Employee Hardship in Texas Non-Compete Litigation

You get the same sob story in most non-compete lawsuits. “Your Honor, if you enter an injunction enforcing this non-compete, my client won’t be able to make a living and support his family.”

You might think this sort of argument is inappropriate. The judge should decide whether to enter an injunction based on the law, not sympathy. If an employee agrees to a non-compete and gets compensated for it, she doesn’t get to avoid it just because she later decides it’s inconvenient. The “hardship” argument should be out of bounds, you might think.

But you would be wrong. An injunction is an “equitable” remedy, so it’s not just a question of “the law,” but a question of equity, or fairness.

The Balance of Equities Rule

This is the rule in Texas state court: “Because an injunction is an equitable remedy, a trial court weighs the respective conveniences and hardships of the parties and balances the equities.” Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 220 (Tex. App.—Dallas 2005, no pet.). See also NMTC Corp. v. Conarroe, 99 S.W.3d 865, 868 (Tex. App.—Beaumont 2003, no pet.) (“An application for injunction is a request that a court exercise its equitable jurisdiction, and in exercising that power the court balances competing equities”); Surko Enterprises, Inc. v. Borg-Warner Acceptance Corp., 782 S.W.2d 223, 225 (Tex. App.—Houston [1st Dist.] 1989, no writ) (“In determining whether to order a temporary injunction, the trial court balances the equities of the parties and the resulting conveniences and hardships”).

It’s a common-law rule, meaning a rule made by courts. Texas state courts balance the equities even though Rule 683 of the Texas Rules of Civil Procedure doesn’t say anything about that. See Reliant Hosp. Partners, LLC v. Cornerstone Healthcare Group Holdings, Inc., 374 S.W.3d 488, 503 (Tex. App.—Dallas 2012, pet. denied).

And for my Advanced readers, the Texas non-compete statute, which does not speak to the requirements for a temporary injunction, does not preempt this common-law rule. NMTC Corp. v. Conarroe, 99 S.W.3d 865, 868 (Tex. App.—Beaumont 2003, no pet.).

The rule is effectively the same in federal courts: to obtain a preliminary injunction, the plaintiff must show that “the threatened injury outweighs any damage that the injunction might cause the Defendant.” Yellowstone Landscape v. Fuentes, No. 4:20-1778, 2020 WL 4547150, at *3 (S.D. Tex. Aug. 8, 2020) (citing Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008)). That’s just another way of saying weigh the balance of equities or hardships.

Implicit in this rule is the idea that the court might deny an injunction based on the hardship on the employee, even if the employer would otherwise be entitled to an injunction.

Think about it. If the employer isn’t entitled to an injunction anyway, there’s no point in arguing about the balance of equities. Hardship on the employee only becomes a real issue if the employer satisfies the other elements required to get an injunction. Thus, the command to “balance the equities” raises the prospect that the hardship on the employee could be the decisive factor weighing against an injunction.

Does that actually happen in practice?

The short answer is no. In most cases the hardship factor is just an afterthought used to justify whatever decision the court has already made about the injunction. If the court wants to grant an injunction, it will say that the balance of equities weighs in favor of enforcing the non-compete. If the court doesn’t want to grant an injunction, it will cite the hardship on the employee as an additional factor against enforcement.

But we mustn’t be too cynical about the hardship issue. In close cases the hardship on the employee may be enough to tip the scales of justice towards denying the injunction. That means the lawyer for the employee who is seeking to avoid the injunction needs to offer evidence of the hardship, and the lawyer representing the employer trying to obtain an injunction needs to be prepared to counter such evidence. More about that later.

First let’s look at some examples of non-compete cases that “balance the equities” to see if they bear out my short answer.

Why It’s Hard to Appeal an Injunction Ruling

In NMTC Corp. v. Conarroe, 99 S.W.3d 865, 869 (Tex. App.—Beaumont 2003, no pet.), the trial court denied a non-compete injunction, and the Court of Appeals affirmed the trial court’s ruling, citing the hardship on the employee as “the determining factor” supporting the trial court’s ruling.

In O’Brien v. Rattikin Title Co., No. 2-05-238-CV, 2006 WL 417237, at *5-6 (Tex. App.—Fort Worth Feb. 23, 2006, no pet.), the trial court granted a non-compete injunction, and the Court of Appeals affirmed the trial court’s ruling, rejecting the argument that the hardship on the employee outweighed the employer’s business interests.

Notice a pattern?

Yes, of course. The appellate courts almost always uphold the trial court’s decision on an injunction, whether the decision is to grant or to deny.

