Is Marijuana Legal in Texas?

Marijuana use and possession continue to become legalized in states across the country. However, Texas is one of 13 states that outlaws it for recreational purposes. 

Instead, the state allows for precise concessions for which a person in Texas can own and use this substance. You can avoid being charged for marijuana possession and recreational use by understanding under what circumstances that it is legal to have and use marijuana.

Illegal Recreational Use and Possession of Marijuana

Under most circumstances, it is illegal to own, possess and sell marijuana for recreational use in Texas. You cannot grow it to smoke in your own home, for example. You also cannot sell or have it on you for the sole purpose of using it for non-medicinal purposes. If you are found to be in possession of, selling or using marijuana, you could face serious criminal penalties.

However, Texas does allow for certain exceptions to this law. If, for example, the marijuana that you own and use has a THC level of less than 0.3 percent, you will not be charged with illegal use or possession. Likewise, any plant that you grow or have in your possession must be considered to be a hemp plant instead of a marijuana plant.

Further, it is illegal in Texas to possess and use any substance or products other than hemp that contains THC. These products and substances include:

• Vape cartridges
• Gummies
• Wax
• Vape juices

If any of them are found to contain marijuana in them, they could lead to your arrest if you use, sell and own them for recreational purposes.

Have you been charged with marijuana possession in Texas? Attorney Brett Podolsky can help »

Illegal Interstate Possession and Carrying

Texas also makes it illegal for people to bring in marijuana and marijuana products from states where recreational use is legal. For example, if someone from Texas travels to Colorado, where recreational marijuana use is legal, and purchases marijuana products there, they cannot bring those products back into the state. It is against the law to possess and carry this drug that you purchased in another state back to your home in Texas.

The ban on interstate transport of marijuana and marijuana products extends to edibles that you can buy in another state where recreational use and possession are legal. If you bring back edibles, such as gummy candy or wax that contain illegal amounts of THC, you can be arrested for and charged with marijuana possession and transport.

Legal Marijuana Use

While Texas outlaws the recreational use and possession of marijuana, it does allow for this substance to be used for medical purposes. In fact, under the state’s Compassionate Use program, people with certain health conditions may be approved to own, purchase and use marijuana for relief of their symptoms.

The health conditions that merit the compassionate use of marijuana in Texas under this program include:

• Terminal cancer
• Post Traumatic Stress Disorder (PTSD)
• Some forms of epilepsy
• Multiple sclerosis
• Autism
• Spasticity
• Incurable neurodegenerative disease
• Amyotrophic lateral sclerosis

To be eligible for the Compassionate Use program in Texas, you must have a qualified medical profession in the state diagnosis you with one of these ailments. You also must provide documentation of the diagnosis to the state to be approved for using marijuana for relief of your symptoms.

Legal Use of CBD

Texas also allows for the legal use of products that contain CBD, or cannabidoil. CBD products like gummies, vape cartridges, lotions and others are legal to buy, sell, possess and use in Texas.

However, Texas state law cautions consumers that the Federal Drug Administration does not monitor the manufacturing or testing of CBD products. It does not ensure that CBD products sold in Texas contain under the legal amount of THC. If you buy, use, sell or own anything with illegal amounts of THC in it, you could be arrested and face serious criminal and civil penalties.

House Bill 3703

Marijuana use and possession are also legalized in certain circumstances under House Bill 3703. This bill is designed to protect students who have been prescribed medical marijuana. It prohibits them from being charged if they are found to produce, own, transport or handle this drug.

This house bill in Texas also allows for marijuana research programs within the state. It likewise allows for the legal existence of marijuana dispensaries and further defines the qualifications for doctors who prescribe marijuana to their patients.

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Texas Marijuana Cite and Release Law

If you are found to illegally own, use, possess or sell marijuana in Texas outside of the state’s stipulated exceptions, you can face serious criminal penalties. However, law enforcement may be inclined to ticket and let you go under the state’s Cite and Release law if you are found to have fewer than four ounces of marijuana on you at the time of your arrest.

Under this law, you will receive a citation and be told to appear in court later if you are found with at or under this marijuana weight. When you appear in court, however, you can be charged and punished just as if you were arrested and detained.

The Cite and Release law in Texas stipulates that you must reside in the same county as where you were detained and found to be in possession of marijuana. If you are detained outside of the county where you live, you can be arrested and taken to jail if you are found to have marijuana on you when law enforcement detains you.

Likewise, the law does not apply if the county prosecutor prefers that everyone who possesses marijuana on them be arrested. Even if you are detained in the same county where you live, you may be arrested if the county prosecutor demands it.

Penalties for Marijuana Crimes in Texas

Texas utilizes a variety of civil and criminal punishments for people who are found guilty of marijuana possession, sale, use and transport. Even the lowest level of penalties can result in you being heavily fined. The harshest penalties may even see you being sent to prison.

Because of the severity of penalties that come with illegal marijuana use, sale, transport and possession, you need to hire an attorney if you have been arrested for any of these crimes. Your attorney will know how the marijuana laws in Texas work and in what way to use them to your case’s advantage. With his or her assistance, you may be found not guilty, have the charges against you lowered or dropped and possibly escape harsh penalties that might land you in jail and force you to pay heavy penalties.

Your lawyer can also determine if the search and seizure of your person, vehicle, home or possessions were legal and merited. They can also ensure that your constitutional rights are protected throughout the case and that you do not incriminate yourself for something that you did not do and for which you should not be punished.

Texas outlaws marijuana in all but a few select circumstances. It is important for you to know in what cases that you can legally own, use, sell and transport this substance. You can also protect yourself by hiring an experienced attorney like Brett Podolsky to represent you if you have been arrested on an illegal marijuana charge.

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How to Protect Your Business From a Lawsuit

Starting a business can be a great entrepreneurial endeavor. The ups and downs of businesses can, to a certain extent, not always be planned for. Some of the bigger downs, however, are often preventable. Exposing your business to lawsuits, for instance, can be greatly minimized with the right planning. Here, we will talk about some of the best ways you can protect your business from a lawsuit. Note how you can apply these in your own business and avoid the cost, time expense, hit to your reputation, and overall stress that can be caused when a lawsuit is filed against your business.

How to Protect Your Business From a Lawsuit

Before speaking about how you can protect your business from a lawsuit, it is important to mention that you should also consider protecting yourself from personal liability in the event that your business is involved in a lawsuit. One of the best ways to do this is to incorporate your business. Lawsuits can sometimes arise despite our best efforts and you should be prepared and protect yourself as well as you can. Setting up your business as an entity such as an LLC will shield you from personal liability should this happen.

To protect your business from lawsuits, laying some foundational practices can be key. All agreements should be in writing. Put formal contracts in place, such as employment contracts and those for general sales. Furthermore, keep accurate records, always. If a problem ever arises, turning back to formal, written agreements and thorough, well organized records can be a real lifesaver.

Foundational practices and foundational documents, again, can be the first and second line of defense against lawsuits. To strengthen these defenses, put company policies and procedures in writing and be diligent in enforcing and implementing them. Make sure all staff has copies of these documents and understands what they mean as well as what is expected of them in terms of compliance with the document requirements. Employee handbooks can also help employees to learn company policies as well as to perform their jobs in accordance with said policies.

Understanding and employing sound employment practices will also go far to staving off lawsuits. This, however, may be easier said than done as there are a number of both state and federal laws concerning employment rights and responsibilities. Being familiar with these laws is important. Pay particular attention to those laws which may be uniquely tailored to your type of business. Create your company policies in accordance with the relevant employment laws and put procedures in place to help ensure compliance.

