Top 10 from Texas Bar Today: Drill Pipes, Erie-guess, and the Last Mile

Originally published by Joanna Herzik.

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

10. SCOTUS Rejects Amazon’s Petition in “Last Mile” Delivery Driver Arbitration Dispute – Beth Graham of Karl Bayer @karlbayer in Austin

9. How to Erie-guess – David Coale @600camp of Lynn Pinker Hurst & Schwegmann in Dallas

8. Why Change is so Difficult – Cordell Parvin @cordellparvin in Prosper

7. Are Non-Compete Agreements Enforceable if the Employee is Terminated? – Leiza Dolghih @TexasNonCompete of Lewis Brisbois Bisgaard & Smith LLP in Dallas

6. Why You Shouldn’t Build Your Own Website – Lisa Hopkins of Stacey E. Burke P.C. @StaceyEBurke in Houston

5. No Formal Pleading Required for Attorneys’ Fees in Arbitration – Neil R. Burger of Carrington Coleman Sloman & Blumenthal LLP @ccsblaw in Dallas

4. Can You Extend the Statute of Limitations? – Villarreal and Begum Law Firm @VBLawGroup in San Antonio

3. Premises Liability and Open and Obvious – Morrow & Sheppard LLP @MorrowSheppard in Houston

2. Defective Drill Pipe+Delivery Ticket=Lawsuit – Charles Sartain of Gray Reed & McGraw, P.C. @GrayReedLaw in Dallas

1. Court Addresses Property Line Dispute Involving Fence and 100-Year Old Agreement – Tiffany Dowell Lashmet @TiffDowell, Assistant Professor and Extension Specialist in Agricultural Law with Texas A&M Agrilife Extension in College Station

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At Will Employment: What does it really mean in Texas?

Originally published by Fadi Yousef.

What does it really mean to be an “at will” employee in Texas? You’ve certainly heard of this term often. In the next few paragraphs, I will talk about what that term really means in the eyes of the law and how it impacts you, and I’ll also discuss the exceptions to at will employment.

The first thing you should know is that Texas is an “at will” employment state. At will employment simply means that your employer can fire you at any time, for any reason, or for no reason at all. That actually includes false, malicious, unfair, or unethical reasons, as long as those reasons aren’t illegal, or in violation of a contract (we’ll discuss below). At the same time, it also means that you, the employee, can quit your job at any time, for any reason, or for no reason at all. But what if your employer required you to give two weeks’ notice before you quit; does that mean you’re not an at will employee? In general, if your employer requires two weeks’ notice before you quit but reserves the right to fire you without notice, then your employment is likely still at will. This means if you quit without notice, you may be violating your employer’s policy, but not any law or contract.

 

In short, at will employment is the “default rule” in Texas. But every rule has exceptions. At will employment can be modified by two different means:  by contract or by law. Let’s talk about each of these separately.

First, you and your employer are free to change the employment status at any time. Parties to a contract are free to enter into any kind of agreements not prohibited by law. Here are a few examples of contracts that alter the at will employment relationship:

• – A contract for a certain period of time with a specific end date.
• – A contract that requires notice before the termination and resignation.
• – A contract that allows the employer to terminate the employee only “for cause.”

Keep in mind that the contract, in many cases, doesn’t need to be in writing to be enforceable.  However, if the contract is for a period longer than one year then it must be in writing. 

What if you don’t have a contract that modifies your at will employment status; does that mean your employer can truly fire you for “any reason”? Here is where the law creates exceptions to the default rule. There are many federal and state laws that create exceptions to at will employment. For example, the Civil Rights Act of 1964 makes it illegal for an employer to terminate an employee because of the employee’s race, sex (including pregnancy), sexual orientation, religion, or national origin. Other laws protect from discrimination based on age or disability, and from retaliation based on various categories of whistleblowing.

An employment lawyer’s job at the initial client consultation is to listen carefully to the employee’s case and ask questions to determine if the case falls under any of these contractual or legal exceptions. Keep in mind that in the vast majority of cases, your employer will almost always give you a reason for the termination that is, on its face, legitimate. What really matters is the actual motive behind the termination. If the motive falls under any of the exceptions to at will employment, the termination is illegal. If it doesn’t, the termination likely doesn’t violate the law. Below are a couple of examples:

• – Example 1: Your boss fires you for alleged tardiness, but you can definitively prove that you were never late. You believe your boss actually fired you because he was threatened by your intelligence and leadership skills, and that you may someday replace him. Assuming you don’t have a contract that requires “for cause” termination, even though the stated reason, tardiness, is false, the termination is still not illegal. At will employment applies because there is simply no law out there that makes your boss’ hidden motive behind the termination illegal. 

• – Example 2: Same example as above. Your boss fires you for alleged tardiness. But two days prior, you complained to your boss about not receiving the minimum wage and believe that is why your boss is terminating you. This termination is no longer subject to at will employment because there is a federal law that makes it illegal for an employer to fire an employee for complaining of wage & hour violations.

In summary, even though at will employment is very broad, there are many exceptions to it. You should consult with an experienced employment attorney that can analyze your case and tell you if your legal (or contractual) rights were violated.

The post At Will Employment: What does it really mean in Texas? appeared first on Dallas Employment Lawyer Blog.

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Texas young lawyers to launch website educating students about iconic women in legal history

Originally published by Jared Fink.

The Texas Young Lawyers Association is preparing to launch an online learning platform designed to educate school students about iconic women in our nation’s legal history who have promoted and protected civil rights, fought for equality, and ultimately shaped our present culture.

The project—Iconic Women in Legal History—is TYLA’s signature public service project for 2020-2021. It will be available for free to the public at iconicwomen.tyla.com beginning March 15.

The project is designed to give Texas high school educators an effective tool to teach this portion of history. The project focuses on telling the stories of iconic women who are often overlooked or left out of mainstream textbooks. It features videos and interviews with historians, legal scholars, relatives, and even the iconic women themselves.

The project will include stories about Rosa Parks, Susan B. Anthony, Louise Raggio, Dolores Huerta, and many other inspirational women. It also features an interview with Gloria Allred, one of our nation’s prominent defenders of civil rights for women and minorities.

“The Texas Young Lawyers Association is incredibly proud to celebrate the impact women have made to the legal profession and the history of this nation,” 2020-2021 TYLA President Britney Harrison said. “As an African-American female, I am particularly grateful for the women that stood up for equality and fought for the rights and privileges that I enjoy today.”

Iconic Women in Legal History is made possible by a $42,500 grant from the Texas Bar Foundation. Since its inception in 1965, the Texas Bar Foundation has awarded more than $21 million in grants to law-related programs. Supported by members of the State Bar of Texas, the Texas Bar Foundation is the nation’s largest charitably funded bar foundation.