I say “almost” because, of course, there are exceptions. There are some cases where the appellate court reverses the trial court’s decision on an injunction. But those cases are few and far between.

Why is that? Why doesn’t the hardship factor result in more reversals on appeal?

I think it’s a combination of three things.

First, it’s the standard of review. The court of appeals will only reverse if the trial court’s decision on the injunction was an “abuse of discretion.” That means even if the appellate court might have decided the injunction a different way, that’s not enough to reverse. The party challenging the ruling on appeal has to show the trial court didn’t just get it wrong, but really wrong. See, e.g., Univ. Health Servs., Inc. v. Thompson, 24 S.W.3d 570, 578-79 (Tex. App.—Austin 2000, no pet.) (emphasizing standard of review in affirming trial court’s balancing of equities).

Second, the balance of equities is just one factor. If the other requirements for an injunction—like whether the violation of the non-compete will cause irreparable injury to the employer—weigh heavily to one side, it is unlikely the hardship factor will be so strong that it shifts the scales in the other direction.

Third, the balance of equities is a one of those notorious “balancing” tests. The problem with a balancing test is that you can almost always come up with a reasonable argument going one way or the other. There are even memes about this.

So the bottom line is that you shouldn’t put too much stock in the balance of equities issue. Hardship on the employee is not likely to save the employee if the case for an injunction is otherwise strong, and vice versa.

And yet.

There’s always the chance that the hardship factor makes the difference. So you’ve got to be prepared for it.

And while most judicial opinions give short shrift to the balance of equities, there are some that dig a little deeper. Let’s look at some examples.

Cases Applying the Balance of Equities Rule

A good case to cite if you represent the employee, at least in Texas where I practice, is Yellowstone Landscape v. Fuentes, No. 4:20-1778, 2020 WL 4547150 (S.D. Tex. Aug. 8, 2020).

The employee in Yellowstone Landscape, Mr. Fuentes, was an account manager for commercial landscaping accounts, like Yellowstone’s contract with the Harris County Flood Control District for mowing and maintenance of flood control channels in Houston. Mr. Fuentes interacted with the customer to make sure the work was being done properly, but he was not involved in preparing or submitting bids. Id. at *1.

There were some “bad facts” for the employee. Mr. Fuentes resigned, falsely told his employer he was starting his own tree trimming business, and then violated his non-compete by going to work for a competitor, who had recently underbid Yellowstone on a project. Id. at *1-2.

But the balance of equities favored Mr. Fuentes. Yellowstone was the fifth-largest landscaping firm in the nation, with over $200 million in annual revenue. Mr. Fuentes made $75,000 and supported a family of five. An injunction would have caused him to lose his job in the middle of a pandemic. He paid for one child’s college tuition, and his wife needed surgery for a herniated disc. His lawyer was working pro bono. Id. at *8.

With those facts, I don’t even have to tell you what the court’s ruling was.

But of course, most cases don’t have hardship facts as sympathetic or well developed as in Yellow Landscape.  

For example, in Accruent, LLC v. Short, No. 1:17-CV-858-RP, 2018 WL 297614 (W.D. Tex. Jan. 4, 2018), the federal district court held that the balance of equities favored an injunction where the employee did not offer “evidence of how much less he might earn in a different industry” or explain “what diminished earning would mean for his family.” Id. at *9. The court noted that under the agreement as reformed, the employee could still work in the same industry, just not in a role substantially similar to his role with the former employer. Id.

A state court case that applies similar reasoning is York v. Hair Club for Men, LLC, No. 01-09-00024-CV, 2009 WL 1840813 (Tex. App.—Houston [1st Dist.] June 24, 2009, no pet.) (mem. op.). In that case, the plaintiff’s key witness was not only the Hair Club’s president, he was also a client.

Sorry, I just had to get that in.

But seriously, in the Hair Club case there was evidence that the employees, who were licensed cosmetologists, had longstanding relationships with clients, and that 41 former Hair Club customers had followed the employees to a competitor. Id. at *6. The Court of Appeals reasoned that the balance of equities did not weight against the trial court’s injunction, where the injunction did not prevent the employees from working in the hair replacement industry generally and seeking new customers, but only enjoined them from soliciting Hair Club customers. Id.

There’s a key point we can derive from both Accruent and Hair Club: the hardship on the employee will be less of a factor when the injunction is narrowly tailored to protecting the employer’s goodwill with customers.

So, for example, an injunction that entirely bars an employee from working for a competitor is likely to impose too great a hardship. On the other hand, an injunction that only bars the employee from doing business with specific customers of the employer creates less of a hardship.

