

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

from Texas Bar Today https://ift.tt/2CC6j6T
via Abogado Aly Website

SCOTX Asked to Weigh in on Oil & Gas Arbitration Dispute

Originally published by Beth Graham.

An oil company and several related entities have asked the Supreme Court of Texas to consider whether non-signatory assignees may be compelled to arbitrate their claims following an indemnity dispute. In Wagner Oil Co. v. Apache Corp., No. 19-0243, Texas-based Wagner Oil Company (“WOC”) purchased certain Louisiana oil and gas assets from Apache Corporation by executing a purchase and sale agreement (“PSA”). The PSA was signed by Bryan Wagner on behalf of WOC. The PSA included an arbitration provision that incorporated the American Arbitration Association’s (“AAA”) Commercial Rules.

Soon after, an officer for WOC, Patterson, assigned the oil and gas assets that were purchased from Apache to Bryan Wagner, Trade Exploration Corporation, and Wagner & Cochran, Inc. The new assignment included the same effective date as the original one and specifically stated it was subject to the terms of the earlier assignment.

Later, Apache and WOC were sued by third parties several times in Louisiana. After defending the lawsuits, Apache filed an arbitration demand against WOC, Bryan Wagner, Trade Exploration, and Wagner & Cochran (the “Entities”). According to Apache, the company was entitled to recover approximately $15 million from the various Entities as their share of the costs related to defending and settling the lawsuits.

In response, the Entities filed an action for a declaratory judgment in Tarrant County, Texas. Among other things, the Entities claimed Bryan Wagner, Trade Exploration, and Wagner & Cochran could not be compelled to arbitrate because they did not sign the PSA. In addition, the Entities argued none of them had a duty to indemnify Apache. Apache countered by claiming the question of arbitrability was for an arbitrator to decide under the AAA’s Rules.

After much back and forth, the trial court denied Apache’s motion to compel arbitration and the company filed an interlocutory appeal with the Second District Court of Appeals in Fort Worth. The appellate court held the “trial court erred in its construction of the parties’ arbitration agreement” and vacated the lower court’s order. The Entities then filed an unsuccessful motion for en banc reconsideration.

On Monday, the various Entities filed a petition for review with the Supreme Court of Texas. According to their petition for review, the issues presented in the case are:

1. Did the court of appeals ignore the parties’ agreement by vacating the trial court’s order granting Petitioners’ Motion to Stay Arbitration and remanding the case to the trial court to compel arbitration when:

a. Indemnity disputes over third-party claims arising from the purchased Apache Assets were expressly excluded from arbitration by the PSA;

b. The court ignored this Court’s interpretation of the term “[n]otwithstanding the above” in El Paso Field Services;

c. The court expanded the presumption in favor of arbitration to apply to matters the parties agreed not to arbitrate; and

d. The Non-Signatory Assignees were not parties to the PSA, never agreed to arbitrate, and limited their assumed obligations only to their proportionate share of Wagner’s obligations under the Apache Assignment?

Please check back soon for future updates on this case!

Photo by: Zbynek Burival on Unsplash

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

from Texas Bar Today https://ift.tt/2TFJmpc
via Abogado Aly Website

Prejudice Presumed in Appeal Waiver Case

Originally published by John Floyd.

A defendant seeking to establish that he received ineffective assistance of counsel during a criminal proceeding must demonstrate (1) that his attorney’s performance was so deficient that it fell below “an objective standard of reasonableness” and (2) that “a reasonable probability [exists] that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

This Strickland v. Washington standard became known as the deficiency/prejudice components—that deficiency is the gateway to prejudice. More significantly, the Supreme Court in Strickland issued a strong instruction to the lower courts that they “must indulge a strong presumption that counsel’s performance was within the wide range of reasonable professional assistance.”

Presumption of Prejudice in Appeal Cases

In 2000, the Supreme Court in Roe v. Flores-Ortega issued a significant exception to the Strickland prejudice inquiry by finding that when an attorney’s deficient performance results in a defendant losing an appeal he or she would have otherwise sought, prejudice must be presumed “with no further showing from the defendant of the merits of his underlying claims.” This presumption of prejudice applies even in cases where a defendant has waived his or her right to appeal.

The Supreme Court recently reaffirmed this presumption of prejudice standard.

Defendant Waived Right to Appeal

In 2015, Gilberto Garza entered into two plea agreements with prosecutors in the state of Idaho. These agreements contained a standardized “right to appeal” waiver. The state trial court then imposed sentencing in both cases, shortly after which Garza informed his counsel that he wanted to appeal the convictions/sentences. Garza studiously continued to instruct counsel, via telephone calls and letters, that he wanted an appeal filed. Counsel did not heed these client instructions by failing to file a timely requisite notice of appeal. Instead counsel stated an appeal posed problems because Garza had waived his right to appeal in the plea agreements.

Defendant Requested Counsel to File Appeal

Garza challenged his conviction/sentences in post-conviction pleadings filed in the Idaho trial court and the state’s two appellate courts. All three courts denied relief with the Idaho Supreme Court ruling that in light of Garza’s appeal waiver, he would have to prove both the deficiency and prejudice components to secure relief. The court said Garza had failed to do so.

The Idaho Supreme Court, however, noted that it had joined the two federal appellate circuit courts that had refused to literally adopt the Roe v. Flores-Ortega presumption of prejudice rule in such cases, even though eight other federal appellate courts had done so.