Business Law Attorney

Having a trusted attorney by your side can also be a solid way to prevent lawsuits against your business from arising. Consulting a dedicated business attorney throughout your business endeavors and right from the start can go a long way to preventing some serious legal headaches down the road. For all of your business law needs, the Kumar Law Firm is here for you. Contact us today.

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October Webinars from the Law Library of Congress

The Law Library of Congress is offering the following webinars through its Legal Research Institute during October:

• 10/14/2021, 10 a.m. Central: U.S. Case Law – Provides an overview of U.S. case law research, including information about the U.S. federal court system, the publication of court opinions, methods for researching case law, and information about locating records and briefs. To sign up for this webinar, please visit this registration page.

• 10/21/2021, 1 p.m., Central: Freedom of Speech in the Time of Pandemic: Central America and Eurasia – Law Library specialists Iana Fremer and Dante Figueroa will review current legislative developments regulating mass media and their ability to distribute information freely during the Covid-19 pandemic. In particular, the presenters will analyze recently introduced amendments to national legislation aimed at establishing different control measures over the media outlets, internet resources, and journalists in 20 selected countries around the world where adoption of such laws has been identified, namely: Armenia, Azerbaijan, Bangladesh, Belarus, El Salvador, India, Kazakhstan, Kenya, Kyrgyzstan, Mauritius, Moldova, Nepal, Nicaragua, Pakistan, Russia, South Africa, Sri Lanka, Tajikistan, Ukraine, and Uzbekistan. To sign up for this webinar, please visit this registration page.

• 10/28/2021, 1 p.m. Central: Congress.gov – This orientation is designed to give a basic overview of Congress.gov. While the focus of the session will be searching legislation and the Congressional member information attached to the legislation, the new features of Congress.gov will be highlighted. To sign up for this webinar, please visit this registration page.

In addition, you can browse and view past webinar recordings here.

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What is a “Reasonable” Non-Competition Agreement?

Most states will enforce reasonable non-competition agreements, but what is “reasonable” and how the courts reach that conclusion varies.  In Texas, there are some rules of thumb regarding what is generally considered “reasonable” when it comes to non-compete agreements.  A recent opinion from a federal court in Austin illustrates those rules as well as what happens when an employer attempts to enforce an overbroad, i.e., “unreasonable” non-competition agreement in Texas.

In this case, a company that provided management services to amenity facilities, spas, and health clubs sued its former employees for breaching their non-compete agreements after they went to work for a competitor.  Among many claims that the company brought in the lawsuit, it specifically asked the Court to enforce the employees’ non-compete agreements and enjoin (i.e. prevent) the former employees from competing with the company for 12 months. 

The employees’ non-compete agreements prohibited them from being “employed in a business substantially similar to or competitive with” the company for a year after leaving their employment.  The agreements were not limited in their geographic scope or in the scope of activities to which they applied.  The court stated that the company prohibited its former employees from working for its competitors anywhere in the country, even if a competitor was based outside the geographic area where the employees worked.  It also barred the employees from working for a competitor “in any capacity” and, therefore, was not related to the employees’ duties while they worked for the company. 

The court explained that in Texas, “the hallmark of enforcement [of non-compete agreement] is whether or not the covenant is reasonable.”  Generally, a reasonable area for purposes of a covenant not to compete is considered to be the territory in which the employee worked. Furthermore, noncompete agreements barring an employee from working for a competitor in any capacity are invalid.  To be valid, the restrictions on the scope of the employee’s activities at a new company have to bear some relation to the activities of the employee at the old company.  In the case above, the court specifically noted that the company failed to “articulate how [its] broad non-compete agreements [were] necessary to protect its business interests,” which is another requirement for an enforceable non-compete agreement in Texas. 

Eventually, the Court entered an injunction limiting the employees’ activities in Austin, San Antonio and Houston, where employees had actually worked for their former employer.

BOTTOM LINE:  When it comes to non-compete agreements, “reasonableness” is the name of the game, and while employers often want to err on the side of safety and put in longer and larger restrictions than what might be necessary, doing so can backfire when an employer has to enforce its agreement in court. Thus, setting non-compete restrictions should not be done off-the-cuff, but should be a strategic and well-thought-out decision supported by legitimate business reasons. 

Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice.  Her practice includes commercial, intellectual property and employment litigation.  You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108 or fill out the form below. 

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What is a Mediated Settlement Agreement in a Texas Divorce?

A few divorce cases go to trial. Perhaps a spouse wants or needs a judicial declaration that the divorce was the other spouse’s fault. Or, maybe the two sides are so far apart in key areas that settlement is impossible. But roughly 95 percent of civil cases settle out of court. As outlined below, such settlement agreements, especially if they happen during mediation, have some concrete benefits for both sides.

Because of the high settlement rate, a Fort Worth divorce mediation lawyer must have more than good litigation skills. Your attorney must also be a good negotiator. In this context, a good negotiator knows when to compromise and when to stand firm. That way, the case doesn’t drag on and on, and the final settlement agreement upholds your key legal and financial rights.

Benefits of Family Law Mediation

Statistically, most divorce litigants initially believe that mediation will be a waste of time. The reason is that if we could have talked through our problems, we wouldn’t be in divorce court in the first place. Yet most people change their tune when they come face-to-face with the three Cs of mediation, which are:

• Cost: The best Fort Worth divorce mediation lawyers often charge hundreds of dollars an hour. Since time is literally money, the earlier the case ends, the lower the bill is. Furthermore, mediation preparation is much less time-consuming than trial preparation. The Department of Justice estimates that mediation saves civil litigants millions of dollars a year.
  • Control: Many people have a hard time accepting a resolution that a judge or jury dictated with little regard for the everyday needs of a family. Mediation gives the parties almost absolute control over the outcome. That control usually means a higher voluntary compliance rate.
  • Civility: If the spouses have small children, they must be able to get along with each other. Continued turmoil is hard on kids. Emotional courtroom showdowns discourage civility, but mediation encourages civility. On a related note, mediation is empowering. When disputes arise, divorced spouses believe that if they worked out their problems once, they can do so again.

Our Fort Worth divorce mediation lawyers also practice collaborative law, which in many ways is like ongoing mediation. Instead of going to court, the parties meet about once a month to resolve issues like child custody and asset division. The big difference between these two forums is that mediation is part of the litigation process. Collaborative law is a litigation alternative.

What Happens at Divorce Mediation?

A Mediated Settlement Agreement usually covers all issues in a divorce case. That includes both child-related and financial issues. At the end of a mediation session, the parties review and sign the agreement they themselves made. In Texas, mediated settlement agreements are typically binding and the parties may not back out of the agreement.

Procedurally, in Family Law cases, the parties usually are in separate rooms. For the next several hours, a professional mediator conveys settlement offers and counter-offers back and forth between the two sides. This setup is legally effective and can drain much of the emotion from the proceeding.

Mediation has a high degree of success for settling cases. But both parties must earnestly desire a settlement. They cannot just go through the motions. Regardless, mediation is an effective tool to settling a Family Law case.

Contact a Dedicated Divorce Mediation Attorney

Mediation usually works and is almost always at least worth a shot. For a confidential consultation with an experienced divorce mediation lawyer in Dallas contact Orsinger, Nelson, Downing & Anderson, LLP. at (214) 273-2400. Convenient payment plans are available.

The post What is a Mediated Settlement Agreement in a Texas Divorce? appeared first on ONDA Family Law.

