I want to spread the word that I'm practicing holistic law in Houston, Texas. I currently advertise in Centerpoint Magazine and Indigo Sun magazines. I'm on several "holistic" websites.
If you have any ideas on how to get the word out, please let me know.
fran@txholisticlaw.com
Thứ Ba, 30 tháng 9, 2008
Update on my mother's health & Hurricane Ike
My mom broke her left hip and had a hip replacement surgery. She recovered quickly and was really doing great. Then less than 2 weeks later, she broke her femer bone on the same side. The pain was horrible. She had another operation and almost bled to death. I lost count after she received over 8 pints of blood, platelets and plasma. She's at home with 24-hour care. Recovery is very slow. She is very, very weak. She is just not herself. She has another month of putting no weight on her left leg.
Additionally, my good friend, Bob, has been very ill too. He is undergoing many tests to find out why he's losing so much weight and is so tired all the time.
I am back at work part-time doing mediations and my do it yourself kits. I'm still not taking any contested cases.
Hurricane Ike really impacted my life. No electricity for almost 2 weeks. My dog is still recovering! He thinks he is just a furry human! He's over 12 years old and it was really tough on him.
I still have no internet, phone or cable at home.
However, there are still many blessings -- 2 of my neighbors had huge trees fall on their roofs and do major damage.
My cell phones keep going directly to voice mail! Very frustrating! If you call me, please leave a message along with your phone number.
I hope that you are recovering from Hurricane Ike. He won't be forgotten soon!
Additionally, my good friend, Bob, has been very ill too. He is undergoing many tests to find out why he's losing so much weight and is so tired all the time.
I am back at work part-time doing mediations and my do it yourself kits. I'm still not taking any contested cases.
Hurricane Ike really impacted my life. No electricity for almost 2 weeks. My dog is still recovering! He thinks he is just a furry human! He's over 12 years old and it was really tough on him.
I still have no internet, phone or cable at home.
However, there are still many blessings -- 2 of my neighbors had huge trees fall on their roofs and do major damage.
My cell phones keep going directly to voice mail! Very frustrating! If you call me, please leave a message along with your phone number.
I hope that you are recovering from Hurricane Ike. He won't be forgotten soon!
Thứ Hai, 29 tháng 9, 2008
DA Watch: On Second Thought, Let's Drop All the Charges
This is a great story.
It all began last week, over in West Viriginia, when some poor guy got pulled over because he was driving with his headlights off.
After he was pulled over, the police suspected that this guy (let's call him "Jose" because that's his name - Jose Cruz) was driving drunk, so they had Jose do a few field sobriety tests.
Jose failed. Jose was arrested. The cops took him to jail.
At the jail, Jose was being fingerprinted (imagine how bad a day that Jose is having right about now) which is part of the standard booking process. He'd get photographed, too -- you've seen those mugshots over at TMZ.com, right? (Heather Locklear's is online today, for her DUI bust this weekend.)
Well, while Jose is getting his inky fingers smashed on the fingerprint boards, Jose let one go. You know what I mean. Jose passed gas. Jose let one rip. Jose cut the cheese. Jose broke wind.
Jose pooted or tooted, but there was absolutely no report that Jose asked the officer to pull his finger.
And then, yes folks, Jose was arrested for BATTERY because he passed gas while he was being booked. The cop that was standing there said that "the odor was very strong." You think?
I suppose that if Jose HAD asked the officer to pull his finger, then an assault charge would have been added ....
Of course, this story went all over the web that night. Drudge Report had it as one of their headlines, it was all over the blogs and forums -- you get the idea.
And, the next morning, one of the assistant prosecutors roamed into the magistrate's office and asked that the battery charge be dropped.
It was. Fancy that.
For more on this important topic:
FartsRFun
FartiFacts
FartSounds
It all began last week, over in West Viriginia, when some poor guy got pulled over because he was driving with his headlights off.
After he was pulled over, the police suspected that this guy (let's call him "Jose" because that's his name - Jose Cruz) was driving drunk, so they had Jose do a few field sobriety tests.
Jose failed. Jose was arrested. The cops took him to jail.
At the jail, Jose was being fingerprinted (imagine how bad a day that Jose is having right about now) which is part of the standard booking process. He'd get photographed, too -- you've seen those mugshots over at TMZ.com, right? (Heather Locklear's is online today, for her DUI bust this weekend.)
Well, while Jose is getting his inky fingers smashed on the fingerprint boards, Jose let one go. You know what I mean. Jose passed gas. Jose let one rip. Jose cut the cheese. Jose broke wind.
Jose pooted or tooted, but there was absolutely no report that Jose asked the officer to pull his finger.
And then, yes folks, Jose was arrested for BATTERY because he passed gas while he was being booked. The cop that was standing there said that "the odor was very strong." You think?
I suppose that if Jose HAD asked the officer to pull his finger, then an assault charge would have been added ....
Of course, this story went all over the web that night. Drudge Report had it as one of their headlines, it was all over the blogs and forums -- you get the idea.
And, the next morning, one of the assistant prosecutors roamed into the magistrate's office and asked that the battery charge be dropped.
It was. Fancy that.
For more on this important topic:
FartsRFun
FartiFacts
FartSounds
Thứ Tư, 24 tháng 9, 2008
COP WATCH: It's Good to Be a Snitch in Dallas
Ladaryl Kelly sure led a charmed life -- for awhile.
Seems Kelly was best buds with a detective over at the Dallas County Sheriff's Department, a guy named Lonnie Cole. (I'm using the past tense here, because I'm doubting the friendship is as close now as it once was.)
Kelly Allegedly Protected by Cole
It was an interesting relationship. Ladaryl is purportedly a career outlaw: he's alleged to have robbed a couple of Subway sandwich shops in Irving; stolen cargo (and maybe even the 18-wheeler, too) in Waxahachie; as well as stealing a semi in a failed attempt to load up a bunch of plasmas TVs at an Ardmore, Oklahoma Best Buy.
And whenever Ladaryl's name came up -- in Oklahoma, Texas, or presumably elsewhere -- Detective Cole worked hard to keep Ladaryl out of any hassle with the authorities.
Ladaryl's alleged partners-in-crime could be busted left and right, and Ladaryl would fly away free, to chirp again on another day. Until now.
Snitch Heaven
Seems law enforcement in Waxahachie, Irving, and Ardmore, Oklahoma, have gotten togehter and compared notes - and none of them like Detective Cole's protection of Ladaryl.
There's talk of Cole stepping over the line, maybe even monkeying with investigations and hiding Ladaryl from investigators. Talk about snitch heaven.
Snitch is Busted, Detective is Investigated
Now, Detective Cole's being investigated by internal affairs and Ladaryl Kelly, identified by Cole as his long-time informant, has been indicted for his role in the Waxahachie aggravated robbery of the cargo truck.
Guess Mr. Kelly is going to be making lots of new friends now. Ratting out your pals to the cops, apparently as a routine career move, will probably make Kelly pretty darn popular in the local jail.
Source:
Dallas Morning News
(http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/082708dnmetinformant.3f5a5b9.html)
Seems Kelly was best buds with a detective over at the Dallas County Sheriff's Department, a guy named Lonnie Cole. (I'm using the past tense here, because I'm doubting the friendship is as close now as it once was.)
Kelly Allegedly Protected by Cole
It was an interesting relationship. Ladaryl is purportedly a career outlaw: he's alleged to have robbed a couple of Subway sandwich shops in Irving; stolen cargo (and maybe even the 18-wheeler, too) in Waxahachie; as well as stealing a semi in a failed attempt to load up a bunch of plasmas TVs at an Ardmore, Oklahoma Best Buy.
And whenever Ladaryl's name came up -- in Oklahoma, Texas, or presumably elsewhere -- Detective Cole worked hard to keep Ladaryl out of any hassle with the authorities.
Ladaryl's alleged partners-in-crime could be busted left and right, and Ladaryl would fly away free, to chirp again on another day. Until now.
Snitch Heaven
Seems law enforcement in Waxahachie, Irving, and Ardmore, Oklahoma, have gotten togehter and compared notes - and none of them like Detective Cole's protection of Ladaryl.
There's talk of Cole stepping over the line, maybe even monkeying with investigations and hiding Ladaryl from investigators. Talk about snitch heaven.
Snitch is Busted, Detective is Investigated
Now, Detective Cole's being investigated by internal affairs and Ladaryl Kelly, identified by Cole as his long-time informant, has been indicted for his role in the Waxahachie aggravated robbery of the cargo truck.
Guess Mr. Kelly is going to be making lots of new friends now. Ratting out your pals to the cops, apparently as a routine career move, will probably make Kelly pretty darn popular in the local jail.
Source:
Dallas Morning News
(http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/082708dnmetinformant.3f5a5b9.html)
Thứ Ba, 23 tháng 9, 2008
LEASES FAQ
What is a lease or rental agreement?
When the landlord has decided to rent to the tenant and the tenant has chosen to rent from the landlord, they will enter into a lease or rental agreement. These are contracts, either written or oral, in which the landlord grants to the tenant exclusive possession of a premises in exchange for rent for a period of time.
Do all tenants have the same kind of lease?
No. Most tenants fall into one of two categories.
If the tenant rents for a fixed period of time (that is, a term) and no notice is required to terminate, the tenancy is called a tenancy for years. This tenancy is usually in writing. It must be in writing if the term of the lease is longer than one year.
If the tenancy continues indefinitely, automatically renewing from one period to the next, and if a notice is required to terminate, the tenancy is called periodic. This lease or agreement may be written or oral.
What are the advantages of an oral versus a written lease?
For tenants with an oral month-to-month agreement, the major advantage is the ability to terminate the lease and move out without further rental liability with only a short notice to the landlord. The notice usually must be the same as the term of the agreement, commonly 30 days. Tenants are very mobile (20 percent move each year) and the ease of moving can be an important consideration.
For landlords, an oral lease provides an easy way to terminate the lease and make the tenant move out with only a short notice, or to raise the rent. The landlord is usually not required to state a good reason for the termination, as must be done in other cases.
What are the disadvantages of an oral lease?
Because nothing is written down, the major disadvantage is the possibility of misunderstandings between the landlord and the tenant about the conditions of the tenancy.
What are the advantages of a written lease?
From the landlord’s standpoint, the chief advantage of a written lease is the landlord's right to hold the tenant to pay rent for the entire duration or term of the lease.
What are the disadvantages of a written lease?
The major disadvantage for the tenant is that the landlord may write in express provisions that void certain protections that the law ordinarily gives to the tenant. Also, most written leases—including most of the standard form leases—favor landlords, and the landlord's responsibilities are not very well spelled out.
Does the law regulate the provisions in a lease?
Yes. Both courts and legislative bodies have restricted the provisions in a lease. However, these laws vary by state and locality.
In one example of a law restricting a lease, state courts have struck down lease clauses which provide that the tenant accepts the apartment in "as is" condition and that the tenant must pay the rent regardless of whether the landlord maintains the property. So, if a landlord sues to evict for nonpayment of rent, tenants can defend themselves by arguing that the premises were not worth the full contract rent because of the deteriorated condition. This legal concept is called the implied warranty of habitability. It prevents the landlord from evading the responsibility to maintain the premises even if the tenant signed a lease waiving the right to maintenance.
Many states and municipalities have enacted laws that prohibit some clauses from residential leases. An example of a commonly prohibited clause is "confession of judgment." Such a clause would permit the landlord's attorney to go into any court and to represent the tenant without any prior notice, service or process. The tenant would waive a jury trial, confess judgment to whatever the landlord sues for without any defense, waive all errors or omissions made by the landlord in making the complaint, and authorize an immediate eviction or wage deduction.
Trey Wilson is a lawyer in San Antonio, who frequently represents landlords and tenants in lease negotiations, possession disputes and evictions. He was recently voted by his peers as one of San Antonio's best real estate litigation attorneys. He may be reached at 210/223-4100 or www.sa-law.com
When the landlord has decided to rent to the tenant and the tenant has chosen to rent from the landlord, they will enter into a lease or rental agreement. These are contracts, either written or oral, in which the landlord grants to the tenant exclusive possession of a premises in exchange for rent for a period of time.
Do all tenants have the same kind of lease?
No. Most tenants fall into one of two categories.