Garza sought, and secured, rare certiorari review before the Supreme Court. Conflict among the federal circuits, and the state courts, with respect to one of the high court’s rulings will almost always lead to certiorari review because such conflicts “offends the principle that, under one national law, people who are similarly situated should be treated similarly.”

Right to Appeal Relinquished by Deficient Counsel

On February 27, 2019, the Supreme Court in Garza held that the defendant’s counsel was deficient in his handling of the defendant’s desire to appeal and that the presumption of prejudice rule pronounced in Roe v. Flores-Ortega applied in his case, making it clear to all the lower federal and state courts that this is the “law of the land”:

“Contrary to the argument by Idaho and the U. S. Government, as amicus, that Garza never ‘had a right’ to his appeal and thus that any deficient performance by counsel could not have caused the loss of any such appeal, Garza did retain a right to his appeal; he simply had fewer possible claims than some other appellants. The Government also proposes a rule that would require a defendant to show— on a case-by-case basis—that he would have presented claims that would have been considered by the appellate court on the merits. This Court, however, has already rejected attempts to condition the restoration of a defendant’s appellate rights forfeited by ineffective counsel on proof that the defendant’s appeal had merit … Moreover, it is not the defendant’s role to decide what arguments to press, making it especially improper to impose that role upon the defendant simply because his opportunity to appeal was relinquished by deficient counsel. And because there is no right to counsel in postconviction proceedings and, thus, most applicants proceed pro se, the Government’s proposal would be unfair, ill advised, and unworkable.”

Justices Thomas, Gorsuch and Alito dissented. Justice Thomas, who almost always dissents in cases in which the Court seeks to either expand or protect a criminal defendant’s existing rights, expressed his disdain for a criminal defendant’s right to effective assistance of counsel:

“…, our precedents seek to use the Sixth Amendment right to counsel to achieve an end it is not designed to guarantee. The right to counsel is not an assurance of an error-free trial or even a reliable result. It ensures fairness in a single respect: permitting the accused to employ the services of an attorney. The structural protections provided in the Sixth Amendment certainly seek to promote reliable criminal proceedings, but there is no substantive right to a particular level of reliability. In assuming otherwise, our ever-growing right-to-counsel precedents directly conflict with the government’s legitimate interest in the finality of criminal judgments. I would proceed with far more caution than the Court has traditionally demonstrated in this area.”

Effective Assistance of Counsel

The Supreme Court first recognized the right to effective assistance of counsel in guilty plea cases in McMann v. Richardson in 1970 when it specifically stated that a guilty plea defendant “cannot be left to the mercies of incompetent counsel.”

At his confirmation hearing on September 9, 1991, Justice Thomas told the U.S. Senate:

“… I think … that you cannot simply, because you have the votes, begin to change rules, to change precedent … when you have a precedent that has been relied on in the development of subsequent Supreme Court law … I think that you would give significant weight to repeated use of that precedent.”

Justices Shirk Precedent

Justice Gorsuch took this commitment a step further at his March 22, 2017 confirmation hearing:

“I will follow the law of judicial precedent in this and in every other area, Senator, it’s my promise to you.”

Both Justices Thomas and Gorsuch shirked their commitment to precedent—in this instance, the McMann and Strickland precedents—when they said the Sixth Amendment guarantees only the right to “employ the services of counsel,” not the right to effective assistance of counsel as the Supreme Court recognized five decades ago in McMann and which it has continuously adhered to, along with every other state and federal appellate court in the country, during that period of time.

This will be the Clarence Thomas legacy on the Supreme Court—contempt for precedent. Just earlier this year Justice Thomas indicated he is believes the landmark 1964 freedom of the press ruling in New York Times v. Sullivan should be overturned. While Justice Gorsuch did not join Thomas in this opinion, his submissive following of Thomas in the Garza dissent indicates he is receptive to changing, not adhering to, Supreme Court precedent—the very thing he promised the U.S. Senate he would do.

The post Prejudice Presumed in Appeal Waiver Case appeared first on .

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

from Texas Bar Today https://ift.tt/2CHAeuJ
via Abogado Aly Website

The Timely Payment of Oil and Gas Royalties in Texas

Originally published by Environmental and Energy Law Blog.

In Texas, royalties for oil and gas production are due at least 120 days after the end of the month of first sale of production from a well. This timeline allows operators approximately four months after a well starts producing to complete required administrative tasks and begin paying royalties. After this, royalties are payable 60 days or 90 days after the end of the month in which subsequent production is sold. However, operators are not required to make timely royalty payments if the royalty owner’s interest is subject to a title defect or a royalty owner declines to sign a division order. Below is some additional information about the timely payment of oil and gas royalties in Texas.

Statutory requirements

Pursuant to the Texas Natural Resources Code, an operator is entitled as a condition to payment to receive a signed division order from the royalty owner. Therefore, in order to rely on this law as a reason to refuse to pay royalties, an operator must send a division order to the royalty owner and have it rejected. However, it’s important to note that it’s becoming common for leases to expressly negate this statute by stating that a royalty owner does not have to sign a division order to receive royalties. Therefore, it’s important to review all leases with an experienced Texas oil and gas attorney prior to taking action regarding the payment or nonpayment of royalties.