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Louisiana Federal Court Allows Injunctive Relief Under FERC Certificate of Public Convenience and Necessity

Coach Eaux congratulates the Tigers for reading Energy and the Law

Resistance was futile for defendants opposing a temporary injunction sought by a party armed with a FERC Certificate of Public Convenience and Necessity that includes condemnation rights under the Natural Gas Act. In Venture Global Gator Express v. Land et al., Venture Global sought to condemn land in Plaquemines Parish, Louisiana, and a preliminary injunction for immediate possession of the property.

The NGA requires that the party seeking to condemn be unable to acquire the property by contract or unable to agree on compensation to be paid. Defendants, Capt. Zack’s Myrtle Grove Properties and ESB Louisiana Opportunities (who held an Option to acquire certain rights) challenged the characterization of a portion of the proposed servitude as temporary instead of permanent and accused Venture Global of not negotiating in good faith.

The right to condemn

Defendants insisted that Venture Global was really seeking a permanent servitude because the rights it sought involved the right to do things that would necessarily require future use of the property. The court declined to “take a deep dive into Louisiana property law” but cited two Civil Code articles:

• 744: The owner of the dominant estate has the right to make at his expense all the works are necessary for the use and preservation of the servitude.
• 745: The owner of the dominant estate has the right to enter with his workman and equipment into the part of the servient estate that is needed for the construction or repair of works required for the use and preservation of the servitude.

The Court noted that although the articles seem to call for a written contract, they provide the most basic rights of dominant estate holders under Louisiana servitude law. The so-called permanent rights are simply a more specific recitation of the rights of the dominant estate holder.

Defendants’ claim that Venture Global did not negotiate in good faith was based entirely around its knowledge or not of the Option Agreement, which was not recorded until five months after Venture Global’s expropriation demand to Captain Zacks. Venture Global was entitled to rely on the public records of Plaquemines Parish in which the Option was nowhere to be found. Venture Global negotiated in good faith with Captain Zack when, without knowledge of the Option, it made a bona fide effort to obtain the property by conventional agreement prior to filing suit.

Right to an injunction

Because Venture Global held a federal certificate, Federal Rule of Civil Procedure 71.1 supplanted Louisiana statutes regarding injunctions. Venture Global alleged that it would suffer irreparable harm if the road were not completed by the certificate deadline, because if the injunction was denied several millions of dollars of expenditures would be lost. Purely speculative and monetary losses are not typically considered irreparable harm for the purposes of injunctive relief, but in condemnation a victorious plaintiff does not receive compensation for injuries suffered by delays in access to the property.

On the right to injunctive relief, the court ruled:

• Venture Global’s deadlines were not the result of its own bad faith and lack of action,
• The case involved a significant public interest,
• The harm to Venture Global if the injunction was not issued outweighed the monetary interest of the defendants, and
• The pipeline did not disserve the public interest.

Preliminary injunction granted. Compensation to be paid to the defendants will be decided at a trial.

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Can you challenge a Mediated Settlement Agreement in Texas?

Family courts in Texas are overburdened with cases. I’m not telling you this to push you towards feeling bad for court staff or judges, necessarily. My intention in sharing this information with you is to provide some context for telling you that courts across our state have become huge proponents of mediation. If you’ve never heard of mediation or don’t know much about it this blog post is for you.

Mediation is a process whereby you and your attorney, your opposing party and their lawyer, and a third party mediator agree up on a date and time to “mediate” and attempt to resolve any outstanding issue in your family law case.

Mediation is utilized in both child custody and divorcecases. In a perfect world, you and the opposing party will settle your case in mediation and therefore would be able to avoid having to go to court and have a judge make a decision for you all.

A document called a mediated settlement agreement (MSA) is the result of your mediation session. This document will contain all of the agreements made by you and the opposing party. All parties, their attorney and the mediator will sign off on the document.

Perhaps the most important part to signing off on a MSA is understanding that doing so means you cannot wake up the following morning (or any subsequent morning) and change your mind about your decision to settle on those particular issues. Our state law, contained in the Texas Family Code, requires courts to enter an order based on the agreements contained in a mediated settlement agreement.

Generally, going back in time to attempt to change a MSA is not possible. Once you have agreed to certain terms as contained in the MSA and it has been filed with the court there is no going back.

Why in the world would someone want to do away with their MSA?

After all of the stresses associated with a divorce or child custody case, finally being able to mediate and settle can be the most rewarding experience for parties to the case. Rather than proceed to a have a judge make a decision for the parties, they have instead chosen to work together to hammer out agreements that will form the basis for their final order. There is a great deal of peace of mind and finality that comes forth as a result of reaching a settlement in mediation.

However, there are circumstances that I could see a party have second thoughts about the agreements that were reached. Many people in mediation get to a point that after sitting in a room with an attorney for hours at a time, he or she is just ready for the whole process to be over with.

This is in spite of their attorney and the mediator reminding him or her that the decision to settle is theirs alone and that the attorney is not in a position to make the decision for him or her.

Signing off on a MSA may seem like a good decision at first, but sometimes once people remove themselves from that setting and have a chance to think there may have been an important issue or circumstance that was not taken into consideration.

Can you think of anything that would be relevant in your life being missed in a final negotiation session? Failing to remember a key point or piece of evidence that affects you or your children would probably upset and frustrate you considerably. Now you have an order that doesn’t reflect all of the information as you see it and you’ve been told there is no going back now.

Whether you’ve agreed to have possession of your children based on your old work schedule and not your new one, or you decided against pursuing an above guidelines level of child support second thoughts can occur in a family law case.

I have had a handful of clients in my time practicing family law do exactly as I told them the previous day they would not be able to- contact me early in the morning following mediation and tell me that they had made a mistake. Was there anything I could do to erase the settlement agreement that he or she had entered into? I will always take a deep breath and tell them no, that what had been agreed to was now binding.

Either myself or the other attorney would work on drafting an order based on the language of the settlement agreement. Likewise, either the mediator or one of the attorneys would be filing the settlement agreement with the Court. Your trial date will be waived and the meat and potatoes portion of the case will have been concluded.

Advise on entering into a MSA

I cannot speak in absolutes, but it is almost certainly a better idea to settle your case in mediation than to try your hand at a trial. If you think you may have reservations about a settlement agreement being binding, imagine a judge issuing a decision that goes against everything that you and your attorney had fought tooth and nail for over a course of a few months.

If you understand that a MSA is binding and fully comprehend every issue that you are settling upon then you should have no problems with mediation or the results of a settlement agreement.

Keep in mind that the fact that a settlement agreement is binding can protect you as well. Suppose the shoe were on the other foot and you were entirely satisfied with a settlement agreement from mediation. What if your spouse called his or her lawyer and wanted the agreement overturned? This is just as likely a scenario as the one wherein you are the party trying to void an unavoidable agreement.

Questions about mediation and mediated settlement agreements? Contact the Law Office of Bryan Fagan, PLLC

The Law Office of Bryan Fagan, PLLC successfully represents clients in mediation with regularity and in so doing has helped negotiate settlements of all shapes and sizes. To learn more about this process please contact our office today. A free of charge consultation is only a phone call away where your questions can be answered by one of our licensed family law attorneys.