That means if the trial court does its job right, the burden on the employee should rarely be a decisive factor. A properly tailored injunction should already balance the employer’s interest in protecting its confidential information or goodwill against the employee’s right to use his general knowledge, skill, and experience in the industry.

So there’s our answer. If the court properly limits the scope of the injunction to preventing the employee from taking her customers with her, then the hardship on the employee becomes a non-issue. Right?

I wouldn’t go that far. To understand why, let’s take a little trip to Beaumont.

Why the Balance of Equities Inherently Favors the Employee

If you practice litigation in Texas, you know Beaumont is a fun venue. Maybe not quite as exciting as Hidalgo County, but it’s close.

And if you know anything about East Texas, you know the competition for sales of MATCO® hand tools is fierce in Hardin County. So when tool salesman Jule Conarroe left Matco Tools and went to work for competitor Cornwell Tools, you just knew, “this means war.”

And sure enough, Matco Tools filed suit to get an injunction. Conarroe admitted some of the customers he was selling Cornwell products to had also been customers in his territory at Matco, id. at 866, but the trial court judge found the equities weighed heavily in favor of denying the injunction. NMTC Corp. v. Conarroe, 99 S.W.3d 865, 869 (Tex. App.—Beaumont 2003, no pet.)

Specifically, the judge found that “if a temporary injunction issues, Mr. Conarroe will be put out of business.” The alternative was more equitable. “If a temporary injunction does not issue, Matco may lose some sales within the territory, but the ability to mitigate those losses is within Matco’s control and is subject to recoupment.” Id.

That’s some small-town Texas wisdom right there. And the Court of Appeals agreed. “In balancing the equites,” the court explained, “a trial court may consider whether the degree of injury to the applicant would be slight or significant if the temporary injunction were erroneously denied.” Id.

This really gets to the heart of the balance of hardship analysis for a temporary injunction in a non-compete case. The problem is that a ruling on a temporary injunction is not a final ruling on the merits, and the risk of getting it wrong is not evenly balanced.

Here’s what I mean, and what I think the Beaumont Court of Appeals was getting at. Suppose the trial court gets it wrong and denies an injunction enforcing the non-compete. That does impose a certain hardship on the employer, because it is probably going to lose some business that it should not have lost. But that’s a hardship that can be compensated, because the employer can seek damages for business it loses as a result of the employee breaching the non-compete (assuming the non-compete is enforceable).

The risk of getting it wrong and granting a temporary injunction is much greater. In that case, the employee has no remedy for the loss of income resulting from an erroneous temporary injunction enforcing the non-compete. I explained this problem in The Problem With Non-Competes.

No, the hardship argument should not be an automatic Get Out of Jail Free card that exempts an employee from a reasonably limited non-compete. But courts should take the employee hardship issue seriously. It shouldn’t be just an afterthought.

____________

Zach Wolfe (zach@zachwolfelaw.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at Zach Wolfe Law Firm. Thomson Reuters named him a Texas “Super Lawyer”® for Business Litigation in 2020 and 2021.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

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Prescribed Burning Liability Considerations

If you are involved in a prescribed burn in any capacity–a landowner, lessee, Certified & Insured Prescribed Burn Manager, burn boss, assisting with the fire–you need to take time to understand the law related to liability if the burn causes damage or injury.

Photo via Dr. Morgan Treadwell

The Texas Legislature recently made changes to the prescribed burning liability statute.

Dr. Morgan Treadwell and I recently  published a fact sheet outlining how Texas law works with regard to liability where prescribed burns are involved.

To view the fact sheet, click here.

The post Prescribed Burning Liability Considerations appeared first on Texas Agriculture Law.

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Sponsored Content: How to Implement Payment Plans at Your Law Firm

Get Paid Quicker with Lawyer Payment Plans

Clients care about affordability, and lawyer payment plans prioritize just that. In the 2020 Legal Trends Report, consumers ranked affordability factors—including payment plans—as the most important determinant (aside from positive reviews) for lawyer hireability.

When lawyers offer payment plans—for example, through online payments in Clio Manage—clients can pay on a schedule that works for them. It takes the stress out of the payment process, resulting in faster-paid bills.

How lawyers win by embracing payment plans

Continuously playing phone tag and following up with clients for payments eat up lawyers’ hours. Not to mention missing monthly revenue targets due to unpaid bills and other setbacks stemming from scant payment structures. By introducing and communicating payment plans which center around the client and their experience, law firms can avoid chasing clients for bill payments.