In addition, the Texas Natural Resources Code authorizes an operator to withhold royalty payments in the following situations:

When there is a title dispute
When there is a reasonable doubt that the payee has clear title to his or her interest
When there is an unsatisfied title opinion requirement that involves the payee’s identity, title, or whereabouts

When royalties are unlawfully withheld

When a royalty owner believes that royalties are being unlawfully withheld by an operator, Texas law requires that the royalty owner contact the operator and request an explanation or demand payment prior to filing a lawsuit. Following such notification, the operator then has 30 days to respond with a reasonable explanation for failing to pay such royalties. If the operator fails to respond or provides an explanation that is not legally justified, the royalty owner may then file a lawsuit against the operator.

Texas Oil and Gas Attorney

If you are involved in a dispute over oil or gas royalties, it’s imperative that you have reliable, experienced, and knowledgeable legal representation to aggressively pursue your legal rights. In addition, it’s important to ensure that oil and gas contracts are properly drafted to avoid such disputes. At the Law Office of C. William Smalling, P.C., we are highly experienced in the drafting and review of a number of types of contracts, including joint operating agreements, farmout agreements, master service agreements, drilling contracts, licensing agreements for use of seismic or technical data, nondisclosure agreements, and more. Therefore, if you are in need of expert oil and gas legal representation, contact us today for a consultation.

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

from Texas Bar Today https://ift.tt/2WrZuMX
via Abogado Aly Website

Wednesday, March 27, 2019

Seeking Records From the New Employer

Originally published by Thomas J. Crane.

One of the aspects unique to employment suits is the simple fact that a fired person will, one hopes, soon find new employment. Generally, for most folks, one job will follow another. That presents new sources of evidence. In Mesa v. City of San Antonio, No. 16-CV-870 (W.D. Tex. 1/23/2018), Abel Mesa worked for City Public Service for some 26 years. Mr. Mesa sued CPS saying he was forced out due to age and disabilities. CPS defended saying Mr. Mesa had indicated he would retire early. The Plaintiff said he was forced to retire early. Mr. Mesa did in fact find a new job relatively soon after leaving CPS.

The Defendant then thought it should find out what the Plaintiff told the new employer regarding his reasons for leaving CPS. The employer wanted to see how he described his departure. Did he say he had been fired, or did he say he had retired? We can see how the latter description might help the Defendant. Plaintiff moved to quash the request for records from the new employer. The Defendant claimed it was entitled to see information regarding Plaintiff’s performance at his new place of employment, disciplinary records, and whether he had refused any promotions that would have paid a higher wage or salary. CPS argued that such information might be relevant to whether Plaintiff has adequately mitigated his damages. But, the concern for the newly employed worker is that the new employer may not like finding out that this wonderful new employee has sued his former employer. The new employer might fire Mr. Mesa when they hear about the lawsuit.

The court pointed out that the employer was using the old standard for discovery. The new standard requires that evidence be relevant and proportional. The court tried to balance the concerns of both parties, by ordering the new request to proceed. But, the documents produced would first be produced to the Plaintiff. The Plaintiff will then provide to the Defendant any statement by Mr. Mesa about why he left CPS. The Plaintiff must also provide to the Defendant any indication that the Plaintiff told the new employer about his disability. The Plaintiff must also provide any wage history to the Defendant. Otherwise, the remainder of the request for documents was denied.

Certainly, the court addressed the true potential need for discovery. The subject matters the court allowed address actual needs. But, this solution will not protect the newly employed Plaintiff from being fired. Some employer do not like to learn the new employee has filed a lawsuit against a prior employer.

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

from Texas Bar Today https://ift.tt/2FFLSbj
via Abogado Aly Website

Family Files $18M Investor Fraud Lawsuit Against Securities America Alleging Broker Fraud

Originally published by P. Clarkson Collins Jr..

The Jamieson family has filed a broker-dealer fraud lawsuit against Securities America. They are seeking $18M in damages related to the actions of one of the firm’s former brokers, Hector A. May, who late last year pleaded guilty to operating an $11M Ponzi scheme that went on for years. May now faces 25 years in prison. Securities America fired him last year in the wake of the fraud allegations against him.

Last month, the Jamieson family sued May and Securities America. They claim that they lost $18M from working with May, who had been their adviser since 2001. The family contends that the former Securities America broker and his daughter Vania May Bell stole millions of dollars from them. In addition to working as a Securities America broker, May also was president and CCO of Executive Compensation Planners Inc. (ECP), which is no longer in operation. Bell served as ECP’s controller.

The plaintiffs contend that May and Bell advised them in a manner that made it possible for the two of them to keep defrauding the family. The Jamiesons are accusing Securities America of not performing its duties by:

Failing to properly supervise May.
Disregarding warning signs of the fraud as far back as 2003, when May at that point had stolen just $750K from them.

The Jamiesons believe that if the brokerage firm had paid attention to the red flags earlier, then the fraud could have been exposed 16 years ago instead of last year and their financial losses wouldn’t be as much.

According to May’s BrokerCheck record, he worked as a registered broker in the securities industry for 44 years. 22 of those years were at Securities America. Two other customer disputes against May alleging broker fraud have already been settled for more than $406K and almost $4M, respectively.

