FED proceeds

Lua v. Capital Plus Financial addressed, and rejected, a number of challenges to a judgment of eviction in a forcible entry and detainer action. In particular, as to the appellants’ claim that “because Capital Plus failed to submit an affidavit verifying its observance of certain requirements prior to the sale of the property, there are defects in the sale,” the Fifth Court distinguished the main case relied upon by appellants:

The Luas rely on A Plus Investments Inc v Rushton, No. 02-03-00174-CV, 2004 WL 868866 (Tex. App.—Fort Worth Apr. 22, 2004, no pet.) (mem. op.), for the proposition that the alleged defect in the statutorily-required presuit notice required the trial court to abate or dismiss this case. However, A Plus held that the county court lacked jurisdiction over a forcible detainer suit “[b]ecause an unresolved question of title was so intertwined with the right of possession that the action could not have been adjudicated without first determining title.” ... Accordingly, the defect alleged by the Luas does not present the same fundamental issue that was present in A Plus.”

No. 05-19-01227-CV (May 26, 2022).

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Enough price for a contract

A contract involving the acquisition of delinquent debt was not unenforceable for lack of a specific price term in Capio Funding LLC v. Rural/Metro Operating Co., LLC, reversing a district-court ruling to the contrary:

The crucial question is whether the term “additional Accounts” rendered the Forward Flow Amendment unenforceable. AMR urges a Shakespearean take—claiming it was but an indefinite promise to the ear, broken only to Capio’s hope.  Capio counters that “additional Accounts” governed all accounts that met the agreed-upon standards. Capio carries the day for two reasons. First, read in context, the term “additional Accounts” has enforceable meaning. Taken together, the plain meaning of the word “additional,” the contract’s clear architecture, and various settled principles of interpretation reveal that “additional Accounts” refers to all qualifying accounts that accrue quarterly.

No. 20-11218 (May 18, 2022). (The Shakespearean reference is to Act V, Scene 8 of Macbeth, when Macbeth reacts in horror to MacDuff explaining that he was not “of woman born”).

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A Primer on the Employee Retention Credit (ERC)

The Employee Retention Credit – Introduction.

Congress acted quickly during the worldwide COVID-19 pandemic to provide hiring and other economic incentives to employers.  One particularly helpful relief provision—the employee retention credit (“ERC”)—provided employers with potentially refundable credits for wages that they paid to their employees during certain periods of 2020 and 2021.

Regrettably, Congress’s swift action and subsequent tinkering with the rules and requirements of the ERC left many employers confused as to whether they qualified for the credit in any given calendar quarter.  In an attempt to reduce this confusion, this article provides a primer on the ERC including certain applicable rules and eligibility requirements to claim the ERC.

COVID-19 Legislation. 

Congress originally enacted the ERC relief provisions on March 27, 2020, as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-136 (the “CARES Act”).  Congress later revised the ERC rules through enactment of: (1) The Taxpayer Certainty and Disaster Relief Act of 2020, Pub. L. No. 116-260 (the “Relief Act”) (enacted December 27, 2020); (2) the American Rescue Plan Act of 2021, Pub. L. No. 117-2 (the “Rescue Plan Act”) (enacted March 11, 2021); and (3) the Infrastructure Investment and Jobs Act, Pub. L. No. 117-58 (the “Infrastructure Act”) (enacted November 15, 2021).  The IRS issued guidance on the ERC through FAQs and various Notices.

At its basics, eligible employers that qualify for the ERC are entitled to:  (1) a refundable credit of up to $5,000 per employee for any qualified wages paid between March 15, 2020, and December 31, 2020; and (2) a refundable credit of up to $7,000 per employee per quarter (i.e., a maximum of $21,000 per employee) for qualified wages paid between January 1, 2021, and September 31, 2021.  Special rules also apply to extend the ERC to certain “recovery startup businesses.”

Basic ERC Rules. 

There are various rules and requirements to claim the ERC.  These include:  (1) attribution rules; (2) eligibility rules; and (3) rules related to recovery startup businesses.  Each of these rules is taken in turn below.

            Attribution Rules. 

Significantly, attribution rules apply to determine ERC eligibility.  Generally, these attribution rules apply if members of a controlled group of corporations or trades or businesses under common control have attribution under I.R.C. §§ 52(a), (b), 414(m), or 414(o).  For example, brother-sister companies generally have attribution.

To the extent the attribution rules apply, all employer businesses are treated as a single employer for purposes of:  (1) determining whether the employer had a trade or business operation that was fully or partially suspended due to a COVID-19 government order; (2) determining whether the employer experienced a significant decline in gross receipts; (3) determining whether the employer averaged more than the requisite threshold of employees, which can otherwise limit the ERC; and (4) determining the maximum credit amount per employee.  Thus, taxpayers who have common ownership in more than one business must be careful to ensure they properly apply the attribution rules to determine ERC eligibility and the credit amount for the ERC.

            Threshold Eligibility Requirements. 

An employer may be entitled to an ERC if the employer can show:  (1) its business operations were fully or partially suspended due to a COVID-19 governmental order; or (2) its gross receipts in 2020 and/or 2021 decreased a sufficient amount relative to prior employment calendar quarters.  These two requirements are discussed in inverse order below.

                        Significant Decrease in Gross Receipts. 

The gross receipts test is different for 2020 and 2021.  For qualified wages paid in 2020, the gross receipts test analyzes whether the employer had a significant decline in gross receipts in any quarter in 2020 relative to the corresponding quarter in 2019.  A decline in gross receipts is significant enough to meet the ERC requirements if the decline in gross receipts in any quarter in 2020 is less than 50 percent of the gross receipts of a corresponding quarter in 2019.  After this threshold requirement is met, the employer continues to qualify until gross receipts are greater than 80 percent of its gross receipts for the same calendar quarter in 2019.

For qualified wages paid in 2021, the gross receipts test is met to the extent that an employer has gross receipts in any calendar quarter in 2021 that are less than 80 percent of its gross receipts for the same quarter in 2019.  Special rules apply to the extent the employer was not in existence in any calendar quarter of 2019.

                        Full or Partial Suspension of Business Operations.   

The gross receipts test seeks to measure the economic impact of COVID-19 on the business.  Notably, even if the employer does not meet the gross receipts test, the employer may nevertheless qualify for the ERC if it can show that its business operations were fully or partially suspended due to a COVID-19 governmental order.  IRS guidance indicates that there must be a direct correlation with the governmental order and its impact on the business’s operations.  Therefore, employers that seek to fall under this requirement must carefully analyze the governmental orders at issue and their impact on the business operations during the time the order was in effect.

Generally, government orders include:  (1) orders from a city’s mayor stating that all non-essential businesses must close for a specified period; (2) a State’s emergency proclamation that residents must shelter in place for a specified period, other than residents who are employed by an essential business and who may travel to and work at the workplace location; (3) an order from a local official imposing a curfew on residents that impacts the operating hours of a trade or business for a specified period; and (4) an order from a local health department mandating a workplace closure for cleaning and disinfecting.  Because states varied in their COVID-19 orders, employers need to carefully analyze whether the business was considered essential or non-essential based on the specific order at issue.

            Recovery Startup Business. 

The Rescue Plan Act added new section 3134 to the Internal Revenue Code of 1986, as amended.  Under section 3134(b)(2), a recovery startup business was permitted an ERC for the third and fourth quarters of 2021, not to exceed $50,000 for any calendar quarter.  Significantly, a recovery startup business may qualify for the ERC, regardless of whether they satisfy the gross receipts test or the full/partial suspension test above.  But taxpayers should bear in mind that complex tax averaging and other rules (such as attribution) can impact whether the employer meets the requirements of a recovery startup business.

Conclusion. 