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Other Articles you may be interested in:

1. Will a Texas Court enforce a Mediated Settlement Agreement when one party is a registered sex offender?
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3. Mediation: A time and money saver for your Texas Divorce
4. Mediation: What is it and how can it benefit my Texas Divorce?
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7. What is Divorce and Family Law Mediation in Spring and Houston Texas?
8. 6 things You Need to Know Before You File for Divorce in Texas
9. I Want a Texas Divorce but My Husband Doesn’t: What can I do?
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Law Office of Bryan Fagan, PLLC | Tomball, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it’s important to speak with one of our Tomball, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Tomball TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Tomball, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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Signs, Safety Plans & Help: Combatting Domestic Violence in Texas

It doesn’t matter how much money you make, what part of the state you live in, your race, educational background, or any other characteristic about you or your family. The reality is that domestic violence is a factor that in packs many families across our state. There is no way for you to be able to escape from this reality. There is not a single characteristic that places someone from being immune to the scourge of domestic violence. To lessen the stigma and problems associated with domestic violence, you can have a plan in place that would eliminate many of the most significant risks a person can face regarding domestic violence.

Part of that plan for you and your family may be to pursue a divorce. For many people outside, divorcing an abusive spouse would appear to be an easy decision to make. File the divorce and get it done. Hire an attorney and do what you have to do to move on from this stage of your life. Doesn’t that sound easy? Well, as anyone who has gone through domestic violence will tell you, the answers to those questions are not so easy. The shroud of domestic violence can hang over your family to the extent of deciding to do something like getting a divorce.

You will likely have safety concerns regarding yourself and your children regarding getting in divorce while also going through difficult circumstances regarding domestic violence. If you have been physically harmed by your spouse or are concerned about your children suffering physically, you probably would not be all that concerned with going through the legal process to get a divorce. Instead, you are probably much more concerned with your day-to-day safety than any legal process. Even one as important as getting a divorce from an abusive spouse can seem to fall by the wayside end times like these.

Of course, there may be legitimate financial concerns to this equation, as well. If you depend on your abusive spouse for income and survival from a financial perspective, you probably are not eager to divorce them. This reality of your life may require that you seek your revenue for free assistance to remove yourself from a toxic and dangerous marriage. This can be an incredibly high hurdle to clear both from a psychological and financial perspective.

Another factor that may be holding you back from moving on from your abusive spouse is a lack of knowledge about divorce’s legal processes. For instance, you may have a vague understanding of what it means to get a divorce in Texas but have no working knowledge of how to move forward. Do you have to hire an attorney? What are the requirements to get a divorce in Texas as far as the length of a case? Are there other ways to separate from your spouse legally that don’t require ending the marriage? These are the relevant questions that many people in your position have. However, having questions and not seeking answers does not make much sense. Instead, it would help if you moved forward with a certain degree of knowledge about the divorce process to feel more comfortable making a decision no matter which way you would like to go with the potential case.

In today’s blog post from the Law Office of Bryan Fagan, I would like to discuss what it means to get a divorce while you are also concerned with your safety daily. While a single blog post cannot offer you all the answers you need in preparation for a divorce case, you can receive some guidance regarding what resources are available to you and what steps you need to put into action to be as prepared as possible to keep yourself safe. You can read this information and then figure out a plan on your own with your family and support group.

What sort of safety planning is in place for your family?

One of the scarier and downright frustrating aspects of becoming a victim of domestic violence is what happens after domestic violence occurs for the first time. When I talk about putting a safety plan for your family, you need to consider what steps you can replicate in your daily life to make sure that your family is as safe from harm as possible. You should not drift through your days and expect luck, fate, or concerned neighbors to be able to protect you from damage. Instead, you need to have a plan and act on it if your well-being is threatened.

However, I have unfortunately seen in many families where domestic violence is a concern. Some people will Withstand a great deal of abuse and harm from their spouse but will not take the next step to create a plan to protect themselves or their family? Again, there may be many reasons why this is the case. I don’t mention this for us to go through each possible explanation of why a safety plan is not created. Still, It is relevant for us to understand that safety planning is essential for escaping current risky circumstances and avoiding potential problems in the future.

Even if you do not have a family or support system that you are integrated with, there are almost always Port groups and shelters available to you. Depending on your area, there may be multiple organizations available to assist you or relatively few. However, you should perform the necessary research to determine what are Resources are available to you. If he belonged to a church, civic organization, or went to a primary care physician, then these types of resources are maybe even closer than you would have thought. When you get to the point where you feel like you’re ready to leave your home and seek a divorce, then you will need to think ahead due to ongoing concerns over safety for you and your children.

One of the first things that I have seen people do to prepare for eventually leaving home and starting the process geared towards a divorce is 2 include various items in a suitcase or overnight bags such as clothing, car keys, medication, cash, and any items that may be important for your children. This bag should be ready to go at a moment’s notice but should be kept someplace out of the way where your spouse would not think to check. You want to avoid a circumstance where your spouse finds your bag and becomes upset at what it could be about.

Next, you’ll need to consider where you will stay if you leave your home. It would not be a good idea for you 2 leave home without a plan of where you will stay. Even the most sympathetic friends and family may have a problem with you showing up unannounced at their doorstep at a random time with your children. To avoid a situation like this, you can share as much of your circumstances with your friends and family as possible. Bear in mind that many people in your life are probably ready to provide you with shelter and a place to stay on a short-term basis. However, sometimes the most challenging part of that discussion is making yourself available to them by sharing information about your life. Becoming vulnerable in this way will be difficult for many people, but doing so can be the first step towards removing yourself and your family from a dangerous circumstance.

Bear in mind that you should pick a place to stay based on the likelihood of your spouse not determining your whereabouts quickly. While your employment location or your children’s school cannot be changed, head above its notice; your schedule as far as grocery shopping, recreation, and where you are staying with your children temporarily does not have to be known by your Co-parent. Instead, we should keep its information away from your spouse so that there is no risk of residual harm once you leave the house.

Another part of this discussion that I think is very important is that staying off of social media during this stage of your life can be very important—oh, continuing to post on your social media even while fresh out of your family home can be a big mistake. Number one, you could be inadvertently sharing information about your and your children’s whereabouts such that your abusive spouse could find out where you are. Another aspect of this discussion would be that information you post online can be potentially used against you in the form of evidence in a hearing or trial by your spouse. And you don’t want to open yourself up to that kind of liability in the future.

I am trying to get at here that you and your children can have a lot to lose and virtually nothing to gain by posting on social media during this time of your life. Deleting any social media profiles immediately after leaving an abusive marriage may be for the best. Since there will not have been a legal case filed at this point, there will be no court order or standing order from a county that requires you to maintain your social media profiles in full until the end of the case.

Finally, I would also recommend changing any passwords on your email, social media, or other accounts. I have known spouses to have shared email accounts and even shared social media accounts. If this describes you and your spouse, you should carefully consider your options to protect your virtual identity. The last thing you want is for your spells to be able to log into your email simply by bringing up a website on the home computer. Never allow a computer to save your password automatically.

Additionally, it would help if you considered changing passwords whenever possible and on a specific rotating basis. For example, you could decide that you would change any passwords that could team private information once a month. This way, the odds of yourself being able to access these websites is meager.

What is your divorce going to look like? This is a question that everyone going through a divorce once the answer is whether family violence or domestic violence is a part of the case. Unfortunately, it can be frustrating to learn that it is not always possible to predict with any degree of accuracy what a divorce case will look like once you file your original divorce petition.

The reality is that there are so many ongoing circumstances in your family’s life that it will be tough for me to sit here and try to predict exactly what you and your family will go through, especially when I don’t know all the circumstances surrounding your case. Instead, what I can tell you is that you have an opportunity to take a step to improve the day-to-day and long-term safety of you and your family by getting a divorce. Well, I cannot predict anything with 100% accuracy of what your divorce will look like; here are some rational thoughts I have regarding what you can expect from a divorce case and your spouse.