According to the 2020 Legal Trends Report, 72% of consumers prefer to pay their legal fees via a payment plan. Payment plans also make legal services more affordable to clients who would otherwise be unable to pay. If a client can’t pay, they either won’t seek legal services or won’t pay their bill. This holdup means firms leave money on the table and don’t get to help as many clients as they otherwise could. Lawyers have just as much to gain from payment plans as their clients do.

How to start implementing payment plans at your law firm

Ask your clients about what works best for them. Chances are, when clients sit down with you, their adrenaline is high, and stress is looming. A client could hastily agree to pay an amount of money that isn’t possible in one transaction. And yes, this will most certainly hurt your bottom line if you’re planning operations around securing this revenue. One alternative is to ask questions. Find out a little bit more about your client and their financial situation. Encouraging stress-free payments of $100 a month is better for your business than the alternative–your team spends hours a week chasing substantial unpaid invoices with little knowledge of when checks will clear.

Offer payment plans that work for your firm. If your alternative payment plans don’t cover monthly costs, suddenly, your clients are without legal help. For a payment plan to work, it has to be mutually beneficial. Understanding your cash flow and knowing what number you need to bring in every month to keep business going is a good place to start. If possible, creating a law firm budget and getting your finances organized before introducing payment plans will benefit you in the long run.

Understanding the benefits of payment plans and thinking critically about how they might work at your firm is half the battle. Now, you can learn more about setting up payment plans.

 

 

 

 

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Medical Expense Reimbursement as Texas Child Support

Children’s medical and educational expenses can often be a contentious issue in Texas child-support cases. Parents may disagree on whether treatment is needed, what providers should be used, and whether the child should be in private school.  A father recently challenged an order to pay certain medical expenses, arguing the mother had not used preferred providers as required by the decree.

The final divorce decree appointed both parents joint managing conservators with the mother having the right to establish the primary residence with a geographical restriction. The mother was responsible for maintaining the children’s health insurance.  The father had an expanded modified possession order and paid child support and reimbursement of insurance premiums as additional child support.  Each party was responsible for 50% of additional health-care expenses.

Father Seeks Modification of Divorce Decree

The father petitioned for modification in 2018, seeking the exclusive right to establish the primary residence, as well as child support and certain exclusive decision-making authority.

In response, the mother moved to enforce the decree, claiming the father had not reimbursed her for medical expenses.

The trial court denied most of the modifications the father sought, but awarded the mother $5,923.55 in back child-support arrearage. The father appealed, arguing there was insufficient evidence to support the court’s order for arrearage.  He alleged the mother did not provide him documentation of the medical expenses in a timely manner and that she had not used a preferred provider.

The divorce decree required the party incurring medical expenses on behalf of the children to submit documentation of the expenses to the other party within 30 days after the documentation is received.  The decree also required the party to itemize the expenses. The father argued that his obligation to pay was only triggered if the mother sent him the documentation within the 30-day timeframe. He argued the requirement for documentation was a condition precedent to his obligation to pay. Generally, a contract must include conditional language, such as “if” or “on the condition that,” to create a condition precedent.  If there is no conditional language and there is another reasonable way to interpret the contract, the provision will be read as a covenant instead of a condition precedent. The appeals court found there was no conditional language in the relevant provision and that it was reasonable to interpret it as a covenant.

Appellate Court Disagrees with Father

The appeals court also found the father’s argument was contrary to family-law policy that each parent is obligated to support their children and is liable to anyone else, including a parent, who provides the child with necessaries.  The appeals court cited Tex. Fam. Code § 154.001, which describes the parents’ duty to support their children and liability to others who provide necessaries to the children. The appeals court also noted that other cases have upheld awards for unreimbursed medical bills that were provided to the parent untimely, even when there was a provision requiring the parent to provide the documentation within a specified timeframe.

The father also argued the trial court abused its discretion in ordering him to pay for medical expenses for treatment provided by non-preferred providers.  The decree ordered each party “to conform to all requirements imposed by the terms and conditions of the policy of health insurance covering the children in order to assure maximum reimbursement or direct payment by the insurance company. . .” The decree also stated, “Each party is ORDERED to use ‘preferred providers,’ or services within the health maintenance organization, if applicable.”

The appeals court found the trial court had abused its discretion in ordering the reimbursement of a neuropsychological exam, but not in ordering the reimbursement for charges for the child’s therapy. The mother agreed the therapist was not a preferred provider, but testified she had tried to find preferred providers, but could not find one who would treat children of “high conflict divorces” and who also accepted insurance.  The decree required the use of preferred providers “if applicable.” The appeals court found the mother’s testimony was sufficient to support an implied finding that the requirement was not applicable under the circumstances.