Without doubt, a large number of employers who otherwise qualified for the ERC missed claiming the credit on their employment tax return filings.  However, such employers continue to have a limited window to file amended employment tax returns to claim the credit.  Therefore, employers with questions regarding the ERC should immediately reach out to their tax professional to properly determine whether they meet the ERC eligibility requirements and, to the extent that they do, file amended employment tax returns to claim the ERC.

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Happy Memorial Day!

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Appellate Court Rules On Supersedeas Issues For Appeal Of Breach Of Fiduciary Duty Judgment

In Ahlgren v. Ahlgren, the plaintiff asserted that the defendant breached fiduciary duties by taking assets held in trust for the plaintiff’s father. No. 13-22-00029-CV, 2022 Tex. App. LEXIS 2843 (Tex. App.—Corpus Christi April 25, 2022, no pet. history). The jury found for the plaintiff and awarded him fifty percent of certain assets. “It found that the value of Nim’s share of the assets at the time of Paco’s breach was as follows: (1) $9,074,390 4 in Bitcoin; (2) $1,900,000 for the Park City property; and (3) $375,000 for the Austin property. The jury was not asked to value Nim’s interest in gold. Finally, the jury found that Paco earned a $29,329,378 profit resulting from his breach.” Id. The trial court signed a final judgment awarding:

$29,329,378 in damages and a constructive trust over the following property: (1) 1,079 Bitcoins (fifty percent of the 2,158 Bitcoins held by Paco); (2) a fifty percent interest in the Park City property; (3) a fifty percent interest in the Austin property; and (4) a fifty percent interest in gold held by Paco…  The final judgment included a permanent injunction restraining appellants from “selling, transferring, or encumbering” the constructive trust assets. It also restrained appellants from: selling, transferring, or encumbering any cryptocurrency, including [B]itcoin, (i) under the direct or indirect control or ownership of [appellants] as of the date of this judgment (including the proceeds of any such cryptocurrency . . .) or (ii) received from [appellants] after March 13, 2020 [the date appellees filed suit], except as provided in Paragraph 5 [of the permanent injunction.]

Id. The court then set an amount that would be required to supersede certain aspects of the judgment, and the defendant challenged that supersedeas order in the court of appeals. On any party’s motion, a court of appeals may review: (1) the sufficiency or excessiveness of the amount of security, (2) the sureties on a bond, (3) the type of security, (4) the determination whether to permit suspension of enforcement, and (5) the trial court’s exercise of discretion in ordering the amount and type of security. Id. (Tex. R. App. P. 24.4(a)).

The defendants argued that the trial court abused its discretion in setting the amount of security for the monetary award at $25 million because the award constituted an equitable remedy and was not for compensatory damages. The appellate court noted that “with respect to money judgments, a judgment debtor is only required to post security for compensatory damages, interest, and costs [and] ‘compensatory damages’ include damages intended to compensate a claimant for an ‘actual economic or pecuniary loss.’” Id. The court reversed the trial court’s order on this issue:

We conclude that the monetary award constitutes the equitable remedy of profit disgorgement. This classification tracks the judgment’s explanation of the award, appellees’ pleadings which sought “profit disgorgement,” and appellees’ representation to the trial court that the award represented Paco’s “ill-gotten gains/profit in breach of his fiduciary duties.” “Disgorgement is an equitable forfeiture of benefits wrongfully obtained. . . .” Longview Energy, 464 S.W.3d at 361. Such a remedy is available where, as here, “a person who renders service to another in a relationship of trust . . . breaches that trust.” Id. (quoting Burrow v. Arce, 997 S.W.2d 229, 237 (Tex. 1999)). “[E]quitable forfeiture ‘is not mainly compensatory . . . nor is it mainly punitive’ and ‘cannot . . . be measured by . . . actual damages.'” Id. (quoting Burrow, 997 S.W.2d at 240). “The main purpose of forfeiture is not to compensate an injured principal, . . . [it] is to protect relationships of trust by discouraging agents’ disloyalty.” Burrow, 997 S.W.2d at 238. 6

Because the monetary award does not constitute compensatory damages, appellants are not required to post security for that amount. See Longview Energy, 464 S.W.3d at 361 (concluding that judgment debtor was not required to post security for profit disgorgement awarded in final judgment). Rather, to supersede this portion of the judgment, appellants are only required to post security in the amount of costs awarded in the judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 52.006(A); Tex. R. App. P. 24.2(a)(1). Therefore, we conclude the trial court abused its discretion by requiring $25,000,000 as security for the monetary award.

Id. The court also held “that the trial court abused its discretion in conditioning the suspension of the monetary award on appellants’ posting of security for other portions of the judgment.” Id.

The defendants also challenged the supersedes required to suspend the constructive trust portion of the judgment. “The constructive trust awards appellees an interest in both real property (real estate) and personal property (Bitcoin and gold).” Id. The court noted:

Texas Rule of Appellate Procedure 24.2(a)(2) provides: When the judgment is for the recovery of an interest in real or personal property, the trial court will determine the type of security that the judgment debtor must post. The amount of that security must be at least: (A) the value of the property interest’s rent or revenue, if the property interest is real; or (B) the value of the property interest on the date when the court rendered judgment, if the property interest is personal. Tex. R. App. P. 24.2(a)(2). Unlike the provisions governing security for money judgments, Rule 24.2(a)(2) provides the trial court with considerable discretion to determine the amount and “the type of security that the judgment debtor must post.”

Id. The court affirmed this aspect of the trial court’s judgment:

Here, the record establishes that, among the constructive trust assets, the Bitcoin holdings were the most valuable. Appellees suggested to the trial court that the value of appellees’ interest in Bitcoin at the time of trial-$45,504,235.40 7 -would be adequate security for the entirety of the constructive trust. Thus, this amount served as a floor for the amount of security required. While the trial court could have required more security, it could not have required less.

Id. The court also affirmed the trial court’s order in requiring the same security for both the constructive trust and the permanent injunction aspect of the judgment.

Regarding the post-judgment injunction aspect of the order, the court of appeals affirmed, noting that the appellate rules provide: “The trial court may enjoin the judgment debtor from dissipating or transferring assets to avoid satisfaction of the judgment, but the trial court may not make any order that interferes with the judgment debtor’s use, transfer, conveyance, or dissipation of assets in the normal course of business.” Id. (citing Tex. R. App. P. 24.2(d)).

 

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Replacement Theory, Revisionist History Spawn Violence

White hatred of people of color is a permanent fixture in American history. The violence done to people of color by White Americans cannot be undone, nor the historical recordings of that violence erased from the chronicles of history.

 

Racial hatred was brought to America by English settlers determined to seize and control the land of Native Americans. They evidenced this hatred with their May 26, 1637 Pequot Massacre that left 500 adults and children dead because the indigenous Pequots served as an impediment to colonization. 

 

Deep Roots of Racial Supremacy

 

White American genocide killed millions of Native Americans through massacres, forced relocation marches, brutal assimilation programs, and disease. The Native American population stood at 5 million in 1492 but had plummeted to a mere 600,000 by 1800.

 

Just 18 years before, the 700 Puritans who resided in Jamestown, part of the Virginia Colony established in 1607, purchased from Portuguese colonial forces roughly 20 kidnapped Africans in exchange for food. The Africans became enslaved colonial Americans. 

 

Before the passage of the 13th Amendment to the U.S. Constitution, which outlawed slavery, the number of enslaved Americans had risen to nearly 4.5 million people. Hundreds of thousands of enslaved people died through torture, physical abuse, and starvation before the 13th Amendment was enacted. In the nearly 100 years between the 13th Amendment and the Civil Rights Act of 1964, tens of thousands of Black Americans were killed by White men through lynching, race riots, and murder.