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Why Change is so Difficult

Originally published by Cordell Parvin.

Over the many years that I mentored, taught and coached young lawyers, I wondered why it was so difficult to change and why young lawyers got discouraged so quickly when their client development efforts do not produce immediate results.

Over many years scientists have been studying how our brain affects our ability to make changes. Knowing that none of you have any time to study this, I thought I might give you a short lesson.

Do you remember when you were learning to drive. I bet you put a death grip on the wheel, paid way more attention to what you were doing, and if you were on a two lane road driving with your dad, he was scared to death you were going to plow down a row of mail boxes. Now, when you get into a car you do not even think about technique. You just do it.

What happened?

When you are learning something for the first time you are using your short term memory part of your brain. It requires significantly more energy and is able to hold fewer ideas. Also, just trying to change what we are doing sends out a strong message that something isn’t right and brings on anxiety and stress.

Ok, so now you may understand why change is difficult and why you may easily get discouraged. What can you do about it?

Learn client development in bite sized pieces and implement what you are learning until it becomes part of your habits. Your goal should be to get client development from your short term memory to the hard wired part of your brain.

How can you accomplish this?

• Start with what you want to accomplish long term and why it is important to you.
• Set a time period. Let’s say five years from now and an end result goal on where you want to be then.
• Create a 2021 Business Plan that is based at least in part to what you want to accomplish this year to get you on the right course for your five year goal.
• Create quarterly or monthly action plans and measure how you are doing towards your one year plan goals
• Create a weekly action plan and share it with your husband or wife, your friend, your mentor or someone who will hold you accountable.
• Grade yourself each week on how you did on the actions in weekly plan and create an action plan for the following week
• Plan what actions you want to take each day

That approach, my friend, will break down your efforts into bite sized pieces. What do you want to learn next? What actions do you want to take next?

 

 

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State Bar president’s grievance task force seeks feedback

Originally published by Jared Fink.

State Bar President Larry McDougal’s Task Force on Public Protection, Grievance Review, and the Client Security Fund is seeking your input.

The 21-member State Bar task force is studying the grievance system to help ensure it remains fair to Texas lawyers while ensuring the public is protected from attorneys who may violate the disciplinary rules. At the end of the process, the task force will make recommendations to the State Bar Board of Directors regarding any changes in procedures and rules the task force believes are necessary. The task force will also study ways the Client Security Fund can better serve the public while considering the limited resources available to the fund.

The task force will hold two public comment sessions by videoconference: from 9 to 11 a.m. CST on Wednesday, March 10 and from 1 to 3 p.m. CDT on Wednesday, March 24. Please follow this link to sign up to speak at a public comment session.

The task force is also accepting written comments. Please provide written comments here.

Please be advised that your comments should not compromise the confidentiality of matters considered by the Chief Disciplinary Counsel’s Office or the Commission for Lawyer Discipline. We ask that you not discuss a complaint or investigation that is, or may be, pending or that has been dismissed or that resulted in private discipline. By law, those matters remain confidential. Likewise, please be advised that this is not a forum for filing grievances against attorneys or for asking the Commission to reconsider a decision relating to any complaint filed against an attorney. Please go here for more information about the grievance process.

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Federal v. State Finality

Originally published by David Coale.

In Texas practice, “a judgment is final either if ‘it actually disposes of every pending claim and party’ or ‘it clearly and unequivocally states that it finally disposes of all claims and all parties.’” Bella Palma LLC v. Young, 601 S.W.3d 799, 801 (Tex. 2021) (emphasis in original, quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001).

In federal practice, however, “[w]ithout a [Fed. R. Civ. P.] 54(b) order, ‘any order or other decision, however designated, that adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties.’” Guideone Ins. Co. v. First United Methodist Church of Hereford, No. 20-10528 (Feb. 22, 2021, unpublished) (emphasis in original, quoting Fed. R. Civ. P. 54).

The post Federal v. State Finality appeared first on 600 Camp.

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SCOTUS Rejects Amazon’s Petition in “Last Mile” Delivery Driver Arbitration Dispute

Originally published by Beth Graham.

The Supreme Court of the United States has declined to consider whether “final mile” delivery drivers are transportation workers engaged in interstate commerce and exempt from the Federal Arbitration Act (“FAA”).  In Amazon.com, Inc. vs. Rittmann, (No. 20-622) an Amazon delivery driver, Rittman, filed a putative class-action Fair Labor Standards Act lawsuit on behalf of thousands of Amazon delivery drivers.  In response, Amazon moved to resolve the dispute via individual arbitration pursuant to the collective action waiver and binding arbitration agreement each driver agreed to prior to working with the company.

The FAA does not apply “to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”  According to the Ninth Circuit, the Amazon delivery drivers qualified for the FAA exemption because they completed the final leg of deliveries that cross state borders.  As a result, the Court of Appeals held the lawsuit may proceed in court.

In November, Amazon filed a petition for a writ of certiorari with the Supreme Court.  The question presented in the case stated:

Congress extended the Federal Arbitration Act’s strong support for arbitration to the full reach of its powers to regulate foreign and interstate commerce, with a limited exception for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. 1 (emphasis added). Recognizing that Congress included this exemption to preserve specialized arbitration regimes for seamen and railroad employees, the Court has held that the exemption requires “a narrow construction.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 118 (2001).

In a divided decision, the Ninth Circuit ruled that Amazon Flex drivers who use their personal vehicles to make local deliveries in a single state are exempt interstate workers because Amazon sells goods that travel in interstate commerce before Flex drivers pick them up for delivery.

The question presented is whether the Federal Arbitration Act’s exemption for classes of workers engaged in foreign or interstate commerce prevents the Act’s application to local transportation workers who, as a class, are not engaged to transport goods or passengers across state or national boundaries. Yesterday, the Supreme Court denied Amazon’s petition without comment.  This has effectively given the drivers a green light to proceed with their class-action lawsuit.

Yesterday, the Supreme Court denied Amazon’s petition without comment.  This has effectively given the drivers a green light to proceed with a class-action lawsuit in court.

In July, the First Circuit Court of Appeals issued a similar decision, which Amazon has also asked the Supreme Court to review (No. 20-1077).  The nation’s high court has not yet decided whether to grant Amazon’s petition, but based on yesterday’s order it will likely be denied.  You may read more about that case in another Disputing blog post.

Photo by: Super Straho on Unsplash

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Texas Divorce Decree Must Adopt Terms of a Mediated Settlement Agreement

Originally published by Kelly McClure.

A Texas Mediated Settlement Agreement (“MSA”) that meets the statutory formalities is binding and the parties are entitled to a judgment upon it (i.e., the divorce decree must adopt it).  In a recent case, a husband challenged an order issued after the divorce decree that was intended to conform the decree with the terms of the MSA.