Appellate Court Partially Disagrees with Mother

The appeals court found there was not sufficient evidence supporting such an implied finding as to the neuropsychological exam, however.  The mother testified she had relied on recommendations in selecting the neuropsychologist and had not contacted the insurance company for a list of preferred providers.  She testified she did not know if it was difficult to find neuropsychologists for children in her child’s circumstances and that the high-conflict divorce was not a “consideration” in her selection of a provider.

The appeals court rejected the father’s argument that the trial court abused its discretion in ordering him to pay half the child’s private-school tuition.  He argued that language in the decree requiring the mother to “keep the children in their current school district” unless certain conditions were met meant the children had to stay in public school.  The appeals court found, however, that another provision specifically considered the child going to private school.  That provision provided that each party would pay 50% of “fees associated with [the child’s] private tutoring, school, and camps associated with her disabilities, including but not limited to, dyslexia. . .” The appeals court found that the decree allowed the mother to enroll the child in a private school specializing in helping children with dyslexia, and required the father to pay half of the fees if she did so.

The appeals court therefore reversed the trial court’s determination of child support arrearage and rendered judgment that the arrearage was $4,498.55 after removing the expenses associated with the neuropsychological exam.  The appeals court affirmed the rest of the decree.

Involved in a Medical or Child-Support Dispute? Call McClure Law Group Today

If you are anticipating or involved in a dispute with your child’s other parent regarding medical or educational expenses, a knowledgeable Texas child support attorney can help you.  Schedule a consultation with McClure Law Group by calling our office at 214.692.8200.

 

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Devising a Fair & Workable Child Custody Holiday Schedule in Your Parenting Plan

Holiday schedules, like a possession schedule for non-holiday periods, can vary a great deal depending upon the circumstances of you and your family. That is the nice part about child custody cases in Texas- you and your co-parent can create orders that can vary a great deal depending upon the needs of your family. There is no requirement for you and your co-parent to follow the possession schedules laid out in the Texas Family Code. If that is what you choose to do there is nothing wrong with that. However, there is no requirement to follow the Code’s language. A judge is not going to force himself or herself into your case for this reason.

Rather, you and your co-parent will be given ample opportunity to negotiate through the relevant issues related to child custody. Most child custody cases last three to four months in duration. Yours may not last this long. By the same token, yours maybe even shorter. However, most family law cases involving child custody tend to last about this long. What you can do during this time is pretty significant. The time can be spent arguing with your co-parent over petty issues or you can spend the time productively going through the issues that are most significant to your case. The choice is yours and only you can control your actions and emotions.

If you and your co-parent cannot use your time effectively or otherwise come to agreements on issues related to child custody then the odds are good that you will end up having to utilize what is known as a Standard Possession Order. A Standard Possession Order is the basic, general possession schedule that is laid out in the Texas Family Code. You are probably familiar with a Standard Possession Order even if you have never heard that term before. A Standard Possession Order is what most possession orders are based off on even if the individual plan in question various from the standard order to one extent or another.

A Standard Possession Order creates a repeatable, predictable schedule for you and your children to follow. If you have gone through a circumstance where you were not sure when your co-parent would allow you to see your children, this is a great benefit for you. Not only are you given a pre-arranged schedule ahead of time in which you can plan your time but you also have a court order that is enforceable in the future should your co-parent violate the order and deny you visitation wrongfully. Hopefully, you will never have to enforce the court order but if you do, you should have a signed court order than an informal order that was simply agreed to in principle between you and your co-parent.

The bottom line is that a Standard Possession Order is intended to protect and encourage the best interests of your children. The best interests of your child will be the central focus of a court should the case need to go in that direction. Likewise, the court will presume that you and your co-parent are each making decisions that are in the best interests of your children. This is an important distinction to draw given that a court will not be concerned with what is in your best interests as far as being able to maximize time with your child. If spending more time with you is in the child’s best interests then that will be reflected in the court’s orders. Otherwise, what makes you happy is not at the top of the list of considerations that a court will have.

For your purposes, you can look at standard possession order as a jumping-off point as far as beginning negotiations with your co-parent on the issue of coming up with a workable parenting schedule for the two of you to take part in together. Look at it this way- you can approach your co-parent during the negotiation phase of your child custody case with the idea that you can fall back on if you are not able to figure out a more fact-specific plan that suits you in your family better. Ah, in my years as an attorney I have found that it is more likely than not that you and your Co-parent will be able to settle here child case outside of court. However, if that is not possible then you all may be able to at least avoid going to court by agreeing to a standard possession order in the event a settlement cannot be reached the first period

What are the standard possession orders foremost child custody cases?