 

Throughout this country’s history, White Americans have inflicted violence and abuse on other people of color, such as Hispanics, Latinos, Asians, and Arabs. Religious persecution has similarly targeted Catholics, Jews, and Muslims. 

 

Replacement Theory Embraced By White Supremacist

 

With such a historical landscape littered with the bodies of so many people of color, many White Americans quickly accepted, and continue to embrace, the “great replacement” theory coined by the French racist author Renaud Camus in his 1979 book “Tricks.” This theory postulates that in predominantly White countries, people of color (primarily immigrants) will eventually outnumber White people and seize control of power over them.

 

That is why White Americans, mostly political conservatives and religious evangelicals, have a fear deeply rooted in their conscience that they will one day live as a marginalized minority, much like the one they have imposed over people of color since 1492 in this country.

 

Racial Hatred and Supremacy Drives Massacre

 

This irrational fear, driven by the underpinnings of racial hatred, drove Payton Gendron to enter the Tops Market on May 8, 2022, in Buffalo, New York, and slaughter ten innocent Black Americans who were doing no more than that going about their daily lives. 

 

Congressional leaders Elsie Stefanik(R-NY), Lauren Boebert (R-CO), and media personalities Fox News Host Tucker Carlson and author J.D. Vance, have echoed replacement conspiracy theory and inspired those like Gendron the irrational need to fight it. His murderous action and their socio-political rhetoric are interchangeable.

 

And that is why there are thousands, if not millions, of Payton Gendrons simmering in the fear and hatred of the White Supremacy Movement now in the body politic of this nation. 

 

The Southern Poverty Law Center reports 773 hate groups firmly entrenched in the White Supremacy Movement. These groups were born from four primary subgroups of the Movement: Ku Klux Klan, White Nationalists, Neo-Nazis, and Anti-Government Militias.

 

All these hate groups, and the now mainstream White Supremacy Movement, have one thing in common: continued oppression and suppression of people of color and the control of power by White Americans. This racist soil will continue to produce a bumper crop of Payton Gendrons. 

 

Here is a sample of the hate-driven produce that sprouts from the White Supremacy Movement when it is giving Christian validation and mingled with evangelical proselytizing. It can be found in the words of popular right-wing Tennessee evangelical pastor Greg Locke who told his Global Vision Church congregation on May 15, 2022, in what can only be described as insane rant called a sermon, that: 

 

“A bunch of creeps stole an election that everybody knows they stole, and they’re trying to do as much damage as they possibly can (citing high gas prices and baby formula shortages) ... It’s purposeful ... If they can’t kill your baby in the womb, they’ll starve them to death later on after they’ve been born ... I’m to the place right now [that] if you vote Democrat, I don’t even want you around this church. You can get out ... You get out, you demon. You get out, you baby butchering election thief ... Let me tell you something. You ain’t seen the insurrection yet! You keep on pushing our buttons, you low-down-sorry-compromisers, you God-hating communists. You’ll find out what the insurrection is, because we ain’t playing your garbage. We ain’t playing your mess. My Bible says that the church of the living God is an institution that the gates of hell shall not prevail against it.” He then continued to state that the Democratic Party “the biggest slave plantation on the planet.”

 

Tragically, this message resonates with close to 100 million White Americans, including Ginni Thomas, wife of U.S. Supreme Court Justice Clarence Thomas, and dozens of House and Senate Republicans. Not to be outdone, the Lone Star State is charging ahead under the lead of replacement theorists and a historical revisionist Governor, Lt. Governor, and criminally indicted Attorney General.

 

Replacement theory and the accompanying fear mongering against the boogeyman of Critical Race Theory, stolen elections, and revisionist history will undoubtedly produce more Payton Gendrons. The question, then, is: are we at a point of no return in race relations in the great American melting pot? Or is this the last gasp of desperation by forces of hate, racism, and bigotry that have unjustly propped up the ruling White population for far too long?

 

 

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Harris County DA Kim Ogg’s False Narrative

The tragic shooting death of 18-year-old Michael Brown in 2015 by police officer Darren Wilson in Ferguson, Missouri, triggered nationwide protests and the eventual trend to elect “reform-minded” district attorneys to deal with countless inequities in the country’s criminal justice system. Communities elected progressive prosecutors promoting reform the following year in states across the country, namely:

 

• Chicago, Illinois
• Tampa, Florida
• Birmingham, Alabama;
• Corpus Christi, Texas
• Denver, Colorado
• St. Louis, Missouri
• Santa Fee, New Mexico

 

Co-Founder of the Fair Punishment Project and Harvard Law Professor Ronald Sullivan told The Intercept at the time that, “These results simply signify that overzealous prosecutors that resort to draconian sentences and pursue convictions with a win-at-all-costs mentality will see themselves being replaced with leaders who have rejected those failed policies of the 1980s and 90s, and are truly committed to reforming the justice system with proven, evidence-based, equitable solutions that increase public safety.”

Houston’s current district attorney, Kim Ogg, rode that “reform” wave into office. The Democratic district attorney received the lion’s share of the national media associated with the 2016 prosecutorial reform movement.

 

That was understandable. Harris County’s three previous Republican district attorneys had operated with lawless impunity—convicting innocent people and having them executed; prosecutorial misconduct through suppression of mitigating evidence, knowing use of perjured testimony, fabricating evidence; and personal corruption.

 

Ogg assured Houstonians that things would be different under her administration. She quoted in The Intercept article as saying shortly after the election that Harris County would have a criminal justice system that “treats people fairly and applies the law equally regardless of the neighborhood. This our time.”

 

The newly elected district attorney got so caught up in the victory moment that she declared indigent people of color, “this is Houston, in all of its glory and diversity, and I am so proud to be your DA. We’re going to have a system that doesn’t oppress the poor; we’re going to have a system that goes after the rapists and the robbers.”

The Lord of Acton once said that “power tends to corrupt, and absolute power corrupts absolutely.” The Harris County district attorney is one of the most powerful elected officials in the greater Houston area. 

 

It did not take long for the power of the district attorney’s office to corrupt Ogg’s election night promises. Just one year after those election night promises to be fair and equal to all, the district attorney faced a scathing 193-page ruling from U.S. District Court Judge Lee H. Rosenthal which held that the Harris County cash bail system was unconstitutional because it daily abused the economically disadvantaged and people of color. 

 

The Harris County cash bail system always has, as it continues to this day, favored wealth and penalized poverty—and Ogg had not done a single meaningful thing to address that “unfair” and “unequal” application of bail laws that “oppress] the poor.”

Although she initially voiced some support for the federal court ruling, Ogg quickly shifted her position, arguing the bail system ordered by the federal court did not keep the community safe and did not guarantee that the accused would appear in court. She joined right-wing “tough on crime” politicos, arguing that the poor and people of color could not be trusted to show up for court while people who could afford to post cash bail, charged with the same offenses, could be. 

 

The “for-the-people” district attorney added that “there’s just no fairness in [the federal court ruling] for victims, for cops, or for prosecutors.”

 

So Ogg joined Governor Abbott to oppose meaningful bail reform that would have made the opportunity for pretrial release fair and equal to all people, regardless of their color or economic status.

The truth is that Kim Ogg has failed on the issue of bail reform and has joined those who use “crime” as a dog whistle for political gain.

Ogg also promised in 2016 to reduce the use of the death penalty. Yet the district attorney wholeheartedly endorsed the September 28, 2021, execution of 57-year-old Rick Rhoades—the first execution of a Harris County defendant since 2016. 