Do not expect that your spouse will treat you right or act professionally once you file for divorce. I would go so far as saying that your spouse will likely B come upset or even enraged by your filing for divorce. Remember that one of the critical parts of Y8 domestic abusers does what they do is to exert some degree of control over you. A divorce not only means that you are seeking custody of your own life but that you are no longer under the thumb of your abusive spouse. This is a double whammy that could greatly upset your spouse. Understanding this and their motivation at the beginning of a case couldn’t provide you with some degree of certainty or planning as you enter into a divorce in Texas.

Next, you should expect to receive some threats or language regarding violence from your spouse. This goes back to what we talked about earlier and keeping your location as close to his secret as possible. Once your Co-parent and spouse are those you are, you should expect them to attempt to harass and threaten you into submission. However, if you can keep your whereabouts hidden and lean on a support system, you are more likely to make it through a divorce and come out the other side in a better position.

Next, come up, if your spouse is ordered to pay you temporary spousal support or child support during your divorce, then you should expect that they will not live up to their end of the bargain. Your Co-parent may become extremely upset at the idea of having to support you after you left their home. However, you must understand that even if you receive support from your spouse, you will ultimately need to provide for yourself and your family. This may mean going back to completing a previously unfinished degree or finding work that pays better than what you currently earn. I would tell you that it is not wise to rely upon support from and a strange spouse after your divorce has begun.

Finally, finding an experienced family law attorney to assist you in your divorce needs may be a great equalizer for you and your family. Your spouse may be relying upon the assumption that you will be unprepared and downright scared to move on from hey more her. Having an experienced family law attorney to guide you through the process, point you towards resources and generally ensure that you are cared for may provide you with just the self-confidence you need to act decisively and negotiate aggressively.

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

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

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Four Decades of Appellate Practice | Luther Munford

Over the last several decades, appellate practice has transitioned from a part of general legal practice into its own discrete specialty. Luther T. Munford, an attorney in Butler Snow LLP’s appellate and written advocacy group, has been a part of that specialization and has directly influenced its development over the last 40 years, including a term as the President of the American Academy of Appellate Lawyers. From clerkships on the Fifth Circuit and the US

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How to Ask for More Severance

If you have been laid off, or you suspect layoffs are around the corner, it’s important to know that you can negotiate a better severance package at any point during your employment. Such a package can help sustain you while you look for another job. Whether you have been offered a severance package or simply want to negotiate a better exit package preemptively, here is our guide to asking for more severance:

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If you have been experiencing issues at work, such as discrimination, harassment, wrongful suspension or termination, or are seeking guidance about employment or severance agreements, call 972-301-2937 to  get a free consultation with our legal team.

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• You can always try to negotiate more severance. Employers rarely withdraw an offer just because an employee asks for more.
• A reasonable severance package should meet your needs while you look for comparable employment.
• You should be given a reasonable amount of time to review and decide whether you want to accept a severance offer. Some laws require a minimum of 21-45 days to review a severance offer.
• Do your research before negotiating. Consider what other employees have received as a severance and consider how long you may be looking for other employment.
• Remember that you can negotiate benefits such as continued health insurance and assistance finding a new job in addition to severance payments.
• Consider consulting with an employee rights attorney to ensure a severance package serves your best interests.

At Jackson Spencer Law, we have many years of experience negotiating severance agreements, so we are confident that we can help employees negotiate solid severance packages.

In this post, we will discuss what a reasonable severance package entails and how you can enhance your bargaining position. Let’s start by answering the question we are frequently asked by clients: “Is it even possible to get more severance?”

Can You Get More?

The amount of severance offered is typically linked to how long you have been working for your employer. There is, however, almost always room for negotiation. Even if you are not interested in negotiating more severance, you can negotiate the details of your severance package, such as whether you are paid in installments or a lump sum. Of course, you will want to take into consideration whether a lump sum severance will push you into a higher tax bracket. If so, it may be wise to spread the payments out over two years to avoid the extra taxation.

What is a Reasonable Severance Package?

Reasonable severance packages vary based on the company you work for, how long you have worked for them, and your role as an employee. Middle managers and executives, for instance, usually receive a better severance package than other employees. Some executives have been known to walk out with what we will call 24 Karat Golden Parachutes, multi-million-dollar deals or more than a year of severance pay. Ultimately, a reasonable severance package is one that meets your needs while you look for other gainful employment.

While many companies offer 1-2 weeks of severance pay for every year worked, you can ask for more. A good rule of thumb is to request 4 weeks of severance pay for each year worked. However, other benefits, like continued health insurance, may be more important to you. So, keep in mind that severance payments are not the only component of a severance package you can negotiate.

Either way, know that you can (and should) take your time when reviewing or accepting a severance offer from your employer. If you are over 40, the Older Workers Benefit Protection Act (OWBPA) requires a 21-day consideration period. If you are included in a group of employees being laid off from the same company, you are to be provided 45 days to review a severance offer. Even if the OWBPA does not apply in your situation, you should not rush to sign a severance agreement without a careful review. If your employer pushes you to sign an agreement without a reasonable amount of time to review its details, this is a red flag.

Preparing for Negotiation

Always come to the table prepared; know what you need and what you would like to negotiate. Reading articles like this is a good start because it is important to know your rights. Also feel free to ask around: What have other employees been offered in their severance packages? You may also want to speak with local recruitment and placement agencies about how long it takes employees with experience similar to yours to find a new job. If jobseekers with a background like yours typically take 8 weeks to find a new, comparable position, consider asking for a severance that will sustain you for that time period.

While many employees do not think about severance until they hear rumors or there are mass layoffs, you can negotiate severance at any time during your employment. The best times to think about a potential severance are when you are hired and as soon as you discover layoffs or terminations are around the corner. And remember that money is not the only thing on the table for severance packages; you can negotiate health insurance benefits, assistance finding another job, and other perks associated with your role.

What You Can Bring to the Table to Enhance Your Severance Package

Understand that you actually have bargaining power when it comes to negotiating severance. Most companies offer severance in exchange for waiving your right to sue, compete with, or disclose information about your employer. Any rights you are giving up can be used as leverage to negotiate a severance that works for you.

If you believe you have been discriminated against or think you may have claims against your employer, you should consult with an employment attorney before signing any waivers. You will want to carefully weigh the rights you are giving up with your severance offer, because some offers may not be worth surrendering your legal rights.

Jackson Spencer Attorneys Can Review and Negotiate a Better Severance

The employee rights attorneys at Jackson Spencer Law have years of experience negotiating severance packages. Whether you want an attorney to simply review a severance offer or need the assistance of an experienced negotiator, we can help. Together we can determine if the terms of your severance package should be changed or if you could potentially increase your severance. We will also help you decide whether any waivers your employer wants you to sign are in your best interest.

We offer free consultations, without obligation. We can often negotiate severance packages, at no cost to you unless we obtain an increase over the amount you were initially offered. To schedule a free consultation, contact us at 877-239-6274 or complete our online contact form

The post How to Ask for More Severance appeared first on Jackson Spencer Law.

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Sexual Assault Cases Involving a Spouse in Texas

Dallas sex criminal defense lawyers Broden & Mickelsen have published a new resource to help the public understand Texas laws on sexual assault involving a spouse.

Dallas, TX , Sept. 16, 2021 — The complicated nature of sexual assault law makes it difficult for both victims and the accused to navigate the Texas legal system, particularly when a spouse or intimate partner is involved in the alleged assault. Dallas sex crime criminal defense lawyers Broden & Mickelsen have published a new resource to help the public understand Texas laws on sexual assault involving a spouse.