May is accused of pretending to invest in bond funds for investors when, in fact, he was using their money to fund his lavish lifestyle and operate a Ponzi fraud. In December, the US Securities and Exchange Commission (SEC) filed civil charges against May and Bell accusing them of defrauding their community members, close friends, and even family. The regulator contends that at least 15 investment advisory clients were the victims of the scheme that allegedly misappropriated at least $7.9M from them. The regulator accused the father and daughter of generating bogus account statements to hide the fraud while “grossly” inflating the victims’ holdings.

Broker Fraud
If Hector May or another Securities America broker was your financial representative and you sustained substantial losses that you think may be a result of broker fraud, please contact Shepherd Smith Edwards and Kantas, LLP (SSEK Law Firm) today so that we can help you determine whether you have grounds for an investor fraud claim. Our investor fraud lawyers work with high-net worth investors, retail investors, and institutional investors throughout the US. Over the years, we have been successful in helping thousands of investors in recouping their money.

The post Family Files $18M Investor Fraud Lawsuit Against Securities America Alleging Broker Fraud appeared first on Securities Fraud Attorney.

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

from Texas Bar Today https://ift.tt/2UjcZkq
via Abogado Aly Website

Operator Runs Out the Clock on Co-Tenant

Originally published by Charles Sartain.

Co-authors Ethan Wood and Chance Decker

Less than a year ago, we discussed the “Unanswered Questions” left in the wake of Devon Energy Prod. Co., LP v. Apache Corp. (which did answer the question, “Who is a ‘Payor’ Under the Texas Natural Resources Code?”). We asked:

“But if the non-participating working interest owner is not paying royalties—what is keeping the lease alive? Absent pooling of the leases or a JOA, the non-participating working interest owner cannot rely on the operator’s actions to perpetuate its leases. A sly operator can obtain top leases from the non-participating working interest lessors and run out the clock on those leases …”

In Cimarex Energy Co. v. Anadarko Petroleum Corp., the operator did just that …

(Don’t ask us for advice on your March Madness bracket; our clairvoyance is limited to potential litigation in the oil patch.)

The facts

In 2009 Cimarex leased 1/6^th of the interest in a 440-acre tract in Ward County. Between 2007 and 2010 Anadarko leased the remaining 5/6^ths in the 440-acre tract and in 2012, drilled two wells on the 440-acre tract that reached payout within a year.

Cimarex’s lessors demanded royalty payments from Cimarex and a dispute between Cimarex and Anadarko ensued over cotenant accounting for the two wells. Those parties eventually entered into a Settlement Agreement in 2013, in which Anadarko agreed to account to Cimarex on a monthly basis for its 1/6^ths share of production less drilling, completion and operating costs for the two wells. Both parties also agreed to assume the responsibility of paying their respective lessors royalties.

Before the initial dispute between Anadarko and Cimarex, Anadarko secured top leases on the 1/6^th interest that was leased to Cimarex. After December 21, 2014 (the end of the primary term of the Cimarex lease), Anadarko ceased making payments to Cimarex based on Anadarko’s belief that the Cimarex Lease had expired for lack of production. Cimarex then sued Anadarko for breach of the 2013 Settlement Agreement. Anadarko prevailed in its summary judgment motion at the trial court. Cimarex appealed.

Keeping leases alive

Typical Texas oil and gas leases require production in paying quantities after the end of the primary term to keep the lease alive (with a few exceptions). Unfortunately for Cimarex, Texas courts have routinely imposed the production requirement on the lessee itself—i.e., production in paying quantities from a lessee’s cotenant will not keep the non-producing lessee’s lease alive. Therefore, Cimarex’s mere payment of royalties to the lessors failed to keep the Cimarex Lease alive past the primary term.

Was the Settlement Agreement a JOA?

The El Paso Court of Appeals then turned to whether the 2013 Settlement Agreement was effectively a joint operating agreement between Cimarex and Anadarko (one exception to the rule that lessees must obtain production to perpetuate their leases is where the lessee enters into a JOA with a party who does obtain production). The court concluded that the 2013 Settlement Agreement gave Cimarex the rights of a cotenant but did not include any language indicating an intent to enter into a JOA, nor did the parties post-settlement conduct confirm the existence of JOA.

What about estoppel?

Lastly, Cimarex argued that its lessors’ acceptance of royalties prior to December 2014 estopped them from asserting that Cimarex was not entitled to rely on Anadarko’s production to extend the Cimarex lease. The court of appeals rejected this argument because the lessors’ acceptance of royalties during the primary term was not inconsistent with their later assertion that the lease expired for lack of production after the primary term.

Hats off to some savvy landmen and one smooth operator.

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

from Texas Bar Today https://ift.tt/2FD0l7K
via Abogado Aly Website

SXSW: Namaste, Your Honor—Ethics and Mindfulness for Lawyers

Originally published by Eric Quitugua.

This SXSW panel began with an exercise. Shutoff your phones, plant your feet flat on the floor, loosen up your shoulders, and keep your hands down at your sides, panelist Emily Doskow, a mediator from the San Francisco Bay Area, told the audience. We were about to meditate. For two minutes, the entire room was silent as people kept their attention on breathing in and out.

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

from Texas Bar Today https://ift.tt/2WtsXGk
via Abogado Aly Website

Does the ADA Require Business Websites to be Accessible?

Originally published by Christopher McKinney.