If the tenant rents for a fixed period of time (that is, a term) and no notice is required to terminate, the tenancy is called a tenancy for years. This tenancy is usually in writing. It must be in writing if the term of the lease is longer than one year.
If the tenancy continues indefinitely, automatically renewing from one period to the next, and if a notice is required to terminate, the tenancy is called periodic. This lease or agreement may be written or oral.
What are the advantages of an oral versus a written lease?
For tenants with an oral month-to-month agreement, the major advantage is the ability to terminate the lease and move out without further rental liability with only a short notice to the landlord. The notice usually must be the same as the term of the agreement, commonly 30 days. Tenants are very mobile (20 percent move each year) and the ease of moving can be an important consideration.
For landlords, an oral lease provides an easy way to terminate the lease and make the tenant move out with only a short notice, or to raise the rent. The landlord is usually not required to state a good reason for the termination, as must be done in other cases.
What are the disadvantages of an oral lease?
Because nothing is written down, the major disadvantage is the possibility of misunderstandings between the landlord and the tenant about the conditions of the tenancy.
What are the advantages of a written lease?
From the landlord’s standpoint, the chief advantage of a written lease is the landlord's right to hold the tenant to pay rent for the entire duration or term of the lease.
What are the disadvantages of a written lease?
The major disadvantage for the tenant is that the landlord may write in express provisions that void certain protections that the law ordinarily gives to the tenant. Also, most written leases—including most of the standard form leases—favor landlords, and the landlord's responsibilities are not very well spelled out.
Does the law regulate the provisions in a lease?
Yes. Both courts and legislative bodies have restricted the provisions in a lease. However, these laws vary by state and locality.
In one example of a law restricting a lease, state courts have struck down lease clauses which provide that the tenant accepts the apartment in "as is" condition and that the tenant must pay the rent regardless of whether the landlord maintains the property. So, if a landlord sues to evict for nonpayment of rent, tenants can defend themselves by arguing that the premises were not worth the full contract rent because of the deteriorated condition. This legal concept is called the implied warranty of habitability. It prevents the landlord from evading the responsibility to maintain the premises even if the tenant signed a lease waiving the right to maintenance.
Many states and municipalities have enacted laws that prohibit some clauses from residential leases. An example of a commonly prohibited clause is "confession of judgment." Such a clause would permit the landlord's attorney to go into any court and to represent the tenant without any prior notice, service or process. The tenant would waive a jury trial, confess judgment to whatever the landlord sues for without any defense, waive all errors or omissions made by the landlord in making the complaint, and authorize an immediate eviction or wage deduction.
Trey Wilson is a lawyer in San Antonio, who frequently represents landlords and tenants in lease negotiations, possession disputes and evictions. He was recently voted by his peers as one of San Antonio's best real estate litigation attorneys. He may be reached at 210/223-4100 or www.sa-law.com
Thứ Hai, 22 tháng 9, 2008
Criminal Laws Regarding Adoption
In Texas, an attorney cannot help prospective adoptive parents locate a child for adoption. Moreover, prospective adoptive parents may not advertise in the public media for a child. It is a Class B misdemeanor for a person to serve as an intermediary in the identification of a birth mother who may desire to place a child for adoption. Importantly, one must be extremely careful regarding the providing of any financial assistance whatsoever to a birth mother, because it is illegal (at least a third-degree felony – 2 years to 10 years in prison), among other things, in Texas to offer to give, agree to give, or give a thing of value to another for acquiring a child for the purpose of adoption. The Sale or Purchase of a Child provisions, and the provisions regarding serving as an intermediary in the identification of a birth mother, of Texas’ penal statutes are very broad, so you will want to consult an attorney about any contemplated arrangement before taking action of any kind.
JUDGE WATCH: Judge Priddy's Law License Suspended But He's Still On the Bench
Bruce Priddy is a state district court judge, presiding over civil cases in the 116th Judicial District Court of Dallas County, Texas. You can see him today, in his robes and on the bench, down at the courthouse (New Tower) on Commerce Street.
He hears non-criminal matters that can be complex and involve a lot of money. For example, this past June the Dallas company ICC Energy Corporation filed a big lawsuit in his court against Oklahoma City's Chesapeake Energy Corp (NYSE: CHK) claiming that Chesapeake breached a deal with ICC to market gas from the Barnett Shale at the Dallas-Fort Worth International Airport. Millions are at stake.
Presiding Judge Priddy's License Pulled for "Professional Misconduct"
What's interesting is that while Judge Priddy can preside over civil matters, ruling on motions made by attorneys, and accepting verdicts found by juries, he cannot practice law right now. His law license has been suspended by the State Bar of Texas for "professional misconduct."
Yes, that's right: in this State, a judge can still preside over a courtroom even if his law license has been suspended. For professional misconduct. Whoa.
Diane Jennings at the Dallas Morning News apparently thought this was strange, and asked the Executive Director of the State Commission on Judicial Conduct about the situation. Jennings reports that the director, Seana Willing, explained: "He was qualified when he stood for election ...[t]he fact that he, for the next three months, will have his license suspended, I don't think it's a constitutional disqualification."
Constitutional disqualification. Right.
Judge Priddy's Also Been Sued by the AG (Who Won) and His DUI Trial is Set for November
And guess what? Jennings has discovered that Judge Priddy:
2. In November 2007, Judge Priddy was arrested on suspicion of driving under the influence. That DUI case is scheduled for trial this November. According to the records, Judge Priddy told the cops that he has a "motor-coordination problem" and that he is diabetic.
Sources:
He hears non-criminal matters that can be complex and involve a lot of money. For example, this past June the Dallas company ICC Energy Corporation filed a big lawsuit in his court against Oklahoma City's Chesapeake Energy Corp (NYSE: CHK) claiming that Chesapeake breached a deal with ICC to market gas from the Barnett Shale at the Dallas-Fort Worth International Airport. Millions are at stake.
Presiding Judge Priddy's License Pulled for "Professional Misconduct"
What's interesting is that while Judge Priddy can preside over civil matters, ruling on motions made by attorneys, and accepting verdicts found by juries, he cannot practice law right now. His law license has been suspended by the State Bar of Texas for "professional misconduct."
Yes, that's right: in this State, a judge can still preside over a courtroom even if his law license has been suspended. For professional misconduct. Whoa.
Diane Jennings at the Dallas Morning News apparently thought this was strange, and asked the Executive Director of the State Commission on Judicial Conduct about the situation. Jennings reports that the director, Seana Willing, explained: "He was qualified when he stood for election ...[t]he fact that he, for the next three months, will have his license suspended, I don't think it's a constitutional disqualification."
Constitutional disqualification. Right.
Judge Priddy's Also Been Sued by the AG (Who Won) and His DUI Trial is Set for November
And guess what? Jennings has discovered that Judge Priddy:
1. also has the distinction of being the first sitting judge in the history of the State of Texas to be sued -- yep, sued -- by the Texas Attorney General. The Attorney General sued Judge Priddy and got judgments against the Judge for failing to file campaign finance reports with the state Ethics Commission. Judge Priddy got $39,000 in fines and after paying $31,500 to the Ethics Commission, the remaining $7,900 was recovered by garnisheeing his bank account. He still owes the State thousands in attorneys' fees, accrued interest, and a $500 late filing penalty.
2. In November 2007, Judge Priddy was arrested on suspicion of driving under the influence. That DUI case is scheduled for trial this November. According to the records, Judge Priddy told the cops that he has a "motor-coordination problem" and that he is diabetic.
Just one more example of how we're building confidence in the judicial system these days.
Sources:
Dallas Morning News
Reuters
MORE ON THE FARMERS BRANCH LAWSUIT OVER THE IMMIGRANTION-BASED APARTMENT RENTAL ORDINANCE
By FRANK TREJO / The Dallas Morning News
ftrejo@dallasnews.com
As promised, opponents filed a lawsuit on September 4 against Farmers Branch’s latest attempt to ban housing rentals to illegal immigrants.
The action in federal court in Dallas came just five days after U.S. District Judge Sam Lindsay issued a final ruling striking down an earlier version of the city’s rental ban, Ordinance 2903.
The city had already adopted a replacement measure, Ordinance 2952, to be implemented 15 days after Judge Lindsay’s final ruling on the earlier law. Unless a court blocks the newer measure, it will take effect Sept. 13.
But Attorney William A. Brewer III, who represents several apartment building owners and one renter, is asking Judge Lindsay to immediately block implementation. “The details of 2952 are frankly more extreme than 2903,” Mr. Brewer said. He said the measure not only allows the city to enter an area of regulation reserved for the federal government but also violates the equal protection and due process provisions of the Constitution.
An attorney for Farmers Branch said city officials had expected the suit, which he called “more of the same.” “It doesn’t recognize the major differences between the new ordinance and the old ordinance,” Michael Jung said. “The new ordinance defines who can rent an apartment in Farmers Branch by federal law. … It places the judgment call as to who is here legally in the hands of federal government instead of requiring landlords to make that judgment call.”
Unlike the earlier measure, the new one would not require landlords to check prospective tenants’ documents to ensure that they were U.S. citizens or legal residents. Instead, landlords would be allowed to rent an apartment or house to anyone who obtained an occupancy license by paying $5 and swearing he or she was in the country legally. It would be up to the city to check a federal database to determine if the person was indeed a legal resident.
But the lawsuit filed Wednesday says that the database the city plans to use was not designed to determine who is eligible for rental housing and that municipalities are not authorized to use it.
The suit says that the federal Systematic Alien Verification for Entitlements Program, or SAVE, is designed to verify immigration status for various federal and state cooperative programs such as housing assistance, Medicaid and unemployment compensation. The suit further states that SAVE expressly does not determine criteria under which a person is or is not entitled to a benefit or license and “is not, according to the Department of Homeland Security, a complete collection of immigration information on all aliens.”
The city’s first attempt to restrict housing rentals by illegal immigrants was passed in November 2006, but an ensuing lawsuit resulted in a temporary restraining order against it. The city subsequently repealed the ordinance, and voters in May 2007 overwhelmingly approved the replacement Ordinance 2903.
The City Council adopted Ordinance 2952 in January, several months after Judge Lindsay criticized 2903. But the judge has also faulted Ordinance 2952. “The new ordinance is yet another attempt to circumvent the court’s prior rulings and further an agenda that runs afoul of the United States Constitution,” he said in May.
ftrejo@dallasnews.com
As promised, opponents filed a lawsuit on September 4 against Farmers Branch’s latest attempt to ban housing rentals to illegal immigrants.
The action in federal court in Dallas came just five days after U.S. District Judge Sam Lindsay issued a final ruling striking down an earlier version of the city’s rental ban, Ordinance 2903.
The city had already adopted a replacement measure, Ordinance 2952, to be implemented 15 days after Judge Lindsay’s final ruling on the earlier law. Unless a court blocks the newer measure, it will take effect Sept. 13.
But Attorney William A. Brewer III, who represents several apartment building owners and one renter, is asking Judge Lindsay to immediately block implementation. “The details of 2952 are frankly more extreme than 2903,” Mr. Brewer said. He said the measure not only allows the city to enter an area of regulation reserved for the federal government but also violates the equal protection and due process provisions of the Constitution.
An attorney for Farmers Branch said city officials had expected the suit, which he called “more of the same.” “It doesn’t recognize the major differences between the new ordinance and the old ordinance,” Michael Jung said. “The new ordinance defines who can rent an apartment in Farmers Branch by federal law. … It places the judgment call as to who is here legally in the hands of federal government instead of requiring landlords to make that judgment call.”
Unlike the earlier measure, the new one would not require landlords to check prospective tenants’ documents to ensure that they were U.S. citizens or legal residents. Instead, landlords would be allowed to rent an apartment or house to anyone who obtained an occupancy license by paying $5 and swearing he or she was in the country legally. It would be up to the city to check a federal database to determine if the person was indeed a legal resident.
But the lawsuit filed Wednesday says that the database the city plans to use was not designed to determine who is eligible for rental housing and that municipalities are not authorized to use it.
The suit says that the federal Systematic Alien Verification for Entitlements Program, or SAVE, is designed to verify immigration status for various federal and state cooperative programs such as housing assistance, Medicaid and unemployment compensation. The suit further states that SAVE expressly does not determine criteria under which a person is or is not entitled to a benefit or license and “is not, according to the Department of Homeland Security, a complete collection of immigration information on all aliens.”