“In some cases, people mistakenly believe that it is impossible to sexually assault a spouse because the couple is married. However, this is an outdated concept and no longer the law in any state in the country. In a handful of states, the law carves out narrow exceptions for sexual assault that takes place in a marriage and an individual may be charged with a less serious offense. However, this is not the law in Texas.”

• Sexual assault in a marriage under Texas law
• The statute of limitations for sexual assault of a spouse in Texas
• Penalties for sexual assault of a spouse in Texas
• Potential defenses against allegations of sexual assault of a spouse in Texas

Read the resource on sexual assault involving a spouse in Texas

• https://www.brodenmickelsen.com/blog/an-explanation-of-sexual-assault-by-a-criminal-defense-lawyer-in-dallas

About Broden & Mickelsen Criminal Defense Attorneys

Broden & Mickelsen are a team of criminal defense attorneys defending Texas clients in state and federal courts. With almost 1000 cases and fifty years of experience between the two of them, Broden & Mickelsen have been the recipients of multiple awards and accolades, including Thomas Reuters’ Super Lawyer award. As Texas Board of Legal Specialization certified experts in criminal law for trials and appeals, Broden & Mickelsen use an aggressive and ethical representation strategy to get the best and most just results for their clients.

Media Contact:

Mick Mickelsen

T: (214) 720-9552

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Federal White Collar Criminal Case Study — Dallas Defense Attorney Mick Mickelsen Discusses His Work on a High Profile Federal Environmental Lab Fraud Case

Read an interview with Dallas criminal defense attorney Mick Mickelsen about his work on a high-profile federal environmental laboratory fraud case. Alongside other prominent Dallas defense attorneys, Mr. Mickelsen was able to obtain not guilty verdicts on all 79 counts in the multi-defendant case. 

Mr. Mickelsen has over twenty years of experience as a criminal defense attorney, and has represented hundreds of clients, with cases at both state and federal levels. Mr. Mickelsen is a partner at Broden & Mickelsen Criminal Defense Attorneys. 

What is Laboratory Fraud? 

The environmental protection agency defines laboratory fraud as ““the deliberate falsification of analytical and quality assurance results, where failed methods and contractual requirements are made to appear acceptable.”

This definition encompasses a wide range of activities in laboratories, including: 

• Fabrication of data
• Misrepresentation of quality control samples
• Use of unacceptable or non-standard calibration procedures for laboratory equipment,
• Falsification of records
• Manipulation of analytics results, or modification of samples
• Substitution of samples, files, or data

Environmental laboratories are facilities that are responsible for testing for contaminants that affect human and wildlife health. These laboratories must conform to national standards to provide high quality research about areas such as drinking water, surface water, waste water, sediment, air, fish, soil and hazardous waste. Data from environmental laboratories is used to develop environmental cleanup procedures and guide environmental policymaking. 

Federal Environmental Laboratory Fraud Case Study with Dallas Defense Attorney Mick Mickelsen 

Q: What were the circumstances of this specific lab fraud case? 

This case involved an environmental laboratory that was accused of providing fraudulent lab results to the US Government over several years. The biggest problem with the laboratory was the gas chromatography it was performing. Gas chromatography is used to determine the chemical composition of a given sample. It is a fairly complicated and time consuming process. The EPA had conducted an extensive audit of the laboratory and determined that the analysts conducting the gas chromatography testing were manipulating the results to save time.

Q: How did your client in this case find you? 

The environmental laboratory company had hired a New York City law firm to represent it. But the government had charged many individuals, including several of the analysts, all of whom needed separate counsel. My client was referred to me. 

Q: What was the client facing, if convicted?

He was facing up to ten years in prison.

Q: What defense strategy did you use in this case?

Our defense was that the analysts were poorly trained and were not intentionally manipulating the results. The government’s case really fell apart when we cross-examined their experts on gas chromatography and demonstrated that they themselves were consistent in the manner with which they interpreted the gas chromatography data. We were also able to show how the government contracts were so underpaid the laboratory was forced to rely on poorly trained analysts. 

Q: Did your strategy work? What was the result of the case? 

After a six week trial the jury acquitted every defendant on every charge.

Dallas White Collar Crime Defense Attorneys — Broden & Mickelsen

If you have been charged with criminal offenses, it is crucial to discuss your case with a  criminal defense lawyer who has experience handling white collar crime cases. Broden & Mickelsen provides aggressive and ethical representation to individuals and businesses accused of criminal offenses. The firm accomplishes this through its unique team approach to criminal defense, which involves both partners actively participating in the case.

To achieve a favorable resolution, Broden and Mickelsen evaluate each case individually and utilize all the resources available. The Texas Board of Legal Specialization has certified criminal defense attorneys Clint Broden and Mick Mickelsen as experts in criminal law for trials and appeals.

Call Broden & Mickelsen to discuss the details of your case today: (214) 720-9552. 

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Vraiment Kind Parenting Habituellement Gâte un enfant?

La plupart hommes et femmes célibataires argenteuil solidement s’appuyer sur une éducation rigoureuse. Meetville.com (dating application pour trouver le correct person) résolu le sujet dans un sondage, réalisé du 13/11/14 au 05/02/15.

Les gens étaient attendus: “Devrait parents s’engager un enfant? ” Seulement 39 % de ceux sondés sont prêts à choyer leurs jeunes afin de satisfaire chaque leur désir.

Un mode d’éducation a en fait un influence sur le petit. C’est vraiment, en fait, les plus significatifs influences sur un jeune enfant bien-être dans le futur. Et donc le sujet ne doit pas être pris doucement. Bien que gens envisager rigoureuse être bien meilleur, le chroniqueur Sumit Passary est en désaccord: “Strict parenting, or tiger maman variété de parentalité, peut causer problème comportement et faible estime de soi chez les enfants. Moms and Dads devrait comprendre l’importance de expression de amour et louange pour mieux éduquer de ces enfants. “

Autoritaire, rigoureux et fatigant parentalité est la raison pour insécurité et école modification troubles. Ce genre de éducation feuilles séchées enfants à risque de dépression et problème habitudes. Cixin Wang, un assistant professeur pendant le scholar class d’Educatiion, pense que parents ‘support et espionnage résultats dans optimiste adolescent modification, contrairement au mental contrôle pratiques.

Alex Cusper, Meetville solution expert, suppose que parents ne doivent pas être picking parmi les extrêmes. Le meilleur moyen de sortir est d’essayer d’utiliser les nombreux avantages de à la fois et éviter problèmes de ces deux types donc trouver le parfait stabilité pour votre famille.

Meetville, un leader mobile matchmaking service, fréquemment mène recherche parmi leurs personnes. Beaucoup de personnes à États-Unis, Canada, Grande-Bretagne et Continent australien answer une vaste sélection de préoccupations sur une base mensuelle. Vous trouverez les résultats concernant le sondage ici. Si vous êtes intéressé par étude sur particulier sujet, assurez-vous de contactez-nous. Toute réimpression concernant le contenu devrait-être accompagné de cliquable site web liens vers le examen.

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National Deaf Awareness Month: Better Communication for Safety and Justice

Image by Momentmal from Pixabay

Last week, we recognized Hispanic Heritage Month.  This week, before September concludes, we are celebrating National Deaf Awareness Month. Both are annual observances of the history, culture, and contributions of the communities they honor. The shared purpose of these celebrations is to pay tribute to and advocate for those whose rich traditions and social impact are often overlooked or undervalued. People who live at the intersection of both identity groups – Hispanic or Latino/a/x and Deaf or Hard of Hearing – are doubly impacted by a dominant culture that minimizes the richness of their lived experiences. Calling attention to the people and communities at this convergence is the goal of today’s blog post.