We see child custody cases utilize standard possession orders when it is necessary for a primary residence of your child to be designated. For most child custody cases, a primary residence of a child will need to be designated if you and your Co-parent are not able to do so together in negotiation. The reason for this is that the primary residence of a child is crucial for determining the school your child will attend as well as which parent will have to pay in which parent will have to receive child support. This is in addition to many other rights and duties relevant in the conservatorships aspects of your case.

As you can see, the ability to designate the primary residence of your child is extremely important and can somewhat easily lead to your divorce or child custody case going to a trial if an agreement or settlement cannot be reached on this subject. It is somewhat easy for this case to go to a trial because there is very little middle ground that can be reached when it comes to determining the primary conservator of a child. If you are dead set against having to pay child support then you may need to take your case to a trial if no settlement can be reached.

When you do go to a trial on a child custody issue then the most likely outcome is that a court will follow a standard possession order. The reason for this is that judges are reticent to deviate from a standard possession order given that they cannot possibly know every circumstance of your case even after a one or two-day trial. In that case, a judge would likely play it safe and try to go right down the middle with a standard possession order. This could end up in a good or a bad thing for you depending upon the facts and circumstances of your case. If there are several aspects to your case that were choir complex thought in consideration then that may be better for you all to attempt at a settlement outside of the courtroom.

Even still, you and your Co-parent may be uncomfortable with the idea of deferring to a family court judge on issues like this which are fact and circumstantially sensitive. Judges operate with a gavel and not with a scalpel. This means that the judge in your case will most likely be unable to come up with better solutions to complex circumstances than you and your Co-parent would be therefore, the more complex your case may be the more you and your Co-parent should be motivated to settle your case on your own without the assistance of a judge. There is nothing wrong with going through to a trial especially if the trial is limited to a few issues that you all could not settle on your own. However, all things being equal it is great to be able to work out your problems with your Co-parent directly rather than relying upon an outside source to do so. I think you will find that not only your court orders will be better for your family but you can use the opportunity to negotiate as a way to build trust and goodwill between you and your Co-parent.

In the meantime, I think you should be prepared for the possibility that a standard possession order is utilized in your child’s custody case. The more information you can have on this subject the better off you will be whether it comes to negotiating a schedule during the school year for your child or during holiday time. with that said, let’s spend the remainder of today’s blog post going through standard possession orders for summer and holiday visitation and possession. These periods are a little more complicated than the school year where the noncustodial parent of your child will have possession under standard possession order on the first, 3rd, and 5th weekends of each month.

Major holidays such as Thanksgiving and Christmas

When it comes to the major holidays of the year, notably Thanksgiving and Christmas, you will have possession of your child for one holiday and your Co-parent will have possession for the other. When each of you has possession and for what holiday will depend upon the year. Usually, one parent will have possession of the other child on a certain holiday in odd years and the other will have possession during even years. Let’s suppose that this year you would have possession of your child for Thanksgiving and your Co-parent would have possession for the Christmas period this would change the following year where your Co-parent would have Thanksgiving and you would have Christmas.

one distinction that we should make regarding Christmas is that because Christmas is such a long holiday it is typically split up into two halves in most dangerous possession orders. The Tavern Christmas holiday begins at 6:00 PM only that day without periods begin that parents period of possession will typically end on the day after Christmas or thereabouts. The second half of Christmas will end at 6:00 PM on the day before school is back in session. Note that under a standard position order you will not be able to possess the children both for Christmas and Thanksgiving in the same year.

Other important holidays are Father’s Day and Mother’s Day. An important thing to note for both of these holidays is that even if Father’s Day falls on your Co-parent’s weekend of possession you will still be able to possess your child for the holiday that corresponds to you being a mother or father. This is typically well thought out and explained clearly in possession orders. If they are not you run the risk of the orders being unenforceable.

Another consideration for you is that depending upon your cultural or religious heritage you may need to take into consideration other holidays which are not contained in a standard possession order. Rather than risk having to negotiate on these holidays each year it makes a great deal of sense for you to consider them beforehand and have them contained in your child custody orders. That way you are not having to go back and revisit these topics to reinvent the wheel every single year. Why not think about them in advance and not have to worry about them moving forward? This is a great advantage that you could have by thinking ahead and planning on how these topics influence your life.

How do summer vacations work under a standard possession order?