The

parties executed an MSA. A couple of weeks after the court entered the final divorce decree, the wife moved for clarification of the MSA.  She alleged the final decree did not reflect the MSA, because it failed to confirm certain items as her separate property.  The trial court entered an order confirming those items as her separate property after a hearing.

The husband appealed.

 

Breaking Down the Mediated Settlement Agreement

Th

e MSA had three parts, the Preamble, Exhibit A, and Exhibit B.  The Preamble stated the parties agreed to the provisions of Exhibits A and B, which were incorporated by reference.  Exhibit A contained what the appeals court considered the agreement’s “principal terms.” Item No. 2 stated the husband would keep the home and its contents “except for the items listed on Exhibit B that have been circled. . .” Item No. 10 stated each party would “retain the personal property in their possession except as set forth in Exhibit B.”  In Exhibit B, 124 items were listed under the general heading of “Property List,”  some of which were circled.  The decree awarded the circled items to the wife.

There were 65 items listed under “SEPARATE PROPERTY.”  The final divorce decree had not referenced these items, but the trial court awarded them to the wife in its subsequent order.

Appellate Court Rejects Husband’s Arguments

The husband argued the court erred in classifying these items as the wife’s separate property.  He argued he had only agreed to the wife receiving the items that had been circled.  The appeals court disagreed. The appeals court noted Exhibit B was referenced not only in Item No. 2, but also in Item No. 10.  Item No. 10  provided the parties would keep the personal property in their possession except as set forth in Exhibit B.  Item No. 10 did not require anything in Exhibit B to be circled.  The appeals court also noted that the items at issue were under the “SEPARATE PROPERTY” heading.  These items were also numbered separately from the other 124 items.  The appeals court found these differences indicated the parties intended the items under the “SEPARATE PROPERTY” heading to be treated differently from the other 124 items.  The appeals court further found the “SEPARATE PROPERTY” heading would be meaningless if the items under it were required to be circled to be considered the wife’s separate property.

The appeals court also rejected the husband’s argument that the divorce decree’s merger clause required the decree to control if there were any differences between the decree and the MSA.    The appeals court noted that a MSA that meets the statutory requirements is binding on both parties and on the trial court.  The trial court does not have the authority to enter a decree that conflicts with the MSA with regards to the property division. There was therefore no error in the trial court’s determination that the merger clause did not preclude it from issuing an order to carry out the MSA’s terms.

The appeals court affirmed the trial court’s order.

Mediation is Important – Hire Experienced Attorneys to Represent You

As this case shows, an MSA is a binding agreement.  It is important that the document clearly reflects the parties’ actual agreement.  Even if you anticipate reaching an agreement regarding property division with your spouse, a knowledgeable Texas divorce attorney can help you ensure the agreement is appropriately documented.  Call 214.692.8200 to schedule a consultation with McClure Law Group.

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Can You Extend The Statute of Limitations?

Originally published by Villarreal & Begum.

You often hear that the statute of limitations in Texas for personal injury cases is two years. While it might sound like a long time, that time can pass fast. In most cases, if you don’t file your suit in that time, you forfeit your right to sue for the damages associated with that incident.  There is a strictly enforced limit on the amount of time that can pass between the underlying harm and the filing of a lawsuit over the incident.  In most cases, your case will be dismissed if you file after the deadline has been passed. It does not matter how badly you were hurt, or how clear the defendant’s liability may be.  However, there are expectations that could allow some people to extend the statute of limitations.

What Are The Exceptions?

Different states have different exceptions. In Texas, under the Civil Practice and Remedies Code section 16.001, it states that if a person is “under a legal disability,” the time of the disability is not included in the two-year period of limitations. An example of this is if the victim was under the age of 18 at the time of the incident. In this case, you might able to ability to file a suit, after you turn 18. Another exception is if the person was declared “of unsound mind” at the time of the incident. For example, if you were unresponsive or unable to communicate after a car accident, for an extended period of time, you could still file your suit after recovering.

Sometimes the defendant will try and leave the state or conceal themself to avoid taking responsibility. In this case, the statute of limitations only applies after you discover who is responsible for your damages. If you are unsure if these exceptions apply to you, speak to a personal injury attorney.

Missing Your Filing Deadline

Just because you think your case qualifies for a deadline, doesn’t mean you should wait. These exceptions can be complicated, and your case might not meet the qualifications. Find a lawyer as soon as possible. The sooner you file, the better. The longer you wait, the harder it becomes to prove your damages. The decision to wait might cost you your lawsuit.

San Antonio Car Crash Lawyer.

Have you or a loved one been in a serious car crash and suffered injuries? If so, you should contact an experienced Personal Injury attorney. Villarreal and Begum is a local San Antonio firm that will fight to get you the compensation that you deserve. We serve clients all across Texas with offices in San Antonio, McAllen, and Laredo. We are available day and night to take your calls. Call or contact us via our website. The Law Guns will fight for you.

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Robinhood Gets Scrutinized by Congress and Gets Hit with Wrongful Death Lawsuit

Originally published by Peggy Keene.

The Robinhood Controversies: Congress Scrutinizing GameStop Trading and Wrongful Death Lawsuit Filed

In a previous blog post, we briefly discussed Robinhood’s background and how its entry into the trading section affected its competitors.  In this post, we discuss the current controversies that surround the trading app.  Specifically, Robinhood has found itself embroiled in controversies that involve the premature cessation of GameStop stock trading as well as a wrongful death filed against it.

Robinhood Controversy Related to GameStop Stock

Robinhood first catapulted to headlines with the rise and fall of GameStop stock, which had its price and value manipulated by a group of Reddit users.  Using Robinhood to conduct trades, due to its policy of fee-free trading, users on Reddit were able to vault GameStop stock up more than 14,300% last week, which later free-fell back down again to $53.50 after Robinhood restricted users from buying certain stocks on its platform.  As such, once Robinhood decided to step in and temporarily suspend trading of GameStop stocks, its actions triggered Congress to scheduling hearings to scrutinize and discuss Robinhood’s intervention.

Robinhood Controversy Related to a Student’s Suicide

Last summer, after seeing a negative balance of $730,000 in his trading account a college student committed suicide, after he mistakenly believed that he owed that much.  In the suit filed by the family of deceased college student Alex Kearns, the family accused the app of being liable for his suicide because it specifically targeted and lured inexperienced investors into using its app by making its platform similar to videogames and removing typical barriers to trading by providing most of its services for free.  The Kearns family also alleges that Robinhood failed to provide sufficient customer support and investment guidance because Kearns was unable to contact the company for help after discovering his negative balance.