Domino’s Seeks SCOTUS Review

In January the Ninth Circuit Court of Appeals issued a decision allowing a blind plaintiff to proceed with his ADA Title III lawsuit against Domino’s Pizza for having an allegedly inaccessible website and mobile app. The court determined that allowing the claim to move forward was not a violation of Domino’s due process rights, even though the ADA and its regulations contain no definition of, or technical specifications for, “accessible” public accommodations websites. It now appears that Domino’s is planning to try to take the issue to the U.S. Supreme Court.

Domino’s recently requested a 60 day extension of time to file a petition with the Supreme Court asking for it to review the case. The request was granted by Justice Kagan. Domino’s Petition for Certiorari is now due on June 14, 2019.

This is an important issue to many. From the business-side of the fence, companies are facing an increasing number of lawsuits relating to the accessibility of their websites while they have not received much guidance from the courts or the Department of Labor as to what they are required to do in order to make their websites properly accessible. For those with certain disabilities, the transition of much or our day-to-day commerce from brick and mortar stores to the online world has increasingly left them out.

It is an important issue that deserves attention from both the courts and the Department of Labor.

Read Domino’s Motion Here.

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

from Texas Bar Today https://ift.tt/2HIUJeA
via Abogado Aly Website

It’s Not A Choice – The DOL Emphasizes That Employers Must Designate FMLA Leave When It Applies

Originally published by Seyfarth Shaw LLP.

By Sara Eber Fowler, Rhandi Childress Anderson, and Erin Dougherty Foley

Seyfarth Synopsis: The Department of Labor issues an opinion letter clarifying that employers must promptly designate FMLA leave, regardless of the availability of paid leave.

What if an employee wanted to say “no thank you” to their FMLA rights, use their other available leave, thereby saving their FMLA time for later and get extra (protected) time off – can they do that?

That used to be an easy “no”– if an eligible employee gave notice of a need for leave for an FMLA-qualifying reason, employers were obligated to designate the time off as FMLA. But in 2014, the Ninth Circuit issued a surprising decision in Escriba v. Foster Poultry Farms, Inc., holding that employees can decline to take FMLA leave, even when their need for leave is for FMLA-qualified reasons. The Ninth Circuit departed from prevailing precedent and created a gray area for employers as to whether they could – or should – involuntarily place employees on FMLA leave when they decline FMLA rights. In the years since, no other Circuits have followed Escriba.

On March 14, 2019, the Department of Labor (“DOL”) issued an Opinion Letter directly rejecting the Escriba decision, reiterating the prevailing view that employers cannot delay designating leave as FMLA leave, where it otherwise qualifies, even if an employee asks.

The question presented to the DOL was whether an employer could allow employees to exhaust some or all available paid leave before designating leave as FMLA, even when the reason for leave is clearly FMLA-qualifying. In no uncertain terms, the DOL rejected this practice. Once an employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave, 29 C.F.R. § 825.220(d). In other words, contrary to Escriba, employee preferences are irrelevant and employer compliance is mandatory. When an employer has enough information to determine whether a leave request is for an FMLA-qualifying reason, the employer must follow the FMLA regulations and designate the leave accordingly.

The DOL further reiterated that this does not prevent employers from permitting or requiring that employees substitute available paid leave to cover otherwise unpaid FMLA leave. However, FMLA runs concurrently with any paid leave, and employers cannot expand an employee’s 12-week (or 26-week) FMLA entitlement.

Takeaway for Employers

For most employers around the country, the DOL’s opinion letter simply serves as a reminder of what has long been considered best practice in designating FMLA leave. For employers with operations in the Ninth Circuit, though Escriba has not been overruled, the opinion provides a solid foundation to designate qualifying leave as FMLA, regardless of employee preference. And of course, there is nothing preventing employers from having more generous leave policies (paid or unpaid), with time off beyond the FMLA’s 12-week/26-week allotment. They key is, such additional leave is not FMLA (or FMLA protected).

If you have any questions regarding this or any related topic please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Counseling & Solutions or Absence Management and Accommodations Teams.

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

from Texas Bar Today https://ift.tt/2WpU6d5
via Abogado Aly Website

Can you appeal the division of property outcome from your divorce trial?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

If your divorce case went all the way to a trial then you know just how much u and discuss what options you may have in regard to it. There are a few different time based limitations to your ability to overturn or appeal a divorce decree so it is very important that you speak to an attorney quickly so you do not lose an opportunity to benefit yourself and your family. We work tirelessly to help our clients across southeast Texas and would be honored to do the same for you.

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

from Texas Bar Today https://ift.tt/2HJsFrC
via Abogado Aly Website

Tuesday, March 26, 2019

SXSW: Virtually Legal: Insights on AR, VR, and the Law

Originally published by Eric Quitugua.

As demand for augmented reality and virtual reality continues to rapidly expand, inevitable legal issues abound. For example, are companies in the clear for using in a VR short Ryan Gosling’s voice, taken from content from the movie First Man?

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

from Texas Bar Today https://ift.tt/2CDXauK
via Abogado Aly Website

Monday, March 25, 2019

Come cheer on the Rangers (or the Astros) at Law Night on April 20

Originally published by Justine Vasquez.

Join us for Law Night as the Texas Rangers take on the Houston Astros at 7:05 p.m. on Saturday, April 20 at Globe Life Park in Arlington.

Buy your tickets now. The first 15,000 fans to arrive at the ballpark will receive a Michael Young “Batting Champ” Bobblehead!