The other major set of holidays that need to be considered regarding a standard possession order is summer vacation. Summer vacation is the longest period that your child will have away from school throughout the entire year. You need to think about how you want to structure summer vacation regarding the possession of your child. This is what a summer possession schedule looks like under a standard possession order. If this does not sound like something which would appeal to you and your family is especially important for you to speak with an experienced family law attorney to figure out a plan that suits you and your family’s needs better period

The noncustodial parent of your child will have up to 30 days of continuous possession of your child during the summer. In most cases, your choice of 30 day periods must be designated to your Co-parent buy date in April. This will give error code parents time to plan trips of their own with their children and other considerations patients. I recommend to clients that they have a reminder on their phones to make sure that they can update The Co-parent in time to take advantage of this long stretch of visitation.

If you do not designate your period of possession with your Co-parent in time then the month of July will be designated for you to possess your child. This may ultimately be what you want but it is recommended for you to be as transparent as possible with your Co-parent when it comes to your intentions with your children and time with them. This way you all will have an open line of communication with unimportant subject matter like this.

Another important issue to consider when it comes to child custody and Holiday possession is that birthdays Are still shared between parents even if the birthday falls on a day that does not correspond to that parent’s normal time of possession. For example, let’s suppose that your child’s birthday does not fall on or weekend that you had him or her. In that case, your Possession schedule would likely allow for you to have an opportunity to have dinner with him or her from 6:00 to 8:00 PM on his or her birthday. This is a rather short period but would give you some opportunity to see him or her and give their birthday presents if you choose.

In conclusion, these are some of the major components to a standard possession order both as they figure into year-round visitation and possession as well as holiday visitation and possession. A standard possession order is the law of the land as contained in the Texas family code. It is supposed to be as fair and equitable as possible when it comes to dividing time with children between you and your Co-parent. However, it is only a suggestion and it does not have to be utilized if your family can reach other conclusions regarding possession and access.

What that means is that You and your Co-parent are better off being able to engage with one another The better off you will be in terms of being able to Work on solutions to rather complex problems involving your family. If you are not able to work together and subjects like this then it is likely that you will need to defer to a family court judge. While their solutions may not be bad they almost certainly will not work as well for you and your family as one created by you and your Co-parent as a team.

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

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

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Prosecutors Dodge Double Jeopardy, Collateral Estoppel

In the late afternoon hours of August 1, 2015, Christopher Rion was driving his Dodge Challenger in Dallas, Texas, when he collided with a Toyota Highlander. The collision left the Highlander driver, Claudia Loehr, and a passenger, Claudena Parnell, seriously injured. Parnell succumbed to her injuries several days later.

 

A Dallas County grand jury indicted Rion for manslaughter related to Parnell’s death and aggravated assault with a deadly weapon for Loehr’s injuries. Rion’s defense team sought a single trial on both offenses, but the trial court denied the single-trial motion after the prosecution’s formal opposition.

 

Rion was tried first on the manslaughter charge. His defense at trial was that he suffered from severe mental health issues for which he had been prescribed the drugs Adderall, Ambien, Lexapro, and Valium. He had taken prescribed dosages of Adderall and Valium earlier in the day of the collision. No doctor had ever instructed him not to drive while medicated.

 

The prosecution presented a case that Rion was reckless in driving under the influence, and it was that criminal recklessness that caused the death of Parnell. The state’s case rested exclusively on the legal premise that voluntary intoxication is not a defense against the recklessness element of a manslaughter charge.

 

Not Guilty Verdict Prompts Prosecutor to Try Second Case

 

The trial court gave the jury an instruction charge that included both manslaughter and the lesser included offense of negligent homicide.

 

The jury acquitted Rion on both charges.

 

The prosecution of this case, we believe, should have ended at that point. But that is not what happened.

 

The prosecution sought to try Rion on the aggravated assault with a deadly weapon charge. Rion’s defense team sought to prevent this prosecution through Texas’ Collateral Estoppel Doctrine by filing a pretrial writ of habeas corpus. The defense argued that since the jury rejected the manslaughter case based on the issue of recklessness, the prosecution was collaterally estopped from using recklessness to try Rion on the assault charge because that charge also has a recklessness element.

 

The Texas Fifth District Court of Appeals agreed.

 

The prosecution sought and secured, discretionary review before the Texas Court of Criminal Appeals (CCA) on the issue of whether the appeals court was correct in its finding. The CCA opened its analysis with an explanation of the collateral estoppel doctrine:

 

“Embodied in the Fifth Amendment’s guarantee against double jeopardy, the doctrine of collateral estoppel is an ‘extremely important principle in our adversary system’ and ‘means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties’... Confronted with the issue of whether collateral estoppel applies to bar a subsequent trial, courts must determine: (1) what facts were necessarily decided in the first proceeding; and (2) whether those necessarily-decided facts constitute essential elements of the offense in the second trial.”