 

In a statement issued after Rhoades’ execution, the district attorney said: “We hope the [victims’] family finds peace after nearly 30 years of waiting for justice for their loved ones. The death penalty should be reserved for the worst of the worst, and a Harris County jury determined long ago that this defendant fits the bill. Let us honor the memory of the victims ..., and never forget that our focus has and always will be on the victims.”

 

The second execution of a Harris County defendant occurred on April 22, 2022. 

 

78-year-old wheelchair-bound Carl Wayne Buntion was the oldest person ever executed by the state of Texas. His execution, like Rhoades, came after three decades confined on death row. Ogg personally attended Buntion’s execution to watch him killed. While she indulged herself in that moment of state-sanctioned revenge, a horde of execution-loving motorcyclists revved their engines outside the Huntsville prison walls.

 

Why would any reasonable-minded district attorney choose to be part of such a shameful spectacle? 

 

The district attorney’s job is to prosecute a death penalty case—not celebrate the execution of those sentenced to die, along with a gaggle of blood-thirsty execution enthusiasts. The truth is that Kim Ogg has also failed on the death penalty issue.

 

The month before the Buntion execution, the Texas Monthly featured an article about Ogg and her disdain for anything that smells of reform. 

 

The article, written by Michael Hardy, pointed to a Zoom conference nine months into the COVID-19 pandemic between Ogg and members of her staff with Harris County criminal court judges. During that Zoom meeting, Ogg’s top lieutenants, David Mitcham, warned the judges that if they did not stop their liberal bail bond practices, there would be a “day of reckoning” for them. It was a stunning moment for all those attending the meeting, including Harris County Criminal Lawyers Association President Joe Vinas, whose reaction was expressed in the Texas Monthly piece: “My reaction was like, ‘Wow, that was bold.’ One of the judges asked if Mitcham was threatening him.”

 

It was a threat, a direct threat from an arrogant district attorney’s office that has been at odds with most, if not all of the reform-minded Harris County judges that swept into office in the 2018 “blue wave.” 

 

Michael Hardy described Ogg’s ongoing battle with criminal justice reform this way:

 

“Many in Houston’s legal community have thought back to that moment, now that fourteen Harris County prosecutors and one DA investigator have filed to run for criminal court judgeships this year—eight in Democratic primaries, seven in Republican primaries. It is not unusual for prosecutors to run for judgeships, but the high number in this election cycle has raised eyebrows. In 2020 not a single Harris County prosecutor ran in any of the nine local criminal court races; in 2018, which featured 31 races, just one prosecutor ran. But with Ogg linking a sharp rise in homicides to the bail practices of reform-minded judges elected in recent years, perhaps it’s no surprise that so many of her prosecutors are challenging the 29 Democratic incumbents up for reelection this year.”

 

Ogg has declared a politically-motivated revenge war on the Harris County Democratic Party—the very people responsible for her 2016 election and 2020 reelection. The war came to a head when 10 incumbent Democratic judges lost their primary bids for reelection this past March. 

 

These election defeats can be directly tied to Ogg, who, in October 2021, took to the television airways to warn Houstonians that “Democratic judges” were letting “murderers [run] around on multiple bonds, people who have killed other people go back and kill the witnesses. It’s a scary time, and I’m here to warn people – we don’t have to live like this. We need an urgency.”

 

That so-called “warning” was nothing more than fear-mongering. 

Granted, the number of homicides in Houston has increased since 2019, and there has been a spike in the number of offenses committed by people on bail since 2015. However, the hardcore truth is that there is absolutely no responsible data linking the increase in violent crime to bail reform.

 

The truth is that the overwhelming majority of homicides in Houston during 2020 and 2021 were committed by people who were not on bail. The same is true for the rise in other “violent” crimes. The overwhelming majority of these crimes are committed by people who are not on pre-trial release.

 

For whatever reasons (and there are plenty to go around), the COVID-19 pandemic and the resulting economic stressors have unquestionably spawned a dramatic increase in violent crime, especially homicides, in virtually every major city in the country.

 

But these increases have nothing meaningful to do with “bail reform” or “reform-minded judges.” Trying to link increased violent crime to bail reform or “Democratic” judges is nothing more than politically motivated “law-and-order” politics fueled by conservative Republicans and rogue Democrats like Kim Ogg.

 

The truth is that Kim Ogg has failed to make promised common-sense reforms to make the courts fair to all, both defendants and victims of crime. She has taken the slippery slope of her predecessors by using dog whistles and blame to spiral into a dark hole with no policy other than political survival. Meanwhile, the office is in disarray, with prosecutors “bailing out” in droves and joining DA’s offices in surrounding counties where they can practice law without oppressive micromanagement and plummeting office morale.

 

 

 

 

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Bills of Review in Texas

What is a Bill of Review? 

A bill of review is an equitable proceeding, seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. Although it is an equitable proceeding, the fact that an injustice has occurred is not sufficient to justify relief.  While the typical scenario for a bill of review is a default judgment, a bill of review may actually be filed after any other type of judgment.

A bill of review, when properly brought, is a direct attack on a judgment. A direct attack is a proceeding brought for the purpose of changing a former judgment and securing the rendition of a correct judgment.  When a bill of review fails as a direct attack, it may instead constitute a collateral attack.

What are the elements of a bill of review?

A bill of review plaintiff who does not dispute that he was properly served in the underlying action must plead and prove:

• a meritorious defense to the underlying cause of action,
• that the plaintiff was prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake,
• unmixed with any fault or negligence on the plaintiff’s own part.

However, once a bill-of-review applicant proves the absence of service or lack of notice of the dispositive trial setting, the applicant is relieved of proving the traditional elements and the court may grant the applicant’s petition if it is timely.

Generally, a bill-of-review plaintiff must file his claim within four years of rendition of the judgment he attacks.

The Standard of Review for a Bill of Review

In reviewing the granting or denial of a bill of review, an appellate court draws every presumption in favor of the lower court’s ruling, which will not be disturbed unless it is affirmatively shown that there was an abuse of discretion.  The trial court may be reversed for abusing its discretion if it has acted in an unreasonable or arbitrary manner or without reference to any guiding rules and principles.

The Meritorious Defense Requirement and Procedure

With regard to the meritorious defense requirement, the petition must allege, with particularity, sworn facts sufficient to constitute a meritorious defense and, as a pretrial matter, present prima facie proof to support the contention.

A prima facie meritorious defense is made out when it is determined that the complainant’s defense is not barred as a matter of law and that he will be entitled to judgment on retrial if no evidence to the contrary is offered.  This determination is a question of law for the court.

Prima facie proof may be comprised of documents, answers to interrogatories, admissions, and affidavits on file along with such other evidence as the trial court may receive in its discretion.  The bill of review defendant may respond with like proof showing that the defense is barred as a matter of law, but factual questions arising out of factual disputes are resolved in favor of the complainant for the purposes of this pretrial, legal determination.

If the court determines that a prima facie meritorious defense has not been made out, the proceeding terminates and the trial court must dismiss the case.  If a prima facie meritorious defense is shown, the court will then conduct a trial on the bill of review petition where the other elements will be considered.

 

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Government Suit to Enforce JDS to Offshore Promoter (5/29/22)

In United States v. Wessell (S.D. Fla. Case 22-cv-60988), Cl dkt entries here, the Government filed under seal a request for authorization of a John Doe Summons (“JDS”) to Kevin W. Wessell and related entities.  The Government had filed similar JDS’s in other jurisdictions for related summonsees.  The Government now files a petition to enforce the summons (JDS) issued to Wessell.  (See dkt entry 1, dated 5/24/22, here.)  The Government also filed a Brief in Support (dkt entry 3, dated 5/24/22, here(15 pages) with supporting documents including an IRS declaration here(124 pages) and certain other exhibits, including a privilege log of 482 pages).