In general, the Kearns family alleges that Robinhood markets itself towards millennials that may be too inexperienced and too immature to grasp the real-world risk and consequences that accompany high-risk trading.  For example, at the time of his death, Kearns did not understand enough about trading to realize that the negative balance in his account did not truly reflect any sort of debt that he owed.  While the lawsuit is still pending, Robinhood has since included new criteria and requirements for customers seeking to participate in advanced trades.

Robinhood currently finds itself embroiled in two major controversies because it:

• must answer to Congressional hearings regarding its decision to stop trading of specific stocks;

• is now the defendant in a wrongful death lawsuit; and

• because its ease of use has drawn criticism and claims that it allows inexperienced users to engage in trading without the proper experience or education.

Related Story: Investing with Robinhood: The Allure and Controversy

For more information on technology law, see our Technology & Data Legal Services and Industry Focused Legal Solutions pages (including blockchain technology and cryptocurrency).

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No Formal Pleading Required for Attorneys’ Fees in Arbitration

Originally published by Carrington Coleman.

Ninety Nine Physician Services, PLLC v. Brian Murray
Dallas Court of Appeals, No. 05-19-01216-CV (February 22, 2021)
Justices Schenck (Opinion), Osborne, and Partida-Kipness (Concurring)
Neil R. Burger

In Ninety Nine Physician Services, the Dallas Court of Appeals reversed the judgment of the trial court and enforced an arbitrator’s award of attorneys’ fees even though there was no pleading in the arbitration seeking such an award.

The parties’ arbitration agreement provided that all disputes would be governed by the AAA’s Commercial Rules, but it was silent about any award of attorneys’ fees. The AAA rules permit an arbitrator to award fees in three circumstances: (1) if all parties request fees, (2) if fees are authorized by law, or (3) if fees are authorized by the agreement.

Appellant did not assert a claim that supported an award of attorneys’ fees as a matter of law. Nor did it formally plead for fees. But both Appellant and Appellees filed post-hearing submissions, including expert affidavits, seeking an award of fees. The panel majority agreed that this post-hearing briefing was sufficient for the arbitrator to conclude that all parties had requested their fees, despite the absence of any formal pleading on the issue. The AAA rules therefore authorized the arbitrator to award them.

In a concurring opinion, Justice Partida-Kipness would have concluded that awarding attorney’s fees in the absence of a pleading for such an award violated Texas’s fair notice requirements. Nevertheless, she concluded that the arbitrator’s award was a mistake of law, which would not constitute grounds to vacate the award.

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Free legal assistance available for low-income individuals affected by the Texas winter storm

Originally published by Amy Starnes.

The State Bar of Texas, the American Bar Association, and legal aid providers across the state remind Texans that a toll-free legal assistance hotline is available to low-income individuals and families affected by the Texas winter storm that began February 11.

The hotline—800-504-7030—is available in English, Spanish, and Vietnamese and connects low-income individuals affected by the disaster with local legal aid providers who can help with:

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

Callers to the hotline can leave a message at any time. Individuals who qualify for assistance will be matched with Texas lawyers who have volunteered to provide free, limited legal help. Callers should be aware there are some limitations on disaster legal services. For example, assistance is not available for cases that will produce a fee (i.e., those cases where attorneys are paid part of the settlement by the court). Such cases are referred to a local lawyer referral service.

Major Disaster Declarations
President Joseph R. Biden issued federal disaster declarations for 108 Texas counties, making federal funding available to individuals and businesses who suffered damages in the storm. The assistance includes grants for temporary housing and home repairs, low-cost loans to cover uninsured property losses, and other programs to help individuals and business owners recover from the effects of the disaster.

Texans who suffered losses as a result of the storm are urged to register with the Federal Emergency Management Agency (FEMA), as they may be eligible assistance. People can register online at DisasterAssistance.gov or via smartphone or web-enabled device at m.fema.gov. Applicants may also call 800-621-3362 or 800-462-7585 (TTY).

Online Resources
The Texas Legal Services Center has created a webpage of resources at texaslawhelp.org. Look for a button at the top for Winter Storm Uri. Online winter storm resources also may be found on the State Bar of Texas website at texasbar.com/winterstorm.

Barratry or improper solicitation
The State Bar of Texas reminds the public that in many cases it is a crime in Texas for a lawyer or someone representing a lawyer to contact a person for purposes of legal representation if the person has not first requested the call or personal visit. The contact is not illegal if the attorney is not seeking payment or has a preexisting professional-client or family relationship with the person being contacted.

If you witness something you believe to be improper solicitation, or barratry, please get the name and phone number of the person making contact and report it to your local law enforcement authority or the State Bar of Texas Chief Disciplinary Counsel’s Office toll free at 866-224-5999.

Partnership Members
The following organizations have joined forces to provide a toll-free phone line for Texas disaster victims to request free legal assistance and to connect with volunteer attorneys to handle cases arising from the recent severe weather:

American Bar Association Young Lawyers Division (americanbar.org) — The ABA YLD, the largest national organization of young lawyers, provides leadership in serving the public and the profession, and promotes excellence and fulfillment in the practice of law. Its parent organization, the ABA, is the national voice of the legal profession and the largest voluntary professional membership group in the world.

Federal Emergency Management Agency (fema.gov) — FEMA coordinates the federal government’s role in preparing for, preventing, mitigating the effects of, responding to, and recovering from all domestic disasters—whether natural or man-made—including acts of terror. Through an agreement with the ABA, FEMA underwrites the cost of operating toll-free legal assistance lines for victims in areas designated as federal disaster sites.

Legal Aid of NorthWest Texas (lanwt.org) — Legal Aid of NorthWest Texas is a nonprofit organization that strives to meet the legal needs of more than 1.5 million eligible clients in its 114-county service area. The fifth-largest legal aid program in the United States, LANWT provides a wide variety of broad-based legal services to low-income and disadvantaged clients including family law, landlord/tenant cases, public benefits, wills, foreclosure prevention, consumer issues, and community revitalization matters.

Lone Star Legal Aid (lonestarlegal.org) — Lone Star Legal Aid is the fourth largest service provider of free legal aid in the United States. LSLA serves 72 counties in Texas and four in Arkansas, from Texarkana, to the Louisiana-Texas Gulf Coast state-line, down to Matagorda Bay, an area with over 2 million Texans eligible for free legal services. LSLA has 14 offices throughout east, southeast, and northeast Texas; covering consumer, housing, environmental justice, disaster recovery, tax relief, family law, domestic violence, sexual assault, crime victim rights, veterans benefits, and more.

State Bar of Texas (texasbar.com) — The State Bar of Texas is an administrative agency of the Supreme Court of Texas that provides educational programs for the legal profession and the public, administers the minimum continuing legal education program for attorneys, and manages the attorney discipline system.