An additional focus is the importance of effective communication when interacting with the justice system. At the conclusion of this blog post, please look for links to websites and other resources for learning to sign in both American Sign Language (ASL) and Mexican Sign Language or Lengua de Señas Mexicana (LSM). You will also find resources for law enforcement and the court system to use in providing more accessible channels of communication for those who communicate differently.

Clear and effective communication of the law is a basic access to justice issue. (Please see our previous post related to this topic.)  Good translators and language interpreters are essential to ensuring that everyone, regardless of language fluency or proficiency, can understand and engage with the justice system. When communication barriers exist, interactions with law enforcement officers, in particular, can be especially fraught and potentially deadly. But recognizing communication differences and taking steps to bridge the communication gap are good first efforts to ensuring that all individuals, regardless of fluency in standard American English, have a safe interaction with the police and a just outcome in court regardless of language, culture, or identity.

Community Resources for Deaf Hispanic and Latinx Individuals

• Council de Manos

• Deaf Latinos y Familias Organization

• National Hispanic Latino Association of the Deaf

Resources for Law Enforcement and the Courts

• Court Access for Individuals Who Are Deaf or Hard of Hearing: A Guide – American Bar Association

• Court Interpretation: Model Guides for Policy and Practice in the State Courts — National Center for State Courts

• Language Access Plan — U.S. Immigration & Customs Enforcement

• Deaf Sensitivity Training Video for Police Officers – DEAF, Inc.

• Communicating with People Who Are Deaf or Hard of Hearing: ADA Guide for Law Enforcement Officers – U.S. Department of Justice

Texas Resources

• Interpretation & Translation Services – Texas Judicial Branch

• Deaf & Hard of Hearing Program – Texas Attorney General

• How to Ask for a Language Interpreter for your Case – TexasLawHelp.org

Additional Links

• Deaf and Hard of Hearing Bar Association

• SCOTUS Chief Justice John Roberts used ASL today at the Supreme Court!

Learn to Sign

• Grupo de Estudio LSM (Lengua de Señas Mexicaña)

• The ASL App

• ASL Connect: ASL for Free — Gallaudet University

• Sign School

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Calls Grow Louder for Bayer CEO’s Resignation as Juries Return Roundup Cancer Verdicts

Cancer victims are calling for Bayer AG CEO Werner Baumann to step down, citing failed leadership and the mishandling of thousands of cancer claims against company subsidiary Monsanto for its Roundup weed killer.

Monsanto is facing several multimillion-dollar jury verdicts regarding Roundup and the harm it’s caused. On Monday, August 9, a California appellate court upheld an $87 million award for a couple diagnosed with non-Hodgkins lymphoma after exposure to the herbicide. Alberta and Alva Pilliod were awarded $2 billion in punitive damages after jurors found that Roundup was likely a significant cause of their disease. Alameda Superior Court Judge Winifred Smith later reduced the punitive damages to $87 million but said it was “reprehensible” that Bayer would try to impede scientific inquiry into the dangers of the chemicals used in the weed killer.

To date, three jury trials have produced multimillion-dollar verdicts against Monsanto, finding that Roundup exposure is linked to cancer. All three verdicts have now been upheld on appeal. In May, U.S. District Court Judge Vince Chhabria, who is overseeing the Roundup multidistrict litigation (MDL), rejected terms of a proposed settlement and ordered the parties to return to negotiations.

Bayer’s mounting courtroom losses and inability to reach a fair resolution with cancer victims is a massive failure of leadership within the pharmaceutical giant, said trial lawyer Majed Nachawati, co-founder of Fears Nachawati Law Firm.

“Three juries and three appellate courts have considered Bayer’s claims and seen the scientific evidence,” said Nachawati, whose firm represents thousands of individuals who developed cancer after exposure to Roundup. “Bayer continues to hide behind its corporate legal armies—it is time for Werner Baumann to show some leadership on this or step aside.”

The post Calls Grow Louder for Bayer CEO’s Resignation as Juries Return Roundup Cancer Verdicts appeared first on Fears Nachawati Law Firm.

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Walmart Dodges Tough Questions About Security Practices Before 2019 Mass Shooting in El Paso

An El Paso trial court and the Texas 8th Court of Appeals have ruled that retail giant Walmart should provide details about violent crime and security issues at various locations following the mass shooting at its El Paso Cielo Vista store in 2019. However, Walmart’s lawyers are desperately trying to keep those details from going public and once again have gone to the Texas Supreme Court in the hopes that it will block the victims’ lawyers from asking tough questions.

Walmart is facing lawsuits filed by victims, family members and survivors of the Aug. 3, 2019, mass shooting that killed 23 shoppers. These lawsuits claim Walmart created a “crime magnet,” and placed profits over safety by not providing adequate private security at its Cielo Vista location. The retailer instead relied on taxpayer-funded police to respond to violent crimes at the store, one of the busiest in the country.

This is not the first time Walmart has gone to the Texas Supreme Court looking for help. The retailer previously asked the court to overturn lower court rulings and shield it from releasing information sought by attorneys representing victims and their families. Those appeals are still pending.

“There’s a reason Walmart doesn’t want a jury to see this information,” said trial lawyer Majed Nachawati, co-founder of Fears Nachawati, which represents several shooting victims and their families. “The company knows it failed to provide adequate security despite violent crime at its stores. These families – and Walmart’s loyal customers – deserve to know the truth.”

Patrick Crusius, the gunman accused in the shooting, told police after his arrest that he chose that particular Walmart location to carry out his crime because he was looking for a “soft target” for his plan to kill “Mexicans.” According to reports, Crusius was surprised no one challenged him when he entered the store carrying an AK-47.

The post Walmart Dodges Tough Questions About Security Practices Before 2019 Mass Shooting in El Paso appeared first on Fears Nachawati Law Firm.

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A History of Remarkable Cases Through the Years

MehaffyWeber in its 75-year history has been lead counsel in many cases that have helped define Texas and national jurisprudence. MehaffyWeber was the trial counsel in the seminal case of Employers Casualty Co. v. Tilley, 496 S.W.2d 552 (Tex. 1973). Tilley was the first case to define the obligations of defense counsel that is retained by the insured. These “Tilley Duties” later became the foundation of the tripartite relationship between the insured, the insurance company, and defense counsel.

MehaffyWeber was also appellate counsel on the precedent setting cases of Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775-777 (Tex.1995) and Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). Both matters redefined causation and the bounds of acceptable expert evidence in Texas. In Allbritton, the Texas Supreme Court held for the first time that a defendant’s conduct or product must be a “substantial factor” in bringing about the plaintiff’s injuries. In Havner, the Court addressed causation and the use of epidemiology in litigation. The Court held that the plaintiff must prove the medical literature establishes a “doubling of the risk” of the alleged causal agent and also that the plaintiff was similar to those in the population studied as well as negate alternative causes. Almost 20 years later in 2007, the Texas Supreme Court relied upon the analysis of both Allbritton and Havner to require a calculable dose for asbestos claimants in its opinion in Borg Warner v. Flores, 232 S.W.3^rd 765 (Tex. 2007). The Borg Warner cases altered toxic tort litigation going forward in Texas.