The city’s first attempt to restrict housing rentals by illegal immigrants was passed in November 2006, but an ensuing lawsuit resulted in a temporary restraining order against it. The city subsequently repealed the ordinance, and voters in May 2007 overwhelmingly approved the replacement Ordinance 2903.
The City Council adopted Ordinance 2952 in January, several months after Judge Lindsay criticized 2903. But the judge has also faulted Ordinance 2952. “The new ordinance is yet another attempt to circumvent the court’s prior rulings and further an agenda that runs afoul of the United States Constitution,” he said in May.
NORTH TEXAS CITY FACES FEDERAL LAWSUIT OVER RENTAL RULES --
Latino advocates and a civil liberties group have filed a federal lawsuit against a Dallas suburb whose officials are trying to drive out illegal immigrants. The groups say the plan by the City of Farmers Branch to ask house and apartment renters to obtain a license is unconstitutional. Rental applicants would be run through a federal database to check their immigration status.
The lawsuit filed by the groups, the Mexican American Legal Defense and Educational Fund and the American Civil Liberties Union Immigrants’ Rights Project, is the latest facing Farmers Branch. The suburb faces several other lawsuits in a nearly two-year battle over measures trying to prevent illegal immigrants from living there.
The lawsuit filed by the groups, the Mexican American Legal Defense and Educational Fund and the American Civil Liberties Union Immigrants’ Rights Project, is the latest facing Farmers Branch. The suburb faces several other lawsuits in a nearly two-year battle over measures trying to prevent illegal immigrants from living there.
Thứ Tư, 17 tháng 9, 2008
CRIME NEWS: Will DNA Tests Free Johnnie Lindsey on Friday?
Let's hope Friday is a very, very good day for Johnnie Earl Lindsey.
That's because on Friday morning in the Crowley Courts Building, a judge may well order Mr. Lindsey's release from jail after Johnnie Lindsey's served almost 26 years for a crime he didn't commit.
That's right: they got the wrong guy back in 1981, for the rape of a 28-year-old woman near White Rock Lake. The victim identified Johnnie Lindsey as her rapist based upon six photos; only two photos showed men without shirts on (her rapist was shirtless) and Johnnie was one of those two.
Just one more example of how faulty eyewitness testimony can be.
No one listened to Mr. Lindsey when he argued that it couldn't have been him: he was at work at the time (he pressed pants and things at a commercial laundry and cleaners). Until now.
Thanks to The Innocence Project, Johnnie Lindsey's DNA has been compared to the DNA evidence from the crime scene. DNA has scientifically ruled out Mr. Lindsey as the rapist.
According to the Innocence Project, Johnnie Lindsey will be the 19th man in Dallas County to be cleared of a crime, after being convicted, since 2001.
The Integrity of Johnnie Lindsey
Mr. Lindsey is now 56 years old, setting in a jail cell assumedly relieved that the innocence he's been proclaiming though two jury trials and countless parole hearings has been recognized.
And why wasn't he released on parole long ago? Because of the severity of the crime, and the fact that he would not admit that he was guilty of raping anyone.
Johnnie Lindsay sat in jail since rather than confess to something that he didn't do, in order to gain his freedom. I think that's called integrity in some circles. Imagine that.
Think of it. Think of how long this man held onto his innocence, despite the sacrifice. To give you an idea, back in 1981:
Seems cruel and unusual that Mr. Lindsey has to wait until Friday, doesn't it? And, to Mr. Lindsey: good luck to you, sir, and God Bless.
Sources:
DallasMorningNews
(http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/091608dnmetlindsey.173e456.html)
The Innocence Project
(http://www.innocenceproject.org/)
That's because on Friday morning in the Crowley Courts Building, a judge may well order Mr. Lindsey's release from jail after Johnnie Lindsey's served almost 26 years for a crime he didn't commit.
That's right: they got the wrong guy back in 1981, for the rape of a 28-year-old woman near White Rock Lake. The victim identified Johnnie Lindsey as her rapist based upon six photos; only two photos showed men without shirts on (her rapist was shirtless) and Johnnie was one of those two.
Just one more example of how faulty eyewitness testimony can be.
No one listened to Mr. Lindsey when he argued that it couldn't have been him: he was at work at the time (he pressed pants and things at a commercial laundry and cleaners). Until now.
Thanks to The Innocence Project, Johnnie Lindsey's DNA has been compared to the DNA evidence from the crime scene. DNA has scientifically ruled out Mr. Lindsey as the rapist.
According to the Innocence Project, Johnnie Lindsey will be the 19th man in Dallas County to be cleared of a crime, after being convicted, since 2001.
The Integrity of Johnnie Lindsey
Mr. Lindsey is now 56 years old, setting in a jail cell assumedly relieved that the innocence he's been proclaiming though two jury trials and countless parole hearings has been recognized.
And why wasn't he released on parole long ago? Because of the severity of the crime, and the fact that he would not admit that he was guilty of raping anyone.
Johnnie Lindsay sat in jail since rather than confess to something that he didn't do, in order to gain his freedom. I think that's called integrity in some circles. Imagine that.
Think of it. Think of how long this man held onto his innocence, despite the sacrifice. To give you an idea, back in 1981:
1. Ronald Reagan was President;
2. Dallas was the most popular TV show;
3. "Bette Davis Eyes" by Kim Carnes won a Grammy as the Record of the Year (that's right, record);
4. Chariots of Fire won the Oscar for Best Picture, and Henry Fonda and Katherine Hepburn won Oscars for their acting in On Golden Pond; and
5. Marcus Allen won the Heisman trophy and the Oakland Raiders won the Super Bowl.
Seems cruel and unusual that Mr. Lindsey has to wait until Friday, doesn't it? And, to Mr. Lindsey: good luck to you, sir, and God Bless.
Sources:
DallasMorningNews
(http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/091608dnmetlindsey.173e456.html)
The Innocence Project
(http://www.innocenceproject.org/)
Who is Running the TRCC -- An Insider's Guide to Understanding How the Foxes are Guarding the Henhouse
Have you ever wondered who the individuals are that are charged with regulating and overseeing homebuilders in the State of Texas? After all, the State has surely placed highly qualified, unbiased, and consumer-concious individuals at the helm of the agency created for the purpose of "promoting quality construction for Texans by registering industry members and residential construction projects; providing information and educating homeowners and the residential construction industry; acting as a resource for complainants; and offering a neutral, technical review of alleged post-construction defects," Right? You might just be surprised.
By law, the Texas Residential Construction Commission is comprised of nine members appointed by the Governor: four registered builders, three members of the general public, one engineer who practices in the area of residential construction and one either architect or inspector who practices in the area of residential construction. The Commission members serve six-year staggered terms.
Here is a list of the current members:
COMMISSIONER Paulo Flores (Chair) - Dallas, Texas
COMMISSIONER Glenda Mariott (Vice Chair) - College Station, Texas
COMMISSIONER Lewis Brown (Secretary) - Trinity, Texas
COMMISSIONER Art Cuevas - Lubbock, Texas
COMMISSIONER Kenneth Davis, P.E. - Weatherford, Texas
COMMISSIONER Gerardo "Jerry" Garcia - Corpus Christi, Texas
COMMISSIONER John Krugh - Houston, Texas
COMMISSIONER Steven Leipsner - Lakeway, Texas
COMMISSIONER Mickey Redwine - Ben Wheeler, Texas
here are some of their "unofficial" affiliations, which might cause the average Texas consumer a little discontent:
J. Paulo Flores: Chairman. Mr. Flores is a distinguished lawyer with impressive credentials. But...who have his clients have been for the past 20 years? This would be interesting to know.
Glenda Marriott, Vice Chair. She is the Vice-President of Marriott Homes, Inc. This corporation is a Builder, registered with TRCC under builder number 1003. As of the date of this posting, they have registered 172 homes with the TRCC.
Lewis Brown, Commissioner. Mr. Brown is an inspector and the proprietor of Brown's Inspection Service, LLC. he was once a prominent member of the Greater Houston Builders Association. Note who GHBA is, and who its members are.
Art Cuevas, Commissioner. he is a Builder and the president of Art Cuevas Construction -- TRCC registered builder 1001, with 51 homes registered as of today.
Jerry Garcia, Commissioner. He is President of Hacienda Construction, Inc. This coporation has TRCC registration number 2444, with 10 homes registered. As past president of the Corpus Christi Builders Association, a Life Director for the Texas Association of Builders and a Director for the National Association of Homebuilders, Mr. Garcia is hardly a consumer advocate.
John Krugh, Commissioner. Senior Vice President and Corporate Counsel for Perry Homes. Perry Homes is among the largest builders in the nation. Perry is registered under TRCC number 1040, and has 12559 homes registered with TRCC.
Steven Leipsner, Commissioner. Former Executive Vice President of the Marriott Corporation.
Mickey Redwine, Commissioner. President of Dynamic Cable Construction Company, L.P.
Trey Wilson is a construction, real estate, evictions and water lawyer in San Antonio Texas. He routinely represents homeowners in claims for defective construction and residential project abandonment. he may be reached at www.sa-law.com or 210/223-4100
By law, the Texas Residential Construction Commission is comprised of nine members appointed by the Governor: four registered builders, three members of the general public, one engineer who practices in the area of residential construction and one either architect or inspector who practices in the area of residential construction. The Commission members serve six-year staggered terms.
Here is a list of the current members:
COMMISSIONER Paulo Flores (Chair) - Dallas, Texas
COMMISSIONER Glenda Mariott (Vice Chair) - College Station, Texas
COMMISSIONER Lewis Brown (Secretary) - Trinity, Texas
COMMISSIONER Art Cuevas - Lubbock, Texas
COMMISSIONER Kenneth Davis, P.E. - Weatherford, Texas
COMMISSIONER Gerardo "Jerry" Garcia - Corpus Christi, Texas
COMMISSIONER John Krugh - Houston, Texas
COMMISSIONER Steven Leipsner - Lakeway, Texas
COMMISSIONER Mickey Redwine - Ben Wheeler, Texas
here are some of their "unofficial" affiliations, which might cause the average Texas consumer a little discontent:
J. Paulo Flores: Chairman. Mr. Flores is a distinguished lawyer with impressive credentials. But...who have his clients have been for the past 20 years? This would be interesting to know.
Glenda Marriott, Vice Chair. She is the Vice-President of Marriott Homes, Inc. This corporation is a Builder, registered with TRCC under builder number 1003. As of the date of this posting, they have registered 172 homes with the TRCC.
Lewis Brown, Commissioner. Mr. Brown is an inspector and the proprietor of Brown's Inspection Service, LLC. he was once a prominent member of the Greater Houston Builders Association. Note who GHBA is, and who its members are.
Art Cuevas, Commissioner. he is a Builder and the president of Art Cuevas Construction -- TRCC registered builder 1001, with 51 homes registered as of today.
Jerry Garcia, Commissioner. He is President of Hacienda Construction, Inc. This coporation has TRCC registration number 2444, with 10 homes registered. As past president of the Corpus Christi Builders Association, a Life Director for the Texas Association of Builders and a Director for the National Association of Homebuilders, Mr. Garcia is hardly a consumer advocate.
John Krugh, Commissioner. Senior Vice President and Corporate Counsel for Perry Homes. Perry Homes is among the largest builders in the nation. Perry is registered under TRCC number 1040, and has 12559 homes registered with TRCC.
Steven Leipsner, Commissioner. Former Executive Vice President of the Marriott Corporation.
Mickey Redwine, Commissioner. President of Dynamic Cable Construction Company, L.P.
Trey Wilson is a construction, real estate, evictions and water lawyer in San Antonio Texas. He routinely represents homeowners in claims for defective construction and residential project abandonment. he may be reached at www.sa-law.com or 210/223-4100
Guide to the Sunset Review Process in Texas -- Understanding How State Agencies' Fates are Determined
Recently, I have spent alot of time and space discussing the Texas Sunset Advisory Commission's staff recommendation to abolish the Texas Residential Construction Commission. To fully appreciate the significance of this recommendation, you should know a little about the Sunsetters, and their function and procedures.
The Sunset Advisory Commission defines itself as follows:
For a more detailed review of the Sunset Review Process, read this Gudie to the Sunset Review Process published by the Commission, itself.