Texas Legal Services Center (tlsc.org) — Texas Legal Services Center is a statewide nonprofit organization whose mission is to provide high-quality legal representation, advice, advocacy, and education at no cost to underserved people across the state. With more than a dozen practice areas, our work touches almost every aspect of civil law that impacts low-income Texans.

Texas RioGrande Legal Aid (trla.org) — Texas RioGrande Legal Aid provides free legal services to people who cannot afford an attorney in 68 southwestern counties, including the entire Texas-Mexico border. More than 2.7 million residents of Southwest Texas are considered eligible for TRLA services. TRLA attorneys specialize in more than 45 areas of the law, including disaster assistance, family, employment, foreclosure, bankruptcy, landlord-tenant, housing, education, immigration, farmworker, and civil rights.

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Top 10 from Texas Bar Today: Robinhood, Potholes, and Fill-in-the-Blank

Originally published by Joanna Herzik.

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

10. Is a Fill-in-the-Blank Will Valid in Texas? – Rania Combs of Rania Combs Law @raniacombs in Houston

9. Failing to Notify Heirs of a Probate Case – Kreig Mitchell LLC @irs_tax_trouble in Houston

8. How Social Media Can Hurt Your Case – Villarreal and Begum Law Firm @VBLawGroup in San Antonio

7. Holes in a case? – David Coale @600camp of Lynn Pinker Hurst & Schwegmann in Dallas

6. Is the Smell of Marijuana Enough to Permit a Warrantless Vehicle Search? – Brandon Barnett of Barnett Howard & Williams PLLC @BHWLAWFIRM in Fort Worth

5. Investing with Robinhood: The Allure and Controversy – Peggy Keene of Klemchuk LLP @K_LLP in Dallas

4. Red River Statutory Rivalry: Texas Lien Statute is Fatal to Texas Producers’ Security Interests – Charles Sartain and Brittany Blakey of Gray Reed & McGraw, P.C. @GrayReedLaw in Dallas

3. 2021 Outlook for Patent Litigation Trials in the Western District of Texas – Carstens & Cahoon, LLP @CarstensCahoon in Dallas

2. Texas Appeals Court Upholds Finding Father Was Intentionally Unemployed or Underemployed – Kelly McClure of McClure Law Group @McClureLaw in Dallas

1. Substitute Return Penalties Are Valid—Llanos v. Commissioner – Zachary Montgomery of Freeman Law @FreemanLaw_PLLC in Frisco

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What is a Miller Trust?

Originally published by Rania Combs.

A Miller Trust, or qualified income trust, is an irrevocable trust that allows individuals qualify for Medicaid long-term care services, such as nursing home care, when they earn more income than Medicaid’s income limit.

The Texas Income Cap

Texas is one of 12 states that has an income cap to qualify for Medicaid nursing home care. In addition to having a medical need that requires skilled nursing care and countable recourses under $2,000, individuals who want to qualify for Medicaid must earn less than $2,382 in gross monthly income. This amount changes from year to year. The American Council on Aging’s website maintains updated information regarding income and asset limits for eligibility. Those with gross income more than the income cap can be denied coverage for nursing home care.

The income cap results in a situation where many people who need nursing home care receive too much income to qualify for Medicaid but earn too little to afford the high cost of nursing home care. To solve this problem, the Omnibus Budget Reconciliation Act of 1983 included provisions to help these individuals qualify for the care they desperately need by transferring the income they earned into a trust.

What are the Requirements of a Miller Trust?

A valid Miller trust meets the following requirements. It must:

• Be irrevocable;
• Funded only with a pension, Social Security, or other income of the individual;
• Contain a provision that the State of Texas will receive all funds that remain in the beneficiary dies, up to an amount equal to the total assistance paid by Medicaid on behalf of the beneficiary.

Who Can Be the Trustee of a Miller Trust?

Anyone other than the Medicaid applicant can be the trustee. For example, a sibling, an adult child, or an agent under a durable power of attorney can be the Trustee.

How Miller Trust Work?

A Miller Trust is specifically designed to qualify an individual for Medicaid benefits by diverting all income into the trust. Income diverted to the trust is not counted as income for purposes of Medicaid eligibility when attempting to qualify for nursing home care.

A Miller Trust can only hold the applicant’s income. No other resources should be transferred to the trust. Every month, the Trustee of the Miller Trust will make certain distributions:

1. Personal Needs Allowance. Under current law, the personal needs allowance is $60. The Trustee should distribute this amount to the beneficiary once each month.
2. Spousal Maintenance. If the beneficiary has a spouse, the trustee can distribute a monthly maintenance needs allowance to the spouse. In 2021, the allowance is $3,259.50. Like the income cap, the allowance varies year to year. The Trustee can distribute a portion of the income received by the trust to a spouse each month in order to reach this monthly cap.
3. Medical Payments. The Trustee must pay medical expenses not subject to payment by a third party, and the cost of long-term care provided to the beneficiary by the end of each month.

Once the trustee makes a distribution to the nursing home, there should not be any additional funds in the trust’s checking account. However, if minimal funds do remain, they must be retained in the trust and be paid to the State of Texas upon the beneficiary’s death.

An attorney can help you decide whether a Miller Trust is the right solution for your family, draft a trust that complies with Medicaid rules, and advise you on how to properly administer the trust.

The post What is a Miller Trust? appeared first on Rania Combs Law, PLLC.

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2021 Outlook for Patent Litigation Trials in the Western District of Texas

Originally published by Carstens & Cahoon LLP.

It is no secret that the Waco Division of the Western District of Texas is the rising star of patent litigation.  Judge Alan Albright successfully marketed the district to patent infringement plaintiffs to become the country’s busiest patent judge.  One attraction of the Western District is that Judge Albright moves his cases quickly. However, the […]

The post 2021 Outlook for Patent Litigation Trials in the Western District of Texas appeared first on Carstens & Cahoon.

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How to Decline being Successor Trustee

Originally published by Paul Premack.

This column first appeared in the San Antonio Express News and other Hearst Newspapers on January 12, 2021.

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Dear Mr. Premack: My older brother listed me as a successor Trustee in a new Living Trust signed by him and his wife. They did not ask me, I did not sign, and they just now told me. They are Trustees as long as they are healthy and alive, but the Trust says I must manage their finances if they are ill or after they die. I told them I would rather not have that responsibility and asked them to remove my name, but they said I can just decline later. I spoke to the other successor they listed, and she also said she was not asked and does not want the job because their daughter / beneficiary has drug and criminal behavior issues. When they die, how do I decline? Can they legally require me to manage the Trust for their daughter, or am I able to decline the job? H.C.