 

Legal Distinction Causes Logical Inconsistency

 

The CCA reversed the appeals court on October 27, 2021, finding there is a legal distinction between recklessness causing death and recklessness causing injury. The CCA explained the difference this way:

 

“... through its ‘not guilty’ verdict, the jury in the manslaughter trial indicated that it had reasonable doubt that Appellant was reckless. As defined, correctly, by the charge, the jury’s determination on recklessness meant that it had reasonable doubt that Appellant was aware of a risk that death would occur as result of his conduct. In the aggravated assault case, while the jury would be similarly asked to decide whether Appellant was reckless, that is a different question for the purposes of aggravated assault causing bodily injury. The jury in the second trial would be asked to find, beyond a reasonable doubt, that Appellant was aware of a substantial and unjustifiable risk that bodily injury would occur as result of his conduct. The recklessness issues are not precisely the same. “

 

The CCA, however, left the collateral estoppel door open in other cases with this statutory caveat:

 

“But this is not to say that collateral estoppel can never apply where one trial is for manslaughter and the other trial is for reckless aggravated assault causing bodily injury. Because death itself is a form of bodily injury, a jury determination on recklessness with respect to awareness of a risk of death could say something about whether the defendant was aware of a risk of bodily injury, and a jury determination on recklessness with respect to awareness of a risk of bodily injury could say something about whether the defendant was aware of a risk of death.

 

“What if Appellant’s trials were reversed, and the reckless aggravated assault causing bodily injury case was tried first? If the jury decided that Appellant was not reckless, that is, he was not aware of but consciously disregarded a risk that his conduct would cause bodily injury to another, that would also be a determination that he was not aware of but consciously disregarded a risk that his conduct would cause the death of another. If a person is not aware that he could injure someone by his conduct, he inherently must be not aware that his conduct could also cause death to someone—death being the ultimate form of bodily injury.”

 

The CCA found within this legal analysis resided the distinction between two standards of recklessness. In other words, the prosecution can get the first bite of the apple if it prosecutes the manslaughter offense first and gets a second bite with an aggravated assault offense if the manslaughter jury acquits. The distinction made by the CCA strains logic, but that’s the current state of the law.

 

The issue remains open as to what an aggravated assault jury will decide based on the same facts and circumstances presented in the manslaughter trial. 

 

 

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Can You Run a Business from Home in Texas?

There are many benefits to running a business from home. Think about it. Starting a business out of your home will immediately cut down on your start-up costs. Office space can be expensive and working from home can be a great way to save. Plus, you get to work from the comfort of your own home! Think of the flexibility, not to mention the general creature comforts you can enjoy as well. If you have considered the benefits of working from home, you are likely wondering whether you are even allowed to run a business from home in Texas. We are here to answer this question for you.

Can You Run a Business from Home in Texas?

At the state level, there is no specific ban on running a business from home in Texas. It is, however, very important to check your local zoning laws to verify whether you are permitted from running a business from your home. The good news is that, most of the time, you can operate a business out of your home. The caveat being that your business activities cannot have adverse impacts on your neighbors. If that is the case or becomes the case, you may be prevented from continuing to run your home-based business pursuant to local zoning laws. To check to see if there are any specific types of business activities that are prohibited in your area, go to the city or county clerk’s office to check local ordinances.

Once you have verified that it is okay to run your business out of your home, it is time to set up your business. You will need to choose your business name and register that name with Texas. Many home-based businesses, however, are established and operated as sole proprietorships. This makes for an easy setup as there is no particular paperwork that must be filed. While there is ease in establishing a sole proprietorship, however, you also have personal liability exposure for business losses as you and the business are considered to be one and the same.

You will also need to obtain any necessary state licenses and local permits required of your business. There is no general requirement in Texas to obtain a business license. Certain regulatory agencies may, however, require certain licenses and permits for your business depending on your business type as well as what products or services your business intends to sell. There may also be county and city permits you need to obtain to run your home-based business. An occupational permit may be required. In fact, the Governor’s office makes it clear that it advises all Texas businesses to get in touch with local city and county governments to see if there are any other specific requirements that must be met to legitimately establish a home-based business, or any other type of business, for that matter.

In addition to all of this, you must be mindful of things that all business owners need to be aware. For instance, learn about the tax responsibilities you will have as a business owner. Develop a marketing plan, and much more. A marketing plan can be even more important for home-based businesses. The fact that businesses run out of the home lack a store front and, thus, lack this visibility, can mean that marketing efforts must be that much more robust.

Business Law Attorney

Are you planning to set up a business run out of your home? Let the Kumar Law Firm help set you up for success. Contact us today.

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