If you have an experience with the TRCC that you would like to share with the members of the Sunset Advisory Commission (all elected Legislators), I highly encourage you to do so before the next Legislative Session, which begins in January 2009. Comments directed to the Sunset Commission can be submitted electronically by clicking here.
The Sunset Advisory Commission defines itself as follows:
In 1977, the Texas Legislature created the Sunset Advisory Commission to identify and eliminate waste, duplication, and inefficiency in government agencies. The 12-member Commission is a legislative body that reviews the policies and programs of more than 150 government agencies every 12 years. The Commission questions the need for each agency, looks for potential duplication of other public services or programs, and considers new and innovative changes to improve each agency's operations and activities. The Commission seeks public input through hearings on every agency under Sunset review and recommends actions on each agency to the full Legislature. In most cases, agencies under Sunset review are automatically abolished unless legislation is enacted to continue them.
For a more detailed review of the Sunset Review Process, read this Gudie to the Sunset Review Process published by the Commission, itself.
If you have an experience with the TRCC that you would like to share with the members of the Sunset Advisory Commission (all elected Legislators), I highly encourage you to do so before the next Legislative Session, which begins in January 2009. Comments directed to the Sunset Commission can be submitted electronically by clicking here.
TRCC Bites Back to Sunset Slam -- Beleagured Construction Commission Issues Response and "News Release" to Abolition Recommendation
In a somewhat telling attempt to salvage an agency's very existence and preserve the jobs of professional bureaucrats, the TRCC published a "News Release" in Response to the Texas Sunset Advisory Committee's recommendation that TRCC be dismantled. The News Release contains only a portion of TRCC "management's response" to the Sunset Report issued in late August, but purports to "offer solutions" to "issues identified but not addressed" in that report. Recall, if you will, that the Sunsetters determined that TRCC was essentially dysfunctional and needs to be abolished. (See earlier blog posts). My favorite portion of the management response is a quote by the regulatory agency's Chairman, Paulo Flores:
Chairman Flores' statement seems to dance around the fact that, ever since its creation by the Legislature in 1977, the statutory purpose of the Sunset Advisory Commission is to "identify and eliminate waste, duplication, and inefficiency in government agencies." In order to perform that function, the Sunsetters "question the need for each agency, look for potential duplication of other public services or programs, and consider new and innovative changes to improve each agency's operations and activities." In what I consider to be an insightful conclusion, Sunset Review of the TRCC has made the "sun shine" on that agency's flawed existence.
As an attorney who regularly represents Texas homeowners who suffer from construction defects or have been cheated, defrauded and sometimes plain robbed by unscrupulous builders, my experience has been that the Texas Residential Construction Commission is biased in favor of builders and against owners. In my opinion, this bias has been played out by the TRCC through blatant adoption of cumbersome Rules, expensive processes, and ineffectual communications. Though I deal with legal issues relating to residential construction on a daily basis, I have experience virtually nothing positive about the TRCC scheme.
Like TRCC Chairman Flores, I believe that Texas' 28,000 builders need regulatory oversight. I also believe that Texas homeowners need strict consumer protections against unethical builders. However, I disagree that the TRCC is the best agency to provide that oversight -- especially given its cozy relationship with builders, and the absence of any enforcement teeth.
In the end, the next Legislature will decide how best to handle TRCC. Though the agency has some friends in the Lege, it is worth noting that, in most cases, agencies under Sunset review are automatically abolished unless legislation is enacted to continue them.
Read the Sunset Advisory Commission's Staff Report on the TRCC here. The entire TRCC Response is available here.
“The Texas Residential Construction Commission adamantly disagrees with the Sunset Commission staff recommendation to eliminate builder oversight in Texas. Just because the Commission does not fit that staff’s standard and somewhat restricted view of what a regulatory agency should look like does not mean that the regulatory structure is fundamentally flawed.”
Chairman Flores' statement seems to dance around the fact that, ever since its creation by the Legislature in 1977, the statutory purpose of the Sunset Advisory Commission is to "identify and eliminate waste, duplication, and inefficiency in government agencies." In order to perform that function, the Sunsetters "question the need for each agency, look for potential duplication of other public services or programs, and consider new and innovative changes to improve each agency's operations and activities." In what I consider to be an insightful conclusion, Sunset Review of the TRCC has made the "sun shine" on that agency's flawed existence.
As an attorney who regularly represents Texas homeowners who suffer from construction defects or have been cheated, defrauded and sometimes plain robbed by unscrupulous builders, my experience has been that the Texas Residential Construction Commission is biased in favor of builders and against owners. In my opinion, this bias has been played out by the TRCC through blatant adoption of cumbersome Rules, expensive processes, and ineffectual communications. Though I deal with legal issues relating to residential construction on a daily basis, I have experience virtually nothing positive about the TRCC scheme.
Like TRCC Chairman Flores, I believe that Texas' 28,000 builders need regulatory oversight. I also believe that Texas homeowners need strict consumer protections against unethical builders. However, I disagree that the TRCC is the best agency to provide that oversight -- especially given its cozy relationship with builders, and the absence of any enforcement teeth.
In the end, the next Legislature will decide how best to handle TRCC. Though the agency has some friends in the Lege, it is worth noting that, in most cases, agencies under Sunset review are automatically abolished unless legislation is enacted to continue them.
Read the Sunset Advisory Commission's Staff Report on the TRCC here. The entire TRCC Response is available here.
Thứ Ba, 16 tháng 9, 2008
WRONGFUL EVICTION ACTIONS AND INSURANCE COVERAGE
In certain circumstances, a landlord may become liable to a tenant for "wrongful eviction". A case for damages for wrongful eviction may include any of a number of different claims that arise under Texas law, and liability for wrongful eviction may be based upon intentional misconduct, or even accidental or innocent failure to comply with complicated eviction procedures set-forth in the Texas Property Code. Such liability may be premised upon the mere service upon the tenant of a Notice to Vacate which does not comply with applicable law. It some instances, liability for multiple and punitive damages may even be based upon an oral threat or statement made by the landlord to the tenant. For this reason, it is recommended that landlords seek advice from competent and experienced legal counsel before communicating with their tenants in any way that may be construed as an eviction threat.
Some landlords maintain wrongful eviction insurance coverage to insure agsinst such claims. This type of coverage is often available under commercial rental property insurance policies, but not under a typical Texas homeowner's policy. However, there are some limitations to wrongful eviction insurance coverages.
In the recent New York case of Mamaroneck Avenue Corp. v. Hartford Fire Ins. Co. (N.Y.App., 2nd Dept., April 22, 2008), a New York Appellate court held that invasion of an organization’s leasehold interest is not a covered risk under the “personal and advertising injury” provisions of a Commercial General Liability policy. The underlying complaint against the insured landlord alleged that such landlord “embarked on a plan of harassment and coercion with the intention of causing [claimant] to terminate its leasehold,” which included allegations of “[t]respassing upon [claimant's] premises and interfering with [claimant’s] business by appearing, unannounced, accompanied by Fire Department personnel and the City Building Inspector . . . to solicit or elicit non-existent fire code violations.” The liability policy’s definition of “personal and advertising injury” included “wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor.” Noting that other "personal and advertising injury" offenses distinguish between "persons" and "organizations," the court held that wrongful eviction claims apply only to natural "persons." In reaching its conclusion, the court relied on cases from other jurisdictions, including Stonelight Tile v. California Ins. Guar. Assn., 150 Cal App 4th 19; Mirpad, LLC v. California Ins. Guar. Assn., 132 Cal App 4th 1058; and Supreme Laundry Servs. v. Hartford Cas. Ins. Co., 2007 US Dist LEXIS 18134 (ND Ill. 2007).
Some landlords maintain wrongful eviction insurance coverage to insure agsinst such claims. This type of coverage is often available under commercial rental property insurance policies, but not under a typical Texas homeowner's policy. However, there are some limitations to wrongful eviction insurance coverages.
In the recent New York case of Mamaroneck Avenue Corp. v. Hartford Fire Ins. Co. (N.Y.App., 2nd Dept., April 22, 2008), a New York Appellate court held that invasion of an organization’s leasehold interest is not a covered risk under the “personal and advertising injury” provisions of a Commercial General Liability policy. The underlying complaint against the insured landlord alleged that such landlord “embarked on a plan of harassment and coercion with the intention of causing [claimant] to terminate its leasehold,” which included allegations of “[t]respassing upon [claimant's] premises and interfering with [claimant’s] business by appearing, unannounced, accompanied by Fire Department personnel and the City Building Inspector . . . to solicit or elicit non-existent fire code violations.” The liability policy’s definition of “personal and advertising injury” included “wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor.” Noting that other "personal and advertising injury" offenses distinguish between "persons" and "organizations," the court held that wrongful eviction claims apply only to natural "persons." In reaching its conclusion, the court relied on cases from other jurisdictions, including Stonelight Tile v. California Ins. Guar. Assn., 150 Cal App 4th 19; Mirpad, LLC v. California Ins. Guar. Assn., 132 Cal App 4th 1058; and Supreme Laundry Servs. v. Hartford Cas. Ins. Co., 2007 US Dist LEXIS 18134 (ND Ill. 2007).
TENANT's PERSONAL PROPERTY -- ADEQUATE COLLATERAL FOR UNPAID RENTS?
Is the landlord ever justified in seizing a Tenant's property?
Yes, but only if the Tenant is delinquent on the rent and the lease gives the landlord a lien on the Tenant's property. Such a provision must be underlined or in bold print in the lease.
In seizing the property under a landlord's lien, the landlord may not take exempt property, but may remove non-essential items (TVs, stereos, VCRs, CD players), provided s/he can enter the apartment peacefully. But s/he must do the following:
The landlord must leave a notice of entry along with a written inventory of the items removed.
The notice must state the name, address, telephone number of the person whom the tenant may contact about the amount owed.
The notice must show the amount of delinquent rent and state that the items will be promptly returned when the full amount of delinquent rent is paid.
The landlord cannot collect or charge for parking, removing, or storing items unless authorized previously in a written lease.
In addition, a landlord may remove property if a tenant abandons the unit. If a landlord obtains a court order of eviction, the landlord may also remove the tenant's property, but this must be done under the supervision of a law officer.
Can the landlord sell a Tenant's possessions in order to recover back rent?
Unless otherwise permitted in the written lease, any property seized by a landlord under a landlord's lien cannot be sold or disposed of. If the lease permits such a sale, the landlord must give the tenant 30 days written notice before the date of the sale. This notice must be sent to the tenant by both first class and certified mail, or Return Receipt Requested at the tenant's last known address.
Yes, but only if the Tenant is delinquent on the rent and the lease gives the landlord a lien on the Tenant's property. Such a provision must be underlined or in bold print in the lease.
In seizing the property under a landlord's lien, the landlord may not take exempt property, but may remove non-essential items (TVs, stereos, VCRs, CD players), provided s/he can enter the apartment peacefully. But s/he must do the following:
The landlord must leave a notice of entry along with a written inventory of the items removed.
The notice must state the name, address, telephone number of the person whom the tenant may contact about the amount owed.
The notice must show the amount of delinquent rent and state that the items will be promptly returned when the full amount of delinquent rent is paid.
The landlord cannot collect or charge for parking, removing, or storing items unless authorized previously in a written lease.
In addition, a landlord may remove property if a tenant abandons the unit. If a landlord obtains a court order of eviction, the landlord may also remove the tenant's property, but this must be done under the supervision of a law officer.
Can the landlord sell a Tenant's possessions in order to recover back rent?
Unless otherwise permitted in the written lease, any property seized by a landlord under a landlord's lien cannot be sold or disposed of. If the lease permits such a sale, the landlord must give the tenant 30 days written notice before the date of the sale. This notice must be sent to the tenant by both first class and certified mail, or Return Receipt Requested at the tenant's last known address.
FAQ -- SECURITY DEPOSITS
What is the purpose of a security deposit?
The security deposit law serves as a protection for the landlord. The deposit can be used to cover costs for which the tenant is liable by providing some sort of collateral to protect a landlord's property against abuse by the tenant and by recapturing actual financial losses as a result of the tenant's breach of a lease. Texas law protects the right of renters to get their deposit back.
Can I assume that my security deposit will automatically cover the last month's rent?