A Living Trust Agreement can be established to accomplish a wide variety of goals. The creators of the Trust with their estate planning attorney 1) itemize the tasks needed to reach those goals, and 2) choose the people who they feel are capable of and willing to achieve those goals. For instance, the Trust may specify that the creators’ assets are held for the benefit of the creators during their lifetimes, then after their deaths are to be held for the benefit of their adult children.

Often, when the children are stable responsible adults, the Trust will instruct that distribution of assets be made directly to them. The Trust has then fulfilled its goal by moving the assets to the next generation. But when the children are under-age or are not stable or responsible, the Trust can specify that the assets remain under the Trustee’s control to be distributed only for certain needs at certain times. Clearly that scenario is a much bigger challenge for the selected successor Trustee. It is the position into which you have been placed.

Your brother and his wife should have asked for your consent before listing you as successor Trustee (the same goes for the second successor you mention, who also wishes she had been allowed to decline). When they created the Trust, they were establishing a legal framework built on the relationships and bonds they have with the people charged with fulfilling the Trust’s goals. Logically they should confirm those people are willing to do the required work.

Yet you are listed without your consent. What can you legally do? First, you need to inform the Trust creators that you do not want the job. You have done so. They elected to make no changes, a poor decision that puts the whole framework of their Trust at risk. They should remove you because they need successor Trustees willing to follow their instructions to accomplish the goals set out in the Trust Agreement.

Second, if they do not remove you, then when they die you must avoid acting in a manner that creates an “acceptance” of the role of Trustee. Do not sign the Trust Agreement. Do not exercise any powers given to you under the Trust Agreement. Notify the Trust’s beneficiaries that you decline. Notify the other successor Trustee you have declined. (Just inspecting the trust assets or acting to preserve the trust assets is not “acceptance” if you otherwise promptly reject the role of Trustee.)

Third, after you decline, the other successor Trustee must decide whether to accept being Trustee. If she also declines, the law specifies that “any interested person” can petition an appropriate court to appoint a different Trustee.

Your brother and his wife should not want their Trust to end up in court. They should remove from the Trust anyone unwilling to serve. If there is no one else willing to be successor Trustee they should interview the Trust Departments at several local banks. Corporate fiduciaries charge specific fees but provide professional and reliable trust management. When there are no individuals willing to or capable of being successor Trustee, a bank may be the ideal alternative.

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Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.

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Texas high school students compete for mock trial title

Originally published by Adam Faderewski.

Six Dallas-Fort Worth area teams were among the winners of 20 teams that competed in January and February and will compete virtually from March 4 to 6. Teams from Bishop Lynch High School in Dallas, Booker T. Washington High School in Dallas, Bryan Adams/Skyline Alliance in Dallas, Cistercian Preparatory School in Irving, Frisco Career & Technology Education, and Judge Barefoot Sanders Law Magnet in Dallas will compete for the title.

Dallas judges and attorneys will serve as jurors and select the teams that are best prepared and demonstrate exceptional presentation skills. Students will portray plaintiffs and defense attorneys, as well as witnesses.

The winner of the state competition will go to the 2021 National Mock Trial Competition hosted by the Indiana Bar Foundation from May 13 to 15, 2021.

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Failing to Notify Heirs of a Probate Case

Originally published by AZ Defenders.

Our legal system is based on the idea that each party to a lawsuit should be notified of the suit. This ensures that they can protect their interests or defend themselves against the suit. With probate cases, this involves personally serving citation. This notice process is mentioned in several sections of the Texas Estates Code.…Continue…Continue readingFailing to Notify Heirs of a Probate Case

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Is the Smell of Marijuana Enough to Permit a Warrantless Vehicle Search?

Originally published by Brandon Barnett.

Does the Smell of Marijuana Allow Officers to Search My Vehicle Without a Warrant? In Texas, the answer is yes. The possession of marijuana is a crime in Texas, so…

The post Is the Smell of Marijuana Enough to Permit a Warrantless Vehicle Search? appeared first on Fort Worth Criminal Defense, Personal Injury, and Family Law.

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Salt Alert: Texas Apportionment Rule Changes

Originally published by George W. Rendziperis.

Texas has updated its rules regarding the sourcing of revenue for apportionment purposes.  The Comptroller has indicated that the change in the rules reflects statutory changes, court decisions, current guidance, update definitions and improve readability.

The amendments bring both favorable and adverse changes for taxpayers subject to the Texas Margins Tax, with changes to the sourcing provisions for receipts from services, including advertising services, transportation services and internet hosting, and receipts from sales of computer hardware and digital products, capital assets and investments, interests in single-member limited liability companies (SMLLCs) and sales of securities through an exchange.

Services

The revised rules continue to require gross receipts to be sourced from sales of services to the location where the service is performed. If the service is performed both inside and outside of Texas for a single charge, the receipts are still allocated between performance locations based on the fair value of the service rendered at each location.

The revised rules define where a service is performed as the location of the receipts-producing end-product act or acts. If there is a receipts-producing, end-product act, the location of other acts will not be considered even if they are essential to the performance of the receipts-producing acts. If there is not a receipts-producing, end-product act, the locations of all essential acts may be considered. If the service was performed both inside and outside of Texas for a single charge, units of service, such as hours, may be considered. If costs are considered, costs should be limited to those directly related to the service and not overhead costs.

There is limited guidance in the revised rules as to what constitutes a receipts-producing, end-product act associated with a service and no examples to assist taxpayers in applying the concept.

Internet hosting

Based on legislation enacted in 2013 and effective for Texas Margin reports originally due on or after January 1, 2014, the revised rules provide that gross receipts from internet hosting services are sourced to the location of the customer.

Internet hosting services include, but are not limited to, data storage and retrieval, video gaming, database search services, processing of data and marketplace provider services. In the preamble to the revised rules, the Comptroller acknowledges that the examples extend beyond what ordinarily may be considered as internet hosting services. Thus, since the revision is effective for reports originally due on or after January 1, 2014, taxpayers will need to determine if their services constitute internet hosting and, if so, whether their sourcing determinations need to be revisited.

The customer’s location when purchasing internet hosting services is determined by where the purchaser, or the purchaser’s designee, consumes the service. Receipts from some services may be sourced to multiple customer locations or to multiple customers. The new provisions contain examples illustrating the application of this sourcing rule.

Computer hardware and digital property

The revised rules include new sourcing provisions for sales of “digital property,” which is defined as computer programs and any content in digital format that is either protected by copyright law or that is no longer protected by copyright law due solely to the passage of time. As outlined in the rules, the sourcing of such receipts is dependent upon how the digital property is transferred to the purchaser. The new sourcing rules for digital property can be summarized as follows:

• Gross receipts from the sale or lease of digital property installed on computer hardware or other fixed physical media are sourced as a sale of tangible personal property. Importantly, this is a change from the Comptroller’s prior guidance, which sourced gross receipts from all sales of software to the location of the payor.