MehaffyWeber has also received national accolades for its trial victories. In the 1970s, the firm tried the asbestos case Borel v. Fiberboard, 493 F.2d 1076 (5th Cir. 1973) – the first asbestos case in the State of Texas and a landmark national asbestos litigation decision. Another key asbestos case was referred to as the “Five Ring Circus” because five cases were tried to five juries at the same time. Judge Robert Parker was trying to implement offensive use of collateral estoppel, but actually proved that reasonable minds can differ.

In 2001, MehaffyWeber garnered a National Law Journal Top 10 Defense Verdict of the year for its defense verdict in E. G. Cordts, e v. E. I. du Pont de Nemours and Company, Civil Action No. 1:99-CV-008; In the United States District Court for the Eastern District of Texas, Beaumont Division. MehaffyWeber defended DuPont in an environmental case. The plaintiffs were the McFaddin heirs who claimed chemicals from a DuPont plant were flushing through their wells into the earth, thus trespassing under their land and damaging mineral rights and possibly drinking water. The evidence involved use of various computer models on both sides to place the underground plume injectate. The damage claim was in excess of $170,000,000, and the jury found no liability.

In another remarkable personal injury case, MehaffyWeber tried in 2008 Richardson v. DuPont, et al, A-06-0502-HC; In the 128^th District Court of Orange County, Texas. The plaintiff, represented by a leader of the Texas plaintiff’s asbestos bar, claimed personal injury as a result of asbestos exposure at a DuPont facility. The Richardson case was tried over four weeks and both sides pulled out all the stops with multiple experts, documents, and fact witnesses. The damages claims were for $48 million actual damages and $1 billion in punitive damages. The jury returned a verdict of no liability. But that is where the case became remarkable. The judge granted plaintiff’s motion for new trial. Our team, knowing of several cases pending at the Supreme Court of Texas in which a party used a writ of mandamus to appeal the granting of a new trial, decided to take that approach. Texas law did not allow an appeal of the granting of a new trial. The Supreme Court of Texas remanded the matter to the Court of Appeals for an evidentiary review of the underlying case, reversed the trial court’s Order granting a new trial, and entered a final judgment in favor of DuPont. After six years of appeals, this case was one of several cases that changed the law in Texas to allow the use of mandamus to challenge the granting of a new trial.

MehaffyWeber attorneys also have had the courage to take on cases that no one else would. In the mid-1980s, Mehaffy Weber filed suit on behalf of William Hinote – a union worker – against the OCAW, a powerful labor union, and several individuals in Hinote v. Oil, Chemical and Atomic Workers Intern. Union, AFL-CIO, Local 4-23, 777 S.W.2d 134 (Tex. App. 1989). During a protracted strike, Hinote crossed the picket line and was shot five times. Taking this case was an unpopular decision because this was a time of high anxiety where tempers flared easily in the Golden Triangle. Prior to and after Hinote’s shooting, some Union members routinely harassed other members they thought were leaning toward going back to work during the strike. MehaffyWeber attorneys risked their lives and safety with the first Hinote case. Hinote’s claims against the Union among others were conspiracy and ratification – difficult claims to prove. Hinote lost the first case, but was granted a new trial based on jury misconduct. The case was tried the second time to a verdict for the Hinotes, including actual and exemplary damages. The judge granted a Judgment Notwithstanding the Verdict. MehaffyWeber appealed and won in the 14^th Court of Appeals. The case illustrated the courage, tenacity, and trial and appellate skills of the MehaffyWeber team.

These are just a few of the cases from MehaffyWeber’s 75-year history. The firm continues to handle high stakes, precedent setting matters on behalf of its clients and is recognized as a “Go-To Law Firm” for litigation by Corporate Counsel throughout the country.

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Recent Supreme Court Case Provides Possible Pre-Assessment Judicial Review for Onerous Penalties

The Supreme Court’s recent decision in CIC Services, LLC v. Internal Revenue Service may have significantly expanded taxpayers’ ability to obtain immediate injunctive relief against onerous tax reporting requirement.

The Anti-Injunction Act bars any “suit for the purpose of restraining the assessment or collection of any tax.” Civil penalties are usually considered to be “taxes” for purposes of the Anti-Injunction Act. But in CIC Services, the Supreme Court sustained a suit to enjoin the enforcement of IRS Notice 2016–66 which provides that micro-captive insurance arrangements are “listed transactions” which must be disclosed (regardless of the ultimate validity of the transaction) upon pain of a civil monetary penalty under IRC § 6707A – as well as potential criminal sanctions under § 7203 for the willful failure to make a return or supply information required by law or regulation.  The IRS’ problem in CIC Services was that in issuing Notice 2016-66, it had failed to comply with the Administrative Procedures Act (APA) which requires that a rule with the force and effect of law may be issued only after an opportunity for public notice and comment. No public notice, no enforceable rule, the Court held.  The Anti-Injunction Act did not deprive the courts of jurisdiction.

Although CIC Services only deals with the requirements for reporting micro-captive insurance arrangements, the IRS has become lax in its compliance with the APA, preferring to issue “subregulatory advice” instead.  There are similar non-APA compliant notices requiring the reporting of other arrangements that the IRS has determined to be “suspicious” and subject to reporting under pain of § 6707A penalties.  For example, IRC § 6048(c) requires the annual reporting of distributions from a foreign trust; and § 643(i) adds that any direct or indirect loan from a foreign trust to a beneficiary shall be treated as a distribution.  Section 643(i)(1) (which was enacted in 1996) specifically expected that its scope would be explained by regulations. Unfortunately, as of the present – 25 years after the enactment of Section 643(i) – no regulations have been issued.

The legislative history of section 643(i) expresses the expectation that Treasury regulations will provide an exception to the reporting requirement for loans with arms’-length terms where there is a reasonable expectation of repayment. Although no regulations have been issued, the IRS continues to rely upon non-regulatory advice in the form of a Notice, which states that any loan to related U.S. beneficiaries will be treated as a distribution under Section 643(i) unless the loan is a “qualified obligation”. A loan is only “qualified” (according to the Notice) only if (among other things) “the U.S. person reports the status of the obligation . . . on Form 3520 for each year that the obligation is outstanding.” Instructions that accompany IRS Form 3520 contain the same non-regulatory interpretation.

To state it more plainly: A loan from a foreign trust doesn’t have to be reported if it is a “qualified transaction”; but it can only be a “qualified transaction” if it is reported.  Go figure!

If the IRS Notice and instructions have the force and effect of law (as duly-promulgated Treasury regulations would) then the failure to report any loans from a foreign trust would result in significant civil penalties under IRC § 6707A as well as potential criminal sanctions under § 7203.

It should be further noted that the civil penalties imposed under 6707A do not depend upon a related tax deficiency and could be assessed even if there is an overpayment of tax.  Furthermore, penalties under sec. 6707A are not subject to deficiency proceedings. Therefore, a person subject to sec. 6707A penalties is not entitled to any pre-assessment judicial review.

But change may be in the wind.  The CIC Services case (which had previously been dismissed by both lower courts on jurisdictional grounds under the Anti-injunction Act) was remanded back to the district court for factual findings.  On September 22, 2021, the U.S. District Court for the Eastern District of Tennessee granted CIC Services’ application for a preliminary injunction against the IRS’ enforcement of Notice 2016-66.  “CIC has demonstrated that it is likely to succeed on its claim that Notice 2016-66 constitutes a legislative rule and that it is invalid because the Secretary failed to comply with required notice-and-comment procedures under the APA,” Judge Travis R. McDonough said in granting the injunction.  The IRS is not likely to take this decision lying down.  This is only a preliminary ruling, and additional proceedings and further appeals are likely.

Stay tuned!

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