The Brief summarizes the IRS’s concerns about Mr. Wessell as follows (pp. 1-2, footnotes omitted):

            On September 26, 2018, the IRS served a summons on Mr. Wessell. Exhibit 1 (Cincotta Decl.) ¶ 10. The purpose of the summons is to identify the clients of the Wessell Group, a sprawling enterprise operated by Mr. Wessell whose activities bear “the hallmarks of offshore tax evasion.” Id., Attachment C ¶ 27.1

            In particular, the Wessell Group creates foreign entities and bank accounts in tax havens such as the Cook Islands and Nevis in order to help United States taxpayers hide their money. Id. ¶¶ 19–49. The Wessell Group equips its customers with nominee directors and officers, and it even provides them with suggested avenues for circumventing court orders to repatriate funds. Id. ¶¶ 32–38. Based on extensive evidence outlined by the United States in a 2018 filing, this Court has already concluded that “there is a reasonable basis for believing” that the Wessell Group’s customers “may fail or may have failed to comply with the internal revenue laws,” which require taxpayers to report their worldwide income and pay associated taxes. See In re Tax Liabilities of John Does, No. 0:18-cv-62135- WPD, ECF No. 6 at 1 (S.D. Fla. Sept. 13, 2018).

            The IRS summons required Mr. Wessell to produce all documents related to United States taxpayers who, between January 1, 2012 and December 31, 2017, used the Wessell Group to “establish, maintain, operate, or control: any foreign financial account or other asset; any foreign corporation, company, trust, foundation, or other legal entity; or any foreign or domestic financial account or other asset in the name of a foreign entity.” Exhibit 1 (Cincotta Decl.) ¶ 11 & Attachment D. The deadline for compliance was October 26, 2018. Id. ¶ 9.

 Once the JDS was issued, the concern addressed in the petition to enforce is whether Wessell properly complied with the summons.  The Government has concerned about whether Wessell produced the summonsed records or properly accounted for the summonsed records in a privilege log.  Suffice it to say that the number of potential documents within the scope of the summons is quite large.

Things that caught my attention include the following:

1.  The Government knows that Wessell did not fully comply because the production list does not identify some customers otherwise known to the IRS from other sources including the OVDP and voluntary disclosure initiatives and from productions on other JDS.  (Brief 5-6.)  In identifying some of these customers, the Government says (Brief 5 n. 3):

    n3 The United States is withholding certain other examples, as well as the identity of the person or entity that produced the information, so that Mr. Wessell is not able to opportunistically supplement his production by turning over only those documents the United States already has reason to know about. The person or entity has access to only a limited universe of Wessell Group documents, so knowing the identity of that person or entity could lead Mr. Wessell to continue withholding documents outside that universe. The United States can make additional information available for in camera inspection if the Court desires.

2.  The Government also argues that Wessell’s privilege log is inadequate.  (Brief 7-14.)

Paragraphs 1 and 2 are standard summons enforcement stuff.

3. Interestingly, the Government recognizes that the scope of the documents requested in the JDS may create a problem under § 7602(d)(2) with respect to Wessell’s customers who have been referred to DOJ for criminal prosecution or further investigation.  The Brief says (p. 14 n. 6):

   n6 Section 7602(d)(2) of the Internal Revenue Code restricts enforcement of summonses in cases where there is a “Justice Department referral.” The IRS is aware of four Justice Department referrals from the relevant time period and will employ a filter team to ensure compliance with § 7602(d)(2). See Exhibit 1 (Cincotta Decl.) ¶¶ 42–43.

The related discussion in the agent’s affidavit is at p. 12, par. 43, here.

4.  For an excellent description of how the IRS, in a massive document case, uses database techniques to extract information (and indications of missing information), see the agents Supplement Declaration beginning at par. 18 on p. 5, here.  I love databases and have used them for years as a powerful tool in litigation and other uses (such as office management where I have created my own Access database to manage all aspects of office management).  The database tool used here is Relativity which I have not used but I understand is quite powerful.  I encourage those interested in litigation databases to read the description of how the tool was used in this case.

JAT Comments:

1.  I inferred from the limited description of OVDP documents that not a lot of Wessell’s customers joined the various voluntary disclosure programs.

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Texas Courts and The Doctrine of Res Judicata

The doctrine of res judicata, or claim preclusion, bars a second action by parties and those in privity with them on matters actually litigated in a previous suit, as well as claims that could have been litigated in the prior suit through the exercise of diligence.

In a broad sense, res judicata is the generic term used to describe a group of related concepts governing the conclusive effect given final judgments.  There are two principal categories within this doctrine: (1) claim preclusion (res judicata); and (2) issue preclusion (collateral estoppel).

What Elements Establish Res Judicata?

Res judicata is an affirmative defense.  To establish res judicata, the defendant must demonstrate:

• a prior final judgment on the merits by a court of competent jurisdiction;
• identity of parties or those in privity with them; and
• a second action based on the same claims as were raised or could have been raised in the first action.

Res Judicata vs. Collateral Estoppel

The general doctrine of res judicata consists of two principal categories: (1) res judicata or claim preclusion; and (2) collateral estoppel or issue preclusion. The doctrines of res judicata and collateral estoppel are not one and the same.

Res judicata precludes a second action by the parties or their privies on matters actually litigated and on causes of action or claims that arise out of the same subject matter and could have been litigated in the first suit.

On the other hand, collateral estoppel prohibits relitigation of particular issues already resolved in a prior suit.

To invoke the doctrine of collateral estoppel, a party must establish:

• the facts sought to be litigated in the first action were fully and fairly litigated in the prior action;
• those facts were essential to the judgment in the first action; and
• the parties were cast as adversaries in the first action.

Moreover, although mutuality is no longer required between the parties, the party against whom collateral estoppel is asserted must have been a party or in privity with a party in the prior litigation.

Res Judicata

Res judicata, also known as claim preclusion, prevents the relitigation of a claim or cause of action that was adjudicated and resolved by a final judgment, as well as all related matters that with the use of diligence could or should have been litigated in the prior suit.  

Texas and The Transactional Approach

Texas follows the transactional approach to res judicata.  The transactional approach results in claim preclusion if a defendant does not bring as a counterclaim any claim arising out of the transaction or occurrence that is the subject matter of the opposing party’s suit.

Under this approach, Texas courts examine the factual bases, not the legal theories, presented in the cases.  The main concern is whether the cases share the same nucleus of operative facts.  In determining whether the facts arose out of a single transaction, Texas courts consider whether the facts are related in time, space, origin, or motivation, and whether they form a convenient unit for trial.

Privity

Res judicata applies when a party in the second suit is in privity with a party in the first suit.  Privity connotes those who are so connected with a party to the judgment in the law such that the party to the judgment represented the same legal right.  A party can be in privity in at least three ways:

• it can control an action even if it is not a party to it;
• its interests can be represented by a party to the action; or
• it can be a successor-in-interest, deriving its claim through a party to the prior action.

Privity is not, however, established by the fact that a party happens to be interested in the same question or in proving the same facts.

 

External Resources:

• Res Judicata
• Res Judicata

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The average cost of hiring a junior attorney with the Law Office of Bryan Fagan to work on your family law enforcement case

Have you gone through a prior divorce or child custody case only to find out that your ex-spouse or co-parent is continually violating the final orders from that case? If so, then it can feel like you have nowhere to turn. During your case, there was some degree of accountability in place given that if your opposing party did something that was against the “rules” then you could bring that to the attention of a judge. Even without having to go to court, you would be able to at least have that exist as a possibility. The threat of going to the judge may have been enough to keep your opposing party on their best behavior. 