• Gross receipts from the delivery of digital property by means other than fixed physical media (i.e., electronically) are sourced using the location of the payor rule.

• Gross receipts from the delivery of digital property as a service are sourced to the location where the receipts producing, end-product act is performed. For example, cable television subscription receipts are gross receipts from the use of digital property and are sourced to the audience location.

• Gross receipts from the delivery of digital property as part of an internet hosting service are sourced to the location of the customer. For example, gross receipts from access to software-as-a-service (SaaS) are treated as receipts from digital property delivered as part of an internet hosting service and are sourced to the location of the customer. This change reflects the 2013 legislative change enacted with respect to the sourcing of internet hosting services. However, the inclusion of the SaaS example in the amended rule represents a change in policy.
• Gross receipts from the use (as opposed to sale or license) of digital property are treated as receipts from the use of an intangible and are sourced to where the intangible asset is used. For example, a software company’s license of software to a seller of computer hardware for installation on seller’s computer products is treated as the use of a digital product and the gross receipts are sourced to the location of the computer hardware company.

Capital assets and investments

For Texas Margin reports due on or after January 1, 2021, only the “net gain” from the sale of a capital asset or investment is included in gross receipts. A “net loss” from the sale of a capital asset or investment is excluded from gross receipts. The net gain or net loss is determined on an asset-by-asset basis and a net loss from the sale of one asset may not be used to offset the net gain from the sale of another asset. The net gain from the sale of the capital asset or investment is sourced based on the type of asset or investment sold. This amendment is intended to reflect the Texas Supreme Court’s 2016 decision in Hallmark Marketing Co. v. Hegar.

Advertising services

The revised rules consolidate sourcing sales of advertising services for newspapers, magazines, radio, television and other media into a single rule. Sourcing of gross receipts from the dissemination of advertising is based upon the location of the advertising audience. If the locations of nationwide advertising audiences cannot be reasonably determined, then 8.7% of the gross receipts are sourced to Texas. Also, certain taxpayers are allowed the option to source advertising receipts for Texas Margin Tax   reports originally due before January 1, 2021 using the location of the transmitter, as originally provided in the prior rules.

Transportation services

The original rules allowed for sourcing of transportation receipts to Texas based on gross receipts or mileage. For Texas Margin Tax reports due on or after January 1, 2021, taxpayers must use gross receipts.

Sale of membership interest in a SMLLC

The revised rules incorporate previous guidance issued by the Comptroller regarding sales of interests in SMLLCs. The sale of an interest in an SMLLC is treated as the sale of an intangible, rather than a sale of the assets owned by the SMLLC (the federal treatment). The net gain on the sale of the SMLLC interest is sourced using the location of payor rule.

Freeman Law can help taxpayers with navigate these revised Texas apportionment rules.  We will provide value driven services and provide practical solutions to complex issues.  If you have any questions, please contact George Rendziperis at 512-663-0132 or George@freemanlaw.com.

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Why State and Local Tax Due Diligence Is Important

Originally published by George W. Rendziperis.

Why is State and Local Tax (SALT) due diligence important in mergers and acquisitions?  Someone else’s issues may be your headache and cost you a lot of money!

What is due diligence? Due diligence is the process of identifying and analyzing the risk associated with acquiring a business or selling a business. Tax risk, particularly state and local tax, is a key part of that analysis.

There are many different types of taxes that businesses should take into consideration when doing due diligence, such as property taxes; sales and use taxes; gross receipts taxes; income taxes; and franchise taxes.  Each of these tax types have unique rules and implications, and state and local jurisdictions apply those taxes in different ways. It can get complex quickly based on where a company is doing business.

One big misconception that I hear is “I am buying the assets of the targeted company, why should I care whether the targeted company was compliant with state tax laws and rules. I am buying the assets of the company and not buying the entity itself (or its equity).” Buying the assets does not alleviate the purchaser from issues that may arise with the seller if such seller was not compliant with state and local tax laws and rules.

Sales and use taxes and employee withholding taxes are trust fund taxes, whereby a taxpayer collects tax on behalf of the state and remits such tax to the state.  Generally, states that impose sales and use tax or an employee withholding tax, provide that any tax liability as a result of these taxes may be enforced upon the company, its owners, its officers or any successor of the legal entity or assets.

For example, if you purchase the assets of a company (the “Company”) and the Company is audited for sales and use taxes, any assessment by the state which is not paid by the seller could result with a lien on the assets that were purchased by you. If the state attaches liens on such assets, and if you try to sell those assets, you will be required to payoff those liens before you will be able to sell the assets. As I stated above, the seller’s issues became your issues and headache.

If you are considering buying a business, it is important to consider all the risks that could be associated with a transaction. A few helpful questions for state and local tax matters that you can ask are:  Is the company filing everywhere it needs to be filing? Are the filings being done correctly? Are there or have there been any state audits? If yes, what is the status?  Does the company have refund claims outstanding?

If you’re looking to sell your business, it’s best to begin early in preparing for and anticipating the due diligence actions you should take when addressing state and local tax issues.  Sellers should consider the following when preparing to sell the business:  Consider sufficiency of state tax reserves currently on the balance sheet; Identify areas that may create exposure (like non-filings and economic nexus) that aren’t currently reserved; Document your state and local tax audit history and status of current audits; and Ensure you’ve taken the right steps to comply with changes resulting from recent tax law changes (like South Dakota v. Wayfair and The Tax Cuts and Jobs Act).

As a purchaser of a business, the assets or equity, or a seller of a business, you must be proactive and review whether the seller is compliant with state and local tax laws and rules.  As a purchaser, the cost to do due diligence may be less than the cost and headaches you will encounter dealing with any SALT issues.  As a seller of a company, you must be aware that a purchaser will likely do due diligence on the purchase of your company, therefore, it would be to your benefit to do your own due diligence before the sale of the business to determine any tax exposures so that when the purchaser does its due diligence, the process is a lot smoother.  As a seller, you do not want the deal to be called off due to a state and local tax issue.

Freeman Law can help taxpayers with the due diligence process and navigate these complex state tax laws and rules.  We will provide value driven services and provide practical solutions to complex issues.  If you have any questions, please contact George Rendziperis at 512-663-0132 or George@freemanlaw.com.

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Red River Statutory Rivalry: Texas Lien Statute is Fatal to Texas Producers’ Security Interests

Originally published by Charles Sartain.

Co-author Brittany Blakey

The lesson from In re First River Energy LLC:  Even though Texas lien law does not require the filing of a financing statement for perfection, file one anyway. It will be helpful in the event a dispute is decided under the laws of another state.