A networking happy hour will be held from 5:30 to 7 p.m. in the Rebecca Creek Saloon located in left field. Also, for every advanced ticket purchased through the Law Night promotion, a $5 donation will be made to the Texas Access to Justice Foundation’s Joe Jamail Endowment for Veteran Legal Services.

Law Night at Globe Life Park is brought to you by the State Bar of Texas and Dallas Bar Association, in partnership with the Texas Rangers.

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

from Texas Bar Today https://ift.tt/2HRFRtC
via Abogado Aly Website

Too Much Theory?

Originally published by Academic Support.

Researchers using advanced technology discover more about how we learn all the time, and non-stop communication disseminates the information almost immediately. ASP conferences are rich with presentations of new understandings of how to study. The new research and the ability…

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

from Texas Bar Today https://ift.tt/2UVQU8E
via Abogado Aly Website

Texas Tobacco Laws

Originally published by 1p21.admin.

Tobacco may be a legal substance in Texas, but that does not give users free rein to smoke wherever or whenever they want. Like all states, Texas has tobacco laws that restrict the use of tobacco products – including cigarettes, vaporizers (vapes), and e-cigarettes. Obeying the laws in Texas is important as a smoker if you wish to avoid charges and penalties, such as fines or even jail time.

Legal Age Limit To Smoke in Texas

You must be 18 or older to use tobacco products in Texas. A state bill in 1997 made it unlawful to distribute cigarettes or other tobacco products to anyone younger than 18 years of age. Sellers must ask for proof of age before distributing tobacco products. It is a criminal offense to sell or distribute cigarettes or tobacco products to someone under 18, or to someone who intends to deliver it to someone under 18. Proof of age is a requirement to sell or distribute tobacco products to anyone under the age of 27. All retailers must also post warning signs.

The law also prohibits free samples or giveaways of tobacco products to those under 18, as well as the sale of kiddie packs, or packs of cigarettes with fewer than 20 per pack. It is also illegal to have a self-service or vending machine distributing tobacco products unless the establishment does not permit customers under 18 years old. Violating the state’s tobacco age limit could result in an administrative fine of $1,000 per violation. The minor could also face charges and up to $250 in fines.

Vaping Laws in Texas

E-cigarettes and vapes now have their own rules and restrictions in Texas, under Health and Safety Code Section 161.0001. The law states that manufacturers and distributors must sell liquid nicotine in child-safe containers as accessories for e-cigarettes. Those who sell or distribute vapes or e-cigarettes must first register with the state comptroller.

In 2015, Texas passed an additional bill to regulate the age range on electronic cigarette products. Under the law, an electronic cigarette uses a battery, electronic circuit, or mechanical heating element to deliver nicotine or other substances to the user via inhaling from the device. It is against the law to sell or distribute e-cigarettes to anyone younger than 18. The same proof of age as with standard cigarettes is a requirement for retailers.

If you use e-cigarettes or vaporizers, you cannot do so in elevators, schools, theaters, libraries, hospitals, museums, buses, trains, or planes – except in designated areas. It is unlawful for students to possess or use e-cigarettes at any school-related activity, on or off school property. It is also against the law for anyone to use these devices at childcare centers, playgrounds, and off-site field trips, as well as in vehicles transporting children.

Smoking Bans in Private Vehicles

Some states prohibit smoking tobacco in private vehicles if minors are present. The goal of these laws is to protect children from the health risks of breathing in secondhand smoke. Driving with minor passengers and smoking in these states could result in fines and other penalties. Others prohibit smoking and driving as a measure to prevent distracted driving, or to prevent wildfires. The following states have passed or are testing smoking bans in private vehicles: Arkansas, California, Louisiana, Maine, Oregon, Utah, Vermont, and Virginia.

2015 was the last time Texas lawmakers proposed a bill that would have made it illegal to smoke tobacco products in vehicles if small children were present. The bill did not pass, however. Tobacco Free Amarillo stood behind the bill, submitting a statement suggesting that the legislation would protect vulnerable children from cancer-causing chemicals in secondhand smoke. As of January 2019, lawmakers have the option to propose the bill once again. It is currently unknown whether lawmakers have plans to reintroduce it or not. For more information about tobacco laws in Texas, speak to a criminal defense lawyer in Houston today.

The post Texas Tobacco Laws appeared first on David Breston.

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

from Texas Bar Today https://ift.tt/2CBYmyT
via Abogado Aly Website

SXSW: The MMA Passed: Now What? Navigating the New Licensing Landscape

Originally published by Eric Quitugua.

The Music Modernization Act, signed into law on October 11, 2018, was designed to update U.S. copyright law to make sure artists and publishers were getting proper credit for their music running on streaming services. Publishing experts during the SXSW panel “The MMA Passed: Now What? Navigating the New Licensing Landscape” said the law comes at a time when databases of songwriters and publishers are not up to date, leaving the creators without credit and without pay owed to them.

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

from Texas Bar Today https://ift.tt/2WmIwPY
via Abogado Aly Website

Net Royalty Acres Defined

Originally published by John McFarland.

I’ve been asked what is a “net royalty acre.”

The term “net royalty acre” is used by mineral and royalty buyers to price a mineral or royalty interest that is subject to an oil and gas lease. It is related to, but different from, a “net mineral acre.”