No, not automatically. Normally, the tenant cannot deduct the security deposit from the last month's rent without permission from the landlord. Assuming that the security deposit will cover the rent / balance of the rent and therefore withholding payment, constitutes a lease violation for which the tenant may be evicted. In addition, a tenant who withholds the last month's rent may be liable for an amount equal to three times the amount of the rent wrongfully withheld and the landlord's reasonable attorney's fees.
I've just moved out of my rental unit. When can I expect to receive my security deposit?
According to the Texas Property Code, a tenant has the right to receive his / her security deposit (or the balance of the security deposit with a list of itemized deductions) on / before the 30th day after leaving a dwelling, provided the tenant has given the landlord written notice of her forwarding address for the return of her deposit. For more information, see Procedure to Refund.
Are there any qualifications to my receiving my security deposit?
Yes. You should receive your security deposit provided you have met the following conditions:
Your lease term has ended
You have given thirty days written notice prior to leaving the dwelling
You do not owe any back rent or other charges
You have not damaged the apartment in excess of normal wear and tear
Is it true that if I do not provide my forwarding address, I lose my deposit?
No, but the landlord is not required to return a deposit until 30 days after the tenant
moves out or 30 days after the landlord receives the tenant's forwarding address in writing.
I've received my security deposit, but not the full amount. Is my landlord required to provide an itemized account of deductions?
Yes, unless the tenant owes rent and there is no dispute over the amount owed. Otherwise, the landlord must provide an itemized list of deductions within 30 days. If the landlord doesn't include an account of itemized deductions within 30 days, s/he may forfeit the right to withhold any part of the deposit and may be liable for court costs, statutory penalties and attorney's fees. If the deposit is not returned in full within 30 days, and the court finds that the landlord acted in bad faith, the landlord can be held liable for $100 and three times the amount of the deposit wrongfully withheld, plus attorney's fees and court costs.
Can the landlord deduct from my security deposit for normal wear and tear on the unit?
No. Landlords cannot charge for normal wear and tear on the apartment. For example, the landlord should not charge for such routine procedures as shampooing the carpet or painting the unit, unless there are egregious stains, damages, etc.
If my landlord fails to return my deposit within 30 days, can I receive more than the amount of the security deposit?
Not necessarily. A tenant will receive more than the amount of the security deposit only if it can be proven in court that the landlord acted in bad faith.
My rental unit is about to be sold. Will I lose my security deposit?No. Under Texas law, there is no requirement that the landlord put the security deposit into an escrow account to be transferred to the new owner. Nor is there an automatic transfer of security deposits to new owners. The old landlord is still responsible for returning all security deposits to tenants until the new owner gives the tenant a signed statement that s/he has received and is responsible for the security deposits.
I've decided not to take an apartment, after all, despite signing the lease. Can I get my security deposit back?
Texas does not have a Buyer's Remorse Law, so the lease becomes binding as soon as it is signed. Many rental application forms allow the landlord to keep the entire deposit if the tenant is approved and then decides not to sign the lease. Even if there is no written agreement about the deposit, the landlord is entitled to recover out-of-pocket expenses (including advertising and lost rent) after taking the property off the market.
However, if the tenant secures a replacement tenant, approved by the landlord, the landlord may not keep the deposit if the replacement tenant occupies the unit by the date the lease was to begin. On the other hand, if the landlord secures the replacement tenant, s/he may keep a sum agreed to in the lease as a cancellation fee or the actual expenses incurred by the landlord.
The security deposit law serves as a protection for the landlord. The deposit can be used to cover costs for which the tenant is liable by providing some sort of collateral to protect a landlord's property against abuse by the tenant and by recapturing actual financial losses as a result of the tenant's breach of a lease. Texas law protects the right of renters to get their deposit back.
Can I assume that my security deposit will automatically cover the last month's rent?
No, not automatically. Normally, the tenant cannot deduct the security deposit from the last month's rent without permission from the landlord. Assuming that the security deposit will cover the rent / balance of the rent and therefore withholding payment, constitutes a lease violation for which the tenant may be evicted. In addition, a tenant who withholds the last month's rent may be liable for an amount equal to three times the amount of the rent wrongfully withheld and the landlord's reasonable attorney's fees.
I've just moved out of my rental unit. When can I expect to receive my security deposit?
According to the Texas Property Code, a tenant has the right to receive his / her security deposit (or the balance of the security deposit with a list of itemized deductions) on / before the 30th day after leaving a dwelling, provided the tenant has given the landlord written notice of her forwarding address for the return of her deposit. For more information, see Procedure to Refund.
Are there any qualifications to my receiving my security deposit?
Yes. You should receive your security deposit provided you have met the following conditions:
Your lease term has ended
You have given thirty days written notice prior to leaving the dwelling
You do not owe any back rent or other charges
You have not damaged the apartment in excess of normal wear and tear
Is it true that if I do not provide my forwarding address, I lose my deposit?
No, but the landlord is not required to return a deposit until 30 days after the tenant
moves out or 30 days after the landlord receives the tenant's forwarding address in writing.
I've received my security deposit, but not the full amount. Is my landlord required to provide an itemized account of deductions?
Yes, unless the tenant owes rent and there is no dispute over the amount owed. Otherwise, the landlord must provide an itemized list of deductions within 30 days. If the landlord doesn't include an account of itemized deductions within 30 days, s/he may forfeit the right to withhold any part of the deposit and may be liable for court costs, statutory penalties and attorney's fees. If the deposit is not returned in full within 30 days, and the court finds that the landlord acted in bad faith, the landlord can be held liable for $100 and three times the amount of the deposit wrongfully withheld, plus attorney's fees and court costs.
Can the landlord deduct from my security deposit for normal wear and tear on the unit?
No. Landlords cannot charge for normal wear and tear on the apartment. For example, the landlord should not charge for such routine procedures as shampooing the carpet or painting the unit, unless there are egregious stains, damages, etc.
If my landlord fails to return my deposit within 30 days, can I receive more than the amount of the security deposit?
Not necessarily. A tenant will receive more than the amount of the security deposit only if it can be proven in court that the landlord acted in bad faith.
My rental unit is about to be sold. Will I lose my security deposit?No. Under Texas law, there is no requirement that the landlord put the security deposit into an escrow account to be transferred to the new owner. Nor is there an automatic transfer of security deposits to new owners. The old landlord is still responsible for returning all security deposits to tenants until the new owner gives the tenant a signed statement that s/he has received and is responsible for the security deposits.
I've decided not to take an apartment, after all, despite signing the lease. Can I get my security deposit back?
Texas does not have a Buyer's Remorse Law, so the lease becomes binding as soon as it is signed. Many rental application forms allow the landlord to keep the entire deposit if the tenant is approved and then decides not to sign the lease. Even if there is no written agreement about the deposit, the landlord is entitled to recover out-of-pocket expenses (including advertising and lost rent) after taking the property off the market.
However, if the tenant secures a replacement tenant, approved by the landlord, the landlord may not keep the deposit if the replacement tenant occupies the unit by the date the lease was to begin. On the other hand, if the landlord secures the replacement tenant, s/he may keep a sum agreed to in the lease as a cancellation fee or the actual expenses incurred by the landlord.
Thứ Hai, 15 tháng 9, 2008
A PRIMER ON EVICTIONS IN BEXAR COUNTY
WHAT IS AN EVICTION?
An "eviction" is a legal proceeding by which the landlord seeks to reclaim the premises and put the tenant out.
If you are a landlord, you should find out the legal grounds for evicting a tenant as well as the proper notification requirements. A tenant could receive compensation for costs paid because of unlawful eviction.
If you are a tenant, you need to know how you can defend yourself against an unjustifiable eviction. To protect yourself, know what your lease says.
WHAT IS THE DIFFERENCE BETWEEN AN “EVICTION” AND A “FORCIBLE DETAINER?”
A person commits a forcible entry and detainer if the person enters the real property of another without legal authority or by force and refuses to surrender possession on demand.
See Tex. Prop. Code § 24.001(a)
WHAT IS A “FORCIBLE ENTRY?”
A forcible entry is: (1) an entry without the consent of the person in actual possession of the property; (2) an entry without the consent of a tenant at will or by sufferance; or (3) an entry without the consent of a person who acquired possession by forcible entry.
See Tex. Prop. Code § 24.001(b)
WHO MAY BRING AN EVICTION ACTION?
The landlord, his/her attorney, or a non-lawyer agent may sign and file the Complaint of Forcible Detainer and represent the owner at the court hearing. Though the law does not require an attorney to represent you, it is highly recommended that you have an experienced lawyer to assist you in the eviction process!
See TRCP 747a
DO I NEED A WRITTEN LEASE TO EVICT?
No, many times occupants of properties are there under oral agreements, or even without any right of possession. A written lease is not required for eviction.
WHAT ARE THE MOST COMMON REASONS TENANTS ARE EVICTED?
Non-payment of rent
The landlord must inform the tenant in writing that full rent is due by a specific deadline or the lease will be terminated. If the landlord refuses to take full payment and the tenant can prove it, the eviction can be challenged in court. After the deadline, the landlord doesn't have to accept payment.
Other tenant violations
The landlord must inform the tenant in writing of the supposed violation. The tenant must have ample time to correct the problem. If the tenant does nothing to correct it, the landlord may evict.
Lease has expired
If the landlord doesn't extend an expired lease and the tenant refuses to leave, the landlord may evict. The tenant must be given written notice.
WHERE DO I FILE AN EVICTION LAWSUIT?
A justice court in the precinct in which the real property is located has jurisdiction in eviction suits. Eviction suits include forcible entry and detainer and forcible detainer suits.
See Tex. Prop. Code § 24.004.
WHAT MUST BE INCLUDED IN MY COMPLAINT FOR EVICTION?
The complaint shall describe the lands, tenements or premises, the possession of which is claimed, with sufficient certainty to identify the same, and it shall also state the facts which entitled the complainant to the possession and authorize the action under Sections 24.001 - 24.004, Texas Property Code.
See TRCP 741
AM I ENTITLED TO HAVE A JURY HEAR MY EVICTION CASE?
Any party can request a jury trial on or before 5 days from the date the defendant is served with the citation by paying a $5.00 fee.
WHAT NOTICE IS REQUIRED PRIOR TO FILING FOR EVICTION?
If the occupant is a tenant under a written lease or oral rental agreement, the landlord must give a tenant who defaults or holds over beyond the end of the rental term or renewal period at
least three days' written notice to vacate the premises before the landlord files a forcible detainer suit, unless the parties have contracted for a shorter or longer notice period in a written lease
or agreement.
If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three days' written notice to vacate before the landlord files a forcible detainer suit unless the parties have contracted for a shorter or longer notice period in a written lease or agreement.
If a building is purchased at a tax foreclosure sale or a trustee's foreclosure sale under a lien superior to the tenant's lease and the tenant timely pays rent and is not otherwise in default under the tenant's lease after foreclosure, the purchaser must give a residential tenant of the building at least 30 days' written notice to vacate if the purchaser chooses not to continue the lease.
Before a foreclosure sale, a foreclosing lienholder may give written notice to a tenant stating that a foreclosure notice has been given to the landlord or owner of the property and specifying the date of the foreclosure.
If the occupant is a tenant of a person who acquired possession by forcible entry, the landlord must give the person at least three days' written notice to vacate before the landlord files a forcible detainer suit.
The notice period is calculated from the day on which the notice is delivered.
See Tex. Prop. Code § 25.005(g).
HOW SHOULD THE NOTICE TO VACATE BE DELIVERED?
The notice to vacate shall be given in person or by mail at the premises in question.
Notice in person may be by personal delivery to the tenant or any person residing at the premises who is 16 years of age or older or personal delivery to the premises and affixing the notice to the inside of the main entry door.
Notice by mail may be by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question.
If the dwelling has no mailbox and has a keyless bolting device, alarm system, or dangerous animal that prevents the landlord from entering the premises to leave the notice to vacate on the inside of the main entry door, the landlord may securely affix the notice on the outside of the main entry door.
See Tex. Prop. Code § 24.005(f).
WHAT IS THE COST OF FILING THE EVICTION?
Filing fee and service charge is $87.00. (27.00 filing fee, 60.00 serves one person in Bexar County).
WHAT TYPE OF NOTICE WILL THE TENANT RECEIVE?