However, now that your case is done and over with you may be looking at a much different set of circumstances. Rather than having an attorney by your side and a courtroom as a possibility to keep your opposing party accountable, you are now considering what you can do to stop your co-parent or ex-spouse from acting badly and violating this court order. It is not fair, after all, for you to continually do as your order mandates as far as your behavior is concerned. The trouble is that these violations are hurting you and possibly your child. This is not something that you can abide by, but the worry is that there are no places for you to turn for justice. What can be done to hold your co-parent or ex-spouse accountable for their actions?

I would invite you to spend some time with us today on our blog. The attorneys with the Law Office of Bryan Fagan are going to walk with you through the subject of enforcement cases. Why would you want to file an enforcement case in the first place? What advantages in an enforcement case can be provided to you by an attorney? What does an enforcement case look like from beginning to end? Finally- what are the typical costs associated with hiring an experienced, junior associate attorney to represent you in an enforcement case? We will ask and answer these questions in today’s blog post. 

If you have any questions about the material that we cover, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as to be able to find out how your family’s circumstances may be impacted by the filing of an enforcement case.

What is the purpose of filing an enforcement case?

This is likely where your information gathering should begin when it comes to an enforcement case. If you have no clue what an enforcement case is, then this is a great place to start from. Generally speaking, enforcement cases are ones where your court order is not being followed by the person who was formerly your opposing party. In a divorce, this would be your ex-spouse. In a child custody or divorce case, this could be your Co-parent. Regardless, you have a family court order from a prior court case that is now not being followed. In the world of family law enforcement cases, this is known as a violation.

The fine line that you need to determine whether it constitutes cause for enforcement is whether the violation is severe enough or has occurred repeatedly to merit the filing of a legal case. Ultimately, this is in the eye of the beholder, and you can seek advice and perspective from an experienced family law attorney with the Law Office of Bryan Fagan to decide whether or not an enforcement case would be worth the effort and would likely be successful if you seek it. Let’s walk through some of the situations that may be one where you should sync a modification case. Bear in mind that everyone’s circumstances are different but for you to bring an enforcement case we should have some idea of the circumstances that may require this type of filing and what it can mean for you and your family.

Child support enforcement cases

One of the most common types of enforcement cases that are sought after a divorce or child custody case is regarding child support. In a child support enforcement case you, as the parent who receives child support, would likely be bringing a lawsuit to notify the court that your Co-parent has failed to pay child support over an extended period. Usually, an enforcement case would not be brought until the value of child support last is greater than the cost of the enforcement case itself. Even then, it is important to stop bad behavior before it becomes habitual.

before bringing a child support enforcement case before a judge you can and should discuss the issue directly with your Co-parent first period if there is any way for you to avoid a situation where you must bring an enforcement case then you should attempt to do so. Sometimes this can be accomplished through directly communicating with your Co-parent about why he or she has missed child support. You may come to find out that he or she has lost their job, had an emergency, or otherwise had a disruption in their income that will not be habitual. At that point, the two of you can work on a plan for paying the money back over time. This is much preferable to going to court, hiring an attorney, and going through the process of an enforcement case. 

Visitation and possession enforcement cases

next, in the context of child custody-related matters, you could want to bring an enforcement case if your pro parent has violated a court order regarding visitation or possession. For example, let’s suppose that you are the parent who is the non-primary parent in terms of custody and conservatorships. In this situation, you have weekend visitation during the school year. With weekend visitation these limited opportunities to see your child are very important. However, if your Co-parent is withholding visitation, for the failure to pay child support or for any other reason, then this is a direct violation of your court order.

in that case, you could bring an enforcement case seeking to notify the court of these violations of your court order. You can request attorney’s fees, makeup visitation, and for your Co-parent to be fined for each of their violations. You need to keep a diary or chronicle all the violations regarding visitation. Specific dates, times, and proof that you were available for visitation, but that visitation was denied to you are essential for this type of case. If you were being denied visitation, I would create as much evidence to show a judge that this occurred.

Spousal maintenance enforcement cases

Even if you do not have any children, you can still find yourself in a position where you may need to bring an enforcement case. For example, consider a situation where your ex-spouse was ordered to pay you spousal maintenance because of your divorce. However, at a certain point, it became clear that your spouse had no intention of doing so and so he just stopped making those payments. Since your household budget may depend in part on the receipt of special maintenance payments this may hinder your ability to meet your obligations each month. therefore, you need to be able to address this issue.

In some ways, spousal maintenance payments are a little bit like child support payments. Can and should speak directly to your X-Files about why this castle maintenance payments were not being made. He or she may have a legitimate reason for having missed payments over the past few months. In that case, you can directly address this with him or her period however, if he or she simply no longer wishes to make the payments to you and is otherwise able to do so then an enforcement case may be your only remedy.

What are some of the advantages that you may gain from having an attorney for your enforcement case?

An enforcement case is a very particular type of family law case. There are limited circumstances in which you can bring an enforcement case against your ex-spouse or Co-parent. As a result, having an experienced family law attorney by your side can help you to identify potential cases where enforcement should be brought or whether you may be able to simply address the issue directly with your expose or co-parent to avoid having to file a lawsuit.

It is typical, for example, for the attorneys with the Law Office of Bryan Fagan to send a polite yet direct letter to your Co-parent to identify whether he or she will be willing to address the violation of your order without first having to go to court. This would save everyone a great deal of time and money. In the letter, we would address this specific wrong that you have undergone and will ask for a response from your Co-parent or X spouse. It may be that you are co-parent or your ex-spouse has a completely different view of the situation and simply spelling it up in writing may cause you all to understand that there has been a misunderstanding of some sort. Otherwise, if he or she is not receptive to working with you to address the issue then you may need to go ahead and file an enforcement case.

One of the great benefits of having an attorney by your side to walk with you through your case is that he or she will help you to get your case off the ground. I know that some of you reading this blog post have been thinking about some violation of your court orders for an extended period. Maybe you’ve thought about what enforcement could do for you, but you haven’t felt compelled to move forward and get the process started. Well, by first speaking to an attorney about the process and then hiring an attorney you are taking concrete steps towards achieving whatever goals you have in mind. After all, a journey of one thousand miles begins with a single step. Additionally, that first step may be the most difficult one of all. Get some momentum behind you by hiring an attorney. You may be surprised to learn just how quickly you can get your case moving by doing so. 

I have worked with plenty of clients who have filed enforcement cases on their own only to find out just how tedious a process it can be. This isn’t an attempt to try and dissuade you from filing an enforcement case. Rather, it is pointing out that when you try to initiate an enforcement case you may find that it is easier said than done. Even if you have a general understanding of how the process works it can be difficult to turn that understanding into real-life action. The last thing that you want to do is take time and money and waste it by making mistakes in trying to file and proceed with a case like this on your own. An attorney cannot promise you any particular result in your case but he or she can ensure that you get your case moving. 

What to expect in your enforcement case? 

An enforcement case can take a couple of different directions depending upon the nature of your case. For starters, consider whether you have an actual problem on your hands or if you have a misunderstanding. Here is some context for what I mean. A few years ago, I represented a client whose ex-husband had stopped paying child support a few months before his daughter’s graduation from high school. She had attempted to contact him about this, but he seemingly did not care. Frustrated, this lady hired our law office to represent her. We mailed a letter to her ex-spouse about the missed child support. 

Lo and behold, we did have a situation on our hands where her ex-husband was operating under a mistaken understanding about their divorce decree. Specifically, he thought that he could stop paying child support once the child turned 18- not when she graduated from high school. Since most divorce decrees require that child support be paid until the latter of the two events, he was in the wrong and our client was in the right. I was able to speak to his attorney who got that cleared up quickly. 