The transactions

Texas and Oklahoma producers sold oil and condensate to First River Energy, a midstream service provider, which was expected to pay the producers by the 20^th of the month following delivery. First River was organized under Delaware law and headquartered in Texas. First River filed Chapter 11 bankruptcy in Delaware, by which time it had resold the producers’ oil to downstream purchasers and had $27.6 million+/- in accounts receivable, while the producers’ invoices were outstanding.

The producers from the two states asserted statutory perfected purchase money security interests in the proceeds of the oil and condensate under two statutes: Texas UCC §9.343, or the Oklahoma Lien Act, (Okla Stat. Ann. Tit. 52 §549), respectively. First River’s bank had a competing security interest in the debtor’s funds on deposit and other assets, including accounts and proceeds thereof, by virtue of security agreements executed under Delaware law. The bank’s interest was undisputed.

The lien statutes

Texas UCC § 9.343 is a non-uniform UCC provision granting a first priority purchase money security interest in oil and gas produced in Texas as well as proceeds in the hands of any “first purchaser” (here, First River). This security interest is perfected automatically without the need to file a financing statement. This deviates from Texas’s (and Delaware’s) uniform Article 9 requirements for perfection, the effect of perfection, the length of perfection, and priority among competing interests.

The Oklahoma Lien Act gives producers a lien to the extent of the owner’s interest in the broadly-defined “oil and gas rights,” which includes proceeds, until the producer is paid. Such liens are perfected automatically without the need to file a financing statement. The Oklahoma lien is not a UCC Article 9 security interest “but rather arises as part of a real estate interest of the interest owner in the materials” that is governed by “the law of the state where the well is located . . . [to avoid] application of the UCC Article 9 choice of law rules for personal property.”

Choice of law

The producers’ path to success hinged on “a formidable choice of law hurdle”. Delaware, First River’s state of organization, does not recognize certain “non-standard UCC security interests.” The bankruptcy court had to determine the governing law and apply the substantive choice to the priority disputes. If Delaware’s law governed perfection, Texas producers would lose because the Delaware UCC requires a financing statement, whereas Section 9.343 does not.

The court found that Texas UCC §9.301 governed the choice of law.  For priority and perfection of security interests Section 9.301 looks to the law were the debtor is “located.” First River was “located” in Delaware under Section 9.307(e) because that was its state of organization. Delaware law governed the competing priorities.

Texas producers lose, Oklahoma Legislature prevails

The “Texas Producers [were] out of luck under Delaware UCC law, which does not recognize the priority of their unfiled, unperfected security interests in proceeds under Texas Section 9.343.”

In contrast, Oklahoma producers were entitled to a first-priority statutory lien in the proceeds because “the Delaware UCC does not preempt statutory liens created by other states.” In 2010, the Oklahoma Lien Act was amended to cure the defect still present in the Texas statute: Oklahoma producers were previously subject to UCC rules governing choice-of-law and priority and perfection of security interests. The Oklahoma legislature provided greater protections for its producers.

Mary Wilson, RIP.

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Your Key To Success: Turn Your Goals into Actions

Originally published by Cordell Parvin.

Whether you have written them down or not, you have goals. It is just easier to keep track if you write them down.

Nearly every expert recommends writing down your goals – from once a year to several times during the year.  I recommend it also.

But it takes more than pen, paper (or a computer) and good thoughts to reach your goals.

You must also do something!

It may take more – or less – time than you thought to reach your goals, but one thing’s for certain: you will never reach them if you don’t take action.

Your written goals are like a map – directions for traveling from Point A to Point B.  But you have to commit – and start driving – if you expect to reach your destination. How can you do that?

• Tell your spouse, a colleague or friend what your goals are.
• Report to that person regularly on what you have done.
• Break down your goals into smaller actions.
• Plan your actions for each week, estimate the time each action will take and put it on your calendar.
• Keep a journal.

If you haven’t done this for 2021, please give the suggestions above a try.

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Nonresident Executor Subject to Texas Jurisdiction

Originally published by AZ Defenders.

Many courts shifted to online zoom hearings when the COVID virus situation started. This includes probate courts in Texas. This makes sense. Many probate hearings require witnesses. The witnesses are usually friends and acquaintances of the deceased. As with the deceased, generally, they are usually older. They may be more susceptible to have a strong…Continue…Continue readingNonresident Executor Subject to Texas Jurisdiction

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Investing with Robinhood: The Allure and Controversy

Originally published by Peggy Keene.

What Is the Robinhood App and Service Model?

This is the first in a series of blogs about Robinhood.  The financial market and technology community has been abuzz recently with the story about Robinhood, an app that allows mobile trading.  Despite its popularity among its users, however, recent allegations have arisen that claim that this Robinhood steals from the poor and gives to the rich.

What the Robinhood App Does That’s Different

The company behind the Robinhood app, Robinhood Markets, Inc., is an American financial company.  Robinhood is a FINRA-regulated broker-dealer, which is duly registered with the U.S. Securities and Exchange Commission.  Revenue is mainly derived from three main sources: (1) interest earned on customers’ cash balances; (2) selling order information to high-frequency traders (which is a practice that is currently under SEC investigation); and (3) margin lending.

Even though the Robinhood app has been around since 2015, the app only recently sprung to national news this past month due to a trading controversy concerning dwindling GameStop stock.  While many remember that Robinhood’s original claim-to-fame was the ability to offer commission-free trading of stocks and exchange-traded funds, the service also allows instant deposits, which credits basic users up to $1000.  While the funds would originally take approximately three days to appear via ACH transfer, Robinhood now also offers deposits of up to $50,000, instantly, although it is only available to its premium-tier subscription plan holders.

The Draw to the Robinhood Service Model

In response to Robinhood’s service model, many major brokerage players such as E-Trade, Charles Schwab, and Ameritrade also announced that they were eliminating trading fees. Robinhood is also relatively well-known among cryptocurrency traders and currently boasts a waitlist of more than 1.25 million traders who want to use its commission-free trading services for cryptocurrency transactions.  Additionally, in 2018, Robinhood announced entrance into the banking sector by offering checking and saving accounts, debit cards, and other “cash management” services.  In our next post, the controversies surrounding Robinhood will be dissected.

Key Takeaways on the Robinhood App

It is important to know what the Robinhood app is, because:

• its service model caused other companies to eliminate fees related to trading;

• it is a major player in cryptocurrency trading; and

• it was recently involved in a controversy over GameStop stock that led to widespread criticism overs its handling.

For more information on technology law, see our Technology & Data Legal Services and Industry Focused Legal Solutions pages (including blockchain technology and cryptocurrency).

technology & data

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