At the time of filing, the Court Clerk will issue a receipt. The receipt will include the case number and the court date. Please refer to your case number when communicating with the court regarding your case. The Court will then issue a citation to the defendant(s) commanding him/her to appear before the Justice of the Peace on the assigned court date. A copy of the complaint will be attached to the citation and both the citation and the attached complaint will be served upon the defendant by the Constables Office.
WHEN WILL MY EVICTION LAWSUIT BE HEARD?
By law, the hearing date will be not less than six (6) day nor more than ten (10) days from the date the citations is served. The hearing date will be set for either a Tuesday at 10:00 a.m. or Thursday 11:00 a.m. Should the plaintiff/landlord fail to appear at the hearing, their case may be dismissed or there may be a judgment for the defendant.
CAN I RECOVER MY COSTS?
Yes. The prevailing party in an eviction proceeding will generally be awarded costs, particularly if they are prescribed by a written lease agreement.
CAN I RECOVER ATTORNEYS’ FEES?
To recover attorney's fees in an eviction suit, a landlord must give a tenant who is unlawfully retaining possession of the landlord's premises a written demand to vacate the premises. The demand must state that if the tenant does not vacate the premises before the 11th day after the date of receipt of the notice and if the landlord files suit, the landlord may recover attorney's fees. The demand must be sent by registered mail or by certified mail, return receipt requested, at least 10 days before the date the suit is filed.
If the landlord gives this notice, or if a written lease entitles the landlord to recover attorney's fees, a prevailing landlord is entitled to recover reasonable attorney's fees from the tenant.
If the landlord gives this notice, or if a written lease entitles the landlord or the tenant to recover attorney's fees, the prevailing tenant is entitled to recover reasonable attorney's fees from the landlord. A prevailing tenant is not required to give notice in order to recover attorney's fees.
See Tex. Prop. Code § 24.005(f).
CAN I RECOVER PAST-DUE RENT?
A suit for rent may be joined with an action of forcible entry and detainer, wherever the suit for rent is within the jurisdiction of the justice court. In such case the court in rendering judgment in the action of forcible entry and detainer, may at the same time render judgment for any rent due the landlord by the renter; provided the amount thereof is within the jurisdiction of the justice court.
If the complaint for Forcible Detainer includes a suit for unpaid rent, the plaintiff/landlord must clearly state the amount of back rent for which judgment is being sought, and should reserve the right to include any additional rents that may become due during the pendency of the suit.
See TRCP 738
WHAT ISSUES WILL THE JUSTICE COURT DETERMINE?
If the judgment is favor of the landlord, the justice shall give judgment for the landlord for possession of the premises, costs, and damages; and he shall award his writ of possession.
If the judgment or verdict is in favor of the tenant, the justice shall give judgment for tenant
against the landlord for costs and any damages.
See TRCP 748
HOW LONG DOES IT USUALLY TAKE TO PROCESS AN EVICTION IN THE JUSTICE COURT?
Eviction proceedings in Bexar County take, from start to finish approximately three weeks.
• 3 days from notice to vacate to filing of suit.
• 8-10 days to serve the citation and get to Court. Texas law requires the defendant have at least six days notice before the hearing.
• 5 days to appeal the suit following the hearing required by law.
• 2 days- The Constable is required by law to post a 24 hour vacate notice on the Writ of Possession
IS THE JUSTICE OF THE PEACE RULING FINAL?
Not if it is timely appealed. That is, either party may appeal from a final judgment in an eviction case to the county court of the county in which the judgment is rendered.
HOW CAN I APPEAL A JUSTICE COURT RULING?
After the hearing, either pary has five (5) calendar days to appeal the judgment by filing an Appeal Bond with the Justice Court. It is strongly suggested that an attorney be consulted before filing an appeal. A Transcript Fee will be charged for appeals.
See TRCP 749
TO WHOM IS AN EVICTION JUDGMENT APPEALED?
To the county court of the county in which the judgment is rendered.
HOW DO I PERFECT AN APPEAL FROM A JUDGMENT OF EVICTION?
Either party may appeal to County Court by filing either an Appeal Bond which conforms with Texas Rule of Civil Procedure 750, or a Pauper's Affidavit within 5 days from the date of judgment. When appeal is perfected, the Justice Court will stay further proceedings and file the transcript in the county clerk's office.
See T.R.C.P. 751
WHAT GROUNDS OR EVIDENCE WILL THE COUNTY COURT REVIEW ON APPEAL?
The entire proceeding / trial will be de novo in County Court. A trial de novo is a type of appeal in which the appeals court (County Court in the case of evictions) holds a trial as if a prior trial had never been held.
See TRCP 751
Trey Wilson is an attorney and real estate agent in San Antonio, Texas. He routinely represents landlords and tenants in residential eviction lawsuits in the Bexar County Justice Courts. To schedule a free consultation call 210/223-4100 or visit www.sa-law.com Most residential eviction cases can be handled on a flat fee basis.
An "eviction" is a legal proceeding by which the landlord seeks to reclaim the premises and put the tenant out.
If you are a landlord, you should find out the legal grounds for evicting a tenant as well as the proper notification requirements. A tenant could receive compensation for costs paid because of unlawful eviction.
If you are a tenant, you need to know how you can defend yourself against an unjustifiable eviction. To protect yourself, know what your lease says.
WHAT IS THE DIFFERENCE BETWEEN AN “EVICTION” AND A “FORCIBLE DETAINER?”
A person commits a forcible entry and detainer if the person enters the real property of another without legal authority or by force and refuses to surrender possession on demand.
See Tex. Prop. Code § 24.001(a)
WHAT IS A “FORCIBLE ENTRY?”
A forcible entry is: (1) an entry without the consent of the person in actual possession of the property; (2) an entry without the consent of a tenant at will or by sufferance; or (3) an entry without the consent of a person who acquired possession by forcible entry.
See Tex. Prop. Code § 24.001(b)
WHO MAY BRING AN EVICTION ACTION?
The landlord, his/her attorney, or a non-lawyer agent may sign and file the Complaint of Forcible Detainer and represent the owner at the court hearing. Though the law does not require an attorney to represent you, it is highly recommended that you have an experienced lawyer to assist you in the eviction process!
See TRCP 747a
DO I NEED A WRITTEN LEASE TO EVICT?
No, many times occupants of properties are there under oral agreements, or even without any right of possession. A written lease is not required for eviction.
WHAT ARE THE MOST COMMON REASONS TENANTS ARE EVICTED?
Non-payment of rent
The landlord must inform the tenant in writing that full rent is due by a specific deadline or the lease will be terminated. If the landlord refuses to take full payment and the tenant can prove it, the eviction can be challenged in court. After the deadline, the landlord doesn't have to accept payment.
Other tenant violations
The landlord must inform the tenant in writing of the supposed violation. The tenant must have ample time to correct the problem. If the tenant does nothing to correct it, the landlord may evict.
Lease has expired
If the landlord doesn't extend an expired lease and the tenant refuses to leave, the landlord may evict. The tenant must be given written notice.
WHERE DO I FILE AN EVICTION LAWSUIT?
A justice court in the precinct in which the real property is located has jurisdiction in eviction suits. Eviction suits include forcible entry and detainer and forcible detainer suits.
See Tex. Prop. Code § 24.004.
WHAT MUST BE INCLUDED IN MY COMPLAINT FOR EVICTION?
The complaint shall describe the lands, tenements or premises, the possession of which is claimed, with sufficient certainty to identify the same, and it shall also state the facts which entitled the complainant to the possession and authorize the action under Sections 24.001 - 24.004, Texas Property Code.
See TRCP 741
AM I ENTITLED TO HAVE A JURY HEAR MY EVICTION CASE?
Any party can request a jury trial on or before 5 days from the date the defendant is served with the citation by paying a $5.00 fee.
WHAT NOTICE IS REQUIRED PRIOR TO FILING FOR EVICTION?
If the occupant is a tenant under a written lease or oral rental agreement, the landlord must give a tenant who defaults or holds over beyond the end of the rental term or renewal period at
least three days' written notice to vacate the premises before the landlord files a forcible detainer suit, unless the parties have contracted for a shorter or longer notice period in a written lease
or agreement.
If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three days' written notice to vacate before the landlord files a forcible detainer suit unless the parties have contracted for a shorter or longer notice period in a written lease or agreement.
If a building is purchased at a tax foreclosure sale or a trustee's foreclosure sale under a lien superior to the tenant's lease and the tenant timely pays rent and is not otherwise in default under the tenant's lease after foreclosure, the purchaser must give a residential tenant of the building at least 30 days' written notice to vacate if the purchaser chooses not to continue the lease.
Before a foreclosure sale, a foreclosing lienholder may give written notice to a tenant stating that a foreclosure notice has been given to the landlord or owner of the property and specifying the date of the foreclosure.
If the occupant is a tenant of a person who acquired possession by forcible entry, the landlord must give the person at least three days' written notice to vacate before the landlord files a forcible detainer suit.
The notice period is calculated from the day on which the notice is delivered.
See Tex. Prop. Code § 25.005(g).
HOW SHOULD THE NOTICE TO VACATE BE DELIVERED?
The notice to vacate shall be given in person or by mail at the premises in question.
Notice in person may be by personal delivery to the tenant or any person residing at the premises who is 16 years of age or older or personal delivery to the premises and affixing the notice to the inside of the main entry door.
Notice by mail may be by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question.
If the dwelling has no mailbox and has a keyless bolting device, alarm system, or dangerous animal that prevents the landlord from entering the premises to leave the notice to vacate on the inside of the main entry door, the landlord may securely affix the notice on the outside of the main entry door.
See Tex. Prop. Code § 24.005(f).
WHAT IS THE COST OF FILING THE EVICTION?
Filing fee and service charge is $87.00. (27.00 filing fee, 60.00 serves one person in Bexar County).
WHAT TYPE OF NOTICE WILL THE TENANT RECEIVE?
At the time of filing, the Court Clerk will issue a receipt. The receipt will include the case number and the court date. Please refer to your case number when communicating with the court regarding your case. The Court will then issue a citation to the defendant(s) commanding him/her to appear before the Justice of the Peace on the assigned court date. A copy of the complaint will be attached to the citation and both the citation and the attached complaint will be served upon the defendant by the Constables Office.
WHEN WILL MY EVICTION LAWSUIT BE HEARD?
By law, the hearing date will be not less than six (6) day nor more than ten (10) days from the date the citations is served. The hearing date will be set for either a Tuesday at 10:00 a.m. or Thursday 11:00 a.m. Should the plaintiff/landlord fail to appear at the hearing, their case may be dismissed or there may be a judgment for the defendant.
CAN I RECOVER MY COSTS?
Yes. The prevailing party in an eviction proceeding will generally be awarded costs, particularly if they are prescribed by a written lease agreement.
CAN I RECOVER ATTORNEYS’ FEES?
To recover attorney's fees in an eviction suit, a landlord must give a tenant who is unlawfully retaining possession of the landlord's premises a written demand to vacate the premises. The demand must state that if the tenant does not vacate the premises before the 11th day after the date of receipt of the notice and if the landlord files suit, the landlord may recover attorney's fees. The demand must be sent by registered mail or by certified mail, return receipt requested, at least 10 days before the date the suit is filed.
If the landlord gives this notice, or if a written lease entitles the landlord to recover attorney's fees, a prevailing landlord is entitled to recover reasonable attorney's fees from the tenant.
If the landlord gives this notice, or if a written lease entitles the landlord or the tenant to recover attorney's fees, the prevailing tenant is entitled to recover reasonable attorney's fees from the landlord. A prevailing tenant is not required to give notice in order to recover attorney's fees.
See Tex. Prop. Code § 24.005(f).
CAN I RECOVER PAST-DUE RENT?
A suit for rent may be joined with an action of forcible entry and detainer, wherever the suit for rent is within the jurisdiction of the justice court. In such case the court in rendering judgment in the action of forcible entry and detainer, may at the same time render judgment for any rent due the landlord by the renter; provided the amount thereof is within the jurisdiction of the justice court.
If the complaint for Forcible Detainer includes a suit for unpaid rent, the plaintiff/landlord must clearly state the amount of back rent for which judgment is being sought, and should reserve the right to include any additional rents that may become due during the pendency of the suit.