In the end, we were able to work through the issue and get a payment plan started for him to begin to pay back our client relatively quickly. Now, if our client’s ex-husband had been more communicative with her before she hired us it would have saved everyone time and money. However, sometimes all it takes is hearing something from another person to quickly change your perspective. Maybe this gentleman needed to hear the reality of the situation from another person for his mistake to sink in. 

Attorneys perform several services for clients but not the least among them is being able to help their clients communicate better with an opposing party. Attorneys are supposed to be advocates but in some capacities, your attorney should be dispassionate so that he or she can assist you in communicating subject matter that may be difficult for your co-parent or ex-spouse to hear. Again, simply hearing something from another person may help you get your message across much better than using the same methods you had been employing previously. 

The costs associated with enforcement can vary depending upon the length of the case. If your enforcement case requires that you go to a trial, then you are looking at spending more money than a case where you can resolve the issues outside of court. Working out payment plans, makeup visitation schedules, and the like are the sort of advantages that having an experienced attorney by your side can provide you with. A junior associate attorney with the Law Office of Bryan Fagan can lend you a loan just when you need it the most. Why not contact us today to set up a free-of-charge consultation to explore the benefits of hiring one of our lawyers?

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

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

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Average costs associated with hiring a senior attorney with the Law Office of Bryan Fagan for your child custody modification case

Working with one of the attorneys with the Law Office of Bryan Fagan can provide you with many advantages over your Co-parent when it comes to a modification of a child custody case. Most people don’t anticipate having to come back to court after having gone through an initial child custody or divorce case. However, it sometimes does happen whereas a result of changing circumstances in the life of you, your child, or your Co-parent that this becomes necessary. At that point, it is up to you as far as how you proceed and what level of consideration you give the case.

Let’s suppose that you are the party that has filed the modification case. In that case, you probably have a well-thought goal when it comes to getting your child custody orders modified. Otherwise, you probably would not have filed a child custody modification, to begin with. From this vantage point, you have an advantage in being able to plan and develop a strategy for accomplishing your goal. Keep in mind that a child custody modification is not like a divorce case where if you file for divorce, you can get divorced. Rather, in a child custody modification case it must be shown that a material and substantial change has occurred. Otherwise, a judge cannot grant your modification request even if it is in the best interest of your child.

On the other hand, you may be approaching this modification case as the respondent or party who is not seeking the modification. In circumstances like that, you can be sure that you’re coherent has a relatively significant advantage over you from the standpoint that he or she has developed a plan, strategy, or set of goals that he or she would like to accomplish in the case. He or she has been able to lay the groundwork to accomplish those goals by planning and likely hiring an attorney. There is nothing wrong with being caught flat-footed regarding a modification case, but you need to be sure that you have a plan of action in mind once you are served with modification papers.

Whether you are the party filing the modification case or are the party who is responding to the filing, you can stand to benefit a great deal from being represented by an experienced family law attorney. Just as no two families are created equal no two attorneys are created equal. Being able to work with an attorney who understands what you are going through and can walk with you through the difficulties and changing dynamics of a modification case is important. As a result, I cannot overstate how important it is for you to be able to work with an experienced attorney in this type of case specifically.

Therefore the attorneys with the Law Office of Bryan Fagan would like to take the time in this blog post to discuss with you the merits of hiring a lawyer from our office. Specifically, I would like to spell out for you just how important it can be to hire an experienced attorney such as one of our senior-level family lawyers. We can walk with you through the circumstances you are facing and help you to identify goals that are designed to benefit you and your child. However, it takes you reaching out to us first for our lawyers to be able to help you and whatever life is throwing at you currently.

What can you get out of a free-of-charge consultation with one of our senior attorneys?

Ultimately, I understand that what you need to know is the benefit or benefits of hiring not only an attorney, not only a family law attorney but one of the senior attorneys with the Law Office of Bryan Fagan. When it comes to being able to prepare for a child custody modification case, we have already walked through the two scenarios that you may find yourself in. No matter if you are the party who is interested in filing the modification case or are the party who is defending yourself in the modification there are benefits that you can derive from working with one of our experienced senior attorneys.

Put yourself in the position of a parent who is going to file a modification case. In that circumstance, you have probably thought thoroughly about whether to file the modification case at all. You are likely dealing with a scenario or set of scenarios involving your child that led you to believe that your child would stand to benefit from some change in their child custody orders. Maybe your child needs a new visitation schedule with their father because you all have moved or the child’s father has moved closer to him or her period or, maybe you want to ask the court to be named as your child’s primary conservator.

If this is the case, then you probably have thought about bringing a modification for some time. In sitting down with one of our experienced senior attorneys, you can learn more about the specific laws that are going to impact your case. You may have a general understanding of what a modification is and what laws pertain to it but meeting with one of our attorneys will give you the specifics about what to expect as far as the standard a judge will approach your case from in terms of whether or not a modification will be allowed. This is important because you can learn the likelihood of success in filing a case. After all: you do not want to file a modification only to quickly realize that you have no chance of being successful. One of our attorneys can counsel you to ask for the likelihood of success that you will find in the case so that you can determine whether you even want to go through with the modification.

Next, our senior staff attorney will be able to spell out for you exactly what a case would look like a period, of course, no attorney can accurately predict the future with 100% certainty. There are very likely to be bumps in the road or changes to a strategy as your case goes along. This much really cannot be helped. However, an attorney can be able to help you understand what it means to file a modification case, serve notice with the case to your Co-parent and eventually bring the case to mediation or a hearing. Again, having some basis of knowledge for what your case will look like moving forward is very important and can be the difference between Struggling through a family law case and having a well-defined plan. 

Next, one of our attorneys can prepare you for what it means to hire a lawyer as far as the potential benefits to you on an individual level. The thing about hiring a lawyer is that the lawyer can ensure that your case he’s not only filed promptly but also completed promptly. Do not underestimate just how important it is to your family and your pocketbook as far as how and why your case proceeds down the path towards a resolution. Your attorney will understand how to avoid hang-ups and other mistakes that made delay the processing of your case. The last thing you want is to see your resources dwindle as your case takes longer and longer To conclude. Certain aspects of a family law case will be beyond your control period however, the length of time that a relatively straightforward modification case takes to complete is not necessarily one of them. Working with an experienced family law attorney can help you not only to get your case off the ground but also to get the case moving towards a resolution. 

At that stage of a case, nothing is stopping you and your Co-parent from completing the case beyond merely not keeping your eyes on the prize, so to speak. Your attorney knows how to jumpstart a case and get hearings and mediation dates scheduled efficiently so that you are not bogged down by the minutiae of your case. You can instead focus on what the case means for you and your family as well as how to minimize expenses and keep the focus of the case on your child.

If you are facing down a child custody modification case as the responding party, then you may have had little indication that your Co-parent was ever going to file a modification. In my experience, most parents in a post-divorce or post-child custody scenario do not have a working relationship such that they share their concerns outwardly with one another. This does not mean that you two don’t talk about anything related to your child, but it is unlikely that the two of you discuss higher-level concerns at least consistently. Therefore, it may come as a surprise that your Co-parent has filed a modification case and wishes to change some aspects of the child custody orders that you all had agreed on two years ago in your divorce or child custody case.

Let’s assume that you are a well-meaning parent who was leaving work one day only to find that a process server was waiting by your vehicle. The process server simply handed you paperwork that looked official and then walked away. In that case, it would be normal to meet that experience with frustration and a little fear. Why would a person be waiting for you after work with documents to hand you? Did you do something wrong? Opening the paperwork would reveal that your co-parent had filed a petition to modify your child custody orders. This may be a complete surprise to you, or you may have seen this coming. Either way: you need to get a plan and develop a strategy to approach this modification case. 