To illustrate, consider the following hypothetical: I own a 1/4 mineral interest in Blackacre, containing 640 acres. My mineral interest is subject to an oil and gas lease reserving 1/4 royalty. There is one producing well on the tract and there are prospects for additional drilling.
Continue reading →

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

from Texas Bar Today https://ift.tt/2TWyTe3
via Abogado Aly Website

Common Agricultural Lease Payment Structures

Originally published by tiffany.dowell.

For agricultural lease agreements, there are normally three types of arrangements utilized: cash leases, crop share leases, and flex/hybrid leases. There is no right or wrong option to select here so long as the parties can agree on the structure and the details that go along with that selection and understand the potential implications. It is advisable to visit with an accountant and an attorney before making this type of decision as it can impact a landowner with regard to who will receive government program payments, what self employment taxes may be owed, and as far as income may be reported for social security purposes.

Cash leases

The most common and most straightforward lease structure is a cash arrangement. A tenant and a landowner agree on a set price for the lease. Cash lease rates are generally listed as per acre or per head, although a flat fee could be utilized as well. For example, a landowner leasing 100 acre pasture to graze cattle could structure payment as $10 per acre, as $5 per head, or $1,000 per year. Nearly all hunting leases are cash agreements, and are often structured as per acre, per gun, or with a flat fee.

The benefit of a cash lease to a landowner is certainty of payment, and the downside is inability to share in good years where yield, price, or both are higher than normal. The benefit of a cash lease to a tenant, too, is certainty of cost, while the downside is that the cost must be paid, regardless of how the crop or the markets fare.

One important issue for a landowner to understand is that under a cash lease, the tenant will receive 100% of the government program payments such as ARC or PLC payments under Title I of the Farm Bill. The parties could agree to a different division of this payment, but absent some agreement otherwise, the landowner will be entitled to all payments.

Keep in mind that we have a fact sheet that offers information on several different publications that offer average cash lease rates for Texas.

Crop share leases

Another common fee arrangement in agricultural leases is a crop share lease. This type of agreement is seen more commonly in row crop-type farm leases, but could be utilized in grazing leases as well. As the name suggests, in this situation a landowner and a tenant share in certain costs and share in the revenue made from selling the crop in an agreed upon percentage. The common percentages varies based on both the geographic location and on the type of crop being grown. For example, in the Northern Texas Panhandle, it is common to see a cotton lease done on the thirds—meaning that a landowner receives 1/3 of the income and the tenant receives 2/3. Compare that to a lease in the Midwest where corn is grown, where share lease rates would be much closer to 50/50.

One key consideration in structuring a crop share lease is to be clear about which specific costs the landowner will share in. For example, typically, in the Northern Texas Panhandle, landowners share in fertilizer, chemicals, and irrigation. Again, this varies by geographic area and crop, and ultimately landowners and tenants can include whatever costs they can agree on in the list of those to be shared. The key is that both parties understand what costs will be split and any requirements regarding providing receipts or documentation for such costs to be paid.

The benefit of a crop share lease for a landowner is the opportunity to share in the upside risk if it is a good year, and, of course, the downside is the risk of receiving far less payment in a bad year than a cash lease might have generated. For the tenant, a crop share lease allows payment to be based upon the revenue generated and offers some assistance in paying for certain inputs which are positive, but also may require additional record-keeping, billing, and in a good year, could result in greater lease payment than would have been owed under a cash agreement.

On the government payment issue for crop share leases, government payments will be paid in the same share as any other income is shared between the parties. Again, that can be modified by agreement.

Flex/hybrid leases

Finally, a flex or hybrid lease is a newer leasing structure that essentially combines attributes of both the cash and crop share lease. Although these could be drafted any number of ways, generally a flex/hybrid lease will set a base price that the tenant will pay, and then flex up or down from that base price based upon an external factor, usually either yield or price.

For example, a flex lease could provide that a tenant will pay $25/acre to grow dryland corn, but if the price of corn rises above or falls below $4.00/bu, the lease rate will flex $.25 for every $.10 over or under $4.00.

With this type of lease, the devil is certainly in the details. Ensuring specifics are included in the lease such as the specific market that will be used to determine prices and at what time of year the determination is made, for example, are critical to ensure both parties are on the same page about how the final price will be calculated.

Landowners may benefit from a flex/hybrid lease from the standpoint that it allows them the assurance of at least the set amount, but also allows them to share in the potential upside of a good price or yield. The downside for a landowner is, of course, the potential downside risk that could lower the total lease payment received. For the tenant, the flip side is true. The flex/hybrid lease is attractive as it does provide some certainly with regard to the amount he or she will owe, but does allow a potential decrease in a year with low market prices or yields, depending on how the lease is structured. Of course, the opposite is also true, in the the downside of a flex lease for a tenant is the potential increased rental payment owed if the flex is triggered.

For flex or hybrid leases, it will likely depend on the exact wording and structure of the lease to determine how government payments will be made.

The post Common Agricultural Lease Payment Structures appeared first on Texas Agriculture Law.

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

from Texas Bar Today https://ift.tt/2HPVGkx
via Abogado Aly Website

Can fraud be the basis for your getting an annulment?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

If you have recently, or not so recently, gotten married and now are having second thoughts you are not alone. It happens with far too great of frequency that spouses across Texas believe that their marriage was built on a foundation of lies and deceit. For various reasons people are motivated to tell their significant others outright falsehoods or half-truths at best in order to induce them into marriage. In the event that you can count yourself among those unfortunate people in this situation then today’s blog from the Law Office of Bryan Fagan, PLLC is for you.