See TRCP 738
WHAT ISSUES WILL THE JUSTICE COURT DETERMINE?
If the judgment is favor of the landlord, the justice shall give judgment for the landlord for possession of the premises, costs, and damages; and he shall award his writ of possession.
If the judgment or verdict is in favor of the tenant, the justice shall give judgment for tenant
against the landlord for costs and any damages.
See TRCP 748
HOW LONG DOES IT USUALLY TAKE TO PROCESS AN EVICTION IN THE JUSTICE COURT?
Eviction proceedings in Bexar County take, from start to finish approximately three weeks.
• 3 days from notice to vacate to filing of suit.
• 8-10 days to serve the citation and get to Court. Texas law requires the defendant have at least six days notice before the hearing.
• 5 days to appeal the suit following the hearing required by law.
• 2 days- The Constable is required by law to post a 24 hour vacate notice on the Writ of Possession
IS THE JUSTICE OF THE PEACE RULING FINAL?
Not if it is timely appealed. That is, either party may appeal from a final judgment in an eviction case to the county court of the county in which the judgment is rendered.
HOW CAN I APPEAL A JUSTICE COURT RULING?
After the hearing, either pary has five (5) calendar days to appeal the judgment by filing an Appeal Bond with the Justice Court. It is strongly suggested that an attorney be consulted before filing an appeal. A Transcript Fee will be charged for appeals.
See TRCP 749
TO WHOM IS AN EVICTION JUDGMENT APPEALED?
To the county court of the county in which the judgment is rendered.
HOW DO I PERFECT AN APPEAL FROM A JUDGMENT OF EVICTION?
Either party may appeal to County Court by filing either an Appeal Bond which conforms with Texas Rule of Civil Procedure 750, or a Pauper's Affidavit within 5 days from the date of judgment. When appeal is perfected, the Justice Court will stay further proceedings and file the transcript in the county clerk's office.
See T.R.C.P. 751
WHAT GROUNDS OR EVIDENCE WILL THE COUNTY COURT REVIEW ON APPEAL?
The entire proceeding / trial will be de novo in County Court. A trial de novo is a type of appeal in which the appeals court (County Court in the case of evictions) holds a trial as if a prior trial had never been held.
See TRCP 751
Trey Wilson is an attorney and real estate agent in San Antonio, Texas. He routinely represents landlords and tenants in residential eviction lawsuits in the Bexar County Justice Courts. To schedule a free consultation call 210/223-4100 or visit www.sa-law.com Most residential eviction cases can be handled on a flat fee basis.
CRIME NEWS: Can Casey Anthony Get A Fair Trial and Why We Should Care
Casey Anthony may have never set foot in our fair State of Texas, but what she's experiencing over in Orlando, Florida, is coming into our homes on a daily basis.
And that's good -- because we all need to be watching to see how Casey Anthony's rights are being respected over there in Florida. Because her loss of rights today does impact upon your rights, as well.
Your rights are only as safe as hers are.
What's This Case About?
The bottom line to the case is Casey Anthony's 3 year old daughter, Caylee, has been missing since June and mom Casey didn't report her missing until 31 days later - and then, she tagged onto a 911 call made by her mother, and the little girl's grandmother, Cindy Anthony.
Since that 911 call, Casey Anthony has been charged with child neglect, filing a false statement, and check fraud. She's out on bond in excess of $500,000 and is currently on house arrest in her parents' home, spending her days in the law offices of her attorney, Jose Baez.
What's Her Attorney Been Doing?
1. This past Thursday, Baez filed a motion seeking a court order to stop the prosecution's testing and handling of forensic evidence until the Judge can set rules on how this testing should occur. Baez is arguing that forensic testing can destroy the forensic samples, and he wants the Judge to oversee how this key evidence is tested, as well as what methods are used. Baez also wants a member of his defense team to observe the testing.
Why is Baez requesting all this -- even before his client is charged with anything BASED upon this evidence? He's urging that this court oversight is needed to protect Anthony's right to a fair trial.
Of course, pundits are critical of Baez's motion (just listen over at Nancy Grace) because this type of motion usually isn't filed until the client has been charged with something correlated to the forensic testing. The soil and carpet samples from her car, much less the air (yes, air) from the car's trunk, presumably connect to some type of murder charge - not the current charges that Anthony is facing.
Still, given what Baez has already seen, his motion isn't a surprise ....
2. Baez filed a Motion to Decrease the Half-Million Dollar Bail earlier, and not only was that denied by the trial court but the appellate courts upheld the bond amount. Remember, excessive bail is prohibited by the U.S. Constitution and Casey Anthony is only charged with two things in connection with this bond amount: child neglect and giving false information to the police. This is an extremely high bond for these charges.
3. Baez filed a Motion to suppress audio and video recordings of Casey Anthony communicating with family and friends while at the jail, arguing that releasing this to the press would inhibit his client's ability to get a fair trial. The Motion was denied.
What's At Stake Here?
At the time of this post, not only have the jailhouse communications been released to the media, but there's also 400 pages from the police investigation files (incident reports, etc.) readily available on the web, along with audios of interviews between the detectives and Casey Anthony. Additional charges have been made against her -- more economic charges, for writing bad checks, etc.
At the Anthony home, protesters yell and carry handwritten signs ("BabyKiller") 24/7, and one "blogger" was filmed taking away the Anthonys' trash and later combing through it for "evidence."
The neighbors' lives, as well as the Anthony family's, have to deal with this chaos now -- apparently, the police come only to break up fist fights.
Casey's parents, Cindy and George Anthony, have hired their own criminal defense attorney. Someone has offered Casey over $1,000,000 for her story and someone else has put up a reward of $250,000 for information regarding the whereabouts of little Caylee.
Why This Should Worry You
Every night, CNN devotes two hours to this story since it's all that Nancy Grace follows anymore. FoxNews usually has an hour, unless Greta Von Susteren is covering something about the presidential race.
On the web, an unbelievable amount of the police investigation files are available for anyone to download and read. Countless blogs and forums exist to chat and discuss the latest information as well as the latest rumors.
And what is the common theme here? Judgment. Casey Anthony is being judged on whether or not she did something to her child long before she is ever charged with a crime or made to face a jury.
She has a right to be presumed innocent until proven guilty. You have that right, too.
She has a right to be tried fairly, with an unbiased jury who have not made up their minds in advance. You have that right, too.
It is not a question of whether or not Casey Anthony harmed her daughter. It is a question of whether or not the system is being played.
Disrespecting our system of justice is something that should make us all very, very worried.
Good luck, Jose.
Sources:
OrlandoSentinel.Com (Complete Coverage of Missing Caylee Marie Anthony)
(http://www.orlandosentinel.com/services/newspaper/printedition/monday/orl-caylee-anthony-missing-stories,0,5047466.storygallery)
NancyGrace/CNN's Find Caylee Blog
(http://www.cnn.com/2008/CRIME/09/08/NGfindcayleeblog/)
Investigation Discovery -- Full Coverage of the Caylee Anthony Case
(http://investigation.discovery.com/blogs/criminal-report/casey_anthony_full_coverage/caylee_anthony.html)
And that's good -- because we all need to be watching to see how Casey Anthony's rights are being respected over there in Florida. Because her loss of rights today does impact upon your rights, as well.
Your rights are only as safe as hers are.
What's This Case About?
The bottom line to the case is Casey Anthony's 3 year old daughter, Caylee, has been missing since June and mom Casey didn't report her missing until 31 days later - and then, she tagged onto a 911 call made by her mother, and the little girl's grandmother, Cindy Anthony.
Since that 911 call, Casey Anthony has been charged with child neglect, filing a false statement, and check fraud. She's out on bond in excess of $500,000 and is currently on house arrest in her parents' home, spending her days in the law offices of her attorney, Jose Baez.
What's Her Attorney Been Doing?
1. This past Thursday, Baez filed a motion seeking a court order to stop the prosecution's testing and handling of forensic evidence until the Judge can set rules on how this testing should occur. Baez is arguing that forensic testing can destroy the forensic samples, and he wants the Judge to oversee how this key evidence is tested, as well as what methods are used. Baez also wants a member of his defense team to observe the testing.
Why is Baez requesting all this -- even before his client is charged with anything BASED upon this evidence? He's urging that this court oversight is needed to protect Anthony's right to a fair trial.
Of course, pundits are critical of Baez's motion (just listen over at Nancy Grace) because this type of motion usually isn't filed until the client has been charged with something correlated to the forensic testing. The soil and carpet samples from her car, much less the air (yes, air) from the car's trunk, presumably connect to some type of murder charge - not the current charges that Anthony is facing.
Still, given what Baez has already seen, his motion isn't a surprise ....
2. Baez filed a Motion to Decrease the Half-Million Dollar Bail earlier, and not only was that denied by the trial court but the appellate courts upheld the bond amount. Remember, excessive bail is prohibited by the U.S. Constitution and Casey Anthony is only charged with two things in connection with this bond amount: child neglect and giving false information to the police. This is an extremely high bond for these charges.
3. Baez filed a Motion to suppress audio and video recordings of Casey Anthony communicating with family and friends while at the jail, arguing that releasing this to the press would inhibit his client's ability to get a fair trial. The Motion was denied.
What's At Stake Here?
At the time of this post, not only have the jailhouse communications been released to the media, but there's also 400 pages from the police investigation files (incident reports, etc.) readily available on the web, along with audios of interviews between the detectives and Casey Anthony. Additional charges have been made against her -- more economic charges, for writing bad checks, etc.
At the Anthony home, protesters yell and carry handwritten signs ("BabyKiller") 24/7, and one "blogger" was filmed taking away the Anthonys' trash and later combing through it for "evidence."
The neighbors' lives, as well as the Anthony family's, have to deal with this chaos now -- apparently, the police come only to break up fist fights.
Casey's parents, Cindy and George Anthony, have hired their own criminal defense attorney. Someone has offered Casey over $1,000,000 for her story and someone else has put up a reward of $250,000 for information regarding the whereabouts of little Caylee.
Why This Should Worry You
Every night, CNN devotes two hours to this story since it's all that Nancy Grace follows anymore. FoxNews usually has an hour, unless Greta Von Susteren is covering something about the presidential race.
On the web, an unbelievable amount of the police investigation files are available for anyone to download and read. Countless blogs and forums exist to chat and discuss the latest information as well as the latest rumors.
And what is the common theme here? Judgment. Casey Anthony is being judged on whether or not she did something to her child long before she is ever charged with a crime or made to face a jury.
She has a right to be presumed innocent until proven guilty. You have that right, too.
She has a right to be tried fairly, with an unbiased jury who have not made up their minds in advance. You have that right, too.
It is not a question of whether or not Casey Anthony harmed her daughter. It is a question of whether or not the system is being played.
Disrespecting our system of justice is something that should make us all very, very worried.
Good luck, Jose.
Sources:
OrlandoSentinel.Com (Complete Coverage of Missing Caylee Marie Anthony)
(http://www.orlandosentinel.com/services/newspaper/printedition/monday/orl-caylee-anthony-missing-stories,0,5047466.storygallery)
NancyGrace/CNN's Find Caylee Blog
(http://www.cnn.com/2008/CRIME/09/08/NGfindcayleeblog/)
Investigation Discovery -- Full Coverage of the Caylee Anthony Case
(http://investigation.discovery.com/blogs/criminal-report/casey_anthony_full_coverage/caylee_anthony.html)
Thứ Tư, 10 tháng 9, 2008
JUDGE WATCH: Secret Love Affair Between Trial Judge and DA Stops Execution?
Charles Dean Hood was scheduled to be executed today for the 1989 killings of Tracie Wallace and Ronald Williamson. Hood's been staring the death penalty in the face for almost twenty years.
Yesterday, things changed.
The highest criminal court in the state, the Court of Criminal Appeals in Austin, issued a stay of execution on Execution Eve, purportedly to consider arguments made in his criminal appeal that the jury got bad instructions on the law, way back when.
However, many are thinking the real reason that Charles Dean Hood lives to fight another day is because of a civil suit filed on his behalf, which enabled his attorneys to take the sworn testimony of the judge who presided over his trial as well as the prosecutor.
The Secret Love Affair
What's the big deal about these depositions? Well, it appears that courthouse gossip was true.