You didn’t ask for this fight, but the fight asked for you. As a result, when it comes to this modification case you will want to be able to find out what your Co-parent is asking for, why he or she is asking for it, and what your thoughts are on the subject. You may find that you agree with your Co-parent on some of what he or she is asking for. In that case, you may be able to negotiate through some of these issues either informally or in mediation. Or it may be the case that what your Co-parent is asking for is well beyond what you are willing to discuss and as a result, a contested modification hearing may need to be the result.

Probably one of the first things that you considered after receiving the paperwork from your co-parent is what you need to do as far as responding to the lawsuit. What is the paperwork that you need to file? How soon do you need to file it? Can you get an extension on that if you are looking for a lawyer? All of these are relevant questions to ask and ones that you may be able to find the answer to simply by going online. Or your initial reaction to this may be to try to find a lawyer to sit down with and ask these questions. In the approximately 20 days that you have from the time you are served with modification paperwork until the time you need to file an answer, you should be able to reach out to an attorney to gain some level of understanding on these issues. Otherwise, you may be operating under mistaken assumptions or beliefs about the law. This does not stand a benefit to your child and could potentially hurt your relationship with your child significantly.

In this situation, you could stand to benefit from working with and consulting with one of our senior attorneys. The simple truth is that as a responding party you have less time to make decisions and get caught up on the paperwork, filing, and strategy creation that is associated with a modification case. One of the senior attorneys with the Law Office of Bryan Fagan would be able to help you separate fiction from fact and begin to help you learn about the law and how it can be impacted by the facts and circumstances of your case. 

Your senior attorney will guide you but not make decisions for you

A lawyer does not make decisions for you in a modification case. By hiring a lawyer with the Law Office of Bryan Fagan you are gaining an opportunity to gain knowledge about your case, the law, and how the circumstances of your life could be impacted by a modification. There are many outcomes associated with a family law case, especially a modification, that could change things for your family. As a result, you will want to understand what you are about to encounter by being involved in this sort of case. 

Many people assume that an attorney will spend the entire case making decisions for you based on their assumptions about what you want or what is in your best interest. I have had conversations with people who are hesitant to hire a lawyer because of concerns related to not having autonomy over various parts of their case. However, this is not a concern that you should have period the reason for this is that your attorney will be there to guide you and make recommendations but will not be making decisions for you. 

Think about your case like a race car driver. You are driving the race car (AKA your case). Even if you hire a lawyer, one of our senior attorneys will not jump into the driver’s seat and start steering the car. Rather, the attorney will sit in the passenger seat and help you to avoid potholes, and distractions and let you know when your gas meter is about to read “E.” Basically, the attorney is someone who has driven that racecourse before and can help you avoid mistakes and accomplish your goal. You may not be able to say that you “won” a family case like you “won” a race, but success can be based on your circumstances and goals. 

Otherwise, understand that simply sitting down with one of our senior attorneys to discuss the costs, benefits and other issues associated with a modification does not mean that you have to sign up to be a client, either. We want to show you what we can offer you as an attorney. The decision to move forward to allow us to serve you and your family is up to you. 

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

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

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EdTech Platforms May Violate Privacy Laws

Privacy Plus+

Privacy, Technology and Perspective

EdTech Platforms May Violate Privacy Laws.  This week, the privacy risks of education technology (“EdTech”) platforms made news. As reported by the Washington Post and the Fort Worth Star-Telegram, a new study has revealed that EdTech platforms used by schools during the pandemic appear to have tracked children’s online behavior for the benefit of advertisers and others.  The platforms also seem to have requested access to students’ cameras, contacts, and locations, even when that information was unnecessary for schoolwork. Links to the articles follow, and Kate Morris is quoted in the Star Telegram article:

https://www.washingtonpost.com/technology/2022/05/24/remote-school-app-tracking-privacy/

https://www.star-telegram.com/news/politics-government/article261707627.html

In connection with these articles, we think it would be helpful to highlight the federal and state laws at issue:

FERPA: The Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g; 34 CFR Part 99, protects the privacy of student education records.  FERPA applies to all schools that receive federal funds.  In addition to giving parents and eligible students certain rights concerning “education records” (a term defined broadly), FERPA generally requires schools to have written consent from a parent or eligible student to release any PII from the student’s education record.  However, disclosure without consent is permitted under certain conditions described in 34 CFR § 99.31.  One of these conditions is the “school official exception,” which allows a platform to receive PII from education records without parental consent if the platform: (1) “performs an institutional service or function,” (2) has “a legitimate educational interest” in the education records, (3) “is under the direct control” of the school “with respect to the use and maintenance of education records,” and (4) uses education records only for authorized purposes and does not redisclose PII from education records to other parties without consent.  The penalty for violating FERPA is the withdrawal of federal funding to the school.  A pitfall for schools is the procurement process, which requires careful attention to ensuring that the contract and the vendor’s privacy practices and policies align.

COPPA: The Children’s Online Privacy & Protection Act (COPPA), 15 U.S.C. § 6502, and the COPPA Rule, 16 C.F.R. pt. 312, impose requirements on operators of websites or online services directed to children under 13 years of age, and on operators of other websites or online services that actually know they are collecting personal information online.  The COPPA Rule requires operators of these types of these services to include a clearly written privacy notice on their home page and anywhere else on their site where user data is collected. COPPA also requires operators to obtain “verifiable parental consent” before collecting or using personal information from children, and to maintain reasonable procedures to protect the confidentiality, security, and integrity of personal information collected from children. The FTC has published guidance on complying with the COPPA Rule, which is available at the following link:

 

https://www.ftc.gov/business-guidance/resources/childrens-online-privacy-protection-rule-six-step-compliance-plan-your-business

Violations of the COPPA Rule carry civil penalties of up to $46,517 per violation.

Student Privacy Act: In Texas, the Student Privacy Act, Tex. Educ. Code § 32, restricts the use of students’ personally identifiable information when used in connection with websites, online services, online applications, or mobile applications for a school purpose.  Specifically, the Act prohibits the “operator” of a website, online service, online application, or mobile app from knowingly engaging in “targeted advertising” if the target of the advertising is based on information the operator acquired through the use of those platforms for a school purpose.  Operators are also prohibited from using the information to create a profile about a student unless the profile is created for a school purpose. In addition, operators cannot sell or rent any student’s “covered information.”  The Act does not include a penalty.

Our view: As mentioned in the Star-Telegram article, linked above, the FTC has recently indicated that enforcement of COPPA is now a priority, especially in EdTech.  You can read the FTC’s policy statement on this issue by clicking on the following link:

https://www.ftc.gov/legal-library/browse/policy-statement-federal-trade-commission-education-technology-childrens-online-privacy-protection

Here, we think that EdTech platforms should take note of the FTC’s enhanced scrutiny because the penalties for violating the COPPA Rule are stout, and the FTC has expressly stated its intent to ensure that EdTech companies protect children’s privacy. 

While we support any action that enhances user privacy – especially children’s privacy – we question the schools’ presumably inadvertent role in the commercialization of student data.  On the “front end,” education agencies and/or school systems that contract for EdTech must be diligent and attentive enough to ensure that students’ privacy is protected not only by “policies” posted somewhere on the vendors’ websites, but that those policies are reflected in the contracts between the vendors and the schools.  And even where the contracts require limitations on data use and impose security obligations, the vendors’ performance under those contracts must be monitored and assured. This will require not just FTC scrutiny of EdTech practices, but also scrutiny of the schools’ roles themselves. 

Without up-front diligence on vendors followed by continued monitoring and oversight, schools will find that they have – albeit inadvertently – played a role in ceding student data to vendors who weren’t adequately committed to responsible data stewardship. And without looking to the entities ultimately responsible for student data – i.e. the schools – we suspect that EdTech privacy problems will persist. 

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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.

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