Do you qualify for an annulment?

The first place we need to look in determining whether or not you can get an annulment based on fraud is to determine whether or not you qualify for an annulment at all. The Texas Family Code tells us that a judge can grant an annulment of your marriage if your spouse induced you in to the marriage based on fraud, duress or force and if you have not voluntarily cohabitated with that person since you learned of the fraud/duress or were able to able escape from the forceful actions that were keeping you in the marital residence.

What this tells us is that if you were induced via fraud to marry your spouse and you then stopped living with that person as soon as you learned of the fraud you are on track to getting the annulment that you are seeking.

What is fraud in terms of a Texas annulment?

When this issue has reached the high courts in Texas a consistent definition has been applied: Fraudulent inducement is established by proving that a false material representation was made that 1) was known to be false when it was made, 2) was intended to be acted upon, 3) was relied upon and 4) caused injury. Desta v. Anyaoha, 371 S.W.3d 596, 600 (Tex. App.-Dallas 2012, no pet.)

What this means is that if your spouse had previously told you something prior to your getting married that is false and it can be shown that the statement was made for you to rely upon it then you would need to follow that up by showing that the statement was in fact relied upon. A marriage that you would have otherwise not entered into could be argued as an injury that you suffered.

What sort of examples are out there in the legal world off fraudulently induced marriages?

I am aware of one annulment that was granted in our state based on the following circumstances. In this situation two people had been dating, had a child and then got married. This is not exactly the traditional timeline of events as far as that is concerned but in today’s day and age it has become much more the norm.

Back to our story- the husband was not a United States citizen but he loved his significant other a great deal and told her that he wanted to marry her. This was told to her after the child had been born, and I think it is reasonable to expect a young mother who heard this to believe what the man was telling her.

Fast forward past the marriage ceremony and we see that the husband told his wife that he, in fact, did not love her and had actually been unfaithful to her throughout their courtship. Once the wife learned this she moved out of the home that she shared with her husband and daughter- taking her daughter with her.

After the wife filed a petition for annulment, a court heard the testimony of both spouses and rendered a decision that the husband had in fact made false statements to the wife prior to their marriage regarding his love for her and desire to be married. The statements, the court further reasoned, were made with the intent for her to rely upon them in order to procure a willingness to marry him. Given the false statements, the court concluded that the wife would not have married the man. The benefit to the husband, namely citizenship, was conferred upon him as a result of the marriage. An annulment was granted.

How can you proceed in your own annulment case?

In meeting with prospective clients of the Law Office of Bryan Fagan, PLLC I have had the opportunity to meet with people who are near certain that their situation qualifies for an annulment. Their basis for this confidence is that they came to know facts about their spouse only after the marriage that, had they been disclosed prior to marriage, would have caused him or her to not proceed with the wedding. In a recent consultation, a young wife told me that she learned through a Google search that her husband had a long criminal history. She had known nothing of this situation prior to the marriage occurring and had only been dating a few months prior to get married.

Taking this situation into consideration, we let this person know that unless her husband specifically told her that he did not have a criminal history after he asked her then she likely would not have grounds for an annulment. The reason being is that there is no fraud present– a criminal history does not need to be disclosed to a person that you are dating or engaged to. Now, if the woman we met with had specifically asked about that subject and her boyfriend denied the criminal history this would be a different story. As it stands in the example that I just gave you, however, the wife will have a difficult time in winning the annulment that she is seeking.

Cohabitation after the fact ruins your chances at an annulment

If you were to go back and review all the ways that you can get an annulment of your marriage in Texas you would learn that many of them revolve around not going back into the marital house to live once you find you about the fraud/deception/issue that could lead to an annulment being granted by the court. Most people, unfortunately, are unaware of the specific circumstance that could win him or her the annulment and then go back to live in the home thinking nothing of it.

The best advice that I can provide you with in this regard is if your spouse told you about something that could eventually lead to your getting an annulment (a lie that you found out later to be false, for example) you should immediately move out of the home. The difficulty of doing this is not lost on me. Finding a place to live on a moment’s notice is tough if you don’t have a support system in your area.

The best advice that I can provide you is probably along the same lines that your mother or father would: do your due diligence when it comes to finding a potential spouse. This means that you should date the person for a suitable length of time to figure out if the person can be trusted. Ask questions of that person and if their answers don’t add up then don’t assume it’s a problem with how you received the answer. You have common sense that should not be ignored. The worst thing you can do to yourself is to think that the issue will solve itself later or is not worth pursuing prior to getting married. The best time to do something about it is before you get married and before you have to worry about things like annulments.

Questions about family law in Texas? Contact the Law Office of Bryan Fagan, PLLC

The attorneys with the Law Office of Bryan Fagan, PLLC take a great deal of pride in the work that we do on behalf of clients across southeast Texas. Our duty is to put your interests ahead of our own and that is something we are serious about. For a free of charge consultation where your questions can be answered in a comfortable and pressure free environment please contact one of our licensed family law attorneys today.

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

from Texas Bar Today https://ift.tt/2uwVcHX
via Abogado Aly Website