Former Collin County Judge Verla Sue Holland and Collin County District Attorney Thomas O'Connell reportedly admitted to being romantically involved during the time period when the Hood case was tried. It was a secret they'd kept all these years.
Here's a part of the letter that Gregory Wiercloch, Hood's attorney, wrote to Governor Rick Perry:
Last week, the Texas Attorney General asked for a reprieve, so the Secret Love Affair rumors could be investigated.
Defense Attorney Nightmare
Talk about a criminal defense attorney's nightmare! You're trying a murder case with the possibility of death row, and the Judge and the prosecutor are an item. It's the stuff of a Law & Order episode.
The Brave Soul
How did all this happen? It appears that an attorney who worked as an assistant DA in Collin County during the time of the Hood trial had the courage and integrity to step forward and provide Hood's civil lawyers with a sworn affidavit, swearing that it was common knowledge at the time that there was a rumored romance between the trial judge and the prosecutor in the case.
This affidavit gave Hood's civil attorneys the legal ammo they needed to move the court for these depositions to be taken, in the face of arguments against them.
It's true that Judge Brewer, presiding over the civil case, then had the fortitude to allow the depositions to proceed - with a gag order. However, it took a lot of spunk for that attorney to provide that affidavit for all the world to see -- including fellow attorneys who may decide to ostracize this whistleblower.
Editorials are being written about giving credit to Judge Brewer -- it would be nice to see some hat-tipping to this brave attorney, too.
The Underlying Crime
What was Hood's crime? Hood (now 39) was found guilty and sentenced to death for shooting to death Ron Williamson, his boss. and Williamson's girlfriend, Tracie Wallace, along with stealing Williamson's car and credit cards, along with some jewelry. Hood was arrested in Indiana, and returned to Texas for trial. Hood still maintains his innocence.
Sources:
Reuters.Com (http://www.reuters.com/article/newsOne/idUSN0934589420080910)
New York Times (http://www.nytimes.com/2008/09/10/us/10texas.html?_r=1&scp=1&sq=Charles%20Dean%20Hood&st=cse&oref=slogin)
DallasMorningNews.Com (http://www.dallasnews.com/sharedcontent/dws/dn/opinion/editorials/stories/DN-hood_10edi.ART.State.Edition1.26ae2e0.html)
Yesterday, things changed.
The highest criminal court in the state, the Court of Criminal Appeals in Austin, issued a stay of execution on Execution Eve, purportedly to consider arguments made in his criminal appeal that the jury got bad instructions on the law, way back when.
However, many are thinking the real reason that Charles Dean Hood lives to fight another day is because of a civil suit filed on his behalf, which enabled his attorneys to take the sworn testimony of the judge who presided over his trial as well as the prosecutor.
The Secret Love Affair
What's the big deal about these depositions? Well, it appears that courthouse gossip was true.
Former Collin County Judge Verla Sue Holland and Collin County District Attorney Thomas O'Connell reportedly admitted to being romantically involved during the time period when the Hood case was tried. It was a secret they'd kept all these years.
Here's a part of the letter that Gregory Wiercloch, Hood's attorney, wrote to Governor Rick Perry:
“Judge Holland and Mr. O’Connell confirmed that they kept the relationship secret .... She never disclosed it to a single litigant or lawyer who appeared before her, and she never recused herself from hearing a single case because of her affair with the elected district attorney.... Similarly, Mr. O’Connell never disclosed the romantic relationship to any of his adversaries nor did he recuse himself or his office from prosecuting a single case because of his affair with Judge Holland.”
Last week, the Texas Attorney General asked for a reprieve, so the Secret Love Affair rumors could be investigated.
Defense Attorney Nightmare
Talk about a criminal defense attorney's nightmare! You're trying a murder case with the possibility of death row, and the Judge and the prosecutor are an item. It's the stuff of a Law & Order episode.
The Brave Soul
How did all this happen? It appears that an attorney who worked as an assistant DA in Collin County during the time of the Hood trial had the courage and integrity to step forward and provide Hood's civil lawyers with a sworn affidavit, swearing that it was common knowledge at the time that there was a rumored romance between the trial judge and the prosecutor in the case.
This affidavit gave Hood's civil attorneys the legal ammo they needed to move the court for these depositions to be taken, in the face of arguments against them.
It's true that Judge Brewer, presiding over the civil case, then had the fortitude to allow the depositions to proceed - with a gag order. However, it took a lot of spunk for that attorney to provide that affidavit for all the world to see -- including fellow attorneys who may decide to ostracize this whistleblower.
Editorials are being written about giving credit to Judge Brewer -- it would be nice to see some hat-tipping to this brave attorney, too.
The Underlying Crime
What was Hood's crime? Hood (now 39) was found guilty and sentenced to death for shooting to death Ron Williamson, his boss. and Williamson's girlfriend, Tracie Wallace, along with stealing Williamson's car and credit cards, along with some jewelry. Hood was arrested in Indiana, and returned to Texas for trial. Hood still maintains his innocence.
Sources:
Reuters.Com (http://www.reuters.com/article/newsOne/idUSN0934589420080910)
New York Times (http://www.nytimes.com/2008/09/10/us/10texas.html?_r=1&scp=1&sq=Charles%20Dean%20Hood&st=cse&oref=slogin)
DallasMorningNews.Com (http://www.dallasnews.com/sharedcontent/dws/dn/opinion/editorials/stories/DN-hood_10edi.ART.State.Edition1.26ae2e0.html)
Thứ Hai, 8 tháng 9, 2008
CRIME NEWS: Texas' Criminal History Records are Really, Really Inaccurate
You watch CSI, or NCIS, or any one of a number of crime shows on TV, and there they are: huge databases of information on folk who have been arrested for crimes in all sorts of jurisdictions.
Federal, state, city,military - heck, they'll even pull up someone who's been busted overseas somewhere. And, it's so fast, too: the screen zips thru file after file, and suddenly stops on an exact match (who's usually the guest star for that episode).
Well, those in the know have long recognized that this isn't reality -- but never more so than this past month, when the Texas Department of Public Safety publicly admitted that its criminal history records database is far from complete. According to Angie Klein, who manages this database, it's only got 69% of the state's actual criminal records.
If this were a report card, DPS would be getting a D+.
What's going on? Counties aren't reporting, for a variety of reasons. And, of course, prosecutors are really upset by this. They may not have information regarding past criminal histories before offering up a nice plea deal.
Bottom line, what does this mean? There's a 31% chance that a criminal record isn't going to be in the system.
Think about it. The good news: you're pulled over on suspicion of driving drunk and there's a 31% chance the cop's not going to know about a past DWI on your record. Or, you're arrested for burglary: there's a 31% chance that a past conviction for burglary back in Houston isn't going to pop up on your record.
Of course, you and your criminal defense attorney need to make sure that any acquittals or dismissals of your case are recorded in the system. You don't want those old criminal charges to pop up when you are applying for a lease, or a job, or buying a gun, or adopting a child ....
Source: DallasNews.com, August 22, 2008
Federal, state, city,military - heck, they'll even pull up someone who's been busted overseas somewhere. And, it's so fast, too: the screen zips thru file after file, and suddenly stops on an exact match (who's usually the guest star for that episode).
Well, those in the know have long recognized that this isn't reality -- but never more so than this past month, when the Texas Department of Public Safety publicly admitted that its criminal history records database is far from complete. According to Angie Klein, who manages this database, it's only got 69% of the state's actual criminal records.
If this were a report card, DPS would be getting a D+.
What's going on? Counties aren't reporting, for a variety of reasons. And, of course, prosecutors are really upset by this. They may not have information regarding past criminal histories before offering up a nice plea deal.
Bottom line, what does this mean? There's a 31% chance that a criminal record isn't going to be in the system.
Think about it. The good news: you're pulled over on suspicion of driving drunk and there's a 31% chance the cop's not going to know about a past DWI on your record. Or, you're arrested for burglary: there's a 31% chance that a past conviction for burglary back in Houston isn't going to pop up on your record.
Of course, you and your criminal defense attorney need to make sure that any acquittals or dismissals of your case are recorded in the system. You don't want those old criminal charges to pop up when you are applying for a lease, or a job, or buying a gun, or adopting a child ....
Source: DallasNews.com, August 22, 2008
Thứ Tư, 3 tháng 9, 2008
JAIL WATCH: At Least Stanley Lived to Tell The Story
Over at Grits for Breakfast, Scott Henson gives a rundown on the recent $900,000 verdict against the Dallas Jail -- where the federal jury found former jail inmate Stanley Shepherd's constitutional rights had indeed been violated.
How? Stanley was found to have been wrongfully denied basic medical care during his 2003 stay in Dallas County's Lew Sterrett Justice Center. (Stanley was being held on some burglary and drug charges.) He wasn't given his high blood pressure medicine, and as a result, he's suffered permanent disabilities.
Henson's also got a nice wrap-up about the state of our local jail -- including listing several analogous tragedies, which bring to mind that Stanley did fare better than some other folk: there are those who have died in that jail from not getting their meds.
Sources:
Grits for Breakfast, August 27, 2008 (http://gritsforbreakfast.blogspot.com/2008/08/jury-awards-fat-verdict-against-dallas.html)
How? Stanley was found to have been wrongfully denied basic medical care during his 2003 stay in Dallas County's Lew Sterrett Justice Center. (Stanley was being held on some burglary and drug charges.) He wasn't given his high blood pressure medicine, and as a result, he's suffered permanent disabilities.
Henson's also got a nice wrap-up about the state of our local jail -- including listing several analogous tragedies, which bring to mind that Stanley did fare better than some other folk: there are those who have died in that jail from not getting their meds.
Sources:
Grits for Breakfast, August 27, 2008 (http://gritsforbreakfast.blogspot.com/2008/08/jury-awards-fat-verdict-against-dallas.html)
Thứ Hai, 1 tháng 9, 2008
COP WATCH: Dallas Cop Allegedly Robs Sam's Club, Stops Himself
This story is really going to make you feel safe.
About three weeks ago, a Dallas Police Department officer thwarted an armed robber who was trying to hold up a local Sam's Club.
Officer Al Coleman, who was off-duty as a Dallas cop and working his second job as a security officer at the Sam's Club on West Wheatland Road, told NBC-5 that " ' he [the robber] just told me the last part of his plan and I didn't agree with it. Says he was gonna kill me.'"
According to Officer Coleman, this evildoing Masked Man rushed Sam's and took Coleman hostage - yes, hostage! - whereupon Coleman fought back. Guns were drawn. Guns!! Shots were fired. Shots!! Coleman was hit in the chest ... luckily, he had on a bullet-proof vest.
The robbery was prevented and Officer Coleman, what a hero, right?
Well, no.
Dallas Police Department detectives now report that all the evidence, which includes store surveillance tape, shows that Coleman is lying.
Turns out that Coleman was in on the whole thing with the getaway driver parked out front in Coleman's car while their pal, the Masked Man, came into the store. They're all three facing robbery charges today.
Who really stopped the robbery? The Sam's employees -- who barricaded the door, preventing Coleman and the Masked Man from gaining access to the vault.
Sources:
WISTV (www.wistv.com)
WFAA (www.wfaa.com)
About three weeks ago, a Dallas Police Department officer thwarted an armed robber who was trying to hold up a local Sam's Club.
Officer Al Coleman, who was off-duty as a Dallas cop and working his second job as a security officer at the Sam's Club on West Wheatland Road, told NBC-5 that " ' he [the robber] just told me the last part of his plan and I didn't agree with it. Says he was gonna kill me.'"
According to Officer Coleman, this evildoing Masked Man rushed Sam's and took Coleman hostage - yes, hostage! - whereupon Coleman fought back. Guns were drawn. Guns!! Shots were fired. Shots!! Coleman was hit in the chest ... luckily, he had on a bullet-proof vest.
The robbery was prevented and Officer Coleman, what a hero, right?
Well, no.
Dallas Police Department detectives now report that all the evidence, which includes store surveillance tape, shows that Coleman is lying.
Turns out that Coleman was in on the whole thing with the getaway driver parked out front in Coleman's car while their pal, the Masked Man, came into the store. They're all three facing robbery charges today.
Who really stopped the robbery? The Sam's employees -- who barricaded the door, preventing Coleman and the Masked Man from gaining access to the vault.
Sources:
WISTV (www.wistv.com)
WFAA (www.wfaa.com)
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